U.S. v. Hall

• Decision Date: 30 April 1999
• Docket Number: Nos. 97-3944,97-4171,97-4170,s. 97-3944
• Citation: 171 F.3d 1133
• Parties: UNITED STATES of America, Appellee, v. Everett Kyle HALL, also known as Eric, also known as Shorty, Appellant. United States of America, Appellee, v. Randall Joe Hall, Appellant. United States of America, Appellee, v. Roy Lee Hall, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1133

171 F.3d 1133

UNITED STATES of America, Appellee, v. Everett Kyle HALL, also known as Eric, also known as Shorty,

Appellant.

United States of America, Appellee, v. Randall Joe Hall, Appellant.

United States of America, Appellee, v. Roy Lee Hall, Appellant.

Nos. 97-3944, 97-4170, 97-4171.

United States Court of Appeals Eighth Circuit.

Submitted June 9, 1998.

Filed March 30, 1999.

Rehearing and Rehearing En Banc Denied April 30, 1999.

Thomas D. Carver, Springfield, MO, argued, for Kyle Hall.

Michael Baker, Springfield MO, argued, for Randall Joe Hall.

John H. Kizer, Springfield MO, argued, for Roy Lee Hall.

Michael K. Fagan, St. Louis, MO, argued for appellee.

Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER, ¹ District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

After a seven-day trial, a jury convicted brothers Everett and Randall Hall and Roy Hall (who is not related to Everett and Randall Hall) of conspiracy to distribute methamphetamine and to possess methamphetamine with the intent to distribute it. See 21 U.S.C. § 841(a)(1), § 841(b)(1)(A)(viii), § 846; see also United States v.. Hall, 116 F.3d 1253 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1106, --- L.Ed.2d ---- (1998), and United States v. Hall, 85 F.3d 367 (8th Cir.1996). The district court ² sentenced each of the defendants to 150 months in prison for that crime. The jury also convicted Everett Hall of possession of an unregistered silencer. See 26 U.S.C. § 5841, § 5861(d), § 5871; see also 18 U.S.C. § 921(a)(3)(C), § 921(a)(24), and 26 U.S.C. § 5845(a)(7). The district court sentenced him to 120 months in prison for that crime (to run concurrently with his sentence for conspiracy).

Each of the defendants appeals both his conviction and his sentence. We affirm both the convictions and the sentences.

I.

One count of the indictment charged Everett Hall with possession of an unregistered silencer. Mr. Hall asserts that he did not know that the alleged silencer was a "firearm" under the law, see 18 U.S.C. § 921(a)(3)(C), 26 U.S.C. § 5845(a)(7), did not know that the item in question could in fact function to diminish the sound of a gun, and was not shown to have possessed the item in question (all of which assertions we discuss in a later section), but he does not dispute that the alleged silencer was not registered. See 26 U.S.C. § 5841(a).

Before trial, however, Mr. Hall pointed out that the applicable statutory definition of "silencer," see 18 U.S.C. § 921(a)(3)(C), § 921(a)(24), and 26 U.S.C. § 5845(a)(7), and the statutes prohibiting the possession of an unregistered silencer, see 26 U.S.C. § 5841, § 5861(d), § 5871, lack a requirement that the silencer in question be connected in some way with interstate commerce. He then contended that, with respect to his case, the commerce clause, see U.S. Const. art. I, § 8, cl. 3, provided no authority for prosecuting him under those statutes and that since those statutes were the basis for one count of the indictment, that count should be dismissed. The trial court denied the motion.

On appeal, the government evidently concedes that it presented no proof of a direct connection between interstate commerce and the alleged silencer. The government asserts, however, that even if Mr. Hall possessed the alleged silencer solely within one state (as he implicitly argues), his act in so doing was within the power of Congress to regulate under the commerce clause. We disagree.

In United States v. Lopez, 514 U.S. 549, 567, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court stated that the commerce clause of the Constitution gives Congress the power to regulate even intrastate activities if those activities "might, through repetition elsewhere, substantially affect [some] sort of interstate commerce." In evaluating whether a specific intrastate activity is legitimately so characterized, and thus whether a specific criminal statute will be upheld against a challenge based on the commerce clause, at least three inquiries are relevant.

First, do the relevant criminal statutes contain a "jurisdictional element which would ensure, through case-by-case inquiry, that the [silencer] possession in question affects interstate commerce"? Id. at 561, 115 S.Ct. 1624. None of the relevant statutes in this case contains such an element.

Second, does the intrastate activity arise out of, or is it connected with, a commercial transaction, so that the activity is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated"? Id. Mr. Hall contends that the possession of a silencer solely within one state has "nothing to do with 'commerce' or any sort of economic enterprise," id., and we agree with that contention.

Finally, we ask, in enacting the criminal statutes at issue, did Congress, or "even [a] congressional committee," make "legislative findings ... regarding the [intrastate activity's] effect upon interstate commerce"? Id. at 562, 115 S.Ct. 1624. We note in this regard that "Congress normally is not required to make formal findings as to the substantial burdens that an [intrastate] activity has on interstate commerce," id., but that "congressional findings ... enable [the courts] to evaluate the legislative judgment that the [intrastate] activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye," id. at 563, 115 S.Ct. 1624. To answer this inquiry in specific regard to this case, we take a closer look at the origin of the criminal statutes at issue here.

All of the statutory sections relevant to the possession of unregistered silencers are subsequent incarnations of provisions that were originally part of the National Firearms Act of 1934. See Act of June 26, 1934, Public Law No. 73-474, 48 Stat. 1236-40, § 1(a), § 5(a), § 14. See also, respectively, 1939 I.R.C., ch. 25, 53 Stat. 292-94, ch. 27, 53 Stat. 393, § 2733(a), § 3261(b), § 2729, and, respectively, 1954 I.R.C., ch. 53, 68A Stat. 721-29, § 5848(1); § 5841, § 5851; § 5861.

One of those derivative provisions, see 18 U.S.C. § 921(a)(3)(C), was rewritten slightly and amended in the Omnibus Crime Control and Safe Streets Act of 1968, Public Law No. 90-351, 82 Stat. 197-239, § 902, reprinted in 1968 U.S.C.C.A.N. 237, 271-81. The same act renumbered the statutory section associated with that provision, giving it the section number currently in use. See id. The remainder of those derivative provisions were rewritten slightly and amended in the Gun Control Act of 1968, Public Law No. 90-618, 82 Stat. 1213-36, § 201, reprinted in 1968 U.S.C.C.A.N. 1397, 1413-23. In 1986, the statutory sections associated with those provisions were rearranged and renumbered, giving them the section numbers currently in use. See Tax Reform Act of 1986, Public Law 99-514, 100 Stat. 2085-2963, § 2, reprinted in 1986 U.S.C.C.A.N. 2095.

Throughout the multiple transitions described above, however, the content from the original provisions remained essentially the same in all particulars material to this case. See, respectively, 18 U.S.C. § 921(a)(3)(C), 26 U.S.C. § 5845(a)(7); § 5841, § 5861(d); § 5871. The one statutory section relevant to this case that was not originally part of the National Firearms Act of 1934, moreover, is simply a clarification of a term that was already part of the original act or one of its later versions. See 18 U.S.C. § 921(a)(24), relative to § 1(a) of the original act, defining "silencer" as "any device for silencing ... the report of a ... firearm." Because the criminal statutes relevant to this case are all derivations from (or a relatively minor clarification of) the original provisions of the National Firearms Act of 1934, we do not think it improper to consult the legislative history of that act in determining whether Congress made findings with respect to the effect on interstate commerce of the intrastate activity at issue here, i.e., the possession of a silencer solely within one state.

The committee reports (identical in both houses of Congress) on the bill that became the original National Firearms Act of 1934 contained no findings. See H.R.Rep. No. 73-1780 (1934); see also S.Rep. No. 73-1444 (1934). Nor did the committee reports on the bills that became the 1968 legislation on firearms. See, with respect to the Omnibus Crime Control and Safe Streets Act of 1968, S.Rep. No. 90-1097, reprinted in 1968 U.S.C.C.A.N. 2112, and, with respect to the Gun Control Act of 1968, H.R.Rep. No. 90-1577, reprinted in 1968 U.S.C.C.A.N. 4410, and H.R.Rep. No. 90-1956, reprinted in 1968 U.S.C.C.A.N. 4426. Congress added a definition of "silencer" to the statutes, see 18 U.S.C. § 921(a)(24), through the Firearms Owners' Protection Act of 1986, Public Law No. 99-308, 100 Stat. 449-61, § 101(6), reprinted in 1986 U.S.C.C.A.N. 449, but the committee report on the bill that became that act included no findings.

We conclude, then, that Congress made no legislative findings, either explicit or implicit, from which we may reliably conclude that the intrastate possession of silencers imposes "substantial burdens," Lopez, 514 U.S. at 562, 115 S.Ct. 1624, on interstate commerce. In light of the absence of such findings, the absence of a jurisdictional element in the relevant statutes, the absence of a commercial transaction with regard to Mr. Hall's possession of the alleged silencer, and the absence of proof of a connection between interstate commerce and the alleged silencer, we hold that the relevant count of the indictment against Mr. Hall cannot be sustained under the commerce clause.

II.

We turn consequently to the issue of whether the taxing clause, see U.S. Const. art. I, § 8, cl. 1, provided the authority to prosecute Everett Hall under the statutes in question in the relevant count, as the government also contends. We note...