US v. Cardoza, Criminal No. 95-10260-WGY.

• Decision Date: 16 January 1996
• Docket Number: Criminal No. 95-10260-WGY.
• Citation: 914 F. Supp. 683
• Parties: UNITED STATES of America v. Frederick CARDOZA.
• Court: U.S. District Court — District of Massachusetts

914 F. Supp. 683

UNITED STATES of America v. Frederick CARDOZA.

Criminal No. 95-10260-WGY.

United States District Court, D. Massachusetts.

January 16, 1996.

Denis M. King, Goulston & Storrs, Jeffrey M. Smith, Peters, Smith & Moscardelli, William A. Brown, John M. Moscardelli, Peters, Smith & Moscardelli, Boston, MA, for defendant.

Ralph F. Boyd, Jr., Office of the United States Attorney, Boston, MA, for U.S.

MEMORANDUM

YOUNG, District Judge.

I. Introduction and Issue Presented

This case raises a novel question which derives from Congress' passage of the Gun-Free School Zones Act and its subsequent analysis in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Defendant Frederick "Freddie" Cardoza ("Cardoza"), a reputed gang member, was indicted and charged with two counts of violating 18 U.S.C. § 922(g)(1) (felon in possession of firearm and felon in possession of ammunition), one count of violating 18 U.S.C. § 922(x)(1)(A) (transfer of a handgun to a juvenile), and one count of aiding and abetting a violation of 18 U.S.C. § 922(x)(2)(A) (possession of a firearm by a juvenile). Cardoza moved to dismiss all four counts of the Indictment. After hearing, the Court denied the motion and the case proceeded to trial. The jury acquitted Cardoza of being a felon in possession of a firearm but convicted him of the remaining three counts. Cardoza's conviction requires a more formal explication of the grounds for denying his motion to dismiss. This memorandum attempts to provide it.

The motion to dismiss argues that certain sections of United States Code Title 18 are constitutionally invalid as beyond Congress' power to legislate under the Commerce Clause, Article I § 8, United States Constitution, as interpreted by the Supreme Court in Lopez.

Since its decision in early 1995, Lopez has been used by defendants across the country as a means of challenging the constitutionality of federal statutes allegedly violative of the Commerce Clause. Courts in other districts and circuits have consistently upheld the constitutionality of statutes such as 18 U.S.C. § 922(g) and others where challenged. See, e.g., United States v. Hanna, 55 F.3d 1456 (9th Cir.1995) (discussing 18 U.S.C. § 922g1); United States v. Sage, 906 F.Supp. 84 (D.Conn.1995) (discussing constitutionality of 18 U.S.C. § 228); United States v. Bell, 897 F.Supp. 1039 (M.D.Tenn.1995) (discussing 18 U.S.C. § 922g).

This issue is one of first impression for this District, as the constitutionality of 18 U.S.C. § 922(g) has not heretofore been considered by a court within this Circuit. In a case which raised legal issues similar to the case currently before this Court, however, the First Circuit recently held that Congress' enactment of 18 U.S.C. § 922(k)¹ did not exceed its authority to legislate under the Commerce Clause as interpreted in Lopez. United States v. Martinez, 71 F.3d 946 (1st Cir.1995).

II. Analysis

A. Constitutionality of 18 U.S.C. § 922(g)(1)

Count II of the Indictment is based upon 18 U.S.C. § 922(g)(1), the statute that makes it illegal for persons convicted of a felony to ship, transport, possess, or receive "any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."² The government alleges that Cardoza's possession of a certain round of ammunition violated the statute since the bullet was "in and affecting commerce." Cardoza, in rebuttal, relies on Lopez for his contention that the government misapplied the proper standard for measuring a proscribed activity's connection with interstate commerce.

In Lopez, a student was arrested and charged with possession of a handgun on the grounds of an El Paso, Texas high school, in violation of the Gun-Free School Zones Act of 1990 (the "Act"). Pub.L. No. 101-647, § 1702, 104 Stat. 4789, 4844 (1990) (codified as amended at 18 U.S.C. §§ 921, 921 note, 922, 924). Section 922(q)(2)(A), which codifies portions of the Act, makes it a federal offense to possess a firearm "at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C.A. § 922(q)(2)(A) (West Supp.1995). The defendant appealed his conviction, and challenged the Act on the grounds that Congress had exceeded its Commerce Clause authority in enacting the statute. Following reversal of his conviction by the Fifth Circuit, United States v. Lopez, 2 F.3d 1342 (5th Cir.1993), the Supreme Court affirmed. The Court held that possession of a gun in a school zone was not an economic activity that substantially affected interstate commerce. Lopez, ___ U.S. at ___ - ___, 115 S.Ct. at 1633-34.

The Lopez Court devoted much of its opinion to reviewing the history of the Commerce Clause and explaining its operation as a restraint on Congressional authority. Three broad categories of activity were identified for Congressional regulation under the Commerce Clause: (1) the use of the channels of interstate commerce; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) those activities that have "a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Lopez, ___ U.S. at ___ - ___, 115 S.Ct. at 1629-30 (emphasis added, citations omitted).

Cardoza draws an analogy between § 922(q)(2)(A), the statute at issue in Lopez and § 922(g)(1), the statute under which Cardoza has been charged. Focusing primarily upon the third area in which Lopez indicates Congress may properly exercise its Commerce Clause power for support in challenging the language of § 922(g)(1), Cardoza argues that the proper measure of proscribed activity dictated by the Lopez decision is whether the activity "substantially affects" interstate commerce, not whether the activity merely "affects" interstate commerce. In other words, in Cardoza's opinion, Lopez stands for the proposition that in order for an activity to fall within Congress' regulatory power under the Commerce Clause, the activity must have a substantial, as opposed to a relatively trivial, affect upon interstate commerce. Based upon this supposed requirement that the activity "substantially affect" interstate commerce, Cardoza asserts that Count II of the Indictment ought be dismissed, since neither the language of that count nor the language of § 922(g)(1) require proof that Cardoza's conduct have had a "significant affect³ upon interstate commerce." Memorandum in Support of Defendant Frederick Cardoza's Motion to Dismiss (Docket No. 31) ("Defendant's Memorandum") at 2.

This argument is without merit. Since the Supreme Court's decision in Lopez there has been a virtual tidal wave of lawsuits brought by defendants seeking to raise the same challenges to the constitutionality of § 922(g) and other federal statutes as raised by defendant Cardoza in the instant case. So far, none has succeeded. In fact, every court that has addressed the question of § 922(g)'s constitutionality has upheld the statute as a proper exercise of Congressional power under the Commerce Clause. See, e.g., United States v. Bolton, 68 F.3d 396 (10th Cir.1995); United States v. Shelton, 66 F.3d 991 (8th Cir. 1995); United States v. Collins, 61 F.3d 1379 (9th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995).

The Supreme Court has previously ratified Congress' assertion of its Commerce Clause power in federal statutes affecting firearms possession. In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Supreme Court ruled that the predecessor statute to § 922(g), 18 U.S.C. § 1202(a) was a valid exercise of Congress' Commerce Clause power. Section 1202(a) made it a federal crime for a felon to receive, possess, or transport in commerce or affecting commerce any firearm.⁴ The Bass Court applied the term "in commerce or affecting commerce" to all three offenses (reception of a firearm, possession of a firearm, and transportation of a firearm) and concluded that the language of the statute only required proof "that the firearm received has previously traveled in interstate commerce." Bass, 404 U.S. at 350, 92 S.Ct. at 523.⁵ In Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the Supreme Court again reviewed § 1202(a) and reaffirmed its holding in Bass, declaring that the required connection between possession of the firearm and interstate commerce need only be minimal. Scarborough, 431 U.S. at 577, 97 S.Ct. at 1970. The Court determined that all that Congress intended to require as proof that the firearm had been in interstate commerce was that the firearm had, at some time, travelled in commerce. Id. at 575, 97 S.Ct. at 1969.

This Court holds that § 922(g)(1) is constitutional. It cannot be gainsaid that the Lopez court wrote, as Cardoza correctly notes, that "we conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity `substantially affects' interstate commerce." ___ U.S. at ___, 115 S.Ct. at 1630. However, the Achilles' heel of § 922(q), the statute analyzed in Lopez, was that the statute "contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at ___, 115 S.Ct. at 1631, quoted in Bell, 897 F.Supp. at 1041. Section 922(g)(1) does not suffer from such a flaw. Section 922(g)'s particular prohibition against possession of firearms or ammunition by convicted felons provides the necessary jurisdictional element since, according to the holding in Scarborough, supra, the minimum requirement to establish an effect on interstate commerce is that the firearm "have been, at some time, in interstate commerce." Scarborough, 431 U.S. at 575, 97 S.Ct. at 1969 (emphasis added). Similarly, the Ninth Circuit in United States v....