United States v. Pierson

                   UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                            No. 97-50318


                      UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,


                                 VERSUS


                        LORAN BRUCE PIERSON,

                                                    Defendant-Appellant.




          Appeals from the United States District Court
                For the Western District of Texas
                           April 17, 1998


Before DAVIS, WIENER, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

     The defendant, Loran Bruce Pierson, appeals from a conviction

of mailing a destructive device with intent to kill or injure in

violation of 18 U.S.C. § 1716; use of a destructive device during

and in relation to a crime of violence in violation of 18 U.S.C. §

924(c)(1);   and   possession   of   a   firearm,   which   had   moved   in

interstate commerce, by a person subject to a protective order

prohibiting family violence in violation of 18 U.S.C. § 922(g)(8).

The defendant challenges his conviction claiming that the district

court erred, inter alia, by holding 18 U.S.C. § 922(g)(8)
constitutional.     After      considering    the     issues    raised   by   the

defendant on appeal, we affirm.



                                     I.

     Prior to the dissolution of their marriage, the defendant

committed family violence against his wife, Rebecca Roland, and her

daughter.   After Pierson physically assaulted Roland’s daughter

with his crutch, Roland informed Pierson that she was leaving him.

The defendant replied that he would kill Roland if she left him.

Thereafter, Roland and her daughter moved into a trailer located

200 feet from the defendant’s home.          While Roland and her daughter

were living in the trailer, Pierson continued to verbally abuse

Roland and would shoot a firearm in the direction of the trailer in

order to get Roland’s attention.

     On September 5, 1995, Roland obtained a protective order

because Pierson was stalking her.           The protective order provided

that Pierson had committed or threatened family violence and that

family violence was likely to occur in the foreseeable future.                The

protective order directed Pierson not to commit family violence

against Roland and her daughter, not to communicate with Roland and

her daughter in an abusive or threatening manner, and to stay at

least 200 feet away from Roland and her daughter.

     On September 21, 1995, the United States Postal Service

delivered   a   package   to   the   Leon    County    Office    of   Community

Supervision and Correction, located in Centerville, Texas, bearing




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the notation, “Attention Rebbecca [sic].”1    Roland worked at the

Leon County office as a clerical employee whose duties included

opening and sorting the office mail.   The package had been mailed

from Dallas on September 20, 1995.     After opening the package,

Roland could not remove the contents of the package, so she asked

Community Supervision Officer James Robeson to assist her. Robeson

shook the parcel until several pieces of cardboard and a metal box

fell out of the package.2    Upon opening the metal box, Robeson

discovered two metal pipes, wires, and batteries.     Robeson then

yelled “bomb, bomb” and ordered everyone to evacuate the building.

     An ordinance team from the United States Army responded to the

attempted bombing.   After determining that the metal box contained

a potentially live bomb, the team rendered the device safe by

placing the box in a protective bunker and firing a .50 caliber

round through each of the pipes, causing the pipes to detonate.

After the ordinance team detonated the device, agents from the ATF

collected the debris, including fragments of the pipes, switches,

batteries, wires, tape and remnants of epoxy. An explosives expert

with the U.S. Department of Treasury determined that the debris

came from an “explosive device” or “destructive device.”


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      At trial, Roland testified that Pierson often misspelled her
name “Rebbecca.”
        2
        A fingerprint expert with the U.S. Postal Service, Scott
Peters, examined the cardboard inserts packaged with the bomb and
found Roland’s palm and finger prints.         Robeson and Roland
testified that Roland did not touch the cardboard inserts when they
were removing the metal box from the parcel. Roland also testified
that the cardboard inserts looked like a cardboard box that had
been in her home.

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      After law enforcement officers learned of the protective order

obtained by Roland, the investigation focused on Pierson as a

possible suspect in the attempted bombing.          Investigators secured

a search warrant for Pierson’s home. As agents approached the home

to execute the warrant, Pierson asked if anything had happened to

his wife.   Agents seized a Sturm Ruger rifle and Marlin shotgun

from Pierson’s home.      In later searches, the agents seized the

contents of a vacuum cleaner, a laptop computer, a Packard Bell

computer and printer, several rolls of tape, and hair samples from

Pierson. Forensic experts from the U.S. Postal Service determined

that the evidence collected from the bomb site was consistent with

certain evidence collected from Pierson’s residence.

      In a three count indictment, Pierson was charged with mailing

a destructive device with intent to kill or injure in violation of

18 U.S.C. § 1716 (count one); use of a destructive device during

and in relation to a crime of violence in violation of 18 U.S.C. §

924(c)(count two); and possession of a firearm, which had moved in

or   affected   interstate   commerce,     by   a   person    subject    to   a

protective order prohibiting family violence in violation of 18

U.S.C. § 922(g)(8)(count three).         Following a jury trial, Pierson

was convicted of all three counts.         The district court sentenced

the defendant to ninety-seven months for count one, thirty years

for count two, and ninety-seven months for count three.            The terms

of   imprisonment   for   counts   one    and   three   are   to   be   served

concurrently with each other and consecutively with count two.




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                                     II.

     The defendant contends that 18 U.S.C. § 922(g)(8) is an

unconstitutional exercise of congressional power that violates the

principles enunciated in United States v. Lopez, __ U.S.__, 115

S.Ct. 1624 (1995). Specifically, Pierson argues that possession of

a firearm while subject to a protective order prohibiting domestic

violence does not substantially affect interstate commerce.                       The

district   court,    however,    upheld    the    constitutionality         of    the

statute    by    denying   the   defendant’s          Motion   to    Dismiss      the

Indictment.      In reviewing constitutional challenges to federal

statutes, we apply a de novo standard of review.               See United States

v. Bailey, 115 F.3d 1222, 1225 (5th Cir. 1997).

     In United States v. Lopez, the Court held that a related

statutory prohibition outlawing the possession of a gun in a school

zone, 18 U.S.C. § 922(q), was unconstitutional under the Commerce

clause.    See United States v. Lopez, __ U.S. __, 115 S.Ct. 1624,

1629-34 (1995).      The Court identified the following three broad

areas of activity over which Congress may constitutionally exercise

its commerce power: (1) Congress may regulate the use of the

channels of interstate commerce; (2) Congress may regulate and

protect    the   instrumentalities        of,    or    persons      or   things    in

interstate commerce; and (3) Congress may regulate activities

substantially affecting interstate commerce.                   Id. at 1629.        In

holding § 922(q) unconstitutional, the Court determined that the

intrastate possession of a firearm, without more, could not be

regulated as a channel or instrumentality of interstate commerce,


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or a person or thing in interstate commerce.                 See Lopez, 115 U.S.

at 1630.   Thus, the intrastate possession of a firearm could only

be prohibited under the Commerce Clause if such possession had a

substantial effect on interstate commerce.                 Id.       The Court noted

that § 922(q) was a criminal statute that had nothing to do with

commerce or any sort of commercial enterprise and was “not an

essential part of a larger regulation of economic activity, in

which the regulatory scheme could be undercut unless the intrastate

activity were regulated.”         Id. at 1630-31.          Therefore, the Court

held that the intrastate possession of a firearm in a school zone

did not substantially affect interstate commerce, and as such,

could not be prohibited under the commerce power.                     Central to the

Lopez Court’s holding was the fact that § 922(q) contained “no

jurisdictional element which would ensure, through a case-by-case

inquiry, that the firearm possession in question affects interstate

commerce.”     See Lopez, 115 S.Ct. at 1631.              See also United States

v.   Rawls,    85   F.3d   240,   242       (5th   Cir.     1996)(upholding      the

constitutionality of § 922(g)(1)).

      Unlike    §   922(q),   §   922(g)(8)        contains      a    jurisdictional

element.       Section   922(g)(8)   forbids        any    person     subject   to   a

protective order prohibiting family violence “to ship or transport

in interstate or foreign commerce, or possess in or affecting

commerce, any firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported in interstate or

foreign commerce.” 18 U.S.C. § 922(g)(8).                 By expressly requiring

a nexus between the illegal firearm and interstate commerce,


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Congress has exercised its delegated power under the Commerce

Clause to     reach       “a    discrete    set   of   firearm   possessions        that

additionally       have    an    explicit       connection     with   or    effect    on

interstate commerce.”            Lopez, 115 S.Ct. at 1631.            We have upheld

the constitutionality of a similar statutory provision forbidding

the possession of a firearm by a convicted felon, 18 U.S.C. § 922

(g)(1), which includes the exact same jurisdictional element. See

United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996); United

States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989).                           As we

recognized    in    Wallace,       “[T]he    words     ‘affecting     commerce’      are

jurisdictional words of art, typically signaling a congressional

intent to exercise its Commerce Clause power broadly, perhaps as

far as the Constitution permits.”                    Our decisions in Rawls and

Wallace necessitate the same result for § 922(g)(8).                       As such, we

hold that “neither the holding in Lopez nor the reasons given

therefor constitutionally invalidate” § 922(g)(8).                     See Rawls, 85

F.3d at 242.

     Additionally,             Pierson     contends     that     §    922(g)(8)       is

unconstitutional as applied to him.               Specifically, Pierson asserts

that the firearms which he possessed did not affect and were not

possessed in commerce.           As this court has previously held, the “in

or affecting” commerce element can be satisfied if the illegally

possessed firearm had previously traveled in interstate commerce.

See Rawls, 85 F.3d at 242(citing Scarborough v. United States, 431

U.S. 563, 575 (1977)).            The Sturm Ruger rifle was manufactured in

Connecticut    and    the       Marlin     shotgun     was   manufactured      in    New


                                            7
Hampshire. Thus, the firearms had to travel in interstate commerce

in order for Pierson to possess them in Texas.                   As we have

previously noted, evidence that a gun was manufactured in one state

and possessed in another state is sufficient to establish a past

connection between the firearm and interstate commerce. See Rawls,

85 F.3d at 243; Wallace, 889 F.2d at 584. See also Scarborough, 431

U.S. at 575 (concluding that Congress did not intend to require any

more than the minimal nexus that at some time the firearm had been

in interstate commerce). Consequently, we hold that § 922(g)(8) is

not unconstitutional as applied to Pierson.



                                    III.

      Additionally,     the   defendant    challenges   his   conviction   by

asserting that the government failed to produce evidence sufficient

to   support    the   conviction,   that   he   received   the   ineffective

assistance of counsel, and that the court erred by failing to grant

the defendant’s Motion for Severance of count three from counts one

and two.       After considering the legal arguments raised by the

parties in their briefs to this court, we are satisfied that no

reversible error occurred. For the foregoing reasons, the decision

of the district court is

      AFFIRMED.




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