United States Court of Appeals,
Eleventh Circuit.
No. 94-8979.
UNITED STATES of America, Plaintiff-Appellee,
v.
Eugene Kenny McALLISTER, Defendant-Appellant.
March 8, 1996.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-260), Richard C. Freeman, Judge.
Before KRAVITCH and HATCHETT, Circuit Judges, and HILL, Senior
Circuit Judge.
KRAVITCH, Circuit Judge:
The constitutionality of 18 U.S.C. § 922(g)(1), which
prohibits a felon from possessing a firearm, is the main issue
presented in this appeal. We reject appellant's argument that in
light of the recent Supreme Court decision in United States v.
Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995),
Congress exceeded its Commerce Clause power by regulating the mere
possession of a gun. In addition, appellant claims that improper
comments by the prosecutor and improper use of evidence at his
trial constituted reversible error. We reject these claims also
and affirm McAllister's conviction.
I.
Eugene McAllister was convicted by a jury of possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On
April 9, 1991, McAllister went to The Gunshop in Decatur, Georgia
to pick up a gun he had paid for at least 15 days earlier.1 Before
taking the gun, he filled out Bureau of Alcohol, Tobacco and
Firearms Form 4473. On the form, McAllister denied ever having
been convicted of a crime punishable by imprisonment for a term
exceeding one year. In fact, he had a prior felony conviction.
At McAllister's trial, the government demonstrated that the
gun was manufactured in California and was shipped to South
Carolina in 1982. The gun shop clerk testified that on April 9 he
had handed the gun to McAllister, who carried it from the shop.
McAllister's wife, Denise Flemister, however, testified that she
had accompanied McAllister to the store and that it was she who had
taken the gun home. Flemister further testified that she, and not
McAllister, remained in possession of the gun until it was
allegedly stolen within 7-10 days of purchase. During
cross-examination, Flemister admitted that prior to trial she did
not contact either the Bureau of Alcohol Tobacco and Firearms
("A.T.F.") or the U.S. Attorney's office to inform either office
that McAllister had never possessed the gun.
II.
Because McAllister raises the constitutional challenge for
the first time on appeal, we must determine whether he has waived
his claim. As a general rule, this court will not address an issue
not decided by the district court. Application of this rule,
however, is at the discretion of the appellate court. See
Lattimore v. Oman Constr., 868 F.2d 437 (11th Cir.1989) (discretion
1
A local ordinance required a 15-day waiting period before a
purchaser could receive a gun.
to review pure question of law or to avoid miscarriage of justice).
At the time of McAllister's trial, the Supreme Court had not
yet decided Lopez. In light of the Supreme Court's prior decision,
Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963,
1969, 52 L.Ed.2d 582 (1977) (holding, in the context of the
predecessor statute to § 922(g), that the interstate commerce
element is met by demonstrating a "minimal nexus"), and of this
court's decision in United States v. Standridge, 810 F.2d 1034,
1040 (11th Cir.) (same), cert. denied, 481 U.S. 1072, 107 S.Ct.
2468, 95 L.Ed.2d 877 (1987), a constitutional challenge to §
922(g)(1) would have been futile at that time. See United States
v. Bell, 70 F.3d 495, 497 (7th Cir.1995) (stating that Scarborough
rendered a pre-Lopez challenge to § 922(g)(1) "futile, even
frivolous"). It would be manifestly unjust to refuse to allow
McAllister's claim because he failed to raise it in the district
court when doing so would have served no purpose. See Lattimore,
868 F.2d 437.
Reaching the merits of McAllister's constitutional
challenge,2 we hold that 18 U.S.C. § 922(g)(1) is constitutional.3
Eighteen U.S.C. § 922(g), in pertinent part, provides:
2
In his brief, McAllister claims only to be raising a
challenge to the statute "as applied." However, in his argument
he attacks the statute both on its face and as applied. We will
address both arguments.
3
We are not alone in our conclusion that this statute is
constitutional. See United States v. Sorrentino, 72 F.3d 294,
296-97 (2d.Cir.1995); United States v. Bell, 70 F.3d 495, 498
(7th Cir.1995); United States v. Rankin, 64 F.3d 338, 339 (8th
Cir.) (same), cert. denied, --- U.S. ----, 116 S.Ct. 577, 133
L.Ed.2d 500 (1995); United States v. Mosby, 60 F.3d 454, 456
(8th Cir.1995); United States v. Hanna, 55 F.3d 1456, 1462 n. 2
(9th Cir.1995) (same).
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year ...
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.
McAllister argues that like the statute in Lopez, § 922(g)(1) does
not substantially affect interstate commerce and thus exceeds
Congress's authority to regulate. In Lopez, the Supreme Court
struck down the Gun-Free School Zones Act, 18 U.S.C. § 922(q),
which prohibited a person from possessing a gun while in a "school
zone." The Court relied on the fact that the statute "by its terms
has nothing to do with "commerce' or any sort of economic
enterprise, however broadly one might define those terms." ---
U.S. at ----, 115 S.Ct. at 1631. In contrast, § 922(g) makes it
unlawful for a felon to "possess in or affecting commerce, any
firearm or ammunition." 18 U.S.C. § 922(g) (emphasis added). This
jurisdictional element defeats McAllister's facial challenge to the
constitutionality of § 922(g)(1).4
McAllister further claims that even if the statute is facially
4
The Court in Lopez contrasted that statute with 18 U.S.C. §
1202(a), the predecessor statute to § 922(g). The Court wrote:
Section 922(q) contains no jurisdictional element which
would ensure, through case-by-case inquiry, that the
firearm possession in question affects interstate
commerce.... Unlike the statute in Bass, [18 U.S.C. §
1202(a) ], § 922(q) has no express jurisdictional
element which might limit its reach to a discrete set
of firearm possessions that additionally have an
explicit connection with or effect on interstate
commerce.
--- U.S. at ----, 115 S.Ct. at 1631.
valid, it is unconstitutional as applied to him because the
government did not demonstrate how his purely intrastate possession
affected interstate commerce. He argues that Lopez marks a
significant change, rendering suspect the "minimal nexus"
requirement established by the Supreme Court in Scarborough. In
that case the Court held that the interstate nexus requirement for
the predecessor statute to § 922(g) was met once the government
demonstrated that the gun had previously travelled in interstate
commerce, Scarborough, 431 U.S. at 575, 97 S.Ct. at 1969; see also
Standridge, 810 F.2d at 1040.
McAllister misunderstands the scope of Lopez. The statute at
issue in that case prohibited possession of a firearm within a
school zone. The Court held that in passing § 922(q) Congress
exceeded its Commerce Clause power because that statute 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. It cannot,
therefore, be sustained under our cases upholding regulations
of activities that arise out of or are connected with a
commercial transaction, which viewed in the aggregate,
substantially affects interstate commerce.
Lopez at ----, 115 S.Ct. at 1631. In contrast to § 922(q), §
922(g) is an attempt to regulate guns that have a connection to
interstate commerce; the statute explicitly requires such a
connection. When viewed in the aggregate, a law prohibiting the
possession of a gun by a felon stems the flow of guns in interstate
commerce to criminals. Nothing in Lopez suggests that the "minimal
nexus" test should be changed. Because the government demonstrated
that the firearm possessed by McAllister previously had travelled
in interstate commerce, the statute is not unconstitutional as
applied to him. See United States v. Bell, 70 F.3d 495; United
States v. Shelton, 66 F.3d 991 (8th Cir.1995); United States v.
Hanna, 55 F.3d 1456 (9th Cir.1995).
III.
McAllister next contends that the prosecutor made both
improper comments and improper use of evidence during his closing
argument. To justify a new trial, the prosecutor's statement must
be improper and must prejudice a substantial right of the
defendant. United States v. Eyster, 948 F.2d 1196 (11th Cir.1991).
The first allegedly improper comment occurred when the
prosecutor told the jury that it was not until McAllister's trial
that Flemister told A.T.F. and the U.S. Attorney that it was she,
not her husband, who had possessed the gun. McAllister argues that
this comment created several impermissible implications. First, he
argues that by implying that the case would have been dismissed had
Flemister come forward earlier, the government shifted the burden
to McAllister to prove he was not guilty when he was first
indicted. We agree with the government, however, that the
prosecutor's comments are a permissible attempt to challenge the
witness's credibility. See, e.g., United States v. Garate-Vergara,
942 F.2d 1543, 1551 (11th Cir.1991), cert. denied, 502 U.S. 1110,
112 S.Ct. 1212, 117 L.Ed.2d 451; and cert. denied, 506 U.S. 1007,
113 S.Ct. 622, 121 L.Ed.2d 555 (1992), and cert. denied, --- U.S.
----, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993).
McAllister also claims that this comment went beyond the
evidence by suggesting that Flemister had been aware of
McAllister's indictment despite the fact that there was no evidence
as to what Flemister knew prior to trial. Although a prosecutor
may not suggest personal knowledge of evidence not admitted at
trial, Eyster, 948 F.2d 1196 (11th Cir.1991), this is not what
happened here. The prosecutor apparently attempted to impeach
Flemister's credibility by reiterating the very testimony Flemister
had given on cross-examination. Had McAllister wanted to show that
Flemister was unaware of the indictment, he could have attempted to
do so through redirect examination of the witness.5
The second allegedly improper argument occurred when the
prosecutor stated in closing that a person who would lie on Form
4473 regarding his status as a convicted felon "might ask his wife
to fabricate a little story to get out of a felony." McAllister
contends that this argument was an improper use of the Form 4473
evidence because it impermissibly impugned his character in order
to win the conviction, without the defendant having put character
in issue. Although "the government may not rely on the defendant's
bad character to win a conviction unless the defense puts character
in issue," United States v. Blakey, 14 F.3d 1557 (11th Cir.1994),
we do not decide whether this occurred here. Rather, because we
find upon review of the entire record that the alleged error, if
any, was harmless, we conclude that McAllister's rights were not
substantially prejudiced. United States v. McRae, 593 F.2d 700,
706 (5th Cir.) (a determination of prejudicial effect of a
prosecutor's improper comments is contextual and requires
examination of the record), cert. denied, 444 U.S. 862, 100 S.Ct.
5
McAllister also argues that the prosecutor's comment was
analogous to a comment on a defendant's post-Miranda silence. We
see no merit to this claim.
128, 62 L.Ed.2d 83 (1979).
IV.
We hold that § 922(g)(1) is not an unconstitutional exercise
of Congress's power under the Commerce Clause, nor is its
application unconstitutional in this case. We also hold that
comments made by the prosecutor during his closing argument were
either proper or did not substantially prejudice McAllister's
rights. Accordingly, McAllister's conviction is AFFIRMED.