PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY BRIAN GIBERT,
Defendant-Appellant. No. 10-4848
THE HUMANE SOCIETY OF THE
UNITED STATES,
Amicus Supporting Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERALD BENFIELD,
Defendant-Appellant. No. 10-4851
THE HUMANE SOCIETY OF THE
UNITED STATES,
Amicus Supporting Appellee.
2 UNITED STATES v. GIBERT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN CARLTON THURMAN HOOVER,
Defendant-Appellant. No. 10-4852
THE HUMANE SOCIETY OF THE
UNITED STATES,
Amicus Supporting Appellee.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL MONROE GROOMS,
Defendant-Appellant. No. 10-4875
THE HUMANE SOCIETY OF THE
UNITED STATES,
Amicus Supporting Appellee.
UNITED STATES v. GIBERT 3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GENE AUDRY JEFFCOAT,
Defendant-Appellant. No. 10-4904
THE HUMANE SOCIETY OF THE
UNITED STATES,
Amicus Supporting Appellee.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(3:09-cr-01174-CMC-4; 3:09-cr-01174-CMC-5;
3:09-cr-01174-CMC-7; 3:09-cr-01174-CMC-1;
3:09-cr-01295-CMC-1)
Argued: January 24, 2012
Decided: April 20, 2012
Before GREGORY and KEENAN, Circuit Judges, and
Liam O’GRADY, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Judge Gregory and Judge O’Grady joined.
4 UNITED STATES v. GIBERT
COUNSEL
ARGUED: Steven Michael Hisker, Duncan, South Carolina,
for Appellants. Nathan S. Williams, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina,
for Appellee. ON BRIEF: Lori S. Murray, LAW OFFICE OF
LORI S. MURRAY, Columbia, South Carolina, for Appellant
Gerald Benfield; T. Micah Leddy, THE LEDDY LAW FIRM,
LLC, Columbia, South Carolina, for John Carlton Thurman
Hoover; Joseph M. McCulloch, Jr., LAW OFFICE OF
JOSEPH M. MCCULLOCH, JR., for Appellant Michael
Monroe Grooms; Debra Y. Chapman, Columbia, South Caro-
lina, for Appellant Gene Audry Jeffcoat. William N. Nettles,
United States Attorney, Columbia, South Carolina, for Appel-
lee. Jonathan R. Lovvorn, Kimberly D. Ockene, Aaron D.
Green, THE HUMANE SOCIETY OF THE UNITED
STATES, Washington, D.C.; Emily L. Aldrich, HUNTON &
WILLIAMS LLP, Los Angeles, California; Gregory N. Still-
man, HUNTON & WILLIAMS LLP, Norfolk, Virginia;
Joseph P. Esposito, William E. Potts, Jr., Andrew E. Walsh,
HUNTON & WILLIAMS LLP, Washington, D.C., for The
Humane Society of the United States, Amicus Supporting
Appellee.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
The primary question in this appeal is whether Congress
exceeded its power under the Commerce Clause in enacting
a criminal prohibition against animal fighting. Jeffrey Brian
Gibert and certain other defendants (collectively, Gibert) were
indicted for their roles in organizing, operating, and partici-
pating in "gamefowl derbies," otherwise known as "cockfight-
ing." Gibert entered a conditional guilty plea to the charge of
conspiring to violate 7 U.S.C. § 2156 (the animal fighting
UNITED STATES v. GIBERT 5
statute), which prohibits, among other things, "sponsor[ing] or
exhibit[ing] an animal in an animal fighting venture." The
term "animal fighting venture" is defined in the statute, in rel-
evant part, as "any event, in or affecting interstate or foreign
commerce, that involves a fight conducted or to be conducted
between at least 2 animals for purposes of sport, wagering, or
entertainment." 7 U.S.C. § 2156(g)(1).
In his plea agreement, Gibert reserved the right to challenge
the constitutionality of the animal fighting statute. He argued
in the district court, and now argues to this Court, that Con-
gress’ power under the Commerce Clause does not extend to
the enactment of legislation prohibiting animal fighting ven-
tures. Gibert contends that animal fighting is inherently an
intrastate activity that has no substantial affect on interstate
commerce and, thus, is a matter reserved for regulation by the
states, rather than by the federal government. He also
advances an argument regarding the scienter requirement of
the animal fighting statute, contending that the government
was required to prove that he had knowledge that the animal
fighting venture "was in or affected interstate commerce."
Upon our review of the parties’ arguments, we hold that the
animal fighting statute is a legitimate exercise of Congress’
power under the Commerce Clause. We also hold that the
statute does not require the government to prove the defen-
dants’ knowledge regarding the particular venture’s nexus to
interstate commerce. Accordingly, we affirm Gibert’s convic-
tions.
I.
In November 2009, a federal grand jury returned an indict-
ment against Gibert,1 alleging one count of participating in a
1
The indictment named as Gibert’s co-defendants Gerald Benfield, John
Carlton Thurman Hoover, and Michael Monroe Grooms, each of whom
are co-parties to Gibert’s appeal.
6 UNITED STATES v. GIBERT
conspiracy to violate the Animal Welfare Act, in violation of
18 U.S.C. § 371, and one count of participating in, and/or aid-
ing and abetting, an unlawful animal fighting venture, in vio-
lation of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2. The
indictment alleged that Gibert and his co-defendants each
entered one or more roosters in one or more "cockfighting
derbies" held in Swansea, South Carolina in July 2008 and
April 2009.
The indictment described a "cockfighting derby" as a series
of fights between roosters, in which the owner of the rooster
with the most victories in a series of fights wins a monetary
"purse," which is comprised of the derby participants’ entry
The grand jury returned a separate indictment in December 2009 against
Gene Audry Jeffcoat, on whose property the cockfighting derbies took
place, charging him with one count of organizing, supervising, and partici-
pating in a conspiracy to violate the Animal Welfare Act, in violation of
18 U.S.C. § 371, two counts of participating in, and/or aiding and abetting,
an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156(a)(1)
and 18 U.S.C. § 2, and two counts of conducting and supervising an illegal
gambling business, in violation of 18 U.S.C. § 1955 and 18 U.S.C. § 2.
Jeffcoat is a named party to this appeal but, unlike the other appellants,
Jeffcoat’s guilty plea was not conditional, and the government asserts that
he has waived the arguments presented by Gibert. However, the govern-
ment has not asked that Jeffcoat’s appeal be dismissed. James Morrow
Collins, Jr. was also named as a defendant in Jeffcoat’s indictment. Col-
lins’ case proceeded to trial, and he was convicted by a jury.
The Gibert indictment also named as defendants Michael T. Rodgers,
Johnny Junior Harrison, Coy Dale Robinson, Jimmie Jesse Hicks, and
George William Kelly, none of whom are parties to the present appeal, as
well as Leslie Wayne Peeler and Scott Edward Lawson, who are each part
of a separate class of defendants, including Collins, who proceeded to a
jury trial and have appealed their convictions in a companion case, United
States v. Lawson, No. 10-4831, ___ F.3d ___ (4th Cir. Apr. 20, 2012).
Gibert’s appeal and Lawson’s appeal proceeded on separate briefing
schedules, but this Court consolidated the two cases for purposes of oral
argument. Because the two cases raise certain distinct legal issues, and
were based on different proceedings in the district court, we are concur-
rently issuing separate opinions for the two cases.
UNITED STATES v. GIBERT 7
fees minus the amount retained by the derby organizers.
Before the fights, the roosters are equipped with a knife, gaff,
or other sharp instrument that is affixed to the roosters’ legs.
As stated in the indictment, "[t]he fight is ended when one
rooster is dead or refuses to continue to fight. If not killed
during the fight, the losing rooster is typically killed after the
fight." Spectators not otherwise involved in the fights pay an
admission fee to attend the derbies, and gambling routinely
occurs between the spectators and the owners of the roosters.
Paraphernalia, such as gaffs, tie cords, cages, training equip-
ment, medication, and veterinary supplies, some of which are
manufactured in or transported from other states, are sold
before or during the fights.
Gibert initially entered a plea of not guilty, and filed a
motion to dismiss the indictment in which he asserted that the
animal fighting statute is unconstitutional because, in enacting
the statute, Congress exceeded its powers under the Com-
merce Clause. Gibert also filed a motion seeking a jury
instruction that would require the government to prove that he
had knowledge that the animal fighting venture was an event
"in or affecting interstate or foreign commerce."
After the district court denied these motions, Gibert entered
a conditional guilty plea to Count I of the indictment alleging
a conspiracy to violate the animal fighting statute. In his writ-
ten plea agreement, Gibert stipulated that the government
could satisfy its burden of proving the elements of 7 U.S.C.
§ 2156, including that he: "(A) [ ] knowingly sponsored or
exhibited; (B) [a]n animal; (C) [i]n an event that was in or
affecting interstate commerce and that involved a fight
between at least two animals for the purpose of sport, wager-
ing or entertainment; and (D) [w]hich event also violated
State Law."2 Pursuant to the plea agreement and its Rule 11
Addendum, Gibert reserved the right to challenge on appeal
2
Cockfighting is illegal in South Carolina, and has been since 1887. See
S.C. Code § 16-17-650.
8 UNITED STATES v. GIBERT
Congress’ powers under the Commerce Clause to enact the
animal fighting statute, as well as the district court’s ruling
that the government need not establish as an element of the
offense Gibert’s knowledge that the cockfighting derbies
affected interstate commerce.3
The district court accepted Gibert’s plea and sentenced him
to a three-year term of probation and a monetary fine.4 Gibert
appeals his conviction, raising on appeal the legal issues he
identified in his Rule 11 Addendum.5
II.
A.
We first address Gibert’s argument that Congress exceeded
its powers under the Commerce Clause in enacting the animal
fighting statute. We review de novo a challenge to the consti-
tutionality of a federal statute. United States v. Buculei, 262
F.3d 322, 327 (4th Cir. 2001). Although we conduct our
review of the statute de novo, we view the statute with a "pre-
sumption of constitutionality in mind," because "[d]ue respect
for the decisions of a coordinate branch of Government
3
Gibert also stipulated to the facts necessary to establish a conspiracy
conviction under 18 U.S.C. § 371, namely that "(A) [t]here was an agree-
ment between two or more persons to violate the federal criminal law; (B)
[Gibert] knew of the conspiracy; (C) [Gibert] knowingly and voluntarily
became a part of the conspiracy; and (D) [a]t least one ‘overt act’ was
taken in furtherance of the conspiracy within the District of South Caro-
lina."
4
The district court also accepted the pleas of Gibert’s co-defendants
Benfield, Hoover, and Grooms, sentencing them each to probation terms
of three years and a monetary fine, as well as the plea of Jeffcoat, who was
sentenced to five years’ probation and a monetary fine.
5
Gibert raised an additional legal issue in his Rule 11 Addendum,
namely that the government was required to prove as an element of the
offense that the derbies substantially affected interstate commerce. Gibert
has not raised that issue on appeal.
UNITED STATES v. GIBERT 9
demands that we invalidate a congressional enactment only
upon a plain showing that Congress has exceeded its constitu-
tional bounds." United States v. Morrison, 529 U.S. 598, 607
(2000).
B.
i.
Because congressional findings of fact are an important
consideration in determining whether a federal statute may
survive a challenge under the Commerce Clause, see id. at
611-14, we begin our analysis by discussing the legislative
history of the animal fighting statute. Congress’ prohibition of
animal fighting is a relatively recent addition to the Animal
Welfare Act of 1966 (the AWA), which is contained in Title
7, Chapter 54 of the United States Code. The AWA initially
was enacted to "prevent theft and sale for use in research of
pet cats and dogs, and also to foster humane treatment by
dealers and research facilities of cats, dogs, and certain other
laboratory animals." H.R. Rep. No. 94-801 (1976), reprinted
in 1976 U.S.C.C.A.N. 758, 759 (discussing legislative history
of the AWA). The scope of the AWA was extended in 1970
to cover "most live or dead warm-blooded animals," and to
include activities such as exhibitions and auction sales. Id.
In its current form, the AWA is a comprehensive regulatory
scheme which covers, among other things, the licensing of
certain animal dealers and exhibitors (7 U.S.C. § 2133), the
marking and identification of, and recordkeeping concerning,
animals sold in commerce (7 U.S.C. §§ 2141, 2142), require-
ments concerning the importation of live dogs (7 U.S.C.
§ 2148), the standards and certification process for humane
handling, care, treatment, and transportation of animals (7
U.S.C. § 2133), regulations concerning the acquisition, stor-
age, and treatment of animals in research facilities (7 U.S.C.
§§ 2137, 2140, 2143), and the purchasing of, and standards of
10 UNITED STATES v. GIBERT
care for, animals used in United States Government facilities
(7 U.S.C. §§ 2138, 2144).
The congressional statement of policy in the AWA states
that "[t]he Congress finds that animals and activities which
are regulated under this chapter are either in interstate or for-
eign commerce or substantially affect such commerce or the
free flow thereof, and that regulation of animals and activities
as provided in this chapter is necessary to prevent and elimi-
nate burdens upon such commerce and to effectively regulate
such commerce . . . ." 7 U.S.C. § 2131. The statement of pol-
icy also provides that "[t]he Congress further finds that it is
essential to regulate, as provided in this chapter, the transpor-
tation, purchase, sale, housing, care, handling, and treatment
of animals by carriers or by persons or organizations engaged
in using them for research or experimental purposes or for
exhibition purposes or holding them for sale as pets or for any
such purpose or use." Id.
The animal fighting statute was not included in the AWA
until the passage of the Animal Welfare Act Amendments of
1976 (the Amendments). See H.R. Rep. No. 94-801, 1976
U.S.C.C.A.N. at 759, 762. Among other items, the Amend-
ments expanded the existing prohibitions contained in the
original AWA, expanded the Secretary of Agriculture’s
authority to establish and enforce standards relating to the
AWA, and "add[ed] to the statute an entirely new section
which would make it a crime punishable by fine and impris-
onment knowingly to sponsor, participate in, transport, or use
the mails to promote fights between live birds, live dogs or
other mammals, except man." Id., 1976 U.S.C.C.A.N. at 759.
In enacting the animal fighting statute, Congress initially
focused its concern on dogfighting.6 In the House Report dis-
6
As noted in the House Report, "[a]s introduced, the bill would have
prohibited fighting only between live dogs or other mammals. However,
the Committee amended the bill to include cockfighting within the pro-
scription." H.R. Rep. 94-801, 1976 U.S.C.C.A.N. at 762.
UNITED STATES v. GIBERT 11
cussing the Amendments, the House Committee on Agricul-
ture (the Committee) observed the rise of dogfighting and its
connection to interstate commerce:
[Dogfighting], a minor problem prior to World War
II, has unfortunately grown and prospered to the
point that Regional Conventions are held which
attract fighting dogs and ‘dog fanciers’ from numer-
ous states. They frequently are advertised in [dog-
fighting] magazines of nationwide circulation. In
addition [to] the ‘sporting element’ of these enter-
prises, there apparently has grown up also a sort of
traveling circus in which vans will travel from state
to state and set up for brief periods offering patrons
the opportunity to witness and gamble upon a series
of dog fights and to indulge at the same time many
questionable and criminal activities.
Id., 1976 U.S.C.C.A.N. at 761. Accordingly, the Committee
made factual findings that "animals and activities which are
regulated under this Act are either in interstate or foreign
commerce or substantially affect such commerce or the free
and unburdened flow thereof, and that regulation of animals
and activities as provided in this Act is necessary to prevent
and eliminate burden[s] upon such commerce, to effectively
regulate such commerce, to protect the human values of this
great Nation from the subversion of dehumanizing activities,
and to carry out the objectives of the Act." Id., 1976
U.S.C.C.A.N. at 762.
The animal fighting statute has been amended and
expanded since its passage in 1976 to reflect the increasing
national consensus against this activity. In strengthening the
animal fighting prohibition, members of Congress have
emphasized the nexus between animal fighting and interstate
commerce.7 For instance, in connection with the 2007 amend-
7
In addition to congressional committee reports, this Circuit has consid-
ered the statements of individual Members of Congress in analyzing
12 UNITED STATES v. GIBERT
ments to the animal fighting statute that made a violation of
the statute a felony, Senator Maria Cantwell of the State of
Washington recognized the connection between animal fight-
ing and the spread of costly and dangerous diseases such as
the "bird flu," stating:
It’s time to get this felony animal fighting language
enacted. With the bird flu threat looming, we can’t
afford to wait any longer. The economic conse-
quences are staggering—the World Bank projects
worldwide losses of $1.5 to $2 trillion. . . .
Interstate and international transport of birds for
cockfighting is known to have contributed to the
spread of avian influenza in Asia and poses a threat
to poultry and public health in the United States.
According to the World Health Organization and
local news reports, at least nine confirmed human
fatalities from avian influenza in Thailand and Viet-
nam may have been contracted through cockfighting
activity since the beginning of 2004. . . .
Because human handling of fighting roosters is a
regular occurrence, the opportunity of disease trans-
mission from fighting birds to people is substantial.
Fighting-bird handlers come into frequent, sustained
contact with their birds during training and during
organized fights. . . .
whether an activity regulated by federal statute substantially affects inter-
state commerce. See, e.g., United States v. Gould, 568 F.3d 459, 473-74
(4th Cir. 2009) (citing statements from more than a dozen legislators in
rejecting a Commerce Clause challenge to the Sex Offender Registration
and Notification Act, 42 U.S.C. § 16901 et seq. and 18 U.S.C. § 2250);
Gibbs v. Babbitt, 214 F.3d 483, 494 n.3 (4th Cir. 2000) (rejecting Com-
merce Clause challenge to federal regulation limiting the taking of red
wolves on private land and noting that "[c]ommittee reports and legislative
debates have emphasized the importance of endangered species to inter-
state commerce").
UNITED STATES v. GIBERT 13
Cockfighters frequently move birds across State
and foreign borders, bringing them to fight in differ-
ent locations and risking the spread of infectious dis-
eases. . . .
The USDA has stated that cockfighting was impli-
cated in an outbreak of [exotic Newcastle disease]
that spread through California and the Southwest in
2002 and 2003. That outbreak cost U.S. taxpayers
nearly $200 million to eradicate and cost the U.S.
poultry industry many millions more in lost export
markets. The costs of an avian influenza outbreak in
this country could be much higher—with the Con-
gressional Budget Office estimating losses between
1.5 and 5 percent of GDP ($185 billion to $618 bil-
lion). . . .
153 Cong. Rec. S451-52 (daily ed. Jan. 11, 2007) (Statement
of Sen. Cantwell).
Similarly, Representative Elton Gallegly of California
spoke in support of strengthening the animal fighting statute
in 2007, observing the significant economic impact that cock-
fighting causes in terms of the spread of disease:
There is the additional concern that cockfighters
spread diseases that jeopardize poultry flocks and
even public health. We in California experienced this
first-hand, when cockfighters spread exotic Newcas-
tle disease, which was so devastating to many of our
poultry producers in 2002 and 2003. That outbreak
cost U.S. taxpayers "nearly $200 million to eradi-
cate, and cost the U.S. poultry industry many mil-
lions more in lost export markets," according to
former Agriculture Secretary Ann Veneman.
153 Cong. Rec. E2 (daily ed. Jan. 5, 2007) (Statement of Rep.
Gallegly).
14 UNITED STATES v. GIBERT
Senator John Kerry of Massachusetts also sought to
strengthen the animal fighting statute, concentrating on the
growing commercial aspects of dogfighting:
Dogfighting is an interconnected, nationwide, lucra-
tive commercial industry. In addition to high-stakes
gambling, dogfighters exchange tens if not hundreds
of millions of dollars annually on the purchase and
sale of fighting dogs. . . .
This extensive commercial venture also requires
trafficking in the specialized equipment necessary to
train and house fighting dogs. . . .
It could not be clearer that the overwhelming
majority of dog fights-if not every single dog fight-
are truly economic endeavors that involve some ele-
ment of interstate commerce, such as animals, equip-
ment, breeders, or spectators having traveled across
State lines. Many dog fights are conducted for the
purposes of illegal gambling, and some gambling on
the sidelines is almost always present at these fights.
Dogfighting also burdens interstate commerce by
increasing the risk of injury or disease to both ani-
mals and humans . . . .
What’s more, small, localized dogfighting ven-
tures, when viewed in the aggregate, have a substan-
tial impact upon interstate commerce. . . . All of the
activities associated with dogfighting, including
gambling and other illegal activities, equipment out-
lays, breeding expenses, and promotion costs are not
only inherently commercial in nature but transcend
State boundaries.
153 Cong. Rec. S10409 (daily ed. July 31, 2007) (Statement
of Sen. Kerry).
UNITED STATES v. GIBERT 15
ii.
The current version of the animal fighting statute, under
which Gibert was indicted and convicted, was amended in
2008. In its present form, the animal fighting statute provides
in relevant part that "it shall be unlawful for any person to
knowingly sponsor or exhibit an animal in an animal fighting
venture."8 7 U.S.C. § 2156(a)(1). The statute sets forth the fol-
lowing definition of an "animal fighting venture":
[T]he term ‘animal fighting venture’ means any
event, in or affecting interstate or foreign commerce,
that involves a fight conducted or to be conducted
between at least 2 animals for purposes of sport,
wagering, or entertainment . . . .9
8
The statute contains a "[s]pecial rule for certain State[s]," providing
that "[w]ith respect to fighting ventures involving live birds in a State
where it would not be in violation of the law, it shall be unlawful under
this subsection for a person to sponsor or exhibit a bird in the fighting ven-
ture only if the person knew that any bird in the fighting venture was
knowingly bought, sold, delivered, transported, or received in interstate or
foreign commerce for the purpose of participation in the fighting venture."
7 U.S.C. § 2156(a)(2). The term "State" in the statute includes not only the
50 states of the United States but also the District of Columbia, the Com-
monwealth of Puerto Rico, and "any territory or possession of the United
States." 7 U.S.C. § 2156(g)(3). Although cockfighting is illegal in all 50
States and the District of Columbia, cockfighting remains legal in several
United States territories such as Guam and Puerto Rico. See Humane Soci-
ety, Cockfighting: State Laws Fact Sheet, available at http://
www.humanesociety.org/assets/pdfs/cockfighting_chart_2011.pdf
(updated June 2010).
9
The definition of "animal fighting venture" explicitly excludes the use
of animals for hunting activities. See 7 U.S.C. § 2156(g)(1) ("the term
‘animal fighting venture’ shall not be deemed to include any activity the
primary purpose of which involves the use of one or more animals in hunt-
ing another animal"). Additionally, we observe that the definition of "ani-
mal" pertains only to mammals and birds. See 7 U.S.C. § 2156(g)(4) ("the
term ‘animal’ means any live bird, or any live mammal, except man").
16 UNITED STATES v. GIBERT
7 U.S.C. § 2156(g)(1). Thus, as this definition plainly illus-
trates, a conviction for violating the animal fighting statute
requires (a) that the activity be in or affect interstate or for-
eign commerce, and (b) be for purposes of sport, wagering, or
entertainment.
C.
We next discuss the Commerce Clause, and the Supreme
Court’s construction of Congress’ powers under that constitu-
tional provision. The Commerce Clause delegates to Congress
the power "to regulate commerce with foreign nations, and
among the several states, and with the Indian tribes." U.S.
Const. art. I, § 8, cl. 3. The Supreme Court’s "interpretation
of the Commerce Clause has changed as our Nation has
developed," and Congress currently enjoys "greater latitude in
regulating conduct and transactions under the Commerce
Clause than" previous Supreme Court cases had permitted.
Morrison, 529 U.S. at 607-08 (citing United States v. Lopez,
514 U.S. 549, 552-57 (1995)).
Under the Court’s "modern era" of Commerce Clause juris-
prudence, as described in Lopez and Morrison, Congress may
broadly regulate three categories of activity under its Com-
merce Clause powers: (1) "the use of the channels of inter-
state commerce," (2) "the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities,"
and (3) "those activities having a substantial relation to inter-
state commerce." Morrison, 529 U.S. at 609 (citing Lopez,
514 U.S. at 558-59). Under the Court’s precedents, if a "ratio-
nal basis exist[s] for concluding that a regulated activity suffi-
ciently affect[s] interstate commerce," then a challenge to
Congress’ power under the Commerce Clause to regulate that
activity must fail. Lopez, 514 U.S. at 557.
Despite the broad nature of Congress’ power under the
Commerce Clause, the Supreme Court has emphasized that
UNITED STATES v. GIBERT 17
such power is "subject to outer limits," and that the Clause
and the Court’s decisions construing the Clause do not oblit-
erate the distinction between "what is truly national and what
is truly local." Id. at 557, 567-68. These concerns led the
Court to hold in Lopez that Congress exceeded its power
under the Commerce Clause in enacting the Gun-Free School
Zones Act of 1990, which prohibited the possession of a fire-
arm in a school zone. Id. at 551. In holding that Congress
lacked power to enact that regulation, the Court concluded
that the statute "neither regulates a commercial activity nor
contains a requirement that the possession be connected in
any way to interstate commerce." Id. The Court further stated
that the statute at issue "contain[ed] no jurisdictional element
which would ensure, through case-by-case inquiry, that the
firearm possession in question affects interstate commerce".
Id. at 561.
The decision in Lopez also noted the absence of congressio-
nal findings of fact demonstrating a nexus between interstate
commerce and gun possession in a school zone. Id. at 562.
Although the Court acknowledged that such congressional
findings normally are not required in order for Congress to
legislate, the Court stated that "to the extent that congressio-
nal findings would enable us to evaluate the legislative judg-
ment that the activity in question substantially affected
interstate commerce, even though no such substantial effect
was visible to the naked eye, they are lacking here." Id. at
563.
The Court in Lopez rejected as too attenuated the govern-
ment’s contention that possession of a gun in a school zone
does in fact substantially affect interstate commerce. The
Court explained that "[t]o uphold the Government’s conten-
tions here, we would have to pile inference upon inference in
a manner that would bid fair to convert congressional author-
ity under the Commerce Clause to a general police power of
the sort retained by the States." Id. at 567. Finally, the Court
observed that prohibiting gun possession in a school zone "is
18 UNITED STATES v. GIBERT
not an essential part of a larger regulation of economic activ-
ity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated." Id. at 561.
After Lopez, the Court rendered its decision in Morrison,
holding that Congress exceeded its power under the Com-
merce Clause in enacting a provision in the Violence Against
Women Act that afforded a civil remedy for victims of
gender-motivated violence. 529 U.S. at 601-02. In holding
that gender-motivated crimes of violence do not substantially
affect interstate commerce, the Court relied heavily on its
conclusion that such crimes "are not, in any sense of the
phrase, economic activity." Id. at 613. The Court also
observed that, like the statute invalidated in Lopez, the statute
at issue in Morrison "contains no jurisdictional element estab-
lishing that the federal cause of action is in pursuance of Con-
gress’ power to regulate interstate commerce." Id.
Additionally, the Court noted in Morrison that although
Congress had stated factual findings "regarding the serious
impact that gender-motivated violence has on victims and
their families," those findings were inadequate because they
relied heavily on reasoning that the Court already had rejected
as "unworkable." Id. at 614-15. The Court explained that the
link urged by the government between gender-motivated vio-
lence and interstate commerce was attenuated, and that if that
method of reasoning were accepted, it would allow the federal
government to regulate any type of violent crime without lim-
itation. Id. at 615. Repeating its pronouncement in Lopez, the
Court observed that "[s]imply because Congress may con-
clude that a particular activity substantially affects interstate
commerce does not necessarily make it so." Morrison, 529
U.S. at 614 (quoting Lopez, 514 U.S. at 557 n.2). Accord-
ingly, the Court held that Congress’ prohibition of gender-
motivated violence was "not directed at the instrumentalities,
channels, or goods involved in interstate commerce," and
hence was a subject area left for regulation by the states,
rather than by the federal government. Id. at 617-18.
UNITED STATES v. GIBERT 19
D.
Within this context of the Supreme Court’s Commerce
Clause jurisprudence and the legislative history of the animal
fighting statute, we consider Gibert’s argument that Congress
lacked the power to enact a ban on animal fighting. Based on
our review, we have no difficulty concluding that Congress
acted within the limitations established by the Commerce
Clause in enacting the animal fighting statute.
The animal fighting statute, like the statutes reviewed in
Lopez and Morrison, implicates the third category of Con-
gress’ Commerce Clause powers. Thus, the animal fighting
statute is valid under the Commerce Clause only if the activity
regulated, namely, animal fighting, has "a substantial relation
to interstate commerce." Morrison, 529 U.S. at 609 (citing
Lopez, 514 U.S. at 558-59). We conclude that, unlike the stat-
utes invalidated in Lopez and Morrison, the activity of animal
fighting and Congress’ statutory prohibition of that activity
bear the required nexus to interstate commerce that the
Supreme Court found lacking in those other two cases.
We previously have observed that the decisions in Lopez
and Morrison stated four factors that courts must consider in
analyzing whether there is a rational basis for concluding that
an activity substantially affects interstate commerce. See
Buculei, 262 F.3d at 328 (rejecting Commerce Clause chal-
lenge to 18 U.S.C. § 2251, which prohibits the sexual exploi-
tation of children with the intent to produce or transmit a
video depiction of such exploitation). These four factors
include:
(1) whether the statute relates to an activity that has
something to do with "‘commerce’ or any sort of
economic enterprise, however broadly one might
define those terms";
(2) whether the statute contains an "express jurisdic-
tional element which might limit its reach" to activi-
20 UNITED STATES v. GIBERT
ties having "an explicit connection with or effect on
interstate commerce";
(3) whether congressional findings in the statute or
its legislative history support the judgment that the
activity in question has a "substantial effect on inter-
state commerce"; and
(4) whether the link between the activity and a sub-
stantial effect on interstate commerce is attenuated.
Buculei, 262 F.3d at 328 (citing Morrison, 529 U.S. at 610-
13). We address each of these factors in turn.
With regard to the first factor, we conclude that the animal
fighting statute relates to "‘commerce’ or [some] sort of eco-
nomic enterprise." Cf. Morrison, 529 U.S. at 610, 613; Lopez,
514 U.S. at 561. The very definition of "animal fighting ven-
ture" in the statute suggests economic activity, because the
animal fighting that is prohibited must be for "purposes of
sport, wagering, or entertainment." 7 U.S.C. § 2156(g)(1).
There can be no serious dispute that the terms "sport," "wa-
gering," and "entertainment" each are closely aligned in our
culture with economics and elements of commerce. Indeed,
the uncontested factual allegations of the present case also
demonstrate the economic activities inherently involved in
cockfighting: individuals paid a fee to enter their birds into
the derby, the owner of the winning bird won the "pot" of the
collective money paid by the entrants, minus any money
retained by the derby organizers, and spectators and bird own-
ers paid an admission fee to enter the building in which the
birds fought.10
10
This Court earlier observed in another case involving a conspiracy to
violate the animal fighting statute that, for the cockfighting event at issue,
animal owners paid between $75 and $400 to enter their animals in the
fights, while spectators paid a $15 admission fee and routinely wagered on
the bouts. See United States v. Kingrea, 573 F.3d 186, 189 (4th Cir. 2009).
UNITED STATES v. GIBERT 21
We also observe that Gibert’s argument would require us
to reject or ignore congressional committee findings dating
back to the original enactment of the animal fighting statute
that such activities (a) attract fighting animals and spectators
from numerous states, (b) are or have been advertised in print
media of nationwide circulation, and (c) often involve gam-
bling and other "questionable and criminal activities." H.R.
Rep. No. 94-801, 1976 U.S.C.C.A.N. at 761. Further, we rec-
ognize and afford deference to Congress’ findings in the
AWA’s "statement of policy" that the "animals and activities
which are regulated under this chapter are either in interstate
or foreign commerce or substantially affect such commerce or
the free flow thereof."11 7 U.S.C. § 2131.
Additionally, we observe that the economic aspects of
cockfighting are evident from statements to Congress made
by a representative of the United Gamefowl Breeders Associ-
ation (UGBA), an organization that advocated against certain
recent amendments to the animal fighting statute. Jerry Leber,
the President of the UGBA, testified before Congress in 2007
that the gamefowl industry, for which the principal or major-
ity purpose is to produce fighting animals, generated "billions
of dollars" in annual revenue before Congress’ amendment
that year to the statutory prohibition on animal fighting. See
Native American Methamphetamine Enforcement and Treat-
ment Act of 2007, the Animal Fighting Prohibition Enforce-
ment Act of 2007, and the Preventing Harassment through
Outbound Number Enforcement (PHONE) Act of 2007: Hear-
ing on H.R. 545, H.R. 137, and H.R. 740 Before the Sub-
comm. on Crime, Terrorism, and Homeland Security of the H.
Comm. on the Judiciary, 110th Cong. 57 (2007).
In his statement to Congress, Leber also represented that
11
Also, Gibert has not provided any reason to discount the statements
of Senators Kerry and Cantwell, and Representative Gallegly, as set forth
above, concerning the substantial effect that animal fighting continues to
have on interstate commerce.
22 UNITED STATES v. GIBERT
"the total value of the gamefowl industry to the economy of
the United States is a staggering total of $2 billion to $6 bil-
lion annually." Id. at 60. Further, when asked by Representa-
tive Hank Johnson of Georgia whether the "principal purpose"
of the gamefowl breeding industry is "to produce fighting
cocks," Mr. Leber replied: "That may be the majority use." Id.
at 95.
In view of the above congressional findings, statements of
individual members of Congress, and other information pre-
sented to Congress, we conclude that animal fighting, at least
within Congress’ definition of the term "animal fighting ven-
ture" in 7 U.S.C § 2156(g)(1), involves a "quintessentially
economic" activity. See Gonzales v. Raich, 545 U.S. 1, 25
(2005) (holding that, unlike the activities at issue in Lopez and
Morrison, the activities regulated by the Controlled Sub-
stances Act are "quintessentially economic"). And, in contrast
to the statute invalidated in Lopez, the effect of animal fight-
ing on interstate commerce is "visible to the naked eye." Cf.
514 U.S. at 563.
We next consider the second factor identified in Lopez and
Morrison, whether the statute at issue contains an express ele-
ment limiting the statute’s reach to activities having an
explicit connection with or effect on interstate commerce. See
Morrison, 529 U.S. at 611-13. We conclude that the statute
before us does contain such an element.
The statutory definition of an "animal fighting venture"
provides, in relevant part, that the animal fighting event must
be one "in or affecting interstate or foreign commerce." 7
U.S.C. § 2156(g)(1). Thus, to convict a defendant of violating
the animal fighting statute, the government must allege and
prove that the individual participated in an animal fighting
event that had a connection with or effect on interstate or for-
eign commerce. Cf. Lopez, 514 U.S. at 561 (statute lacked
element requiring that firearm possession in school zone
affects interstate commerce); Morrison, 529 U.S. at 613 (stat-
UNITED STATES v. GIBERT 23
ute did not contain element establishing that federal cause of
action for violence against women is exercise of Congress’
power to regulate interstate commerce). This express require-
ment in the animal fighting statute of a connection to, or
effect on, interstate commerce thus satisfies the Supreme
Court’s concern, as expressed in Lopez and Morrison, that the
statute at issue have a nexus to interstate commerce as an ele-
ment of the offense. See Lopez, 514 U.S. at 561; Morrison,
529 U.S. at 613.
With regard to the third factor identified in Lopez and Mor-
rison, we conclude that there are ample congressional find-
ings in the statute and its legislative history that support the
judgment that animal fighting has a substantial effect on inter-
state commerce. As we have noted, the AWA’s statement of
policy declares that the animals regulated under the Act "are
either in interstate or foreign commerce or substantially affect
such commerce or the free flow thereof." 7 U.S.C. § 2131.
Additionally, the House Committee Report pertaining to the
original enactment of the animal fighting prohibition in 1976
discussed the growing rise of commercial animal fighting and
its strong connection to interstate commerce.12 H.R. Rep. No.
94-801, 1976 U.S.C.C.A.N. at 759-61 (discussing dogfight-
ing).
With regard to the fourth and final factor set forth in Lopez
and Morrison, for the reasons discussed above, the link
12
Further, as noted earlier, Senator Cantwell and Representative Gal-
legly successfully advocated strengthening the animal fighting prohibition
by observing the connection between animal fighting and the "bird flu,"
and the economic consequences that would accompany a bird flu pan-
demic. See 153 Cong. Rec. S451-52 (daily ed. Jan. 11, 2007) (Statement
of Sen. Cantwell); 153 Cong. Rec. E2 (daily ed. Jan. 5, 2007) (Statement
of Rep. Gallegly); see also 153 Cong. Rec. S10409 (daily ed. July 31,
2007) (Statement of Sen. Kerry) (discussing interstate commercial aspects
of dogfighting and observing that "[d]ogfighting is an inherently commer-
cial and economic activity that has a substantial effect upon interstate
commerce").
24 UNITED STATES v. GIBERT
between animal fighting ventures and its effect on interstate
commerce is not attenuated. Rather, the link is direct, because
animal fighting ventures are inherently commercial enter-
prises that often involve substantial interstate activity. Thus,
in contrast to the statute at issue in Lopez, there is no need to
"pile inference upon inference" in order to establish the link
between animal fighting and interstate commerce. Cf. 514
U.S. at 567.
In sum, our task is simply to determine, with a presumption
of constitutionality in mind, whether there is a rational basis
for concluding that the practice of animal fighting, when con-
ducted for "purposes of sport, wagering or entertainment,"
substantially affects interstate commerce. In light of our con-
sideration of the four factors employed by the Supreme Court
in Lopez and Morrison, we hold that the district court did not
err in concluding that the animal fighting statute was a legiti-
mate exercise of Congress’ power under the Commerce
Clause.
We note that we have considered Gibert’s arguments as
presenting solely a facial challenge to the constitutionality of
the animal fighting statute. We accord this construction to
Gibert’s arguments in view of the manner in which Gibert
presented the Commerce Clause challenge in the briefs filed
with this Court. However, to the extent that Gibert’s brief sug-
gests an as-applied challenge to the statute, such a challenge
likewise fails. As we held in United States v. Williams, 342
F.3d 350 (4th Cir. 2003), the relevant question for purposes
of a Commerce Clause analysis is not whether one particular
offense has an impact on interstate commerce, but whether the
class of acts proscribed has such an impact. Id. at 355; see
also United States v. Gould, 568 F.3d 459, 475 (4th Cir. 2009)
(citing Williams for same proposition).
As the Supreme Court explained in Raich, Congress has the
"power to regulate purely local activities that are part of an
economic ‘class of activities’ that have a substantial effect on
UNITED STATES v. GIBERT 25
interstate commerce. . . . [W]hen a general regulatory statute
bears a substantial relation to commerce, the de minimis char-
acter of individual instances arising under that statute is of no
consequence." 545 U.S. at 17 (citation and quotation marks
omitted); see also United States v. Forrest, 429 F.3d 73, 79
(4th Cir. 2005) (applying Raich and holding that the defen-
dant’s "constitutional challenge, which rests entirely on the
asserted de minimis economic effect of his own activities,
must fail") (internal citation omitted).
Finally, we observe that if the cockfighting activities in
which Gibert participated were wholly an intrastate activity,
the government would be unable to establish one of the ele-
ments of the offense, namely, that the event be "in or affecting
interstate or foreign commerce." 7 U.S.C. § 2156(g)(1). How-
ever, by his guilty plea to the offense, Gibert acknowledged
that the government could prove that the event "was in or
affecting interstate commerce."13 See United States v. Willis,
992 F.2d 489, 490 (4th Cir. 1993) (holding that a voluntary
and intelligent plea of guilty "is an admission of all the ele-
ments of a formal criminal charge") (quoting McCarthy v.
United States, 394 U.S. 459, 466 (1969)). Therefore, any as-
applied constitutional challenge to the animal fighting statute
based on the manner in which the cockfighting operation was
conducted necessarily fails.
III.
We next consider Gibert’s argument that the district court
erred in its construction of the scienter element of the animal
fighting statute. As stated above, the animal fighting statute
provides, in relevant part, that "it shall be unlawful for any
person to knowingly sponsor or exhibit an animal in an ani-
mal fighting venture." 7 U.S.C. § 2156(a)(i). An "animal
13
We observe that Gibert explicitly indicated in the plea agreement that
the government was required to prove as an element of the offense that the
animal fighting venture was "in or affecting interstate commerce."
26 UNITED STATES v. GIBERT
fighting venture" is defined as "any event, in or affecting
interstate or foreign commerce, that involves a fight con-
ducted or to be conducted between at least 2 animals for pur-
poses of sport, wagering, or entertainment . . . ." 7 U.S.C.
§ 2156(g)(1).
Before agreeing to plead guilty, Gibert filed a motion in the
district court seeking a jury instruction that would require the
government to prove that he had knowledge that the animal
fighting venture "was in or affected interstate commerce."
The district court denied Gibert’s motion, and issued an order
stating that the court would instruct the jury that the govern-
ment was not required to establish that Gibert knew that the
animal fighting venture "was engaged in or was affecting"
interstate commerce. After the district court issued this ruling,
Gibert entered his conditional guilty plea, reserving the right
to challenge that ruling on appeal.
The issue whether the district court correctly construed the
scienter requirement of the animal fighting statute presents an
issue of law, which we review de novo. See United States v.
Rahman, 83 F.3d 89, 92 (4th Cir. 1996). In support of his
scienter argument, Gibert relies almost exclusively on our
decision in United States v. Talebnejad, 460 F.3d 563 (4th
Cir. 2006), a case involving a charge of "knowingly" conduct-
ing an "unlicensed money tramsmitting business," in violation
of 18 U.S.C. § 1960.14
In Talebnejad, we identified as an element of the crime the
requirement that the prohibited business be one affecting
interstate commerce. 460 F.3d at 568. Contrary to Gibert’s
14
That statute defines the term "unlicensed money transmitting busi-
ness," in relevant part, as "a money transmitting business which affects
interstate or foreign commerce in any manner or degree [and] is operated
without an appropriate money transmitting license in a State where such
operation is punishable as a misdemeanor or a felony under State law,
whether or not the defendant knew that the operation was required to be
licensed or that the operation was so punishable." 18 U.S.C. § 1960(b).
UNITED STATES v. GIBERT 27
argument, however, we did not hold in that case that the gov-
ernment was required to prove that the defendant knew that
the unlicensed business affected interstate commerce. Instead,
our holding addressed whether the statute was constitutional
in the absence of a mens rea requirement regarding the two
elements of the statute dealing with state law licensing require-
ments.15 See id. at 568. We answered that question in the affir-
mative, holding that the Due Process Clause did not require
Congress to include a mens rea requirement regarding those
"legal," as opposed to "factual," elements of the crime. Id. at
570. Thus, our holding in Talebnejad is inapposite to the
scienter argument that Gibert advances here.16
We find no merit in Gibert’s scienter argument, because
Gibert’s conviction for violating the animal fighting statute
required proof of knowledge of the stated factual elements of
the offense, but did not require proof of knowledge that the
activity was "in or affected interstate commerce."17 See, e.g.,
15
We made the breadth of our holding in Talebnejad clear when we
recited the five elements of the offense as "(1) operat[ing] a money trans-
mitting business, (2) that affects interstate commerce, and (3) that is unli-
censed under state law, when (4) state law requires a license and (5) state
law punishes lack of a license as a felony or misdemeanor," and then
stated that the question at issue is "whether the statute is constitutional in
the absence of a mens rea requirement as to these [last] two elements."
460 F.3d at 568.
16
Our reference in Talebnejad to the parties’ agreement that there was
a knowledge requirement regarding the interstate commerce element of
the crime was not a holding of this Court, but merely a reference to the
parties’ position in the case.
17
Congress, of course, is free to require knowledge of an interstate
nexus as an element of the offense if Congress so chooses. As discussed
in the Lawson companion case, the animal fighting statute does in fact
require such actual knowledge if the defendant is prosecuted in a jurisdic-
tion where animal fighting remains legal. See 7 U.S.C. § 2156(a)(2)
("Special rule for certain State[s]: With respect to fighting ventures
involving live birds in a State where it would not be in violation of the
law, it shall be unlawful under this subsection for a person to sponsor or
exhibit a bird in the fighting venture only if the person knew that any bird
in the fighting venture was knowingly bought, sold, delivered, transported,
or received in interstate or foreign commerce for the purpose of participa-
tion in the fighting venture.") (Emphasis added).
28 UNITED STATES v. GIBERT
United States v. Langley, 62 F.3d 602, 605–06 (4th Cir. 1995)
(conviction under felon-in-possession statute, 18 U.S.C.
§ 922(g)(1), does not require knowledge of firearm’s inter-
state nexus as an element of the offense); United States v.
Darby, 37 F.3d 1059, 1067 (4th Cir. 1994) (conviction for
transmitting threatening interstate communications, 18 U.S.C.
§ 875(c), does not require proof of knowledge that threatening
telephone call was an interstate call); United States v. Squires,
581 F.2d 408, 410 (4th Cir. 1978) (conviction under National
Stolen Property Act, 18 U.S.C. § 2314, does not require proof
of knowledge of interstate nature of transportation of counter-
feit securities).
As these decisions plainly illustrate, "criminal statutes
based on the government’s interest in regulating interstate
commerce do not generally require that an offender have
knowledge of the interstate nexus of his actions." Darby, 37
F.3d at 1067. Accordingly, we agree with the district court
that the animal fighting statute does not require that the gov-
ernment establish a defendant’s knowledge that the animal
fighting venture was in or affecting interstate commerce.
IV.
In conclusion, we hold that the animal fighting statute pro-
hibits activities that substantially affect interstate commerce
and, thus, is a legitimate exercise of Congress’ power under
the Commerce Clause. We also hold that the district court
correctly concluded that the government was not required to
establish the defendants’ knowledge that the particular animal
fighting venture was in or affecting interstate commerce.
Therefore, we affirm the defendants’ convictions.
AFFIRMED