U.S. v. Dejesus

• Decision Date: 19 July 2001
• Docket Number: No. CR. 99-728(JBS).,CR. 99-728(JBS).
• Parties: UNITED STATES of America, v. Jerry DeJESUS, Defendant.
• Court: U.S. District Court — District of New Jersey

150 F.Supp.2d 684

UNITED STATES of America, v. Jerry DeJESUS, Defendant.

No. CR. 99-728(JBS).

United States District Court, D. New Jersey.

July 19, 2001.

Robert J. Cleary, United States Attorney, by David A. Bocian, Assistant U.S. Attorney, Newark, NJ, for U.S.

Richard Coughlin, Federal Public Defender, by Lisa C. Evans, Assistant Federal Public Defender, Camden, NJ, for Defendant.

OPINION UPON MOTION TO DISMISS INDICTMENT

SIMANDLE, District Judge.

This Court is called upon to address the issue whether the federal statute which criminalizes possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), is facially unconstitutional as lying beyond the power of Congress under the Commerce Clause, in light of the recent jurisprudence of the Supreme Court restricting the reach of the Commerce Clause. The felon-in-possession statute, 18 U.S.C. § 922(g)(1) states:

[i]t shall be unlawful for any person—(1) 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.

18 U.S.C. § 922(g)(1).

Defendant Jerry DeJesus is charged with knowingly possessing a firearm, after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 2. The defendant has moved to dismiss the indictment under the premise that 18 U.S.C. § 922(g)(1) is facially unconstitutional because the conduct being regulated by Congress in the statute does not have a substantial effect upon interstate commerce and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. The United States counters by arguing that this Court is bound by the Third Circuit decision in United States v. Gateward, 84 F.3d 670 (3d Cir.1996), which upheld the constitutionality of § 922(g)(1). For the reasons stated herein, defendant's motion to dismiss the indictment in this matter is denied.

I. BACKGROUND

On October 1, 1999, Camden police, investigating a report of a stolen car in the area of Mt. Ephraim Avenue and Liberty Street in Camden, New Jersey, apprehended defendant Jerry DeJesus as he allegedly attempted to flee the scene of an accident involving a stolen car. A search conducted incident to defendant's arrest allegedly revealed defendant was in possession of an Arcadia Machine & Tool, .380 caliber, semi-automatic handgun.

On December 8, 1999, a Grand Jury, sitting in Camden, New Jersey, returned a one-count Indictment charging the defendant with being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On January 25, 2001, defendant was arraigned before the Honorable Robert B. Kugler, United States Magistrate Judge. Defendant is now before this Court seeking to dismiss the indictment on the grounds that the felon-in-possession of a firearm statute, 18 U.S.C. § 922(g)(1), violates the Commerce Clause of the United States Constitution, Art. I, § 8, and is therefore unconstitutional.

II. DISCUSSION

A. Legal Background

Under the Commerce Clause, Congress is empowered "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. This power has been construed broadly to allow Congressional regulation of many aspects of modern life.¹

The legal landscape in this area changed, however, on April 26, 1995, with the ruling in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). At issue in Lopez was the constitutionality of the GunFree School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), which made it a federal offense "for any individual knowingly 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. § 922(q)(1)(A).

In analyzing 18 U.S.C. § 922(q)(1)(A), the Supreme Court noted that Congressional power under the Commerce Clause may involve three categories of regulation: (1) Congress may regulate "the use of channels of interstate commerce"; (2) Congress may "regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) Congress may "regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce." Id. at 558-59, 115 S.Ct. 1624.

The government in Lopez tried to justify § 922(q) solely on the ground that "possession of a firearm in a local school zone ... substantially affect[s] interstate commerce." Id. at 563, 115 S.Ct. 1624. The Court found, however, that 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. 1624. Furthermore, the Court noted 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 561, 115 S.Ct. 1624. Finally, the Court found that neither the statute nor its legislative history contained any findings concerning the affects upon interstate commerce of possession of a gun in a school zone. Id. at 563, 115 S.Ct. 1624.

The government asserted three separate grounds upon which possession of a gun in a "school zone" would substantially affect commerce. First, the government argued that possession of a gun in a school zone may result in an increase in violent crime which impacts society through higher insurance rates. Id. at 563-64, 115 S.Ct. 1624. Second, the government argued that violent crime reduces the "willingness of individuals to travel to areas within the country that are perceived to be unsafe." Id. at 564, 115 S.Ct. 1624. Finally, the government argued that the presence of guns in the educational environment threatens the ability of students to learn, which in turn creates a less productive citizenry and adversely affects the national economy. Id.

The Court rejected these arguments, holding that with § 922(q)(1)(A) Congress had finally exceeded the outer boundaries of judicial deference to Congressional authority to regulate commerce. Id. Fearing a general federal police power under the guise of an omnipotent Commerce Clause power, the Lopez Court noted that anything that might lead to violent crime could be regulated under the government's "cost of crime" argument, as well as anything that was related to the productivity of individual citizens, including such areas of state law as family law and education. Id. Finding no other constitutional justification for the law, the Court found it unconstitutional. Id. at 568, 115 S.Ct. 1624.

Immediately after the Lopez decision, many criminal convictions and civil remedies became suspect as the constitutional bases of several statutes were challenged.² 18 U.S.C. § 922(g)(1) was no exception as its constitutional basis was challenged in the Third Circuit in United States v. Gateward, 84 F.3d 670 (3d Cir.1996). In Gateward, the Third Circuit upheld § 922(g)(1) by relying heavily on two Supreme Court cases that addressed the interstate commerce aspect of 18 U.S.C. § 1202(a), the predecessor statute to § 922(g)(1), which made any felon "who receives, possesses, or transports in commerce ... any firearm" guilty of a federal offense. 18 U.S.C. § 1202(a)(repealed 1986).

In the first case relied on by the Gateward Court, United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Supreme Court held that the government must prove as an essential element of the offense that a possession, receipt or transportation was "in commerce or affecting commerce." Indeed, the court noted that, "[a]bsent proof of some interstate commerce nexus in each case, § 1202(a) dramatically intrudes upon traditional state criminal jurisdiction." Id. at 349, 92 S.Ct. 515. Thus, the Bass Court set aside the conviction because, although the Government had demonstrated that Bass had possessed a firearm, it had failed "to show the requisite nexus with interstate commerce." Id. at 347, 92 S.Ct. 515. Hence, the requirement of the jurisdictional element to establish an interstate nexus to the possession of a firearm by a convicted felon was born.

In the second case relied on by the Gateward Court, Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the Supreme Court clarified the requirements of the interstate commerce nexus. In Scarborough, the Court held that proof that possessed firearms had previously traveled in interstate commerce was sufficient to satisfy the statute's "in commerce or affecting commerce" nexus requirement. Id. at 577, 97 S.Ct. 1963.

Using these two cases as a guide, the Third Circuit found that Lopez did not undercut the Bass/Scarborough proposition that the jurisdictional element "`in or affecting commerce' keeps the felon firearm law well inside the constitutional fringes of the Commerce Clause." Gateward, 84 F.3d at 671. Further, the Gateward Court read the Lopez opinion to mean that the Supreme Court invalidated § 922(q) because "by its terms [§ 922(q)] has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms," and because "§ 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Lopez, 514 U.S. at 561, 115 S.Ct. 1624.

Thus, the Gateward Court distinguished § 922(q) from § 922(g)(1) by finding that Congress had drafted § 922(g)(1) to include a jurisdictional element which, in light of the Lopez decision, "buttresses the validity of the felon...