U.S. v. Cardoza, 96-1470

Citation129 F.3d 6
Decision Date08 May 1997
Docket NumberNo. 96-1470,96-1470
PartiesUNITED STATES of America, Appellee, v. Frederick CARDOZA, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

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129 F.3d 6
UNITED STATES of America, Appellee,
Frederick CARDOZA, Defendant, Appellant.
No. 96-1470.
United States Court of Appeals,
First Circuit.
Heard May 8, 1997.
Decided Oct. 27, 1997.

Page 8

Jeffrey M. Smith, Boston, MA, with whom John M. Moscardelli and Peters, Smith & Moscardelli were on brief, for appellant.

Ralph F. Boyd, Jr., Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, and Dina Michael Chaitowitz, Assistant United States Attorney, were on brief, for appellee.

Before SELYA, Circuit Judge, and COFFIN and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Defendant-Appellant Frederick Cardoza appeals his convictions and sentence under the felon-in-possession statute, 18 U.S.C. § 922(g)(1) and the Youth Handgun Safety Act, 18 U.S.C § 922(x). His appeal is primarily based on multiple constitutional arguments, which shall be addressed in turn. We affirm.


We review the facts in the light most favorable to the verdict. United States v. Wihbey, 75 F.3d 761, 764 (1st Cir.1996). In July of 1995, a sixteen-year-old acquaintance of Cardoza, Myron Ragsdale, asked Cardoza to secure a handgun for him to purchase. Cardoza found a dealer willing to sell a nine-millimeter semiautomatic handgun to Ragsdale for $200.00. On the night of July 14, 1995, Cardoza and Ragsdale went to Walnut Park in Roxbury, Massachusetts, to make the gun purchase. Ragsdale paid $200.00 for the handgun and nine rounds of ammunition. Ragsdale loaded the gun with eight rounds of ammunition, and Cardoza took possession of the ninth round.

Sometime after the transaction was completed, Cardoza and Ragsdale began walking along Humboldt Avenue. As they walked, Ragsdale had the handgun in his waistband and Cardoza carried the single round of ammunition in his hand. By this time it was approximately 2:00 a.m. on the morning of July 15. They were spotted walking along Humboldt Avenue by four officers of the Boston Police's Youth Violence Strike Force who were patrolling the area in an unmarked police car. One of the officers in the car, Gregory Brown, noticed that Cardoza and

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Ragsdale were acting indecisively about whether to continue walking up Humboldt, or instead cross the street in front of the police car. Moving slowly, the police car approached Cardoza and Ragsdale from behind. As the patrol car approached, Cardoza and Ragsdale crossed Humboldt Avenue in order to walk up the sidewalk of Ruthven Street, a one-way thoroughfare that emptied onto Humboldt Avenue. As they crossed in front of the car, Officer Brown, who was sitting in the back seat on the driver's side, recognized Cardoza and directed the driver to make a left turn off Humboldt, and proceed the wrong way up Ruthven for a short distance. Officer Brown testified that he wanted to ask Cardoza some questions concerning a shooting incident that had occurred some days earlier. The driver took the left turn, and pulled over to the curb just off Humboldt, facing the wrong way on Ruthven Street.

Officer Brown, whose window was rolled down, called out to Cardoza, asking "What's up Freddie? What are you doing out this time of night?" Cardoza stopped, turned, and approached the patrol car. Ragsdale continued walking a short distance. Officer Brown remained in the car conversing with Cardoza through the open car window. As he talked with Officer Brown, Cardoza began to gesture with his hand, exposing the round of ammunition. Seeing the round of ammunition, Brown exited the patrol car, and began to pat-frisk Cardoza. At the same time, two other officers exited the car and approached and pat-frisked Ragsdale, discovering the handgun loaded with eight rounds of ammunition.

Cardoza was indicted on four counts. Count I charged Cardoza with being a felon-in-possession of one round of ammunition, in violation of 18 U.S.C. § 922(g)(1). Count II charged Cardoza under the same statutory provision with being a felon-in-possession of the semi-automatic firearm, based on his alleged possession of the weapon for a short period of time after the transaction. Count III charged Cardoza with causing the sale, delivery, and transfer of a handgun to a juvenile in violation of the Youth Handgun Safety Act, codified at 18 U.S.C. § 922(x). Count IV charged Cardoza with aiding and abetting a juvenile in the possession of a handgun in violation of the same. A jury returned a guilty verdict on Counts I, III, and IV, and acquitted on Count II. Following the jury verdict, but prior to sentencing, the district court issued a memorandum detailing its refusal to grant both Cardoza's motion to dismiss and his motion for judgment of acquittal. United States v. Cardoza, 914 F.Supp. 683 (D.Mass.1996). The district court sentenced Cardoza under the Guidelines to 235 months of imprisonment and five years of supervised release. This appeal followed.


The Meaning of "Ammunition"

Cardoza launches his appeal by arguing that the single nine millimeter bullet which he was convicted of possessing is not "ammunition" within the meaning of 18 U.S.C. § 922(g). We disagree.

Cardoza was convicted of violating the felon-in-possession statute, which makes it illegal for a convicted felon "to possess in or affecting commerce, any firearm or ammunition...." 18 U.S.C § 922(g)(1)(West Supp.1997). "Ammunition" is defined as "ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm." 18 U.S.C. § 921(a)(17)(A)(West Supp.1997). Cardoza suggests first that the statutory definition, by including the plural words "cases, primers, [and] bullets" bans only the possession of more than one piece of ammunition. Second, he suggests that the word "ammunition" itself always means multiple rounds. Finally, Cardoza argues that the definition of "ammunition" is sufficiently ambiguous to require application of the "rule of lenity," United States v. Lanier, --- U.S. ----, ----, 117 S.Ct. 1219, 1225, 137 L.Ed.2d 432 (1997), in his favor. The court below determined that "[n]o amount of wordplay will contradict the plain meaning of the statute, an honest reading of which leads to the inexorable conclusion that a single nine millimeter bullet ... constitutes ammunition for the purposes of [§ 922(g)(1) ]." Cardoza, 914 F.Supp. at 686-87.

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This question is one of statutory construction which we review de novo. Strickland v. Commissioner, Maine Dep't of Human Servs., 96 F.3d 542, 545 (1st Cir.1996). In this instance, we need not venture far beyond the words of the statute.

We think the common sense, everyday understanding of the word "ammunition" encompasses a single bullet or cartridge. See O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir.1996) ("courts are bound to afford statutes a practical, commonsense reading"). Thus courts, and the public generally, refer to ammunition in terms of "rounds." See United States v. Brimage, 115 F.3d 73, 76 (1st Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 321, 139 L.Ed.2d 248 (1997)("loaded with six rounds of ammunition"); United States v. Balanga, 109 F.3d 1299, 1300 (8th Cir.1997)("a single round of .22 caliber ammunition"). If the word "ammunition" was incapable of meaning one bullet, one would not refer to a "single round of ammunition." 1

To hold otherwise would result in an absurdity. Marques v. Fitzgerald, 99 F.3d 1, 5 (1st Cir.1996)("[A] statute may not be construed in a manner that results in absurdities or defeats its underlying purpose."). Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 (of which § 922(g)'s predecessor was a part), inter alia, to keep certain weaponry "out of the hands of those not legally entitled to possess them because of ... criminal background...." S.Rep. No. 90-1097, at 28 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2113. It would therefore make little sense to interpret § 922(g) to criminalize possession of two bullets, but not one, when Congress' purpose was to deprive certain persons of any firepower.


The Interstate Commerce Nexus

Cardoza next assigns error to the district court's failure to dismiss the indictment, arguing that the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), compels a finding that both 18 U.S.C. § 922(g) and § 922(x) as applied to him exceed congressional power under the Commerce Clause. Our review of constitutional challenges to federal statutes is de novo. United States v. Bongiorno, 106 F.3d 1027, 1030 (1st Cir.1997).

In Lopez the Court struck down the Gun-Free School Zones Act of 1990 ("GFSZA"), which criminalized the possession of a handgun within a school zone, as being beyond the reach of Congress' affirmative powers under the Commerce Clause. 514 U.S. at 567-68, 115 S.Ct. at 1633-34. Identifying the GFSZA as an attempted regulation of purely intrastate activity (possession alone) that has an effect on interstate commerce, the Court clarified existing precedent to hold that where Congress attempts to control such activity, the "proper test [of the statute's constitutionality] requires an analysis of whether the regulated activity 'substantially affects' interstate commerce." Id. at 559, 115 S.Ct. at 1630. Because the "possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce," id. at 567, 115 S.Ct. at 1634, enactment of the GFSZA exceeded congressional power under the Commerce Clause.

Cardoza urges us to extend the Court's Lopez reasoning to the statutes under which he was convicted. We address each statute in turn.


18 U.S.C. § 922(g)(1)

As an initial matter, it is now well-settled in this circuit that "a facial challenge to the constitutionality of the statute at issue, [§ 922(g) ], is 'hopeless on ... the law.' " United States v. Blais, 98 F.3d 647, 649 (1st Cir.1996), cert. denied, --- U.S. ----,...

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