In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3609
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K HALIL S ARRAJ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00547-1—Virginia M. Kendall, Judge.
A RGUED S EPTEMBER 13, 2011—D ECIDED JANUARY 6, 2012
Before P OSNER, S YKES, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Defendant Khalil Sarraj
sought to buy guns in Illinois, allegedly for personal
protection, after he was assaulted during a dispute with
criminal associates. Unluckily for Sarraj, the person he
asked for help acquiring guns was a confidential
informant for the Bureau of Alcohol, Tobacco, Firearms,
and Explosives. After determining that Sarraj was a
convicted felon, federal agents sold him two handguns,
2 No. 10-3609
both manufactured outside the state of Illinois, in a
“reverse sting” operation, one in which agents posed as
sellers rather than buyers of contraband. Sarraj pled
guilty to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Sarraj’s
guilty plea was conditioned on reservation of his right
to challenge the way in which the government proposed
to prove the interstate commerce element of the fed-
eral crime.
On appeal, Sarraj asserts that principles of federalism
and the Supreme Court’s decision in United States v.
Lopez, 514 U.S. 549 (1995), require limits on the reach of
section 922(g)(1). Sarraj believes that reverse sting opera-
tions violate those limits because they allow federal agents
to create the required ties to interstate commerce by
choosing so-called “prop” guns that were manufactured
out of state. As he views the issue, this device allowed
agents improperly to “federalize” what would otherwise
have been a purely local gun-possession offense. Sarraj
attempts to distinguish substantial precedent treating
this type of law-enforcement operation as constitu-
tional. We have previously evaluated and described the
requirements for satisfying the interstate commerce
element in section 922(g)(1) prosecutions, and the ele-
ment was properly satisfied here.
Sarraj also fails to account for the substantial practical
consequences of the rule he suggests, which could invali-
date many federal prosecutions based on similar reverse
stings. We decline to prohibit reverse stings when fed-
eral agents and prosecutors provide the grounds for
treating the matter as a federal crime. Although de-
No. 10-3609 3
fendants may prefer to be prosecuted for similar state
crimes, or to escape prosecution entirely because of
differing state enforcement priorities and resources, the
federal Constitution is not offended by the choice of
federal prosecution under concurrent federal criminal
statutes, including the choice to provide a required
federal nexus element of the crime. We do not review
executive branch decisions concerning whether and how
to investigate and prosecute state or federal crimes
absent allegations of illegality or invidious bias in
those decisions, and there were none in this case. We
affirm Sarraj’s conviction and sentence.
I. Factual and Procedural Background
In June 2009, defendant Sarraj was attacked in his
home by two associates — alleged co-conspirators in a
prescription narcotics conspiracy — during an apparent
failed robbery attempt. After his attackers were
sentenced in state court to just ten days in jail, Sarraj
became angry and stated in open court that he would
find some guns and shoot his former associates if he ever
encountered them again. Sarraj knew that his prior
felony conviction made it illegal for him to possess fire-
arms. But Sarraj ignored that restriction and proceeded
to enlist the help of an acquaintance in obtaining the
desired guns. Sarraj said that he wanted untraceable
weapons with the serial numbers filed off.
Sarraj’s acquaintance was actually a confidential infor-
mant who told agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives of Sarraj’s wishes. Agents
4 No. 10-3609
prepared to pose as undercover gun sellers, selecting
several weapons from the Bureau’s collection of prop
guns for use in reverse sting sales to prospective gun
buyers. The confidential informant introduced Sarraj to
the undercover agents, and the sting was carried out in
an Illinois grocery store parking lot on June 24, 2009. After
handling several guns and confirming that the serial
numbers had been removed, Sarraj purchased a Smith
and Wesson .357 revolver and a Browning/Fabrique
Nationale .380 semi-automatic handgun.
To ensure that a purchase by Sarraj would violate
federal law, the guns offered by the agents had been
manufactured outside the state of Illinois, though
their manufacturing origin was not discussed during
the sale. See, e.g., United States v. Rice, 520 F.3d 811, 815
(7th Cir. 2008) (holding that “as long as a firearm
moved across state lines at some point prior to the de-
fendant’s possession of it, the possession satisfies
§ 922(g)(1)’s ‘in or affecting commerce’ requirement”).
Sarraj was the proud owner of the two guns for as long
as it took him to walk from the agents’ vehicle to his
own and to stow the guns in his trunk. At that point,
other agents arrested Sarraj. He was eventually charged
in a one-count indictment with being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1).
In the district court, Sarraj filed a Motion for Modified
Jury Instruction Concerning Whether ATF Prop Firearms
“Affected” Interstate Commerce. The motion argued
that the ATF had removed the subject guns from the
stream of interstate commerce when it took the guns off
No. 10-3609 5
the private market and added them to the Bureau’s prop
gun collection. Accordingly, Sarraj argued, the guns
would not have been “in or affecting commerce” when
they were sold to him, as needed to meet the interstate
commerce requirement of section 922(g)(1). This argu-
ment, if accepted, would distinguish reverse sting opera-
tions from the scenario, common in the case law, of a
felon who is merely caught with a gun that was manu-
factured outside the state. The district court heard argu-
ment on this issue and denied Sarraj’s motion in a
written memorandum. The court correctly found no
support in our cases for the distinction proposed by
Sarraj. Other arguments made by Sarraj in the motion
were not explicitly addressed by the court in its denial,
but are relevant to the waiver issue discussed below.
Sarraj renewed these arguments in a motion to
dismiss the indictment that incorporated “all of the
points, authorities, and arguments” from his prior
motion to modify the jury instruction. The court denied
the motion to dismiss and the next day held a plea agree-
ment hearing in which Sarraj entered a conditional plea
of guilty to the felon-in-possession charge. Sarraj condi-
tioned his plea on reserving his right to appeal the
court’s earlier denials of his motion to modify the jury
instruction and motion to dismiss the indictment (as
well as any sentencing issues). Sarraj was sentenced to
serve 56 months in federal prison and now appeals.
II. The Waiver Issue
Before addressing the merits of Sarraj’s argument,
we must confront the government’s assertion that Sarraj
6 No. 10-3609
has shifted his arguments so much that his appeal falls
outside the scope of the right to appeal that he preserved
with his guilty plea. In the district court, Sarraj chiefly
complained that agents had taken the prop guns out of
the stream of interstate commerce, cleansing the guns
of their interstate character. Here Sarraj argues that the
agents’ affirmative choice of prop guns with an inter-
state commerce history operated to manufacture
authority and offended general federalism concerns.
Sarraj does not argue that section 922(g)(1) is facially
unconstitutional, possibly because we have rejected
such challenges so often that to continue to bring them
might be considered frivolous. See, e.g., United States v.
Van Sach, 458 F.3d 694, 703 (7th Cir. 2006); United States
v. Gillaum, 372 F.3d 848, 862 (7th Cir. 2004) (collecting
cases); United States v. Mitchell, 299 F.3d 632, 633-34
(7th Cir. 2002) (same). Sarraj instead attacks the subset of
section 922(g)(1) applications that involve reverse stings.
The government objects that this new formulation on
appeal was waived. E.g., United States v. Cain, 155 F.3d
840, 843 (7th Cir. 1998) (dismissing portion of appeal
raising suppression issue that defendant failed to pre-
serve).1
1
The Cain opinion phrased this dismissal in terms of a lack
of “jurisdiction” over that portion of the appeal. In view of the
Supreme Court’s more recent efforts to confine the use of the
term “jurisdiction” to those matters affecting the court’s
power to act, see, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510
(2006), it is better to think of the problem in terms of simple
(continued...)
No. 10-3609 7
Sarraj’s arguments on appeal could have been forfeited
if he failed to present them to the district court, or waived
if he presented the arguments but agreed in his plea not
to bring them here. We must determine whether the
arguments were adequately presented in Sarraj’s pretrial
motions, and if so, whether they were also preserved in
his conditional plea agreement. See United States v.
Doherty, 17 F.3d 1056, 1059 (7th Cir. 1994) (finding waiver
of a duplicity issue not mentioned in defendants’ motion
to dismiss an indictment).
We are satisfied that Sarraj presented a sufficiently
clear version of his appeal arguments to the district
court before that court denied his motion to dismiss. For
example, in his reply in support of his motion to
modify the jury instruction, Sarraj characterized his
argument as an as-applied constitutional challenge, and
argued that section 922(g)(1) “does not federalize every
gun possession.” Sarraj also expressly incorporated that
reply brief into his subsequent motion to dismiss. In
the district court, the defense developed more fully
the related removal-from-commerce theory in briefs,
and the district court also focused its denial on that
aspect. But an advocacy choice, selecting particular ar-
guments for emphasis, does not operate to waive other
1
(...continued)
waiver rather than appellate jurisdiction. Accord, United
States v. Cotton, 535 U.S. 625, 630 (2002) (narrowing use of
“jurisdiction” in criminal law context). The government’s
waiver argument is not one we would be required to raise on
our own, indicating that it is not jurisdictional in the strict sense.
8 No. 10-3609
arguments that were still properly presented to the
district court. See United States v. Black, 636 F.3d 893, 898
(7th Cir. 2011) (“While [defendant] may not have fully
developed nor articulately presented the exact argument
below, he did raise the issue . . . .”). Sarraj presented
and did not abandon the arguments he relies on here.
We turn next to the effect of the conditional plea on
preservation of issues for appeal.
Federal Rule of Criminal Procedure 11(a)(2) allows a
defendant, with “consent of the court and the govern-
ment,” to condition a guilty plea on the defendant’s right
to appeal from an adverse determination of a specified
pretrial motion. When the facts underlying the offense
are largely uncontested and the pretrial ruling would
control the outcome, as here, a conditional plea allows
everyone involved to avoid the wasteful exercise of
going through an entire trial just so the defendant can
adequately preserve the controlling pretrial issue for
appeal. See Fed. R. Crim. P. 11 advisory committee’s
notes to 1983 amendments. Without Rule 11(a)(2), an
unconditional guilty plea would concede the point of
pretrial objection along with everything else. At the
same time, the rule does not create a flood of de facto
interlocutory appeals because, to travel this road to the
courts of appeals, a defendant must first enter a guilty
plea — thereby giving up all other possible issues on
which he might contest the charge.
The scope of Sarraj’s right to pursue an appeal was set
forth in the plea agreement and was confirmed during
the plea colloquy. The agreement did not require Sarraj
No. 10-3609 9
to present his arguments in exactly the same way and
with the same emphasis that he gave them in the district
court. The plea agreement left Sarraj free to select and
assert on appeal any argument from the set of arguments
he adequately presented to the district court. Sarraj’s
conditional plea reserved the right to appeal from the
“identified pretrial rulings” generally. The government
cites Doherty, 17 F.3d at 1058, where we held that the
conditional plea therein reserved only the right to
appeal “on the ground the motion had stated.” In Doherty,
however, the motion had stated only one ground, and
the issue presented on appeal had not been raised in the
district court at all. Id. Sarraj preserved his right to chal-
lenge the district court’s denial of his motion to
dismiss and did not limit that appeal to a precise replay
of district court advocacy and reasoning. Finding no
waiver, we turn to the merits of Sarraj’s contention that
principles of federalism render section 922(g)(1) unconsti-
tutional as applied to the reverse sting operation that
snared him.
III. Reverse Stings and the Interstate Commerce Element
Sarraj does not challenge any factual basis for the in-
dictment but instead disputes its legal sufficiency. “We
review questions of law in a district court’s ruling on a
motion to dismiss an indictment de novo.” United States v.
White, 610 F.3d 956, 958 (7th Cir. 2010). Sarraj also does
not dispute that Congress was operating within its enu-
merated commerce power in enacting section 922(g)(1)
and thereby making a federal crime out of a felon’s
10 No. 10-3609
firearm possession “in or affecting commerce.” His con-
stitutional arguments focus on reverse sting operations
by agents seeking to enforce section 922(g)(1) — though
by their own logic the arguments would admittedly
apply to all reverse stings where the government, rather
than the defendant, is the party responsible for creating
the interstate nexus.2
We have repeatedly and consistently held that a
firearm’s single past journey across a state line satisfies
the interstate commerce element of section 922(g)(1). See,
e.g., United States v. Rice, 520 F.3d 811, 815 (7th Cir. 2008)
(“as long as a firearm moved across state lines at
some point prior to the defendant’s possession of it, the
possession satisfies § 922(g)(1)’s ‘in or affecting com-
merce’ requirement”), citing Scarborough v. United States,
431 U.S. 563 (1977). We have also specifically addressed
whether the Supreme Court’s Lopez decision narrowed
the scope of section 922(g)(1), and we have repeatedly
found that it did not. E.g., United States v. Lemons, 302
F.3d 769, 772 (7th Cir. 2002) (collecting cases); United
States v. Lewis, 100 F.3d 49, 52 (7th Cir. 1996). Lopez dis-
2
The interstate commerce element of the section 922(g)(1)
crime is often described loosely as the “jurisdictional” element.
As we have explained in a very similar context, it is better
understood as simply one element of the crime; it does not
affect the court’s subject matter jurisdiction. See United States
v. Skoczen, 405 F.3d 537, 541-42 (7th Cir. 2005) (affirming
conviction for conspiring to steal goods from interstate com-
merce where federal agents ensured that goods in question
had moved in interstate commerce).
No. 10-3609 11
tinguished the statute it invalidated from those like
section 922(g)(1) containing an interstate commerce
element that “would ensure, through case-by-case inquiry,
that the firearm possession in question affects interstate
commerce.” See Lopez, 514 U.S. at 561-62, referring to
United States v. Bass, 404 U.S. 336 (1971), and a
predecessor statute prohibiting possession “in com-
merce or affecting commerce.”
As a practical matter, we have held that the required
interstate nexus under section 922(g)(1) can be
established “merely by evidence that the gun was manu-
factured outside the state in which it was possessed,” from
which we infer that the gun must have traveled in inter-
state commerce at least once. United States v. Humphreys,
468 F.3d 1051, 1053 (7th Cir. 2006). The interstate
nexus requirement is a factual predicate, not a mens rea
element of the crime that would require proof of defen-
dant’s knowledge of facts supporting the nexus. See
United States v. Lindemann, 85 F.3d 1232, 1241 (7th Cir.
1996) (“Thus it has consistently been held that for
statutes in which Congress included an ‘interstate
nexus’ for the purpose of establishing a basis for its
authority, the government . . . need not prove that the
defendant knew the ‘interstate nexus’ of his actions.”);
United States v. Castor, 937 F.2d 293, 298 (7th Cir. 1991)
(same). A history in or affecting interstate commerce is
only a necessary property of the subject gun, not
something the defendant must know. That interstate
history operates to establish federal authority under our
Constitution of limited powers, but it does not in
12 No. 10-3609
any way add to, or subtract from, the wrong that is ad-
dressed by felon-in-possession statutes. It follows that
the defendant need not have been involved with
bringing the gun into the state, nor is there a time limit
or other requirement of a temporal link between the
interstate movement and the defendant’s possession. See
Lemons, 302 F.3d at 771; Rice, 520 F.3d at 816. A firearm
can be stashed away in a friend’s closet for decades prior
to a defendant’s offending possession, and can still
satisfy the required interstate nexus. See, e.g., Lewis, 100
F.3d at 52. By the same reasoning, the firearm can
satisfy the nexus even if it has been locked up in an ATF
storage locker.
Reviewing these and other prior cases, the district
court correctly rejected Sarraj’s arguments that the in-
terstate nexus evaporated when government agents
allegedly removed the guns from the stream of commerce
by adding them to the Bureau’s prop gun collection.
Our cases have not endorsed, and we do not adopt here,
any distinction that would allow passage of time, or
acquisition by the government, to strip a firearm of its
interstate nexus. We do not evaluate and weigh the
scope of an effect on interstate commerce arising from
a particular firearm possession. It is sufficient that the
firearm once had a minimal connection to interstate
commerce. This minimal nexus requirement reflects
the intent of Congress in broadly criminalizing posses-
sion of firearms by convicted felons. See, e.g., Scarborough,
431 U.S. at 572-75 (analyzing the legislative history of a
predecessor statute and finding “no indication of any
No. 10-3609 13
concern with either the movement of the gun or the
possessor or with the time of acquisition”).3
On appeal, Sarraj emphasizes more his argument that
federal agents should not be permitted, in the exercise of
their discretion, to “federalize” local gun-possession
offenses by offering suspects interstate prop guns
rather than letting them buy local. We assume that federal
agents will double-check their factual predicates when
setting up a sting and are unlikely to waste time selling
suspects guns that do not satisfy the requirements of the
statute. Good federal agents will therefore opt to use
interstate prop guns in every section 922(g)(1) investiga-
tion. As a practical matter, Sarraj is arguing that
federal reverse sting operations are never constitu-
tionally acceptable where federal agents supply the link
to interstate commerce but could instead have called in
state authorities to investigate and arrest under state
law. Sarraj asserts that federal agents, by affirmatively
ensuring that factual predicates for their authority are
satisfied, intrude into an area of traditional state sover-
3
We have relied on Scarborough on numerous occasions with
the understanding that Lopez did not invalidate or call into
question the analysis or rule of Scarborough, even if the
minimal nexus requirement of Scarborough might seem to stand
in some tension with the substantial-impact framework of
Lopez. E.g., Lewis, 100 F.3d at 51-52; Lemons, 302 F.3d at 771-72;
see also Alderman v. United States, 131 S. Ct. 700 (2011) (Thomas,
J., dissenting from denial of certiorari) (asserting that Lopez
conflicts with Scarborough).
14 No. 10-3609
eignty and exercise an impermissible “general police
power.” 4
To the extent Sarraj is suggesting that federal law
enforcement officials must defer to state authorities
who may wish to prosecute locally under state law, we
reject the suggestion. We also reject any suggestion
that section 922(g)(1) prosecutions must be confined to
contexts that are uniquely and necessarily federal. In
enacting section 922(g)(1), Congress chose to exercise
the full extent of its power over interstate commerce,
treating gun possession by convicted felons as an issue
of national interest in most circumstances — an interest
that is concurrent with that of the several States. See
Scarborough, 431 U.S. at 572 (“in implementing these
findings by prohibiting both possessions in commerce
and those affecting commerce, Congress must have
meant more than to outlaw simply those possessions
that occur in commerce or in interstate facilities”). Con-
gress intended to regulate to the full extent of its com-
merce power, and permit federal authorities to reach
every violation where a minimal nexus was established.
Id. Section 922(g)(1) is facially constitutional, and a
single past interstate trip sufficiently affects commerce
4
Sarraj variously argued that section 922(g)(1) cannot be
constitutionally interpreted to reach reverse sting operations
and that the statute as applied permits unconstitutional
“unfettered discretion.” The bottom line is that he contends
his prosecution is unconstitutional because it is beyond the
scope of the Congressional power over interstate and foreign
commerce.
No. 10-3609 15
(as our cases hold), so possessing a firearm of foreign
manufacture as a felon can be both a federal and a state
crime. It is up to the various state and federal agencies
to work out together how to share the job of in-
vestigating and prosecuting these crimes.
In general, and particularly in areas of overlapping
authority, we limit our review of decisions by prosecutors
to evaluating allegations of illegal conduct or invidious
bias in the exercise of executive branch discretion. E.g.,
United States v. Podolsky, 798 F.2d 177, 181 (7th Cir. 1986)
(observing that “judges lack the information necessary
to evaluate prosecutorial decisions in areas of concurrent
federal and state criminal jurisdiction”). Returning then
to Sarraj’s core argument, we conclude that the govern-
ment here did not violate Sarraj’s federal consti-
tutional rights by investigating him and prosecuting
him for violation of section 922(g)(1), including by pro-
viding him the opportunity for his firearm possession
to violate federal law. Sarraj does not claim that he
was entrapped by the agents who sold him the guns,
or that the agents violated any of his constitutional
rights in the process. His only objection is to the agents’
selection of the guns they would sell him to ensure the
elements of a federal crime would all be met.
In analogous reverse sting cases, this court has ap-
proved of conduct by federal agents that ensured a re-
quired interstate commerce nexus. In Podolsky, agents
offered to pay a suspect to burn down a commercial
building for insurance purposes. They steered the
aspiring arsonist to a building that was in fact used for
16 No. 10-3609
interstate commerce rather than letting him burn down
an unoccupied target building next door. Id. at 177-78.
We held that although “federal agents could have
turned the evidence over to the local authorities rather
than induce Podolsky to commit a federal crime,” the
“responsibility for wise management of scarce prosecuto-
rial and other governmental resources is not a judicial
responsibility.” Id. at 179. Similarly, in United States v.
Skoczen, 405 F.3d 537 (7th Cir. 2005), agents borrowed a
truckload of cigarettes from a tobacco company in
Virginia and drove them to Illinois for use in a reverse
sting. We found no problem with the agents’ actions,
although we noted that matters “might be different” if
the defendant had expressed an interest in buying local
that agents had frustrated. Id. at 542.5
We see no meaningful distinction between these cases
and the reverse sting here. The agents here did not
offend the Constitution with their choice to provide
interstate prop guns. Accordingly, the judgment of the
district court is A FFIRMED.
5
Sarraj did not express any preference for guns made in
Illinois, so we do not reach the question of whether he could
opt out of federal criminal authority by doing so. Of course,
even a gun manufactured in Illinois and sold to a suspect
in Illinois could have acquired an interstate character via
various histories of travel, trade, or use.
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