U.S. v. Henson, Nos. 94-50574

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: HUG
• Citation: 123 F.3d 1226
• Parties: 97 Cal. Daily Op. Serv. 6651, 97 Daily Journal D.A.R. 10,897 UNITED STATES of America, Plaintiff-Appellee, v. Marvin HENSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce L. SUITERS, Defendant-Appellant.
• Docket Number: 94-50575,Nos. 94-50574
• Decision Date: 12 December 1995

Page 1226

123 F.3d 1226 97 Cal. Daily Op. Serv. 6651, 97 Daily Journal
D.A.R. 10,897 UNITED STATES of America, Plaintiff-Appellee,
v.
Marvin HENSON, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Bruce L. SUITERS, Defendant-Appellant. Nos. 94-50574, 94-50575. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Dec. 12, 1995, No. 94-50574. Submitted Dec. 12, 1995, ^* No. 94-50575. Withdrawn from Submission June 17, 1996. Resubmitted Oct. 18, 1996. Decided Aug. 21, 1997.

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Lisa M. Bassis, Los Angeles, CA, for defendant-appellant Henson.

Peter M. Ferguson, Santa Barbara, CA, for defendant-appellant Suiters.

James P. Walsh and Michael Zweiback, Assistant United States Attorneys, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CR-93-01048-DT(A).

Before: HUG, Chief Judge, BEEZER and KLEINFELD, Circuit Judges.

HUG, Chief Judge:

Marvin Henson and Bruce L. Suiters appeal their convictions and sentences for drug trafficking on numerous constitutional and evidentiary grounds. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the judgment of the district court in all respects except for the conviction of Henson on one use of a firearm count. We remand for his resentencing.

I.

In June 1992, the Bureau of Alcohol, Tobacco, and Firearms ("ATF") along with the Los Angeles Police Department began a long-term investigation into PCP distribution in the area of 115 West 70th Street in Los Angeles. There are three structures on the lot that was under surveillance--115, 115-1/2, and 115-1/4 West 70th Street. Using a confidential informant, the ATF began making purchases from various dealers in the area. On June 9, 1992, the informant, who was wearing an audio transmitter, purchased one ounce of PCP from defendant Suiters. On June 12, 1992, at the direction of the ATF, the informant purchased $200.00 worth of PCP from Suiters. The informant made another purchase from Suiters on June 19, 1992. The investigation was suspended from July 1992 through June 1993 due to a variety

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of other investigative demands, including the Los Angeles riots.

On June 30, 1993, the investigation was resumed and the informant went back to West 70th Street with an undercover vehicle. When the informant made a $50.00 PCP buy from Suiters, she witnessed codefendant Henson approach the vehicle with two nine-millimeter pistols in his waistband. Henson removed one of the pistols from his waist and circled the car with the gun in his hand until Suiters appeared to indicate that the informant "was O.K." Then Henson removed himself to the porch and watched the conclusion of the transaction. On other occasions the informant made several more small purchases from Suiters and from codefendant Anthony Jackson. ¹ Henson was observed in the area on some of these occasions.

On July 29, 1993, the informant was directed by the ATF to contact Jackson and ask how much money she would need to purchase thirty-two ounces of PCP. He said that it would cost her $1,600.00. The informant then placed an order for sixty-four ounces of PCP. On August 3, 1993, the informant went to Jackson's residence, 115-1/2 West 70th Street, to consummate the transaction. She was given the PCP in exchange for $3,200.00. As she left the residence, the informant saw Henson enter the building.

On three occasions in November 1993, ATF Special Agent Arena conducted surveillance on the 115 West 70th compound. He witnessed Henson and Jackson standing in front of the house. Both would take bottles from passing cars and fill them with a liquid in exchange for unknown items. Henson was also observed with a blue steel handgun. Special Agent Arena testified that the defendants' actions were consistent with drug trafficking.

Based on these observations a search warrant was issued for three addresses: 115, 115-1/2, and 115-1/4 West 70th Street. While searching 115-1/4, the police discovered Henson in bed. When he stood up, a loaded handgun was found underneath his body. The police also found three glass vials and one baby food jar containing PCP.

Henson and Jackson were arrested and interviewed by the ATF. Henson made an initial statement which he later retracted. Henson allegedly asked the ATF to destroy his first statement and it was flushed down a toilet in his presence. Henson then asked permission to talk with Jackson prior to making a statement. After conferring with each other, Henson and Jackson made a joint statement where they allegedly admitted their involvement in PCP sales. Suiters was arrested on February 9, 1994, after the return of the first superseding indictment.

At trial, neither Henson nor Jackson testified. Henson was convicted of (1) conspiracy to distribute PCP and distribution of PCP in violation on 21 U.S.C. §§ 846, 841(a)(1); (2) two counts of distribution of PCP within 1000 feet of a junior high school in violation of 21 U.S.C. §§ 841(a)(1), 860; (3) two counts of use of a firearm during drug trafficking in violation of 18 U.S.C. § 924(c)(1); (4) possession of PCP with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and (5) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Henson was sentenced to 45 years in prison and 8 years supervised release.

Suiters was convicted of (1) conspiracy to possess with intent to distribute and distribution of PCP in violation of 21 U.S.C. § 846; (2) three counts of distribution of PCP within 1000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1), 860; and (3) use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Suiters was sentenced to 22-1/2 years incarceration and 8 years supervised release. Both defendants filed a timely appeal.

II.

Henson and Suiters contend that Congress exceeded its power under the Commerce Clause in enacting 21 U.S.C. § 860, the Schoolyard Act, and 18 U.S.C. § 922(g), the felon in possession statute. Congress is empowered under the Commerce Clause to enact criminal legislation as long as the proscribed activity has a substantial economic

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effect on interstate commerce. See U.S. Const. Art. I, § 8, cl. 3; Perez v. United States, 402 U.S. 146, 150-51, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971). The Supreme Court recently reviewed the limitations inherent in the Commerce Clause in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

In Lopez, the Court held the Gun-Free School Zones Act, which criminalized the possession of a firearm within 1000 feet of a school, unconstitutional. The Court noted that there are three classes of activities that Congress can regulate under its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) those activities having a substantial relation to interstate commerce. Id. at 558-59, 115 S.Ct. at 1629-30. The Court held that the statute was invalid because it did not involve any of the three classes of activities. Id. at 567-69, 115 S.Ct. at 1634; see also United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir.1995) (holding that a house receiving natural gas from an out-of-state source does not have enough of a nexus with interstate commerce to confer federal jurisdiction for prosecution of arson affecting interstate commerce).

In reviewing the validity of a statute against a Commerce Clause challenge, we must determine whether a rational basis exists for a congressional finding that a regulated activity sufficiently affects interstate commerce. See United States v. Martinez, 49 F.3d 1398, 1400 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 749, 133 L.Ed.2d 696 (1996). When reviewed for constitutional infirmities, congressional enactments are presumed valid. Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir.1986). We are obligated, whenever possible, to interpret a statute in a manner that renders it constitutionally valid. Communications Workers of America v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 2657, 101 L.Ed.2d 634 (1988). "When [a federal court] is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." Mistretta v. United States, 488 U.S. 361, 384, 109 S.Ct. 647, 661, 102 L.Ed.2d 714 (1989) (quoting Bowsher v. Synar, 478 U.S. 714, 736, 106 S.Ct. 3181, 3192, 92 L.Ed.2d 583 (1986) (Stevens, J., concurring)).

A.

The Schoolyard Act, 21 U.S.C. § 860, is a penalty enhancement statute. Anyone who violates 21 U.S.C. § 841(a)(1) or § 856 by distributing, possessing with intent to distribute, or manufacturing a controlled substance, is subject to twice the maximum punishment authorized by section 841(b). We have unequivocally rejected similar Commerce Clause challenges to the Schoolyard Act on two occasions, see United States v. McDougherty, 920 F.2d 569, 572 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1119, 113 L.Ed.2d 227 (1991); United States v. Thornton, 901 F.2d 738, 741 (9th Cir.1990). Henson and Suiters allege that Lopez overruled these decisions. We disagree.

In Lopez the Court made clear that it was not overruling earlier Commerce Clause precedent. Instead, the Court stated that the Gun-Free School Zones Act "represents a sharp break with the long-standing pattern of federal firearms legislation." Lopez, 514 U.S. at 562, 115 S.Ct. at 1632 (quoting United States v. Lopez, 2 F.3d 1342, 1366 (5th Cir.1993)). The Court explicitly affirmed the long line of cases allowing the federal regulation of intrastate sales that affect interstate commerce the Commerce Clause. Id. at 550-58, 115 S.Ct. at...