U.S. v. Chesney

Decision Date14 June 1996
Docket NumberNo. 95-5203,95-5203
Citation86 F.3d 564
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gary E. CHESNEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Hugh B. Ward, Jr. (argued and briefed), Office of U.S. Atty., Knoxville, TN, for plaintiff-appellee.

Leah J. Prewitt (argued and briefed), Federal Defender Services, Knoxville, TN, for defendant-appellant.

Before CONTIE, BATCHELDER, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which CONTIE, J., joined. BATCHELDER, J. (pp. 574-82), delivered a separate opinion concurring in all parts of the majority's opinion and in the results of Parts II.B and II.C.

MOORE, Circuit Judge.

Defendant-Appellant Gary E. Chesney appeals his conviction and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e). We find no merit in Chesney's assignments of error and affirm.

I

On June 5, 1992, two men robbed Jerome Wingfield at gunpoint. One of the robbers beat Wingfield about the body with a gun, which Wingfield described as a chrome-plated .38 or .357 revolver. Wingfield shot at the robbers, who shot back, but the robbers escaped. Wingfield described the robbers to police, who identified the robbers as Chesney and Ricky Golden.

On June 10, 1992, Ann Myers ("Myers"), Chesney's state probation officer, informed the Knoxville police that Chesney was at her office. When the Knoxville police officers arrived at Myers's office, Myers told them that Chesney had left in a 1980 Pontiac Bonneville. The Knoxville police stopped the automobile that Myers had described. Chesney was a passenger in the automobile, which Golden was driving. The Knoxville police officers searched the vehicle and found a .357 revolver among Chesney's state prison clothes in the trunk of the car. The car belonged to Chesney's girlfriend.

Chesney was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Chesney stipulated that he had been convicted of a felony, and that the firearm was a .357 magnum revolver that was not manufactured in Tennessee and had been shipped or transported in interstate commerce. Chesney was found guilty after a two-day jury trial, and was sentenced to 262 months of incarceration and five years of supervised release.

Chesney raises five issues on appeal. First, Chesney argues that § 922(g)(1) is unconstitutional because it allegedly exceeds Congress's power under the Commerce Clause and because the government failed to prove a substantial nexus between the crime charged and interstate commerce. Second, Chesney claims that the district court erred by admitting evidence about the June 5 robbery of Wingfield. Third, Chesney argues that the district court erred by instructing the jury on joint possession. Fourth, Chesney argues that his proposed jury instruction on credibility of witnesses should have been given by the court. Finally, Chesney asserts that he should have been permitted to argue to the jury about the punishment he would receive if convicted.

II

Section 922(g)(1) provides:

It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Chesney claims that the Supreme Court's decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), requires us to invalidate his conviction pursuant to § 922(g)(1) because he claims that § 922(g)(1) is beyond Congress's Commerce Clause powers, and because the government failed to prove that Chesney's possession of this particular gun had a substantial effect on interstate commerce. Chesney thus appears to challenge the statute both on its face and as applied to him.

A

Chesney did not raise the issue of the constitutionality of § 922(g)(1) below. Normally, such a waiver would preclude our consideration of the issue on appeal. Foster v. Barilow, 6 F.3d 405, 407 (6th Cir.1993). However, we may exercise our discretion to review an issue not raised below in " 'exceptional cases or particular circumstances,' " or "when the rule would produce 'a plain miscarriage of justice.' " Id. (quoting Pinney Dock & Transport Co. v. Penn Central Corp., 838 F.2d 1445, 1461 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988)).

We find that such exceptional circumstances exist here because the Lopez case was decided after the district court entered judgment in this case. Thus, Chesney's Lopez challenge to § 922(g)(1) was not available below. Moreover, the constitutionality of § 922(g)(1) is purely a legal question that has been briefed fully by both parties. United States v. Real Property Known & Numbered As 429 South Main Street, New Lexington, Ohio, 52 F.3d 1416, 1419 (6th Cir.1995) ("Although [claimant] did not raise this issue below, we address it on appeal, because the question presents a purely legal issue not available to [claimant] below.... In addition, both parties have briefed the issue.").

B

Since the submission of Chesney's appeal to this panel, another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce that § 922(q) lacked." Id. (citing United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir.1995); United States v. Hinton, No. 95-5095, 1995 WL 623876, at * 2 (4th Cir. Oct. 25, 1995) (per curiam) (unpublished), cert. denied, --- U.S. ----, 116 S.Ct. 1026, 134 L.Ed.2d 104 (1996); United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995); United States v. Shelton, 66 F.3d 991, 992-93 (8th Cir.1995) (per curiam), cert. denied, --- U.S. ----, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 543, 133 L.Ed.2d 446 (1995); United States v. Bolton, 68 F.3d 396, 400 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996)). See also United States v. Gateward, 84 F.3d 670, 672 (3d Cir.1996); United States v. Bradford, 78 F.3d 1216, 1223 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1581, --- L.Ed.2d ---- (1996); United States v. Bates, 77 F.3d 1101, 1104 (8th Cir.1996); United States v. McAllister, 77 F.3d 387, 389-90 (11th Cir.1996); United States v. Bennett, 75 F.3d 40, 48-49 (1st Cir.1996); United States v. Bell, 70 F.3d 495, 497-98 (7th Cir.1995); United States v. Rankin, 64 F.3d 338, 339 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 577, 133 L.Ed.2d 500 (1995); United States v. Hanna, 55 F.3d 1456, 1461-62 (9th Cir.1995). Thus, all ten courts of appeals that have considered the constitutionality of § 922(g)(1) since Lopez have upheld the statute.

Courts uniformly have rejected facial challenges to § 922(g)(1) because § 922(g)(1) contains a jurisdictional provision that requires the government to prove that the firearm was possessed "in or affecting commerce." E.g., Turner, 77 F.3d at 889 ("Requiring the government in each case to prove that a felon has possessed a firearm 'in or affecting commerce' ensures that the firearm possession in question affects interstate commerce and saves § 922(g) from the jurisdictional defect that doomed § 922(q) [the statute invalidated in Lopez ]"); McAllister, 77 F.3d at 389-90 ("This jurisdictional element defeats McAllister's facial challenge to the constitutionality of § 922(g)(1)."); Bell, 70 F.3d at 498 ("Section 922(g)(1) does not suffer from the same infirmities [as § 922(q) ]. It contains an explicit requirement that a nexus to interstate commerce be established."); Hanna, 55 F.3d at 1462 n. 2 ("Section 922(g)'s requirement that the firearm have been, at some time, in interstate commerce is sufficient to establish its constitutionality under the Commerce Clause."); Bolton, 68 F.3d at 400 (same). We agree with these courts that the presence of the jurisdictional element defeats Chesney's facial challenge to § 922(g)(1), particularly in light of the Lopez Court's approval of former 18 U.S.C. § 1202(a), 1 as interpreted in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).

18 U.S.C. § 1202(a) is the predecessor statute to § 922(g)(1), the provision Chesney challenges here. In Lopez, the Supreme Court held that 18 U.S.C. § 922(q), the Gun-Free School Zones Act, was unconstitutional because it was beyond the scope of Congress's Commerce Clause power. --- U.S. at ----, 115 S.Ct. at 1626. As one of its reasons for holding § 922(q) unconstitutional, the Court stated:

Second, § 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.... Unlike the statute in Bass [§ 1202(a) ], § 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.

Lopez, --- U.S. at ----, 115 S.Ct. at 1631. As this court held in Turner, § 922(g)(1) contains just such a jurisdictional element, and the government is required to prove that the firearm at issue affects commerce.

Moreover, the jurisdictional element of § 922(g)(1), which requires that the gun be possessed "in or affecting commerce" is virtually identical to the jurisdictional element of § 1202(a), which required that...

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