United States v. Baer

F I L E D
United States Court of Appeals
Tenth Circuit

DEC 19 2000
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-1102

DEVON WENDALL BAER,

Defendant-Appellant,

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 88-CR-147-B)

Submitted on the briefs:

Devon Wendall Baer, Pro Se.

Thomas L. Strickland, United States Attorney and Sean Connelly, Assistant U.S.
Attorney, Denver, Colorado, for Appellee.

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

SEYMOUR, Chief Judge.
 Devon Wendall Baer was convicted by a jury of one count of possessing

firearms after a felony conviction in violation of 18 U.S.C. § 922(g)(1), and one

count of possessing firearms with obliterated serial numbers in violation of 18

U.S.C. § 922(k). He appeals, arguing that he has the right to bear arms under the

Utah state constitution, that the federal statutes under which he was convicted are

beyond Congress’ power under the Commerce Clause and in violation of the

Second, Ninth and Tenth Amendments, and that he was the object of vindictive

prosecution. 1 Concluding that his arguments are without merit, we affirm. 2

We first address Mr. Baer’s contention that his federal weapons prosecution

was improper because the Utah constitution gives him the right to bear arms. We

agree with the government that we need not consider this issue because under the

Supremacy Clause, state constitutional provisions cannot override federal criminal

statutes unless incorporated into federal law. 3

1
Mr. Baer proceeds on appeal pro se and his 45 page brief is handwritten.
We have attempted to frame his arguments as succinctly and as accurately as
possible in light of the proceedings below, in which Mr. Baer also appeared pro
se.
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.

3
The Supremacy Clause states in relevant part that “[T]he laws of the
United States . . . shall be the supreme Law of the Land; and the Judges in every
(continued...)

-2-
 Mr. Baer also appears to make the separate but related argument that he

holds full civil rights under the state constitution despite his prior felony

conviction, thus making him ineligible for prosecution under sections 922(g)(1)

and 921(a)(20). Section 922(g)(1) provides that a person convicted of a felony in

state or federal court cannot “ship or transport in interstate . . . commerce, or

possess in or affecting commerce, any firearm or ammunition; or . . . receive any

firearm or ammunition which has been shipped or transported in interstate . . .

commerce.” 4 Under 18 U.S.C. § 921(a)(20), a prior felony conviction cannot be

used as a predicate felony for purposes of section 922(g) if it has been expunged

or set aside, or if it is one for which a person has been pardoned, or if the person

has had civil rights restored. United States v. Flower, 29 F.3d 530, 533 (10th Cir.

1994).

In Flower, as in the instant case, the defendant relied on various provisions

of the Utah constitution to argue that his civil rights had been restored. We

pointed out that under the law of this circuit, a defendant must show that his

rights to vote, serve on a jury, hold public office and possess firearms have all

been restored. See id. at 536. Here, the government presented undisputed

(...continued)
3

State shall be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. C ONST . art. VI, § 2.

It is undisputed that Mr. Baer was previously convicted of a felony in
4

Utah state court.

-3-
evidence that Mr. Baer’s state conviction had not been expunged or pardoned, and

that none of his civil rights had been restored. We note in particular that Utah

law expressly forbids convicted felons from serving on juries, one of the rights

that must be restored in order to escape the provisions of section 922(g). See id.

(quoting U TAH C ODE A NN . § 78-46-7(2)). Mr. Baer’s bare assertion that the

various state statutes relied on by the government and the trial court violate the

state constitution, as he construes it, is unsupported by any legal authority and

without merit. Accordingly, we reject his argument that his state law felony does

not support his section 922(g)(1) conviction. 5

Mr. Baer further argues that Congress exceeded its authority under the

Commerce Clause in enacting sections 922(g)(1) and 922(k). He relies on United

States v. Lopez, 514 U.S. 549 (1995), to assert that the acts forbidden by those

statutes do not have a sufficient impact on interstate commerce. We have rejected

this argument, holding to the contrary that “[s]ection 922(g)’s requirement that

5
Mr. Baer also argues that the trial court erred in refusing to allow the
admission of the Utah constitution into evidence. Again we disagree. As we
discuss above, state law is relevant only to determining whether Mr. Baer’s prior
state conviction is admissible to support his section 922(g)(1) prosecution. We
held in Flower that this is a legal determination to be made by the trial judge
outside the presence of the jury. Flower, 29 F.3d at 536. Accordingly the court
here did not err in refusing to place the state constitution before the jury. We
note that the trial court did consider the state constitution and other state statutory
materials offered by Mr. Baer in deciding that his state felony could support the
section 922(g)(1) charge.

-4-
the firearm have been, at some time, in interstate commerce is sufficient to

establish its constitutionality under the Commerce Clause.” United States v.

Bolton, 68 F.3d 396, 400 (10th Cir. 1995) (internal quotation omitted). Lopez is

distinguishable from cases addressing statutes such as sections 922(g) and 922(k)

because those statutes, unlike the one at issue in Lopez, require a nexus with

interstate commerce in order to establish jurisdiction. See id; see also United

States v. Mack, 164 F.3d 467, 473 (9th Cir. 1999); United States v. Pierson, 139

F.3d 501, 503 (5th Cir. 1998); United States v. Diaz-Martinez, 71 F.3d 946, 953

(1st Cir. 1995). We thus find no merit in Mr. Baer’s Commerce Clause

challenge. 6

Mr. Baer contends that sections 922(g)(1) and 922(k) are unconstitutional

as violative of the Ninth Amendment, which provides that “[t]he enumeration in

6
Mr. Baer also makes an undeveloped argument that his prosecution
violated the Tenth Amendment, which provides that “[t]he powers not delegated
to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” U.S. C ONST . amend. X.
The inquiries under the Commerce Clause and the Tenth Amendment are mirror
images. See New York v. United States, 505 U.S. 144, 156 (1992). A holding that
a Congressional enactment does not violate the Commerce Clause is therefore
dispositive of a Tenth Amendment challenge. In light of our rejection of Mr.
Baer’s Commerce Clause argument, we reject his Tenth Amendment argument as
well.
Also woven through his arguments is Mr. Baer’s assertion that federal
firearms regulation denies convicted felons the equal protection of the laws. This
argument has been rejected by the Supreme Court, see Lewis v. United States, 445
U.S. 55, 65 & n.8 (1980), and is thus without merit.

-5-
the Constitution, of certain rights, shall not be construed to deny or disparage

others retained by the people.” U.S. C ONST . amend. IX. The circuits have

uniformly rejected the argument that the Ninth Amendment encompasses “an

unenumerated, fundamental, individual right to bear firearms.” San Diego County

Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125 (9th Cir. 1996); see also United

States v. Wright, 117 F.3d 1265, 1275 (11th Cir. 1997), vacated in part on other

grounds 133 F.3d 1412 (11th Cir. 1998); United States v. Broussard, 80 F.3d

1025, 1041 (5th Cir. 1996). We agree and reject Mr. Baer’s contention that the

federal firearms statutes violate the Ninth Amendment.

Mr. Baer also makes the time-worn argument that his conviction violates

the Second Amendment. The Supreme Court has long held that “the Second

Amendment guarantees no right to keep and bear a firearm that does not have

‘some reasonable relationship to the preservation or efficiency of a well regulated

militia.’” Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (quoting United

States v. Miller, 307 U.S. 174, 178 (1939)). The Court in Lewis concluded that

federal legislation regulating the receipt and possession of firearms by felons

“do[es] not trench upon any constitutionally protected liberties,” including those

guaranteed by the Second Amendment. Id. In light of this authority, the circuits

have consistently upheld the constitutionality of federal weapons regulations like

section 922(g) absent evidence that they in any way affect the maintenance of a

-6-
well regulated militia. See, e.g., Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.

1995); see also Wright, 117 F.3d at 1271-74 (upholding 18 U.S.C. § 922(o),

which bars possession of machine gun, against Second Amendment challenge);

United States v. Hale, 978 F.2d 1016, 1018-1020 (same); United States v. Nelson,

859 F.2d 1318, 1320 (8th Cir. 1988) (upholding Switchblade Knife Act, 15 U.S.C.

§ 1242, against Second Amendment challenge); United States v. Oakes, 564 F.2d

384, 387 (10th Cir. 1977) (upholding 26 U.S.C. § 5861(d), which bars possession

of unregistered machine gun, against Second Amendment challenge). Mr. Baer’s

prosecution did not violate the Second Amendment.

Finally, we turn to Mr. Baer’s argument that he was the victim of vindictive

prosecution. “To establish a claim of prosecutorial vindictiveness, the defendant

must prove either (1) actual vindictiveness, or (2) a realistic likelihood of

vindictiveness which will give rise to a presumption of vindictiveness.” United

States v. Lampley, 127 F.3d 1231, 1245 (10th Cir. 1997). If the defendant meets

this burden, the government must present legitimate reasons to justify its decision

to prosecute. Id.

A brief review of the record pertinent to Mr. Baer’s claim reveals that the

indictment in this case was originally filed in 1988. However, Mr. Baer fled the

jurisdiction and began living in Florida under an assumed name. Once the

government discovered his whereabouts after he was arrested on gun charges, he

-7-
was brought to Colorado and tried on the instant charges. Mr. Baer believes that

the instant prosecution was undertaken at the behest of Florida officials. 7 The

government countered with a representation by the prosecuting attorney made as

an officer of the court that he had not been urged by anyone to proceed with the

case and that he made the decision to pursue prosecution solely on the basis of

Mr. Baer’s outstanding indictment.

Mr. Baer has offered nothing other than conjecture and speculation to

support his contention, and his theories fall far short of proving either actual

vindictiveness or a reasonable likelihood of vindictiveness. The trial court

therefore properly rejected this claim.

We AFFIRM Mr. Baer’s convictions.

7
Mr. Baer supports his contention by asserting that a state trooper who
appeared as a witness in the instant trial committed perjury. We will not credit
such an accusation when, as here, it is grounded only on the fact that the witness’
testimony conflicted with that of Mr. Baer.

-8-