159 F.3d 280 (7th Cir. 1998), 98-1256, United States v. Wilson

Docket Nº:98-1256.
Citation:159 F.3d 280
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carlton E. WILSON, Defendant-Appellant.
Case Date:October 16, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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159 F.3d 280 (7th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,


Carlton E. WILSON, Defendant-Appellant.

No. 98-1256.

United States Court of Appeals, Seventh Circuit

October 16, 1998

Argued May 26, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 16, 1998.

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Stephen B. Clark (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Andrea L. Smith, Office of the Federal Public Defender, East St. Louis, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and BAUER and COFFEY, Circuit Judges.

BAUER, Circuit Judge.

On September 5, 1997, appellant Carlton Wilson was convicted by a jury of possessing a gun while subject to a protective order, prohibited by a relatively new and obscure portion of 18 U.S.C. § 922. On appeal, Wilson raises a host of issues regarding his conviction, claiming that the statute is unconstitutional, that the district court erred by denying his motions for a judgment of acquittal, that the district court improperly refused to admit one of his exhibits, and that the district court erroneously failed to tender two of his proposed instructions to the jury. Wilson also attacks his sentence. As we discuss below, we find that 18 U.S.C. § 922(g)(8) is constitutional and that the district court did not commit any errors with regard to Wilson's conviction or sentence, and we therefore affirm.


The following facts are drawn from the record in the underlying jury trial and are viewed in a light most favorable to the government. United States v. Wingate, 128 F.3d 1157, 1158 (7th Cir.1997). On September 10, 1996, Illinois State Trooper Mari Kay Rolape ("Rolape") stopped to assist appellant Carlton Wilson ("Wilson"), whose pickup truck was pulled over on the side of eastbound Illinois Route 146. In the course of running a routine check on Wilson's driver's

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license, Trooper Rolape learned of an outstanding arrest warrant against Wilson for failure to appear in court. As Trooper Rolape talked to Wilson about the warrant, fellow State Trooper Bill Jacques ("Jacques") arrived on the scene and eventually placed Wilson under arrest. During a subsequent inventory search of Wilson's truck, Trooper Jacques found a .12 gauge shotgun contained in a case and a MAC 90 Sportster rifle on the floorboard behind the driver's seat. In addition, Trooper Jacques found a loaded nine-millimeter Locrin handgun in a fanny pack that Wilson had been wearing immediately prior to his arrest. On March 5, 1997, Wilson was indicted in the United States District Court for the Southern District of Illinois for possessing a firearm in and affecting interstate commerce while subject to an order of protection, pursuant to 18 U.S.C. § 922(g)(8).

At the time of his arrest, Wilson was subject to an order of protection stemming from divorce proceedings initiated by Wilson's (now ex-) wife, Angela Wilson. Carlton and Angela had been married on June 1, 1991, and Angela filed for divorce in Crawford County, Illinois, in 1994. On August 15, 1995, Angela and her attorney, William Thomas ("Thomas"), obtained an emergency order of protection against Wilson, with which he was subsequently served. The order stated that a further hearing would be held on September 1, 1995, and Wilson (as well as Angela and Thomas) appeared in court that day. At that time, while acting pro se, Wilson first filed a motion with Circuit Court Judge Hill to vacate a default dissolution of marriage that had been entered in favor of Angela and a motion to have Judge Hill recuse himself from the case. The Judge granted both of Wilson's motions, and Judge David Correll took over the case. Wilson, Thomas, and Judge Correll then retired to Judge Correll's chambers for the scheduled hearing on the entry of a plenary order of protection ("plenary order") against Wilson while Angela and Wilson's mother, who was also present, waited outside. 1

The testimony at trial revealed that the meeting in Judge Correll's chambers lasted no more than ten minutes. During the meeting, Judge Correll explained the proposed order of protection to Wilson, who indicated that he did not have a problem with any of its terms. The parties also discussed child support payments and a visitation schedule for Wilson. On September 15, as was custom, Thomas presented a written version of the order of protection to Judge Correll for his signature, and the order was signed and entered in the court's docket. This order was never rescinded, and was in effect on the date that Wilson was arrested by Trooper Jacques.

Wilson went to trial before a jury on September 2, 1997, and was convicted on September 5, 1997. On January 29, 1998, Wilson was sentenced to 41 months in prison, given a $7,500 fine and a $100 special assessment, and placed on supervised release for three years following his imprisonment. Wilson filed a timely notice of appeal, and presently challenges the constitutionality of § 922(g)(8), several rulings of the district court prior to and during trial, and his sentence. We discuss each of his contentions in turn.


I. Constitutionality of Statute

As stated above, Wilson was convicted for possessing a gun in interstate commerce while subject to a protection order, in violation of 18 U.S.C. § 922(g)(8). This statute states:

It shall be unlawful for any person--


(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

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(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury ...


to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Wilson first challenges his conviction by arguing that § 922(g)(8) is unconstitutional for a variety of reasons. The district court rejected these arguments, finding that the statute passed constitutional muster. We review the district court's determination of the constitutionality of a federal statute de novo. United States v. Black, 125 F.3d 454, 458 (7th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1821, 140 L.Ed.2d 957 (1998).

1. Commerce Clause

First, Wilson alleges that § 922(g)(8) violates the Commerce Clause. The standard of Commerce Clause review is narrow and deferential, since the Commerce Clause is a grant of plenary authority to Congress. This power, complete in itself, may be exercised to its utmost extent and is susceptible to no limits except for those prescribed in the Constitution. United States v. Kenney, 91 F.3d 884, 887 (7th Cir.1996) (citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (other citations omitted)). Accordingly, our task is merely to determine whether Congress could have had a rational basis for utilizing its Commerce Clause powers and to ensure that the regulatory means chosen were "reasonably adapted to the end permitted by the Constitution." Id. (quoting Hodel, 452 U.S. at 276, 101 S.Ct. 2352). It is also up to the courts to ultimately decide whether Congress exceeded its constitutionally enumerated powers in enacting the statute at issue. Id. (citing United States v. Wilson, 73 F.3d 675, 680 (7th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 46, 136 L.Ed.2d 12 (1996)).

The Commerce Clause gives Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. C ONST. art. I, § 8, cl. 3. The Supreme Court has identified three areas of activity which may be regulated by Congress under the commerce power. First, it may regulate the use of the channels of interstate commerce. Second, Congress can regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though threats may only come from intrastate activities. Finally, Congress can regulate activities which have a substantial relation to interstate commerce; that is, those activities which "substantially affect" interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted).

In Lopez, a case on which Wilson heavily relies, the Supreme Court invalidated 18 U.S.C. § 922(q), which was added to the Code by the Gun-Free School Zones Act of 1990. The statute made it a federal offense for any individual to "knowingly ... possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." The Court determined that a proper analysis of Congress' power to enact the statute had to be undertaken under the third category above, since § 922(q) did not regulate the use of the channels of interstate commerce or seek to protect an instrumentality of interstate commerce or a thing in interstate commerce. 514 U.S. at 559, 115 S.Ct. 1624. Emphasizing that legislation regulating economic activity which substantially affects interstate commerce will be sustained,

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the Court found that § 922(q) exceeded Congress' power. Id. at 560, 115 S.Ct. 1624.

First, the Court noted...

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