[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 24, 2005
No. 04-11658 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00268-CR-J-21-HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL PETERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 24, 2005)
Before MARCUS, FAY and SILER *, Circuit Judges.
MARCUS, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
Michael Peters appeals his conviction after a jury trial for sale of a firearm
and ammunition to a convicted felon, in violation of 18 U.S.C. §§ 922(d)(1) and
924 (a)(2). Peters argues that the district court improperly denied his motion for
judgment of acquittal, and that § 922(d) is an unconstitutional exercise of
Congress’ commerce power. Because sufficient evidence was presented at trial for
the jury to conclude that Peters knowingly sold a firearm and ammunition to a
convicted felon, we affirm the district court’s denial of Peters’ motion for
judgment of acquittal. In addition, because banning the sale of firearms to felons
falls within the scope of Congress’ commerce power, we affirm Peters’ conviction.
I.
The story begins in April 2002, when the Bureau of Alcohol, Tobacco and
Firearms (“ATF”) began an investigation of Michael Peters, one-time owner and
operator of MRM Outdoor Sports and Police Supplies (“MRM”) in Branford,
Florida. MRM sold firearms, among other things, and Peters was a federally
licensed firearms dealer from 1994 until his license expired in April 2001. ATF
Agent Nick Cheremeta had seen Peters at gun shows and knew that he was no
longer a licensed firearms dealer. Accordingly, he employed a confidential
informant to determine whether Peters was still selling guns out of his store.
2
The confidential informant, Harley Edward St. John, was born Gary Bruce
Wilson and, prior to his entry into the Federal Witness Protection Program in 1991,
had used a number of other aliases, including Charles Jerome Wilson and Ed
Feagin. On November 19, 1991, under the name Ed Feagin, St. John was
convicted of one count of felony aggravated assault in the Superior Court of
Tattnall County, Georgia. Upon entering into the Federal Witness Protection
Program in 1991, St. John was given his new name and assigned a new social
security number, although he kept his actual birth date of October 26, 1951. The
names Gary Bruce Wilson, Charles Jerome Wilson, Ed Feagin, and Harley Edward
St. John also share a single FBI number. When St. John left the witness protection
program in 1995, he kept his new name.
Acting as a confidential informant for ATF, St. John made a total of seven
contacts with the defendant Peters, all of which he tape recorded. St. John’s first
contact with Peters was on April 11, 2002, when Agent Cheremeta sent him into
Peters’ store to buy a box of ammunition. St. John talked with Peters at some
length, making no mention of his felony conviction, before purchasing the
ammunition.
On May 9, 2002, Agent Cheremeta instructed St. John to call Peters to
discuss local gun shows. After learning that Peters planned to attend a gun show
3
on May 26, Agent Cheremeta sent St. John to that show to buy two firearms from
Peters. After browsing Peters’ merchandise, St. John inquired whether he could
make a purchase “without a background,” to which Peters replied, “Yup. This is
all my personal stuff.” St. John explained, “my old lady kind of flung something
on me last year, you know how that shit goes and I don’t want to --,” at which
point Peters interjected, “Dude, get it cleaned off.” Without providing
identification, St. John then purchased from Peters a .34-caliber pistol and a 12-
gauge shotgun.
St. John contacted Peters again on June 13 to ask about several of his guns,
and told Peters that he would see him at the gun show the upcoming Saturday. At
that show, on June 15, St. John said to Peters that gun shows made him “nervous as
hell” because of his “damn felony conviction.” Peters responded, “I thought that
wasn’t a conviction you said, they, they gave you a [inaudible] judgment you
said.” St. John then purchased two semi-automatic pistols from Peters, again
without showing any identification, before returning to the topic of his trouble with
his “old lady.” Peters suggested that “it might be fixed by now,” to which St. John
replied, “They don’t take that shit off.” Peters assured him, “Yeah they do,” and
St. John told him, “A felony conviction, they don’t do [sic] take that off.” Peters
commented, “I thought you said it was a domestic violence charge,” and St. John
4
explained, “No, I said it was the old lady, you know what I mean. And it’s
bullshit, she Goddamn set up the -- all I did was grab that -- she’s hauling ass out
the door and I cut the Goddamn tire and they charged me with [inaudible].” Peters
asked, “assault on a vehicle?” and St. John responded, “no -- on her.” St. John also
informed Peters that he had received the conviction three years earlier, in Georgia.
Peters asked, “are you sure it was a felony conviction? . . . Cause I thought it was a
domestic violence thing we were talking about before.” St. John mentioned
attempting to get his rights restored, and Peters advised him to “[p]ay a couple of
hundred bucks to an [a]ttorney, fill out the paperwork, go through the procedures,
it’s worth it.” Peters referred him to an attorney whom Peters said had helped an
acquaintance of his get his rights restored after his conviction for a drug offense.
On June 26, 2002, St. John again called Peters to inquire about several more
guns. Peters gave St. John directions to his store, and St. John mentioned that he
had left a message for the attorney Peters had recommended. Two days later, on
June 28, 2002, St. John visited Peters’ store. St. John also mentioned again that he
was having difficulty contacting the attorney, and explained that he wanted to
follow up with her, because “[i]f she gets that felony conviction off of me then . . .
I can do what the hell I want . . . [and] I don’t have to worry about a bunch of
bullshit.” Peters suggested that St. John’s offense “should have been a
5
misdemeanor in the first place.” The two discussed St. John’s conviction for
several minutes, and then St. John purchased an AR-15 and a case of ammunition
from Peters, again without showing identification.
Peters and St. John had no subsequent meetings. However, on September
17, 2002, ATF agents executed searches of both Peters’ residence and his business
premises. These searches turned up no illegal firearms or other contraband.
On December 18, 2002, a federal grand jury in the United States District
Court for the Middle District of Florida indicted Peters on two counts of selling
firearms and ammunition to a convicted felon -- on June 15, 2002, and June 28,
2002, respectively -- in violation of 18 U.S.C. §§ 922(d)(1) and 922(a)(2).
At trial, the government introduced transcripts of the conversations between
Peters and St. John, all of which had been recorded. The government also
introduced testimony from Matthew Scott Robinson, a local police officer working
with ATF. Robinson testified that he was conducting surveillance at the June 15
gun show, and did not see St. John show Peters any identification before making
his purchase.
Agent Cheremeta testified about the details of ATF’s investigation of Peters.
He explained, among other things, that ATF had instructed St. John to mention to
Peters a possible problem with his background, but not to give any specifics until
6
the June 15 gun show. Cheremeta denied, however, instructing St. John to mislead
Peters about his conviction. According to Cheremeta, when he ran a background
check through the National Crime Information Center (“NCIC”), it revealed St.
John’s prior conviction. On cross-examination, however, Cheremeta admitted that
he had conducted the NCIC search using St. John’s birth name, Gary Wilson, and
had not run the name St. John.
The government rested its case, and Peters moved for judgment of acquittal,
arguing that the government had not established that Peters was aware of St. John’s
conviction. The court denied the motion.
Peters then testified on his own behalf. He explained that he let his federal
firearms license expire in April 2001 because he had decided to close his store and
become a mortgage broker. The defendant said that after the expiration of his
license, he took his excess firearm inventory home to sell privately through trade
shows and over the internet. He acknowledged that as a licensed firearms dealer,
he had been required to conduct background checks of potential purchasers, but
that no checks are required when the seller is a private individual.
Peters further testified that St. John had produced a Florida driver’s license
bearing the name Harley St. John when he made his initial firearm purchase from
Peters on May 26, 2002. As to St. John’s story about trouble with his wife, Peters
7
explained that he had assumed St. John was referring only to a domestic violence
temporary restraining order. Peters also stated that after this conversation, he
conducted a background check, using the name Harley St. John and the address
and date of birth on the driver’s license St. John had produced, to search public
records available on the internet, including the web sites of the Georgia and Florida
departments of corrections, the Bradford and Duval County sheriffs’ offices, and
the Georgia Bureau of Investigations. Peters found no record of any conviction
under the name Harley St. John in any of these sources. He acknowledged that if
he had been a licensed dealer, he would have checked other sites, including NCIC.
As to St. John’s mention of a prior felony conviction at the June 15, 2002
gun show, Peters testified that he thought St. John was simply confused about a
prior domestic violence restraining order and was making a big deal out of nothing.
Peters stated that he would not have sold firearms to St. John if he had reason to
believe that St. John had a prior felony conviction. Peters explained that St. John’s
confusion about the nature of the charges, what he had been convicted of, and
whether he had served any jail time, as well as the fact that Peters’ own searches
had revealed no record of any conviction, led Peters to believe that St. John had no
prior felony conviction.
Peters also offered the testimony of Charles Meacham, a licensed private
8
investigator familiar with conducting background checks. Meacham stated that he
ran a check of Harley St. John on all available public databases and found no
felony convictions. Meacham also confirmed that the NCIC database is not
accessible by the public.
Peters called a final character witness to establish his reputation for
truthfulness, and then rested his case. The government presented no rebuttal case.
Peters then renewed his motion for judgment of acquittal, which the court denied.
The jury acquitted Peters on the first count of the indictment -- the June 15 sale --
and convicted him on the second -- the June 28 sale. At sentencing, the district
court granted Peters’ motion for a downward departure from the Guidelines range,
and sentenced him to three years’ probation and nine months’ home detention.
Peters now appeals his conviction.
II.
Peters’ first argument on appeal is that the district court erred in denying his
motion for judgment of acquittal, since the evidence presented at trial was legally
insufficient to establish either that St. John actually had a prior felony conviction,
or that Peters knew or had reasonable cause to know of such a conviction.
Federal Rule of Criminal Procedure 29(a) states, in pertinent part: “After the
government closes its evidence or after the close of all the evidence, the court on
9
the defendant’s motion must enter a judgment of acquittal of any offense for which
the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
We review the denial of a motion for judgment of acquittal de novo. United
States v. Bowman, 302 F.3d 1228, 1237 (11th Cir. 2002). “When the motion
raises a challenge to the sufficiency of the evidence, we review the sufficiency of
the evidence de novo, drawing all reasonable inferences in the Government’s
favor.” Id.; see also United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.
2000). “To uphold the denial of a Rule 29 motion, ‘we need only determine that a
reasonable fact-finder could conclude that the evidence established the defendant’s
guilt beyond a reasonable doubt.’” United States v. Descent, 292 F.3d 703, 706
(11th Cir. 2002) (quoting United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir.
2001)). The evidence may be sufficient even when it does not “exclude every
reasonable hypothesis of innocence or [is not] wholly inconsistent with every
conclusion except that of guilt,” since a “jury is free to choose among reasonable
constructions of the evidence.” United States v. Montes-Cardenas, 746 F.2d 771,
778 (11th Cir. 1984) (citation and internal quotation marks omitted). Moreover,
we are bound by the jury’s credibility determinations, and by its rejection of the
inferences raised by the defendant. United States v. Glinton, 154 F.3d 1245, 1258
(11th Cir. 1998).
10
Title 18 U.S.C. § 922(d) states, in pertinent part: “It shall be unlawful for
any person to sell or otherwise dispose of any firearm or ammunition to any person
knowing or having reasonable cause to believe that such person-- (1) is under
indictment for, or has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . .” 18 U.S.C. § 922(d). Moreover,
§ 924(a)(2) provides: “Whoever knowingly violates subsection (a)(6), (d), (g), (h),
(i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not
more than 10 years, or both.” 18 U.S.C. § 924(a)(2). Accordingly, to prove its
case against Peters for violating § 922(d)(1), the government needed to establish
beyond a reasonable doubt (1) that Peters sold a firearm; (2) that the purchaser, St.
John, was a convicted felon; and (3) that Peters knew or had reasonable cause to
believe that St. John had a prior felony conviction. See 11th Cir. Pattern Jury
Instruction (Criminal), 34.5.
Peters admits the first element -- that he sold a firearm -- but challenges the
second and third. As to the second element, Peters contends that the government
failed to establish beyond a reasonable doubt that Ed Feagin -- whose felony
conviction the government introduced at trial -- was the same person as Harley St.
John. As to the third element, Peters claims that the background check he
performed on St. John, as well as St. John’s apparent confusion regarding the
11
details of his conviction, establish that the government failed to prove beyond a
reasonable doubt that Peters knew or had reason to believe that St. John was a
convicted felon. We are persuaded by neither argument.
Regarding the second element of the offense -- that the purchaser is a
convicted felon -- the government’s evidence was more than sufficient for the jury
to conclude, beyond a reasonable doubt, that Harley St. John and Ed Feagin are
indeed the same person, and thus that St. John is in fact a convicted felon. St. John
himself testified that he and the Ed Feagin named in the 1991 Georgia judgment of
conviction for one count of felony aggravated assault introduced at trial are one
and the same. Indeed, when the government introduced the judgment of conviction
as its Exhibit 16, St. John identified it as his own conviction. Moreover, as Agent
Cheremeta’s trial testimony revealed, law enforcement records -- including the
NCIC database -- list St. John and Feagin (along with St. John’s other aliases, Gary
Wilson, Bruce Wilson, and Charles Wilson) -- as being one person. Agent
Cheremeta stated, all of these individuals are assigned the same FBI number.
Moreover, Peters offered no evidence whatsoever to refute the evidential
foundation that St. John and Feagin are the same person. Simply put, the jury
could reasonably conclude that St. John’s own acknowledgment, coupled with the
testimony of Agent Cheremeta, established beyond a reasonable doubt that St. John
12
was indeed a convicted felon.
As to the third element of the offense -- whether Peters knew or had
reasonable cause to believe that St. John was a convicted felon -- the jury’s verdict
was similarly supported by sufficient evidence. Tracking Eleventh Circuit Pattern
Jury Instruction (Criminal) 34.5, the district court properly instructed the jury that
“[t]o have ‘reasonable cause to believe’ that someone is a convicted felon means to
have knowledge of facts which, although not amounting to direct knowledge,
would cause a reasonable person, knowing the same things, reasonably to conclude
that the other person was a convicted felon.” The evidence indicating that Peters
had such cause was ample.
Most significantly, St. John himself told Peters more than once that he had a
prior felony conviction. St. John referred explicitly to his “felony conviction” at
least three times during his interactions with Peters. First, at the June 15 gun show,
St. John told Peters that gun shows made him nervous because of his “damn felony
conviction.” Specifically, St. John said that he had been convicted in Georgia of
“assault” on his “old lady.” During that same meeting at the gun show, St. John
expressed his belief that his conviction could not be removed from his record,
stating, “A felony conviction, they don’t do [sic] take that off.” Finally, during his
June 28 visit to Peters’ store -- immediately preceding the firearms sale for which
13
Peters was convicted -- St. John reiterated that “[i]f [the attorney] gets that felony
conviction off of me then . . . I can do what the hell I want.”
Moreover, Peters and St. John had extended conversations about St. John’s
conviction during both the June 15 gun show and St. John’s June 28 visit to Peters’
store. St. John repeatedly emphasized his desire to clear up his record, and Peters
referred St. John to an attorney, explaining that she had helped an acquaintance of
his get his rights restored after a drug conviction. In addition, even prior to stating
outright that he was a convicted felon, St. John hinted at the problem with his
criminal history, asking at the May 26 gun show whether Peters would sell him a
firearm “without a background,” and explaining that, “my old lady kind of flung
something on me last year.”
These exchanges -- including at least three explicit references by St. John to
his “felony conviction” -- constitute sufficient evidence from which a reasonable
jury could find that Peters had reasonable cause to believe that St. John had a prior
felony conviction. Plainly, the jury was not required to believe Peters’ trial
testimony that he thought St. John was simply confused about the nature of his
offense, that he had run a background check that confirmed his belief that St. John
had no felony conviction, or even that he had seen St. John’s Florida driver’s
license.
14
Assessing witness credibility is uniquely the function of the trier of fact, and
it is one that a court of appeals may not and should not endeavor to replicate based
on the cold paper record before it. As we have observed previously, “the jury,
hearing [the defendant’s] words and seeing his demeanor, was entitled to
disbelieve [his] testimony and, in fact, to believe the opposite of what [he] said.”
United States v. Rudisill, 187 F.3d 1260, 1268 (11th Cir. 1999) (quoting United
States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995)) (emphasis removed). It is “the
jury’s prerogative to disbelieve” a defendant’s testimony, United States v. Sharif,
893 F.2d 1212, 1214 (11th Cir. 1990), and we cannot say here that the jury’s
apparent disbelief of Peters’ claimed unawareness of St. John’s status as a
convicted felon was unreasonable.
Moreover, even if the jury believed everything Peters said, it nevertheless
could have concluded that Peters’ multiple conversations with St. John about St.
John’s prior offense -- which St. John referred to repeatedly as a “felony
conviction -- gave Peters knowledge of facts that “would cause a reasonable
person, knowing the same things, reasonably to conclude that the other person was
a convicted felon.” 11th Cir. Model Jury Instruction (Criminal) 34.5. The jury
may have simply concluded, based on the testimony and transcripts before it, that
St. John’s insistence that he did have a prior felony conviction would have led a
15
reasonable person to believe that he was in fact a convicted felon.
Again, a jury “is free to choose among reasonable constructions of the
evidence,” Montes-Cardenas, 746 F.2d at 778. Based on the evidence presented at
trial, we cannot say that the jury’s finding that Peters had reasonable cause to
believe St. John was a convicted felon was anything other than reasonable. In
short, we are bound to accept the jury’s verdict and, accordingly, affirm the district
court’s denial of Peters’ motion for judgment of acquittal.
III.
Peters also challenges his conviction on the ground that § 922(d)(1) exceeds
Congress’ Commerce Clause power, since the statute regulates purely intrastate
gun sales that individually have no substantial effect on commerce.
This is an argument that Peters has raised for the first time on appeal. Our
review is therefore only for plain error. See, e.g., United States v. Walker, 59 F.3d
1196, 1198 (11th Cir. 1995) (explaining that defendant’s failure to raise Commerce
Clause challenge in the district court did not constitute a waiver of the argument,
but that a party generally must timely object at trial to preserve the issue for appeal,
and that unpreserved errors are reviewed only for plain error); United States v.
Williams, 121 F.3d 615, 618 (11th Cir. 1997); United States v. Reynolds, 215 F.3d
1210, 1215 (11th Cir. 2000). “Under plain error review, which is authorized by
16
Fed. R. Crim. P. 52(b), federal appellate courts have only ‘a limited power to
correct errors that were forfeited because [they were] not timely raised in [the]
district court.’” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
(quoting United States v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 1776, 123 L.
Ed.2d 508 (1993)). Thus, we “may not correct an error the defendant failed to
raise in the district court unless there is: ‘(1) error, (2) that is plain, and (3) that
affects substantial rights.’” Id. (quoting United States v. Cotton, 535 U.S. 625, 631,
122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002)). Even then, we will exercise our
discretion to rectify the error only if it “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quoting Cotton, 535 U.S. at 631).
Because the sale of firearms to felons is an economic activity that
substantially affects interstate commerce, we conclude that Congress acted within
its commerce power in enacting § 922(d)(1), and thus that the district court
committed no error in entering a judgment of conviction.
A.
We begin our review by recalling the important principle that “[d]ue respect
for the decisions of a coordinate branch of Government demands that we invalidate
a congressional enactment only upon a plain showing that Congress has exceeded
its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.
17
Ct. 1740, 146 L. Ed. 2d 658 (2000). Accordingly, we are obliged to evaluate §
922(d) “[w]ith this presumption of constitutionality in mind.” Id.
The Commerce Clause, Article I, § 8 of the United States Constitution,
provides that “[t]he Congress shall have the Power . . . To regulate Commerce with
foreign Nations, and among the several States, and with the Indian Tribes.” U.S.
Const. art. I, § 8, cls. 1 & 3.
Contemporary Commerce Clause jurisprudence acknowledges “three broad
categories of activity that Congress may regulate under its commerce power.”
United States v. Lopez, 514 U.S. 549, 558 (1995). First, Congress is empowered
to “regulate the use of the channels of interstate commerce”; second, Congress
properly may “regulate and protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the threat may come only
from intrastate activities”; and finally, Congress is authorized “to regulate those
activities having a substantial relation to interstate commerce, i.e., those activities
that substantially affect commerce.” Id. at 558-59; see also United States v.
Ballinger, 395 F.3d 1218, 1225-26 (11th Cir. 2005) (en banc) (discussing these
categories). This third Lopez category, we have observed, “is the broadest
expression of Congress’ commerce power.” Ballinger, 395 F.3d at 1226.
Our focus today is on this third category, since we have little trouble
18
concluding that the sale of firearms to felons directly and substantially affects
interstate commerce.1 Accordingly, a brief synthesis of the precedents defining the
contemporary contours of this class of Commerce Clause enactments is in order.
To determine whether the third Lopez prong will accommodate a particular
congressional enactment, “the proper test requires an analysis of whether the
regulated activity ‘substantially affects’ interstate commerce.” Lopez, 514 U.S. at
559. Recent Supreme Court precedent has identified four basic considerations that
guide this inquiry. These are (1) whether the regulated activity is commercial or
economic in nature; (2) whether the statute contains an express jurisdictional
requirement, capable of limiting its reach to a discrete set of cases; (3) whether the
statute or its legislative history contains congressional findings articulating the
effect of the regulated activity on interstate commerce; and (4) whether the
activity’s effect on commerce is direct, as opposed to attenuated. See Morrison,
1
We need not and do not consider here whether § 922(d) might fall within another
category of Congress’ commerce power as well. The Lopez categories do not carve the
commerce power into three neat slices, but simply represent an effort to synthesize more than a
century of Commerce Clause enactments by grouping them in loose categories that are decidedly
descriptive, rather than definitional. Consequently, it is often the case that more than one
category will accommodate a given piece of legislation. See, e.g., United States v. Haney, 264
F.3d 1161, 1168 n.2 (10th Cir. 2001) (observing that the courts of appeal have variously
categorized 18 U.S.C. § 922(o), which prohibits possession of a machine gun, and noting that
“the Lopez categories necessarily overlap to some extent”); Navegar, Inc. v. United States, 192
F.3d 1050, 1055 n.2 (D.C. Cir. 1999) (“[W]hile the categories are useful as a synopsis of the
Supreme Court’s Commerce Clause jurisprudence, the attempt to fit a regulation squarely within
one category can prove elusive, even fruitless.”).
19
529 U.S. at 610-12; see also United States v. Maxwell, 386 F.3d 1042, 1056 (11th
Cir. 2004) (applying these factors).
The first case to employ these factors was United States v. Lopez, in which
the Supreme Court invalidated the Gun Free School Zones Act of 1990, 18 U.S.C.
§ 922(q), prohibiting the possession of a firearm within a thousand feet of a school.
In concluding that the Act exceeded the scope of Congress’ commerce power, the
Court first observed that “Section 922(q) is a criminal statute that by its terms has
nothing to do with ‘commerce’ or any sort of economic enterprise.” Lopez, 514
U.S. at 561. Because the regulated activity was noneconomic in nature, the Court
proceeded to determine whether the statute contained a “jurisdictional element
which would ensure, through case-by-case inquiry, that the firearm possession in
question affects interstate commerce.” Id. Finding no such provision, the Court
looked next to whether the statute or its legislative history contained any “express
congressional findings regarding the effects upon interstate commerce of gun
possession in a school zone.” Id. at 562 (citation and internal quotation marks
omitted). Though not required, such findings, the Court noted, could provide a
basis for upholding a statute “even though no such substantial effect was visible to
the naked eye.” Id. at 563. Uncovering no such findings in the legislative history
of § 922(q), the Court finally considered whether gun possession in school zones
20
nevertheless affected commerce substantially enough to sustain the statute. To
uphold the statute based on the government’s proffered “costs of crime” rationale
(i.e., guns near schools promote violent crime, which drains national economic
resources), the Court reasoned, would be “to pile inference upon inference” --
something it was not willing to do. Id. at 567. Thus, in striking down § 922(q), the
Lopez Court made clear that something tangible -- such as the commercial nature
of the regulated activity or an express jurisdictional hook -- must tether the
legislation to interstate commerce.
The Supreme Court reiterated the four Lopez factors in United States v.
Morrison, applying them to invalidate Subtitle C of the Violence Against Women
Act of 1994, 42 U.S.C. § 13981, which created a federal civil cause of action for
victims of gender-motivated acts of violence. That statute, the Court observed,
neither regulated economic activity nor contained an express jurisdictional
element. It was, however, supported by extensive congressional findings
articulating the effects of gender-motivated violence on the national economy.
Morrison, 529 U.S. at 614. The problem the Court found with the congressional
findings in that case, though, was that they were premised on the “costs of crime”
rationale previously rejected in Lopez, and thus the link they established between
domestic violence and interstate commerce was insufficiently direct. Id. at 615.
21
Domestic violence, the Court concluded, was “noneconomic, violent criminal
conduct” that Congress could not regulate “based solely on that conduct’s
aggregate effect on interstate commerce.” Id. at 617. The “suppression of violent
crime and vindication of its victims,” the Court observed, was the quintessential
“example of the police power, which the Founders denied the National
Government and reposed in the States.” Id. at 618.
The Lopez approach enumerates four factors essential to judicial review of
congressional Commerce Clause enactments. To date, neither the Supreme Court
nor our Court has treated any one of these four Lopez/Morrison factors as
dispositive. Morrison identified them as “significant considerations” that
“contributed to our decision” in Lopez. Morrison, 529 U.S. at 609. Lopez
suggests that the statutes most likely to fall within Congress’ commerce power are
those directly regulating economic activity or containing explicit jurisdictional
hooks to ensure that they capture only conduct substantially affecting commerce.
Moreover, Lopez teaches us that the absence of all four factors -- that is, when the
regulated activity is noncommercial, the statute contains no jurisdictional
requirement, Congress has made no findings, and the effects on commerce are
attenuated -- indicates that Congress has strayed far enough out of the heartland of
its commerce power that the statute’s “presumption of constitutionality,” id. at 607,
22
is likely overcome.
Moreover, although neither Lopez nor Morrison was such a case, both of
those cases make clear that when the challenged statute regulates activity that is
plainly economic in nature, no jurisdictional hook or congressional findings may
be needed to demonstrate that Congress properly exercised its commerce power.
Indeed, we have stated previously that “laws aimed directly at economic activity
are most likely to satisfy the substantial effects test,” since the regulation of
economic activity occupies the very core of Congress’ commerce authority.
United States v. Olin Corp., 107 F.3d 1506, 1510 n.4 (11th Cir. 1997).
As Lopez acknowledged, the Supreme Court has “upheld a wide variety of
congressional Acts regulating intrastate economic activity,” based on its conclusion
“that the activity substantially affected interstate commerce.” Lopez, 514 U.S. at
559. Among the approved objects of regulation are intrastate coal mining, see
Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 101 S. Ct.
2352, 69 L. Ed. 2d 1 (1981), intrastate extortionate credit transactions, see Perez v.
United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971), restaurants
utilizing interstate supplies, see Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct.
377, 13 L. Ed. 2d 290 (1964), inns and hotels accommodating interstate guests, see
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L.
23
Ed. 2d 258 (1964), and the cultivation of wheat for home consumption, see
Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942). This list,
Lopez observed, “is by no means exhaustive, but the pattern is clear”: “Where
economic activity substantially affects interstate commerce, legislation regulating
that activity will be sustained.” Lopez, 514 U.S. at 560.
B.
Section 922(d) makes it a crime knowingly “to sell or otherwise dispose of
any firearm or ammunition” to a convicted felon. § 922(d). Because the sale of
firearms to felons is an economic activity that substantially affects interstate
commerce, the first Lopez factor is a powerful indicator that Congress acted within
its commerce power in enacting § 922(d).
Peters disputes the notion that the isolated firearm sale for which he was
convicted under § 922(d) could possibly have had a substantial effect on interstate
commerce. We therefore reiterate here what is by now abundantly clear: the
proper inquiry is whether “the ‘class of activities’ involved in the case” -- not the
individual instance of conduct -- substantially affects commerce. Olin, 107 F.3d at
1510. Lopez itself said this unambiguously, explaining that “the proper test
requires an analysis of whether the regulated activity ‘substantially affects’
interstate commerce,” Lopez 514 U.S. at 559 (emphasis added) -- not of whether
24
an individual instance of conduct prosecuted under the statute substantially affects
commerce. The Court acknowledged numerous “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.” Id. at 561; see
also id. at 559-60 (citing cases); id. at 558 (“[W]here a general regulatory statute
bears a substantial relation to commerce, the de minimis character of individual
instances arising under that statute is of no consequence.” (emphasis omitted)
(quoting Wirtz, 392 U.S. at 197 n. 27).
Morrison reinforced this point. While the Court cast real doubt on whether
“aggregating the effects of any noneconomic activity” could establish a basis for
sustaining a Commerce Clause enactment, 529 U.S. at 613 (emphasis added), it
reaffirmed the Court’s longstanding practice of “sustain[ing] federal regulation of
intrastate activity based upon the activity’s substantial effects on interstate
commerce” when “the activity in question has been some sort of economic
endeavor.” Id. at 611; see also Perez, 402 U.S. at 154 (“Where the class of
activities is regulated and that class is within the reach of federal power, the courts
have no power ‘to excise, as trivial, individual instances’ of the class.” (quoting
Maryland v. Wirtz, 392 U.S. 183, 193, 88 S. Ct. 2017, 20 L. Ed. 2d 1020 (1968)));
Katzenbach, 379 U.S. at 301 (affirming Congress’ power to reach an individual
25
instance of discrimination that “was but representative of many others throughout
the country, the total incidence of which if left unchecked may well become far-
reaching in its harm to commerce” (citation and internal quotation marks omitted)).
Congress may appropriately exercise its commerce power when “the activity
sought to be regulated is commerce which concerns more States than one and has a
real and substantial relation to the national interest.” Heart of Atlanta, 379 U.S. at
255 (internal quotation marks omitted). The sale of a firearm undoubtedly “is
commerce” in its truest form, and the national nature of the market for firearms
ensures that this commerce concerns all states, and that its relation to the national
interest could hardly be more real or substantial. This much is clear not only from
Supreme Court precedent, but also from the history of federal firearms legislation
in general, and of § 922(d) in particular.
Section 922(d) has its origins in Title IV of the Omnibus Crime Control and
Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 225. Title IV established
federal licensing requirements and other regulations on the nationwide traffic in
firearms. Among these provisions was the predecessor to the current § 922(d),
then codified as § 922(c), which stated, in pertinent part:
It shall be unlawful for any licensed importer, licensed manufacturer,
or licensed dealer to sell or otherwise dispose of any firearm or
ammunition to any person, knowing or having reasonable cause to
believe that such person is a fugitive from justice or is under
26
indictment or has been convicted in any court of a crime punishable
by imprisonment for a term exceeding one year.
Congress made a number of specific findings explaining the need for the
legislation. Section 901(a) declared “that there is a widespread traffic in firearms
moving in or otherwise affecting interstate or foreign commerce, and that the
existing Federal controls over such traffic do not adequately enable the States to
control this traffic within their own borders through the exercise of their police
power.” § 901(a)(1). Congress further found “that the ease with which any person
can acquire firearms other than a rifle or shotgun (including criminals, juveniles . .
. , narcotics addicts, mental defectives, armed groups who would supplant the
functions of duly constituted public authorities, and others whose possession of
such weapons is similarly contrary to the public interest) is a significant factor in
the prevalence of lawlessness and violent crime in the United States.” § 901(a)(2).
Moreover, Congress determined “that only through adequate Federal control over
interstate and foreign commerce in these weapons, and over all persons engaging
in the business of importing, manufacturing, or dealing in them, can this grave
problem be properly dealt with, and effective State and local regulation of this
traffic be made possible.” § 901(a)(3) (emphasis added).
Several months after Title IV of the Omnibus Crime Control and Safe
Streets Act of 1968 was enacted, it was superseded by the Gun Control Act of
27
1968, Pub. L. No. 90-618, 82 Stat. 1213, which “was designed to strengthen the
firearms provisions which had been enacted as part of the omnibus crime bill.”
H.R. Rep. No. 90-1577, reprinted in 1968 U.S.C.C.A.N. 4410, 4412; see also id. at
4413. The Gun Control Act left the Omnibus Act largely intact, with two
significant changes: it imposed restrictions on rifles and shotguns generally parallel
to those that the Omnibus Act applied to handguns only; and it added provisions
controlling interstate shipment of ammunition and sale of ammunition to juveniles.
See id. The ban on firearm sales to felons was recodified in nearly identical
language, again as § 922(c).
Although Congress deemed it “unnecessary” to include the Omnibus Act’s
specific findings in the Gun Control Act, the legislative history to the Gun Control
Act makes clear that the rationale remained precisely the same. The expanded
statute’s purpose was “to strengthen Federal controls over interstate and foreign
commerce in firearms and to assist the States effectively to regulate firearms traffic
within their borders.” Id. at 4411.
The ban on firearm sales to felons was finally enacted in its current form as
part of the Firearms Owners’ Protection Act of 1986, Pub. L. No. 99-308, 100 Stat.
449. The purpose of the amendment was to “close an existing loophole” by
extending the ban, which previously applied only to federally licensed firearms
28
dealers, to “all persons who transfer a firearm.” H.R. Rep. No. 99-495, reprinted in
1986 U.S.C.C.A.N. 1327, 1343, 1348. Accordingly, § 922(d) was enacted in its
current form, which prohibits “any person” from knowingly selling a firearm to a
felon.2
We have little doubt that Congress, recognizing the national nature of the
economic market for firearms, acted within the bounds of its commerce authority
in addressing the problem of the sale and distribution of firearms to felons through
federal legislation. Morrison observed that “[t]he Constitution requires a
distinction between what is truly national and what is truly local.” Morrison, 529
U.S. at 617-18. Because of the ease with which Congress has explicitly found that
firearms move across state lines, see, e.g., 18 U.S.C. § 922(q)(1)(C) (observing that
2
We look to the findings accompanying previous incarnations of this law in analyzing the
current version, since § 922(d) “is closely intertwined with other federal gun legislation and . . .
Congress should not be required to rearticulate its old findings every time it adds an additional
provision.” United States v. Haney, 264 F.3d 1161, 1169 n.3 (10th Cir. 2001) (referring to
legislative history accompanying other federal gun legislation in upholding 18 U.S.C. § 922(o),
banning possession and transfer of machine guns). Accord Navegar, Inc. v. United States, 192
F.3d 1050, 1065 (D.C. Cir. 1999) (agreeing with numerous other circuits that “have held that the
subject matter of [the Firearms Owner Protection Act of 1986] is sufficiently similar to previous
firearms legislation to render appropriate the importation of prior legislative findings as a
reliable statement of Congress’ intent in passing FOPA”). But see United States v. Stewart, 348
F.3d 1132, 1139-40 (9th Cir. 2003) (departing from the otherwise-uniform view of the courts of
appeals, and declining to consider the legislative history of any other firearms statutes in
reviewing § 922(o)). Section 922(d) is clearly distinguishable from the Gun-Free School Zones
Act in that rather than “plow[ing] new ground and represent[ing] a sharp break with the long-
standing pattern of federal firearms legislation,” Lopez, 514 U.S. at 563 (citation and internal
quotation marks omitted), § 922(d) explicitly builds upon -- in order to close a loophole in -- a
version of the statute in existence since 1968. Consideration of the earlier legislative history,
then, is altogether appropriate.
29
“firearms and ammunition move easily in interstate commerce”); id. §
922(q)(1)(D) (noting that “even before the sale of a firearm, the gun, its component
parts, ammunition, and the raw materials from which they are made have
considerably moved in interstate commerce”), regulation of the purchase and sale
of firearms is an appropriate object of federal regulation. Cf. United States v.
Wright, 117 F.3d 1265, 1269-71 (11th Cir. 1997) (upholding 18 U.S.C. § 922(o),
which prohibits possession and transfer of machine guns, on the ground that “[t]he
regulation of purely intrastate possession of machineguns constitutes an
appropriate element of [§ 922(o)’s] broader scheme to reduce substantially the
trade in machineguns” (citation and internal quotation omitted)), rev’d on other
grounds, 133 F.3d 1412 (11th Cir. 1998); United States v. Bailey, 123 F.3d 1381,
1392-93 (11th Cir. 1997) (reaffirming Wright); Olin, 107 F.3d at 1510, 1511
(upholding CERCLA’s regulation of interstate waste disposal as “an appropriate
element of Congress’s broader scheme to protect interstate commerce and
industries thereof from pollution,” since “the unregulated management of
hazardous substances, even strictly within individual states, significantly impacts
interstate commerce”).
Our sister circuits have repeatedly upheld other pieces of federal firearms
legislation based on the national character of the market for firearms. See, e.g.,
30
United States v. Haney, 264 F.3d 1161, 1169 (10th Cir. 2001) (upholding 18
U.S.C. § 922(o), which bans the possession or transfer of a machine gun, and
finding “no question that the market in firearms generally is heavily interstate --
indeed, international -- in character”); Navegar, Inc. v. United States, 192 F.3d
1050, 1063 (D.C. Cir. 1999) (upholding 18 U.S.C. § 922(v), the now-invalid
assault weapons ban, based on “the widely accepted knowledge that there is a vast
interstate market in firearms that makes the states unable to control the flow of
firearms across their borders or to prevent the crime inevitably attendant to the
possession of such weapons once inside their borders”); United States v. Cardoza,
129 F.3d 6, 11-13 (1st Cir. 1997) (upholding 18 U.S.C. § 922(x), which prohibits
the sale or transfer of handguns and ammunition to juveniles, as a regulation of the
“national juvenile market in handguns”); United States v. Wilks, 58 F.3d 1518,
1521 (10th Cir. 1995) (upholding § 922(o) as a regulation of the “extensive,
intricate, and definitively national market for machineguns” (citation and internal
quotation marks omitted)).
The efficacy of a congressionally enacted federal ban on the sale of firearms
to felons -- a supply-side restriction -- is reinforced by the codification of a
complementary demand-side restriction prohibiting felons from possessing
firearms. Title 18 U.S.C. 922(g)(1), whose constitutionality has been repeatedly
31
upheld, see, e.g., Scarborough v. United States, 431 U.S. 563, 572, 97 S. Ct. 1963,
52 L. Ed. 582 (1977) (upholding 18 U.S.C. § 1202(a), the predecessor statute to 18
U.S.C. § 922(g)); United States v. McAllister, 77 F.3d 387, 389 (11th Cir. 1996)
(reaffirming the constitutionality of § 922(g) after Lopez); United States v. Dupree,
258 F.3d 1258 (11th Cir. 2001) (reaffirming the constitutionality of § 922(g) after
Morrison), prohibits felons from “possess[ing] in or affecting commerce” any
firearm.
As the Supreme Court has explained, in imposing this ban, “Congress sought
to rule broadly to keep guns out of the hands of those who have demonstrated that
they may not be trusted to possess a firearm without becoming a threat to society.”
Scarborough v. United States, 431 U.S. 563, 572, 97 S. Ct. 1963, 52 L. Ed. 582
(1977) (citation and internal quotation marks omitted). We have observed
previously that “[w]hen 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.”
McAllister, 77 F.3d at 390.
Section 922(d) is the flip side of this coin. By targeting the available supply
of firearms to felons (the ban on sales), as well as the lawful demand for firearms
among felons (the ban on possession), Congress has created a mutually reinforcing
regulatory framework. Moreover, because § 922(g) reaches only instances of
32
possession “in or affecting commerce,” Congress intended § 922(d) “to reach
transactions that are wholly intrastate . . . on the theory that such transactions affect
interstate commerce,” Huddleston v. United States, 415 U.S. 814, 833, 94 S. Ct.
1262, 39 L. Ed. 2d 782 (1974) (citation and internal quotation marks omitted), and
thus to supplement § 922(g), see Barrett v. United States, 423 U.S. 212, 218-19, 96
S. Ct. 498, 46 L. Ed. 2d 450 (1976) (observing that Congress intended for these
subsections to complement each other); United States v. Winchester, 916 F.2d 601,
606 (11th Cir. 1990) (same). Simply put, § 922(d) is permissible as “an essential
part of a larger regulation of economic activity, in which the regulatory scheme
could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at
561; see also § 922(a)-(y) (creating a comprehensive federal firearms regulatory
scheme).
Finally, we observe that this case is readily distinguishable from Lopez. The
sale or distribution of firearms to felons -- even when the sales are carried out
inside the borders of a single state -- are commercial transactions invariably
occurring within a national firearms marketplace. In contrast, the purely
possessory offense of carrying a firearm within a thousand feet of a school is, by
its very terms, a localized activity whose impact is felt within a limited geographic
sphere, and whose regulation falls within the general police powers reserved to the
33
state. As we have observed previously, “[b]y prohibiting only the possession of
guns within 1,000 feet of a school, Congress could not rationally have expected to
substantially affect the manufacture, importation, and interstate transfer of
firearms.” Wright, 133 F.3d at 1270 n.8 (finding Lopez “easily distinguishable”
from a case challenging § 922(o), which bans possession of machine guns); see
also Haney, 264 F.3d at 1170 (observing that the Gun-Free School Zones Act
“restrict[ed] only the location in which a transfer could take place by restricting
gun possession at that location, and therefore it has a much more attenuated
connection to commercial transactions” than § 922(o)).
In contrast, selling a firearm to a felon is “an economic activity that might,
through repetition elsewhere, substantially affect . . . interstate commerce.” Lopez,
514 U.S. at 567. Accordingly, § 922(d), unlike the Gun-Free School Zones Act,
can “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.”3 Id. at 561.
3
Peters argues that we cannot sustain a statute that contains no jurisdictional element to
ensure, case by case, that the conduct regulated substantially affects commerce. However, a
panel of this Court has already “rejected the argument that Lopez requires Congress to place a
jurisdictional element in every statute enacted pursuant to the Commerce Clause or to make
formal legislative findings connecting the regulated activity to interstate commerce.” Wright,
117 F.3d at 1269 (citing Olin, 107 F.3d at 1510). Lopez explained that “a jurisdictional element
may establish that the enactment is in pursuance of Congress’ regulation of interstate
commerce,” even when no such relationship is evident from the nature of the regulation itself.
Morrison, 529 U.S. at 612. Because sales of firearms to felons are commercial transactions that,
34
We therefore join the Eighth Circuit -- the only other court of appeals to
address this question -- in upholding § 922(d) as a valid exercise of Congress’
commerce power over the economic activity of distribution and sale of firearms
nationwide. See United States v. Monteleone, 77 F.3d 1086, 1091-92 (8th Cir.
1996).
IV.
Because the evidence presented at trial was sufficient for a reasonable jury to
find all the elements of a violation of § 922(d)(1), we AFFIRM the district court’s
denial of Peter’s motion for judgment of acquittal. Moreover, because Congress
acted within its commerce power in enacting § 922(d)(1), the district court
committed no error, let alone plain error, and we AFFIRM the conviction.
AFFIRMED.
as a class, substantially affect interstate commerce, the requisite relation to interstate commerce
may be established without the case-by-case inquiry that a jurisdictional element would entail.
35
United States v. Michael Peters
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-03-24
Citations: 403 F.3d 1263
Copy Citations