U.S. v. Boyd

• Decision Date: 30 March 1999
• Docket Number: No. 99-40001-01-SAC.,99-40001-01-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. James L. BOYD III, Defendant.
• Court: U.S. District Court — District of Kansas

52 F.Supp.2d 1233

UNITED STATES of America, Plaintiff, v. James L. BOYD III, Defendant.

No. 99-40001-01-SAC.

United States District Court, D. Kansas.

March 30, 1999.

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for U.S.

Ronald E. Wurtz, Office of Federal Public Defender, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the defendant's following pretrial motions: Motion to Dismiss Indictment Due to Officially Inadequate Commerce Clause Nexus, Ex Post Facto Clause Violation, Second Amendment Violation, and Equal Protection Violation (Dk.23); and Motion to Dismiss or to Elect Because of Duplicitous Charging (Dk.25). The government has filed a consolidated response opposing both motions. (Dk.27). The defendant filed a notice of supplementary authority (Dk.30) on March 25, 1999, calling the court's attention to the recent decision of Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 (4th Cir.1999).

INDICTMENT

On January 6, 1999, the grand jury returned a two-count indictment charging the defendant with two violations of 18 U.S.C. § 922(g)(9), that is, possession of a firearm by a person convicted of a misdemeanor crime of domestic violence. Count one charges that the defendant knowingly and intentionally received and possessed a .9mm semi-automatic pistol on May 30, 1998, after having been convicted on March 31, 1995, in Shawnee County, Kansas, of a misdemeanor crime of domestic violence. Count two charges that the defendant knowingly and intentionally received and possessed a .380 caliber semiautomatic pistol on August 24, 1998, after having been convicted on March 31, 1995, in Shawnee County, Kansas, of a misdemeanor crime of domestic violence. Each count charges that the respective firearm "had been shipped or transported in interstate or foreign commerce." (Dk.1).

MOTION TO DISMISS ON CONSTITUTIONAL GROUNDS (Dk.23).

Interstate Commerce Clause Challenge

The defendant's argument relies extensively on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), in which the Supreme Court held that Congress exceeded its interstate commerce powers by criminalizing the knowing possession of a firearm in a school zone, 18 U.S.C. § 922(q) (1988). The Court noted that among its precedent even "the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not." 514 U.S. at 560, 115 S.Ct. 1624. The defendant keys on this observation and the Court's conclusion that § 922(q) had "nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." 514 U.S. at 561, 115 S.Ct. 1624. The defendant criticizes the lower court opinions subsequently applying Lopez as having narrowly construed Lopez and having failed to address this aspect of the Supreme Court's opinion. The defendant cites the following as examples of such lower court opinions: United States v. Bolton, 68 F.3d 396 (10th Cir.1995); United States v. Hicks, 992 F.Supp. 1244 (D.Kan. 1997); National Ass'n of Government Employees, Inc. v. Barrett, 968 F.Supp. 1564, 1572 (N.D.Ga.1997); Fraternal Order of Police v. United States, 981 F.Supp. 1 (D.D.C.1997), overruled on other grounds, 152 F.3d 998 (D.C.Cir.1998); Gillespie v. City of Indianapolis, 13 F.Supp.2d 811 (S.D.Ind.1998). The defendant argues that § 922(g)(9) focuses not on the weapon and its movement in interstate commerce but rather on the regulation of domestic violence which has nothing to do with commerce. In short, the defendant contends it is not enough that the statute expressly makes interstate commerce an element of the crime.

If it were writing on a clean slate, this court might have more reason to discuss at length the defendant's arguments.¹ The slate, however, is not clean, and the court is bound to follow the Tenth Circuit precedent of United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir.1996) ("`[U]nder Lopez, all the government need show is a de minimis effect on interstate commerce in order to support a conviction under the [Hobbs] Act.'" (citation omitted); United States v. Snow, 82 F.3d 935, 939-40 (10th Cir.1996) ("[S]imply by crossing state lines the firearm traveled in interstate commerce."; United States v. Bolton, 68 F.3d 396, 399 (10th Cir.1995), cert. denied, 516 U.S. 1137, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); see, e.g., United States v. Gonzales, 114 F.3d 1198, 1997 WL 321550, at *2 (10th Cir. Jun.13, 1997) (Table). Though these precedent do not address the interstate commerce nexus within the particular context § 922(g)(9), they do address that nexus in other § 922(g) provisions and their reasoning cannot be distinguished on any legally relevant ground. In fact, § 922(g) imposes the same jurisdictional element for the nine different disabling statuses (e.g., felony conviction, fugitive from justice, illegal alien, unlawful user of controlled substance, and misdemeanor domestic violence conviction) listed in § 922(g)(1)-(9). Specifically, the statute makes it unlawful for a person fitting one of the nine listed statuses "to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm ... or to receive any firearm ... which has been shipped in interstate commerce." 18 U.S.C. § 922(g). This common jurisdictional element defeats the defendant's commerce clause challenge.² See, e.g., United States v. Bostic, 168 F.3d 718, 722 (4th Cir.1999) (upholding § 922(g)(8) — unlawful possession of a firearm by an individual subject to a domestic violence protective order); United States v. Wilson, 159 F.3d 280, 286-87 (7th Cir.1998) (upholding § 922(g)(8)).

All of these cases have recognized that central to the Supreme Court's holding in Lopez was the "lack of a `jurisdictional element which would ensure, through a case-by-case inquiry, that the firearm possession in question affects interstate commerce.'" United States v. Luna, 165 F.3d 316, 320 (5th Cir.1999) (quoting Lopez, 514 U.S. at 561, 115 S.Ct. 1624); see United States v. Cunningham, 161 F.3d 1343 (11th Cir.1998) ("[A] statute regulating noneconomic activity necessarily satisfies Lopez if it includes a `jurisdictional element which would ensure, through case-by-case inquiry,' that the defendant's particular offense affects interstate commerce." (quoting Lopez, 514 U.S. at 561, 115 S.Ct. 1624) (internal citations omitted)). "Unlike the statute at issue in Lopez, § 922(g) expressly requires some nexus to interstate commerce, reflecting the ability of Congress to exercise its delegated power under the Commerce Clause to reach the possession of firearms that have an explicit connection with or effect on interstate commerce." United States v. Luna, 165 F.3d at 321 (footnote omitted); see Lopez, 514 U.S. at 561, 115 S.Ct. 1624 ("Section 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce."). Thus, it should come as no surprise that Commerce Clause challenges to § 922(g)(9) have had no success. See, e.g., United States v. Mendoza, 1999 WL 89377, at *1 (4th Cir. Feb.23, 1999); Gillespie v. City of Indianapolis, 13 F.Supp.2d 811, 821-22 (S.D.Ind.1998). Nor will this challenge prevail here.

Within his Commerce Clause challenge, the defendant weaves certain Tenth Amendment arguments and even comments that "[t]he major questions that arise in the interstate commerce area are the overarching Tenth Amendment issues." (Dk.24, p. 6). Most of this argument is aimed at giving Lopez a broad reading that would reject any federal criminal statute regulating traditional intrastate matters which really have little to do with business and commerce. (Dk.24, p. 9-10). Even so, if the defendant intended to make a separate Tenth Amendment challenge to § 922(g)(9), the court rejects the same based on sound reasoning found in United States v. Bostic, 168 F.3d 718, 1999 WL 74754, at *6 (§ 922(g)(8)); United States v. Wilson, 159 F.3d at 287-88 (§ 922(g)(8)); and Gillespie v. City of Indianapolis, 13 F.Supp.2d at 819-21 (§ 922(g)(9)). In short, the court is compelled by binding precedent to find that § 922(g)(9), just like the other provisions of § 922(g), is a constitutional exercise of Congress's commerce power, and the court is convinced that § 922(g)(9) can be implemented by federal authorities without impermissibly infringing on the States' rights to regulate domestic relations.

Ex Post Facto Challenge

"`A law violates the Ex Post Facto Clause when it punishes behavior which was not punishable at the time it was committed or increases the punishment beyond the level imposed at the time of commission.'" United States v. Capps, 77 F.3d 350, 354 (10th Cir.1996) (quoting Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir.1994)). The defendant argues that § 922(g)(9) alters the definition of criminal conduct, increases the punishment for an earlier crime, and attaches unforeseeable consequences to a completed criminal case.

This court, as have all others deciding such a challenge, have concluded that because the illegal act in § 922(g)(9) is the possession of the firearm, not the misdemeanor domestic violence conviction, the illegal act was not completed until after § 922(g)(9) became effective. See, e.g., United States v. Frye, 163 F.3d 599, 1998 WL 654423, at *1 (4th Cir. Sep.21, 1998) (table); United States v. Hicks, 992 F.Supp. 1244, 1246 (D.Kan.1997); United States v. Meade, 986 F.Supp. 66, 69 (D.Mass.1997); National Ass'n of Government Employees v. Barrett, 968 F.Supp. 1564, 1575-76 (N.D.Ga.1997). Consequently, this statute does not impose a heavier or additional penalty for the earlier domestic violence conviction, but rather imposes authorized punishment for criminal conduct that has occurred...