U.S. v. Gonzales
| Decision Date | 29 November 1993 |
| Citation | 114 F.3d 1198 |
| Parties | 97 CJ C.A.R. 935 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BRISCOE, LOGAN, and LUCERO, Circuit Judges.
Defendant Arthur A. Gonzales appeals his conviction after a jury trial on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant argues that: (1) application of 18 U.S.C. § 922(g) to the instant case was unconstitutional; (2) there was insufficient evidence that he possessed the handgun; (3) the jury was not properly instructed on the standard for finding whether he possessed the gun; and (4) the racial composition of the jury violated his Sixth Amendment right to a jury trial.
Defendant was on probation at the time of his arrest and was not allowed to possess a firearm or alcoholic beverages. Defendant's probation officer, Tracy Smith, and her partner, Kevin Pepper, went to defendant's apartment to conduct a home visit. Erica Somsen, defendant's live-in girlfriend, answered the door. After the probation officers entered the apartment they noticed bottles of alcohol. When defendant came into the living room area, officer Smith asked to look around the apartment and defendant agreed.
Officer Pepper checked the closet in the master bedroom and found women's clothes on one side and men's clothes on the other side. He patted down the men's clothes and found something hard in a dark jacket. He removed the jacket, reached inside the pocket and found a pistol and an ammunition clip between the lining and the outer material. Pepper took the gun and the jacket to the living room area and asked defendant to whom the gun and jacket belonged.
Pepper testified that defendant said he did not know who the gun belonged to and that it was not his jacket; defendant then said the jacket belonged to Erica's brother, Brent. Officer Smith testified that defendant said that he sometimes wore Brent's clothes. Smith also testified that when defendant visited her office he often wore a black leather jacket very similar to the one in the closet, and that she had a picture of him in that jacket.
Erica Somsen testified that she told officer Pepper that she did not know who owned the jacket. She testified that Brent and other members of her family, as well as defendant's friends, frequently stayed overnight in the apartment. Somsen also testified that defendant used to wear a leather jacket but it was stolen before the incident at issue. She identified photos of defendant wearing that jacket and said it was not the jacket the officers seized. She testified she did not know how the leather jacket got in the closet.
Defendant testified that the leather jacket in the closet was not his and that he had never worn it. He assumed it was Brent's, although he also had several friends from work who might have stayed over and left clothes in his apartment. He testified, however, that he asked everyone who had been in the apartment, including Brent, whether it was their jacket and no one claimed it. He testified that he had seen Brent shortly before the trial and could not explain why he would not testify that the coat and gun were his even though it was not unlawful for Brent to possess a firearm.
An agent of the Bureau of Alcohol, Tobacco and Firearms examined the gun and testified that it was manufactured in Belgium and had originally been imported to Missouri by a Utah company. He testified that the Bureau could not trace the firearm to its last owner.
Defendant contends that 18 U.S.C. § 922(g) is unconstitutional as applied to the instant case. First, he asserts there was insufficient evidence that his possession of the firearm had an effect upon interstate commerce as required by the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995).
In United States v. Bolton, 68 F.3d 396 (10th Cir.1995), cert. denied, 116 S.Ct. 966 (1996), we stated that in order to meet the Commerce Clause jurisdictional requirement under Lopez, "all the government need show is a de minimis effect on interstate commerce." Bolton, 68 F.3d at 399 (). In United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir.1996), cert. denied, 117 S.Ct. 596 (1996), we held that evidence that a firearm was manufactured in another state, and thus had crossed state lines, established the required de minimis effect on interstate commerce. Defendant acknowledges these cases; however, he argues that because the gun in the instant case may not have moved across state lines after it was imported more than fifty years ago the effect of his possession on interstate commerce was somehow less than de minimis. But " '[s]ection 922(g)' § 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 (citation omitted), and the de minimis effect of [defendant's] own actions on interstate commerce does not invalidate his conviction." Farnsworth, 92 F.3d at 1006 (emphasis added).
Defendant makes a second argument that § 922(g) is unconstitutional because it did not give him adequate notice that possessing the imported firearm would be considered to affect interstate commerce. This vagueness argument also fails. The phrase "possess[ing] in or affecting commerce" in § 922(g) has consistently been construed to include importation into a state as an "indispensable element." International Text-book Co. v. Pigg, 217 U.S. 91, 107 (1910). The statute gives "fair warning" that being a felon in possession of a weapon that had been imported into a state constitutes criminal conduct. See United States v. Bass, 404 U.S. 336 (1971).
Defendant argues that the government presented insufficient evidence that he possessed the handgun. Defendant points out that officer Pepper found the gun in a jacket in an apartment defendant jointly occupied with his girlfriend. He relies on our holding in United States v. Mills, 29 F.3d 545, 550 (10th Cir.1994), that "the mere control or dominion" over the place in which contraband or an illegal item is found was not enough to establish constructive possession in a joint occupancy situation. In Mills, we held that constructive possession could not be inferred when defendant's joint occupant testified she placed guns in a compartment without defendant's knowledge. Here, however, more than mere joint...
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U.S. v. Boyd
...(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......