U.S. v. Lowe

• Decision Date: 17 October 1988
• Docket Number: No. 88-1289,88-1289
• Citation: 860 F.2d 1370
• Parties: 26 Fed. R. Evid. Serv. 1455 UNITED STATES of America, Plaintiff-Appellee, v. Darrell I. LOWE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1370

860 F.2d 1370

26 Fed. R. Evid. Serv. 1455

UNITED STATES of America, Plaintiff-Appellee, v. Darrell I. LOWE, Defendant-Appellant.

No. 88-1289.

United States Court of Appeals Seventh Circuit.

Argued June 14, 1988.

Decided Oct. 17, 1988.

Douglas Scovil, Rock Island, Ill., for defendant-appellant.

Bradley W. Murphy, Asst. U.S. Atty., J. William Roberts, U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before CUDAHY, FLAUM and MANION, Circuit Judges.

FLAUM, Circuit Judge.

A grand jury indicted Darrell Lowe for being a convicted felon in possession of a firearm which had traveled in interstate commerce. 18 U.S.C. Sec. 922(g). The one-count indictment also alleged that Lowe had three previous state court convictions for violent felonies in violation of 18 U.S.C. Sec. 924(e). Lowe appeals his subsequent conviction after a jury trial, claiming that the indictment failed to charge an offense under Sec. 922(g). He also argues that the indictment was constructively amended by the jury instructions which impermissibly broadened the original charge. For the reasons stated below, Lowe's conviction is affirmed.

I.

On the evening of January 4, 1987, the police for Rock Island, Illinois were called to the Katydid Tavern to break up a bar fight. The officers dispatched to the tavern were informed that one of the disputants might be armed with a handgun. When the police arrived, they observed Lowe arguing with another patron. After breaking up the fray, the officers frisked Lowe and found a .22 caliber revolver stuck in his belt. Lowe was arrested and ultimately charged on April 8, 1987 in a one-count indictment which alleged that he:

did knowingly possess a firearm which had previously traveled in interstate commerce, to wit: a Liberty .22 caliber revolver with an obliterated serial number, the defendant having been previously convicted three times under the laws of the State of Illinois for felony crimes of violence.

In violation of United States Code, Title 18, Section 924(e).

Lowe moved to dismiss the indictment on numerous grounds, including the contention that 18 U.S.C. Sec. 924(e) is a sentence-enhancement provision for the predicate offense of felony firearm possession in Sec. 922(g) rather than a separate substantive offense. ¹ When the trial court denied the motion to dismiss, Lowe stipulated to the fact that he had three prior state court convictions for the purposes of Sec. 924(e), and successfully moved in limine to prevent the government or any of its witnesses from mentioning the felonies at trial.

At trial, the government sought to prove the interstate character of the .22 caliber revolver through the testimony of Richard Craze, a firearms enforcement officer from the Treasury Department's Bureau of Alcohol, Tobacco and Firearms. The government qualified Craze as an expert on firearms identification and classification, and he testified that the gun in Lowe's possession was manufactured in West Germany and was imported into the United States by the Liberty Arms Corporation located in Montrose, California. Over the objection of defendant, Craze also testified that in his opinion, the location of the manufacturer and importer of the firearm indicated that it had traveled in interstate commerce.

At the conclusion of the trial, the jury was given the following instructions, again over Lowe's objection, on the commerce nexus necessary for a conviction under Sec. 922(g):

The term "interstate" or "foreign commerce" includes commerce between any place in the state and any place outside of that state or any possession within the possessions of the United States or the District of Columbia, but such term does not include commerce between places within the same state but through any place outside of the state.

* * *

* * * "Commerce" means travel, trade, traffic, commerce, transportation or communication among the several states.

If you do not find beyond a reasonable doubt that the firearm had traveled in interstate commerce, then the government has not met its burden of proof on this issue, and you must find the defendant not guilty.

The government may meet its burden of proving that the firearm had previously traveled in interstate commerce if it is demonstrated that the firearm possessed by a convicted felon had previously traveled from one state to another.

The jury returned a guilty verdict and the trial court entered judgment on February 4, 1988. ² Lowe moved to arrest the judgment and for a new trial, again claiming that it was improper to charge a violation of 18 U.S.C. Sec. 924(e) as if it were a substantive offense. ³ The court denied these motions and subsequently sentenced Lowe to a term of fifteen years without parole pursuant to the mandatory provisions of Sec. 924(e)(1). Thereafter, Lowe timely filed a notice of appeal.

II.

Lowe's initial claim is that the indictment failed to state an offense under 18 U.S.C. Sec. 922(g). Specifically, Lowe contends that the charge in the indictment that he possessed "a firearm which had previously traveled in interstate commerce," is not the same as the offense of possessing a firearm "in or affecting commerce," the language employed in Sec. 922(g). ⁴ He also argues that for the purposes of Sec. 922(g), "commerce" is a separate and distinct concept from "interstate commerce." As part of this claim, Lowe adds that the government failed to establish the necessary jurisdictional nexus between commerce and the firearm in his possession. Based upon our review of the indictment and the evidence adduced at trial, we conclude that each of these contentions is without merit.

Lowe's initial argument is, in all respects, a challenge to the technical sufficiency of the indictment. ⁵ To evaluate this claim, we must read the indictment as a whole to determine whether all of the elements of the charged offense are alleged. This requirement is designed to ensure that the accused is adequately apprised of the charges so that he or she can prepare a proper defense. United States v. Olson, 846 F.2d 1103, 1115 (7th Cir.1988). In determining whether the essential elements of the offense are sufficiently stated, however, it is not necessary that any particular words or phrases be used, United States v. Garcia-Geronimo, 663 F.2d 738, 742 (7th Cir.1981) (citing United States v. Weatherspoon, 581 F.2d 595, 600 (7th Cir.1978)), nor is it necessary that the indictment track the exact language of the statute as long as each element of the offense is alleged in a form which substantially states it. Weatherspoon, 581 F.2d at 600 (citing Hagner v. United States, 285 U.S. 427, 433, 52 S.Ct. 417, 419, 76 L.Ed. 861 (1932)). Under the foregoing principles, we are persuaded that a reasonable construction of the charging language--that Lowe possessed a firearm "which had previously traveled in interstate commerce"--substantially stated the essential element of possession "in or affecting commerce." 18 U.S.C. Sec. 922(g).

This conclusion, which is bottomed on a simple reading of both the indictment and statute, is fortified by the Supreme Court's interpretation of the commerce element of 18 U.S.C.App. Sec. 1202(a), the statutory forerunner of Sec. 922(g). See United States v. Gillies, 851 F.2d 492, 494-95 (1st Cir.1988). In Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the Court began its interpretation of the "in or affecting commerce" phrase of Sec. 1202(a) by reaffirming that Congress is aware of the "distinction between legislation limited to activities 'in commerce' and an assertion of its full range of Commerce Clause powers so as to cover all activity substantially affecting interstate commerce." Id. at 571, 97 S.Ct. at 1967. The Court went on to review the legislative history of Sec. 1202(a) and concluded that Congress sought to reach the possession of firearms broadly, ⁶ especially since it could find "no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce." Id. at 575, 97 S.Ct. at 1969. See also United States v. Karlin, 852 F.2d 968, 974 (7th Cir.1988). The Court's interpretation of the statute's breadth makes it clear that for the purposes of Sec. 922(g), a charge that a firearm "previously traveled in interstate commerce" sufficiently states the commerce element of the offense. Gillies, 851 F.2d at 496; United States v. Haley, 581 F.2d 723, 726 & n. 4 (8th Cir.1978). This conclusion also renders meritless Lowe's contention that "commerce" is a separate and distinct concept from "interstate commerce." We therefore conclude that the indictment as a whole sufficiently stated the elements of the firearms possession charge.

Similarly, we find Lowe's sufficiency of the evidence claim on the interstate commerce nexus to be without merit. It is firmly established that under Sec. 922(g), proof of a gun's manufacture outside of the state in which it was allegedly possessed is sufficient to support the factual finding that the firearm was "in or affecting commerce." United States v. Gourley, 835 F.2d 249, 251 (10th Cir.1987) (proof of manufacture in Spain sufficient); United States v. Clawson, 831 F.2d 909, 913 (9th Cir.1987) (proof of manufacture in Germany sufficient); United States v. Gregg, 803 F.2d 568, 571 (8th Cir.1986) (proof of manufacture in another state sufficient). In the present case, the government's firearms expert not only testified that the gun in Lowe's possession was manufactured in Germany and imported through California, he stated that, in his opinion, the firearm had traveled in both foreign and interstate commerce. We conclude that Lowe has failed to carry the "heavy burden" that must be shouldered under a sufficiency of the evidence claim. United States v. Bruun, 809 F.2d 397, 408 (7th Cir.1987) (the verdict must stand unless the record contains no evidence, regardless of how it is weighed, from which the jury could find...