451 F.3d 615 (10th Cir. 2006), 05-3169, United States v. Patton

Docket Nº:05-3169.
Citation:451 F.3d 615
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Carl A. PATTON, Defendant-Appellant.
Case Date:June 20, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 615

451 F.3d 615 (10th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Carl A. PATTON, Defendant-Appellant.

No. 05-3169.

United States Court of Appeals, Tenth Circuit.

June 20, 2006

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS D.C. NO. 04-10170-01

Page 616

[Copyrighted Material Omitted]

Page 617

[Copyrighted Material Omitted]

Page 618

Timothy J. Henry, Federal Public Defender Office, Wichita, KS, for Defendant-Appellant.

Brent I. Anderson, Assistant United States Attorney, (Eric F. Melgren, United States Attorney, with him on the brief), Office of the United States Attorney, Wichita, KS, for Plaintiff-Appellee.

Before McCONNELL and BALDOCK, Circuit Judges, and ARMIJO, District Judge. [*]

McCONNELL, Circuit Judge.

It may seem like common sense to prohibit felons' possession of bulletproof vests and other forms of body armor, which facilitate violent crime. Indeed, thirty-one states already do so. But the Constitution does not grant the federal government a police power or a general authority to combat violent crime. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426, 5 L.Ed. 257 (1821) (Marshall, C.J.) ("Congress has . . . no general right to punish murder committed within any of the States."). The myriad provisions in the federal criminal code are justified, as a constitutional matter, only by reference to Congress's enumerated powers. We are required in this case to determine whether Congress has authority under its power "[t]o regulate Commerce . . . among the Several states," U.S. Const. art. I, § 8, cl. 3, to prohibit the intrastate possession by a felon of a bulletproof vest, in the absence of any commercial transaction or any evidence of a connection to commercial activity other than the fact that, before it was lawfully purchased by the defendant, the vest had been sold across a state line.

Deciding this question requires us to choose between following an older precedent of the Supreme Court and applying the Court's current three-part test for determining the reach of the Commerce

Page 619

Clause. We follow the older precedent directly on point, conclude that Congress does have this authority, and AFFIRM the conviction.

I. Factual and Procedural Background

Defendant-Appellant Carl Patton was once a member of the Junior Boys gang in northeast Wichita, Kansas. He has two prior state-court felony convictions for gang-related violence. In 1990 he pleaded guilty to attempted aggravated battery in the shooting of a member of a rival gang, the Crips, and in 1994 he was convicted of aggravated assault, discharge of a firearm at an occupied building, and criminal possession of a firearm, all of which stemmed from an altercation with two members of another competing gang, the Bloods.

In October 2001, after serving his sentence for the second felony, Mr. Patton was paroled to his grandparents' house in his old neighborhood in Wichita. According to his story, 1 Mr. Patton wanted to be paroled to Connecticut, where his then-girlfriend lived and where he would be far removed from the gang activity with which he had formerly been associated. He was required to return to northeast Wichita, however, because under parole rules he could be paroled only to live with a family member or a spouse. That placed him in continual danger. Even though (according to his story) Mr. Patton had learned his lesson and abandoned his life of gang violence, his former associates and rival gang members still had scores to settle. In late 2001, for example, two members of the Bloods (one armed) approached him at a gas station. Mr. Patton escaped unharmed. In May 2002, members of the Bloods carried out a drive-by shooting on the 2300 block of North Kansas Street in Wichita, firing at Mr. Patton and others who were in the building. Because of the danger to his life, Mr. Patton has refused to allow his children or his grandparents to ride in the same car with him.

In the fall of 2001, after his encounter with the armed gang member at the gas station, Mr. Patton purchased a bulletproof vest that had been manufactured in California. At that time, both his purchase and his possession of the vest were lawful under federal and state law. According to Mr. Patton, during his parole he was not a gang member and wore the vest solely to protect himself.

On November 21, 2003, officers from the Wichita Police Department investigated a domestic disturbance call involving Mr. Patton. When the officers arrived, they found no weapons in Mr. Patton's possession but did discover that he was wearing a bulletproof vest. On July 29, 2004, Mr. Patton was charged with being a felon in possession of body armor, in violation of a recently enacted statute, 18 U.S.C. § 931. On October 14, 2004, Mr. Patton moved to dismiss the indictment on the grounds that it violated the Commerce and Due Process Clauses of the federal Constitution. The district court denied the motion on November 16. The next day, a superseding indictment added charges that Mr. Patton had possessed the body armor "in and affecting commerce" and that the body armor was a bulletproof vest "that was not produced in the State of Kansas and was sold or offered for sale in interstate or foreign commerce." R. Vol. I, Doc. 19.

Mr. Patton also raised the defense of necessity. On January 19, 2005, after a hearing, the district court found that Mr. Patton had failed to meet the requirements for a necessity defense. Within a

Page 620

week, Mr. Patton entered a conditional guilty plea, preserving his right to appeal both the denial of his motion to dismiss the indictment and the grant of the government's motion in limine to exclude a necessity defense. On April 6, 2005, Mr. Patton was sentenced to eighteen months in federal prison and one year of supervised release. He now appeals the issues preserved in the conditional plea.

II. The Commerce Clause

Mr. Patton argues first that he was convicted under a statute that exceeds Congress's power under the Commerce Clause. We review the constitutionality of the statute de novo. United States v. Jeronimo-Bautista, 425 F.3d 1266, 1268-69 (10th Cir. 2005). The statute is 18 U.S.C. § 931, which makes it a crime "for a person to purchase, own, or possess body armor, if that person has been convicted of a felony" that qualifies as a crime of violence under 18 U.S.C. § 16. 18 U.S.C. § 931(a). "Body armor" is defined as "any product sold or offered for sale, in interstate or foreign commerce, as personal protective body covering intended to protect against gunfire." Id. § 921(a)(35).2 We stress that Mr. Patton was convicted of mere possession of the body armor--not purchase, not sale, not commercial use. This possession occurred entirely within the borders of the State of Kansas. The statute makes no reference to any effect Mr. Patton's possession or use of the bulletproof vest might have had on interstate commerce. The only connection between his possession and interstate commerce is the fact that, prior to his purchase, the bulletproof vest was manufactured in another state and moved across state lines. Moreover, at the time Mr. Patton acquired the vest in 2001, Congress had not yet made the purchase or possession of body armor by felons a federal crime. See james Guelff and Chris McCurley Body Armor Act of 2002, § 11009(e)(2)(A), Pub. L. No. 107-273, Div. C, 116 Stat. 1819, 1821 (codified at 18 U.S.C. § 931) (criminalizing the possession of body armor by felons as of Nov. 2, 2002). It may also be significant that during the incident for which Mr. Patton was prosecuted, he was not armed; for all that appears, he was wearing the bulletproof vest solely in self-defense against attacks motivated by his former association with the Junior Boys gang.

The Supreme Court has articulated "three general categories of regulation in which Congress is authorized to engage under its commerce power." Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 2205, 162 L.Ed.2d 1 (2005). These are "the channels of interstate commerce"; "the instrumentalities of interstate commerce, and persons or things in interstate commerce"; and "activities that substantially affect interstate commerce." Id.; see also United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). We conclude that the statute prohibiting possession of body armor by a felon does not fit within any of the three categories, but we uphold it under the authority of other precedents from the Supreme Court and from this Court.

A. Channels of Interstate Commerce

First, Congress may regulate the "channels of interstate commerce." Lopez, 514 U.S. at 558, 115 S.Ct. 1624;

Page 621

Raich, 125 S.Ct. at 2205. Under this category, Congress regulates not conduct related to interstate commerce but rather interstate commerce itself--barring from the channels of interstate commerce a class of goods or people. See United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir. 1996) (Alito, J., dissenting) (describing the first category as concerning "Congress's power to regulate, for economic or social purposes, the passage in interstate commerce of either people or goods"). For example, Congress may ban the interstate shipment of stolen goods or kidnapped persons, Perez, 402 U.S. at 150, 91 S.Ct. 1357; the interstate shipment of goods produced without minimum-wage and maximum-hour protections, United States v. Darby, 312 U.S. 100, 112-14, 61 S.Ct. 451, 85 L.Ed. 609 (1941); the interstate transportation of a woman or girl for prostitution, Caminetti v. United States, 242 U.S. 470, 491-92, 37 S.Ct. 192, 61 L.Ed. 442 (1917); or the interstate mailing or transportation of lottery tickets, Lottery Case, 188 U.S. 321, 354-55, 23...

To continue reading

FREE SIGN UP