U.S. v. Edwards

• Decision Date: 21 December 1993
• Docket Number: No. 93-10058,93-10058
• Citation: 13 F.3d 291
• Parties: , 88 Ed. Law Rep. 945 UNITED STATES of America, Plaintiff-Appellee, v. Ray Harold EDWARDS, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 291

13 F.3d 291

62 USLW 2424, 88 Ed. Law Rep. 945

UNITED STATES of America, Plaintiff-Appellee, v. Ray Harold EDWARDS, III, Defendant-Appellant.

No. 93-10058.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1993.

Decided Dec. 21, 1993.

Laurance S. Smith, Sacramento, CA, for defendant-appellant.

Mark J. McKeon, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

Gregory P. Goeckner, O'Melveny & Myers, Los Angeles, CA, for amici curiae.

Appeal from the United States District Court for the Eastern District of California, David F. Levi, District Judge, Presiding.

Before: ALARCON, LEAVY and KLEINFELD, Circuit Judges.

ALARCON, Circuit Judge:

Ray Harold Edwards, III appeals from his judgment of conviction for violating the Gun Free School Zones Act, 18 U.S.C.A. Sec. 922(q)(1)(A) (West Supp.1993). Pursuant to a plea agreement, Edwards entered a conditional guilty plea in exchange for the Government's dismissal of charges for possession of a sawed-off rifle in violation of 26 U.S.C. Sec. 5861(d). Edwards specifically reserved the right to appeal on the basis that 18 U.S.C. Sec. 922(q)(1)(A) represents an unconstitutional exercise of Congressional power under the Commerce Clause. Edwards also contends that section 922(q)(1)(A) is overbroad. We affirm the judgment of conviction because the Gun Free School Zones Act represents a permissible exercise of Congressional authority under the Commerce Clause. Furthermore, we reject Edwards's overbreadth argument.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On the afternoon of December 11, 1991, Detective Mike Lopez of the Sacramento Police Department gang unit saw Ray Harold Edwards, III with four other males at Grant Union High School. In Lopez's opinion, Edwards and his companions were dressed like gang members, and Lopez requested that three additional officers be dispatched to the school. Four officers and the school security guard subsequently approached the group standing near Edwards's car in the school parking lot. After a brief conversation, Lopez asked Edwards for permission to examine the trunk of his vehicle. Edwards consented and gave Lopez his keys. Lopez discovered a .22 rifle and a sawed-off bolt-action rifle in the trunk.

The Government charged Edwards with the unlawful possession of an unregistered sawed-off rifle in violation of 26 U.S.C. Sec. 5861(d) and the unlawful possession of firearms in a school zone in violation of 18 U.S.C. Sec. 922(q)(1)(A). Edwards filed a motion to dismiss the 18 U.S.C. Sec. 922(q)(1)(A) charge on the basis that the statute was unconstitutional. Edwards further argued that the statute was overbroad. Edwards pleaded guilty, reserving his right to appeal the denial of his motion to dismiss, and appeals solely to challenge the constitutionality of section 922(q)(1)(A).

II.

THE GUN FREE SCHOOL ZONES ACT REPRESENTS A VALID EXERCISE OF

CONGRESSIONAL POWER UNDER THE COMMERCE CLAUSE

Edwards's primary argument is that 18 U.S.C. Sec. 922(q)(1)(A) violates the Tenth Amendment because Congress did not have the authority under the Commerce Clause or any other delegated power to enact the Gun Free School Zones Act, which prohibits the possession of firearms within 1000 feet of a school. ¹ We review de novo the issue of whether section 922(q)(1)(A) represents a legitimate exercise of Congressional authority. See Gray v. First Winthrop Corp., 989 F.2d 1564, 1567 (9th Cir.1993) (constitutionality of a statute is a question of law which is reviewed de novo).

Edwards mistakenly relies on United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) to support his argument that Congress exceeded the scope of its power under the Commerce Clause when it enacted the Gun Free School Zones Act. The challenged statute in Bass imposed penalties on a felon who "receives, possesses, or transports in commerce or affecting commerce ... any firearm." 18 U.S.C.App. Sec. 1202(a). The Court could not determine whether Congress intended the statutory phrase "in commerce or affecting commerce" to modify "receives" and "possesses" as well as "transports." Bass, 404 U.S. at 339, 92 S.Ct. at 518. If Congress did so intend, the Government was required to establish "as an essential element of the offense that a possession, receipt, or transportation was 'in commerce or affecting commerce'--a burden not undertaken in this prosecution for possession." Id. However, if Congress did not intend the phrase to modify "possesses" and "receives," the defendant could have been convicted under the statute for possession of firearms without a showing that the possession took place "in commerce or affecting commerce." Id. "Given this ambiguity," the Court employed a narrow construction of the statute, under the rule of lenity, and reversed the conviction because of the Government's failure to demonstrate a nexus with interstate commerce. Id. at 347, 92 S.Ct. at 522. The Gun Free School Zones Act is distinguishable from the statute in Bass because it does not expressly require the Government to establish a nexus between the possession of a firearm in a school zone and interstate commerce. Instead, the Commerce Clause analysis in this appeal is governed by our decision in United States v. Evans, 928 F.2d 858 (9th Cir.1991).

In Evans, the defendant was convicted of violating 18 U.S.C.A. Sec. 922(o) (West Supp.1993) for possessing an unregistered machine gun. Evans, 928 F.2d at 859. As an initial matter, we noted that our review of Congressional enactments under the Commerce Clause is conducted in a highly deferential manner. Id. at 862. We relied upon the Supreme Court's decisions in Perez v. United States, 402 U.S. 146, 152-56, 91 S.Ct. 1357, 1360-62, 28 L.Ed.2d 686 (1971), and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-53, 85 S.Ct. 348, 354-55, 13 L.Ed.2d 258 (1964) to guide our determination that it was reasonable for Congress to conclude that possession of firearms represents a class of activities which affects interstate commerce. Evans, 928 F.2d at 862. Our conclusion in this regard was strengthened by prior Supreme Court decisions which upheld legislation enacted pursuant to the Commerce Clause designed to regulate purely intrastate activities which affect interstate commerce. See, e.g., United States v. Wrightwood Dairy Co., 315 U.S. 110, 118-19, 62 S.Ct. 523, 525-26, 86 L.Ed. 726 (1942) (Congress is permitted to regulate the price of milk sold intrastate because of resulting competitive effect upon milk sold interstate.); Wickard v. Filburn, 317 U.S. 111, 127-29, 63 S.Ct. 82, 90-91, 87 L.Ed. 122 (1942) (Congress is permitted to regulate home grown wheat consumption because of its effect on interstate commerce.); Huddleston v. United States, 415 U.S. 814, 833, 94 S.Ct. 1262, 1273, 39 L.Ed.2d 782 (1974) (Congress is permitted to regulate intrastate redemption of firearms from pawnshops on the basis that such transactions affect interstate commerce.).

We held in Evans that the violence created through the possession of firearms adversely affects the national economy, and consequently, it was reasonable for Congress to regulate the possession of firearms pursuant to the Commerce Clause. Evans, 928 F.2d at 862. The addition of the condition in section 922(q)(1)(A) that the firearms be possessed within 1000 feet of a school does not in any way diminish Congress' power to regulate firearms under the Commerce Clause. See United States v. McDougherty, 920 F.2d 569, 572 (9th Cir.1990) (penalizing an individual for possession of narcotics within 1000 feet of a school represents an appropriate means of "punish[ing] some behavior affecting commerce more harshly than other behavior, based upon its detriment to society"), cert. denied, 499 U.S. 911, 111 S.Ct. 1119, 113 L.Ed.2d 227 (1991).

In reaching our conclusion in this matter, we reiterate our holding in Evans that it is unnecessary for Congress to make express findings that a particular activity or class of activities affects interstate commerce in order to exercise its legislative authority pursuant to the Commerce Clause. Evans, 928 F.2d at 862. Our holdings in both Evans and the case at bar are entirely consistent with the Supreme Court's Commerce Clause jurisprudence. See, e.g., Perez v. United States, 402 U.S. 146, 156, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971) ("We have mentioned in detail the economic, financial, and social setting of the problem as revealed to Congress. We do so not to infer that Congress need make particularized findings in order to legislate.") (emphasis added); Katzenbach v. McClung, 379 U.S. 294, 299, 85 S.Ct. 377, 381, 13 L.Ed.2d 290 (1964) ("As we noted in Heart of Atlanta Motel both Houses of Congress conducted prolonged hearings on the Act. And, as we said there, while no formal findings were made, which of course are not necessary, it is well that we make mention of the testimony at these hearings the better to understand the problem before Congress and determine whether the Act is a reasonable and appropriate means toward its solution.") (emphasis added).

Additionally, we draw support from Justice Powell's observation in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), concerning the requirement that Congress make formal findings as a prerequisite to legislating pursuant to the Commerce Clause. Justice Powell stated that "[a]fter Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area." Id. at 503, 100 S.Ct. at 2787 (Powell, J., concurring). Since Congress has frequently relied upon the Commerce Clause as authority for the enactment of statutes regulating the use and possession of firearms, ² Congress was not required to conduct additional hearings and make new findings which would merely repeat its prior findings concerning the...