U.S. v. Alderman

• Decision Date: 12 May 2009
• Docket Number: No. 07-30186.,07-30186.
• Citation: 565 F.3d 641
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cedrick Bernard ALDERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

565 F.3d 641

UNITED STATES of America, Plaintiff-Appellee, v. Cedrick Bernard ALDERMAN, Defendant-Appellant.

No. 07-30186.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2008.

Filed May 12, 2009.

Helen J. Brunner, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.

Brian Tsuchida, Assistant Federal Public Defender, Seattle WA (on the brief) and Vicki Lai, Assistant Federal Public Defender, Seattle WA (on the brief and oral argument) for the defendant-appellant.

Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. CR-06-00117-001-JCC.

Before: B. FLETCHER, M. MARGARET McKEOWN, RICHARD A. PAEZ, Circuit Judges.

Opinion by Judge MCKEOWN; Dissent by Judge PAEZ.

McKEOWN, Circuit Judge:

This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminalize the possession by a felon of body armor that has been "sold or offered for sale in interstate commerce." 18 U.S.C. §§ 931 and 921(a)(35). Put another way, the issue is whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress's Commerce Clause authority.

In recent years, the Supreme Court has significantly altered the landscape of congressional power under the Commerce Clause. See, e.g., United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (striking down statute that provided a federal civil remedy for victims of gender-motivated violence); United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (striking down federal statute regulating possession of guns in school zones). Nonetheless, the resolution to this case is found in Supreme Court and Ninth Circuit precedent that addresses a jurisdictional element nearly identical to the one that applies to § 931. See Scarborough v. United States, 431 U.S. 563, 575, 577, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) (concluding that, in the context of Title VII of the Omnibus Crime Control Act, proof that a firearm traveled in interstate commerce satisfies the required nexus between possession of the firearm and commerce); United States v. Cortes, 299 F.3d 1030, 1037 n. 2 (9th Cir.2002) (upholding carjacking statute and stating that "the vitality of Scarborough engenders significant debate," but "[u]ntil the Supreme Court tells us otherwise ... we follow Scarborough unwaveringly."). We conclude that we are bound by this precedent—absent the Supreme Court or our en banc court telling us otherwise—and that the felon-in-possession of body armor statute passes muster.

Background

Cedrick Alderman was arrested in 2005 during a sting operation involving an attempted controlled purchase of cocaine. Officers were aware that Alderman had been previously convicted of felony robbery.¹ [see SER 7-9]. The arresting officer discovered that Alderman was wearing a bullet-proof vest. [SER 36]. Alderman was booked for possession of the vest and for violating the conditions of his supervision. [See Dkt. 33].

Because Washington state law does not criminalize felon possession of body armor, the matter was referred to the federal authorities. Alderman was indicted under 18 U.S.C. § 931(a), which makes it unlawful for a person convicted of a felony involving a "crime of violence" to possess body armor. See James Guelff and Chris McCurley Body Armor Act of 2002, § 11009(e)(2)(A), 18 U.S.C. § 931 (criminalizing the possession of body armor by felons as of Nov. 2, 2002).

Alderman filed a motion to suppress certain evidence.² He also sought dismissal of the indictment on various grounds, including that the statute was unconstitutional because its enactment exceeded Congress's authority under the Commerce Clause. [See ER 60-62]. The district court denied all of Alderman's motions. Alderman entered a conditional guilty plea. [ER 17-23]. Under the plea agreement, Alderman preserved for appeal the disputed constitutionality of § 931. [See ER 18].³ As part of the factual basis for the plea, the plea agreement included Alderman's admission that the vest had crossed state lines. Specifically, the vest was sold by the manufacturer in California to a distributor in Washington state. The distributor then sold the vest to the Washington State Department of Corrections. Nothing in the record reveals how the vest left the Department of Corrections, but it is undisputed that the vest subsequently came into Alderman's possession. [Dkt. 33]. The stipulation and factual recitation were designed to ensure that the jurisdictional element of the statute was met. See 18 U.S.C. § 921(a)(35) (limiting the applicability of § 931 to vests that have been "sold or offered for sale, in interstate or foreign commerce").

Analysis

I. THE STATUTE

"We review a district court's denial of a motion to dismiss an indictment on constitutional grounds de novo." United States v. Latu, 479 F.3d 1153, 1155 (9th Cir.2007). Under 18 U.S.C. § 931, it is a crime for a person who has been convicted of a violent felony to "purchase, own, or possess body armor." Unlike the statutes at issue in Lopez and Morrison, § 931 is limited by an express jurisdictional condition—the jurisdictional hook limits the reach of § 931 to "body armor" that has been "sold or offered for sale, in interstate or foreign commerce...." 18 U.S.C. § 921(a)(35).

Congress enacted § 931 in response to a spate of violent clashes involving heavily armored assailants and comparatively unprotected police officers. The Congressional findings cite as examples:

the murder of San Francisco Police Officer James Guelff by an assailant wearing 2 layers of body armor, a 1997 bank shoot out in north Hollywood, California, between police and 2 heavily armed suspects outfitted in body armor, and the 1997 murder of Captain Chris McCurley of the Etowah County, Alabama Drug Task Force by a drug dealer shielded by protective body armor.

H.R. Rep. 107-193, pt. 1, at 2.

Confronted with the reality that "nationally, police officers and ordinary citizens are facing increased danger as criminals use more deadly weaponry, body armor, and other sophisticated assault gear," Congress concluded that a "serious threat to community safety [is] posed by criminals who wear body armor during the commission of a violent crime." Id. Congress further found that "crime at the local level is exacerbated by the interstate movement of body armor and other assault gear" and "existing Federal controls over [interstate] traffic [in body armor] do not adequately enable the States to control this traffic within their own borders." Id. In other words, as with guns and domestic strife, Congress determined that felons and body armor "are a potentially deadly combination nationwide." U.S. v. Hayes, ___ U.S. ___, 129 S.Ct. 1079, 1087, 172 L.Ed.2d 816 (2009). To address this threat, Congress elected to forbid violent felons from possessing body armor that had been sold through interstate channels.

Alderman argues that Congress exceeded its authority under the Commerce Clause when it enacted this legislation. We disagree. The Supreme Court has cautioned us 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." Morrison, 529 U.S. at 607, 120 S.Ct. 1740. No such showing has been made here. We opt to follow the Supreme Court's lead in Scarborough.

II. UNITED STATES v. SCARBOROUGH AND RELATED CIRCUIT CASES

We are guided in our analysis first and foremost by the Supreme Court's decision in Scarborough. In Scarborough, the Court addressed a jurisdictional element that is nearly identical to the one that limits § 931. Scarborough, 431 U.S. at 564, 97 S.Ct. 1963 (quoting 18 U.S.C. §§ 1201-03). As we outlined in Cortes, the Supreme Court in Scarborough "considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce." 299 F.3d at 1036-37. "The Court answered affirmatively; if the government proved that Scarborough's firearms had at some time traveled in interstate commerce, a sufficiently close nexus between possession of the firearms and commerce was established." Id. As the Supreme Court explained it; "[T]here is no question that Congress intended no more than a minimal nexus requirement." Scarborough, 431 U.S. at 577, 97 S.Ct. 1963. Thus, although the Court did not address the statute from a constitutional perspective, it implicitly assumed the constitutionality of the "in commerce" requirement. It is difficult to distinguish our case from Scarborough.

In considering the continuing vitality of Scarborough, we have consistently upheld similar felon-in-possession statutes. See, e.g., United States v. Jones, 231 F.3d 508, 514 (9th Cir.2000) (upholding statute criminalizing felon's possession of a firearm because the jurisdictional hook in the statute "insures on a case-by-case basis that the defendant's actions implicate interstate commerce to a constitutionally adequate degree.") (quoting United States v. Polanco, 93 F.3d 555 (9th Cir.1996)); United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir.1995) (quoting Scarborough, 431 U.S. at 575, 97 S.Ct. 1963, and stating that Scarborough requires "only `the minimal nexus that the firearm have been, at some time, in interstate commerce.'"); see also Cortes, 299 F.3d at 1037 (upholding federal carjacking statute because, taken together, the context of the statute, congressional findings, and the requirement that the car affected have been transported in interstate commerce "ensure that carjackings covered by 18 U.S.C. §...