U.S. v. Nicholson, 01-CR-152.
| Decision Date | 25 January 2002 |
| Docket Number | No. 01-CR-152.,01-CR-152. |
| Citation | 185 F.Supp.2d 982 |
| Parties | UNITED STATES of America, Plaintiff, v. Michael NICHOLSON, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Brian E. Pawlak — Assistant U.S. Attorney, Barbara Bernstein — DOJ, Civil Rights Division, Washington, DC, for Plaintiff.
Leonard D. Kachinsky, Neenah, WI, for Defendant.
On August 15, 2001, an eight-count indictment was handed-up charging Michael Nicholson with various civil-rights related offenses. Counts One, Two, and Three of the indictment relate to a July 28, 1998 arson of a home inhabited by an eight-member Asian family. Count One alleges that Nicholson and a co-conspirator carried out the arson in violation of 18 U.S.C. § 241, the civil rights conspiracy statute. Count Two charges Nicholson with violating 42 U.S.C. § 3631, the criminal provision of the Fair Housing Act which prohibits the intimidation of persons occupying a dwelling because of their race or color. Count Three charges Nicholson with using fire to commit Counts One and Two, in violation of 18 U.S.C. § 844(h)(1).
The indictment's remaining five counts relate to a scheme to lure Asian people from a household by use of explosives, with the plan to shoot the people as they emerged from the home. The indictment alleges that Nicholson, three co-defendants, and several unindicted co-conspirators participated in the scheme. Counts Four and Five are charged under the same statutes as Counts One and Two, alleging a civil rights conspiracy in violation of 18 U.S.C. § 241 and the interference with the housing rights of another in violation of 42 U.S.C. § 3631, respectively. Count Six charges Nicholson with using a firearm to commit Counts Four and Five, in violation of 18 U.S.C. § 924(c). Count Seven charges Nicholson with using a firearm and explosives to commit Counts Four and Five, in violation of 18 U.S.C. §§ 844(h)(1) and (2). Count Eight charges Nicholson with the illegal possession of a firearm in violation of 26 U.S.C. § 5861(d).
On September 12, 2001, Nicholson filed a motion to dismiss Counts One through Seven of the indictment, arguing that Congress, in passing 18 U.S.C. § 241 and 42 U.S.C. § 3631, exceeded the scope of its power under the Commerce Clause, U.S. CONST. art. I § 8, cl. 3, and the Thirteenth Amendment of the United States Constitution. On September 21, 2001, the government filed a responsive brief, asserting that the legislation was authorized under either constitutional provision.
Nicholson's motion was first considered by Magistrate Judge Patricia J. Gorence. After dealing with a number of pretrial filing delays, on October 23, 2001, Magistrate Gorence issued a recommendation to this court that Nicholson's motion to dismiss be denied.1 The same day, Nicholson appeared before this court for a final pretrial conference. Nicholson's jury trial was scheduled to begin on October 29, 2001. Noting the pending trial, the court provided Nicholson an opportunity to review the recommendation and advise the court whether he wished to file an objection. On October 24, 2001, Nicholson notified the court by telephone that he indeed wished to object to the recommendation. Accordingly, the court granted Nicholson's oral request and removed the trial from the calendar. On October 31, 2001, Nicholson filed timely objections to the recommendation. The government filed a timely response on November 15, 2001. The court reviews the recommendation de novo. See 28 U.S.C. § 636(b)(1).
The Commerce Clause provides Congress with the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, § 8, cl. 3. Commerce power is broadly defined, describing the "commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." Gibbons v. Ogden, 22 U.S. 1, 9, 9 Wheat. 1, 189-190, 6 L.Ed. 23 (1824).
Such power does not come unrestrained. As with all enumerated powers found within the Constitution, the Commerce Clause is meant to strike "a healthy balance of power between the States and the Federal Government." Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The court plays a key role in keeping this balance: when Congress passes a law using its Commerce Clause power, it becomes a function of the court to decide whether a "rational basis exist[s] for concluding that a regulated activity sufficiently affected interstate commerce." United States v. Lopez, 514 U.S. 549, 557, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). If a rational basis exists, the court's inquiry is at an end: "Due respect for the decisions of a coordinate branch of Government demands that [the court] invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." See United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).
Until recent years, Congress' Commerce Clause power remained relatively unchallenged in the courts. "As a practical matter, at least since the watershed decisions of 1937-1942, the political process, and not the courts, has been the states' only real defense against commerce-based federal incursions." United States v. Ramey, 24 F.3d 602, 606 (4th Cir.1994)(footnoting the so-called watershed decisions found in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937) (upholding Wagner Act), United States v. Darby, 312 U.S. 100, 312 U.S. 657, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (), United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726 (1942) (), and Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942)(upholding amendments to the Agricultural Adjustment Act of 1938 to the production and consumption of homegrown wheat)).
That was until the landmark case of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a case in which the Supreme Court struck down the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A). The Supreme Court's analysis began by breaking down modern Commerce Clause jurisprudence into three broad categories of activity: 1) the use of channels of interstate commerce 2) instrumentalities of interstate commerce and persons and things in interstate commerce; and 3) activities having a substantial relation to interstate commerce. See Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. The court reasoned that, within these categories, Congress had the power to regulate under the Commerce Clause. The court then focused its review on the third category of intercourse-whether an activity has a substantial relation to interstate commerce, once again turning to Commerce Clause jurisprudence. The court pointed out that, according to case law on the subject, a number of factors may be considered in identifying whether activity substantially affects interstate commerce: 1) whether activity to be regulated is economic in nature; 2) whether legislation contains a jurisdictional element linking it to commerce; 3) whether Congress, in considering legislation, made any findings concerning the legislation's effect upon interstate commerce; or 4) whether a link exists between the activity itself and interstate commerce. See Lopez, 514 U.S. at 559-67, 115 S.Ct. 1624. After applying the so-called "substantial affects" test, the Court concluded that the Gun-Free School Zones Act lacked a substantial relation to interstate commerce.
Five years after Lopez, the Supreme Court took the opportunity in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), to strike down another Congressional enactment, this time holding that Congress was without the authority under the Commerce Clause to pass the Violence Against Women Act of 1994 ("VAWA"), 42 U.S.C. 13981, a statute which provided a federal civil remedy for victims of gender-motivated violence. In doing so, the Court flushed out the "substantial affects" test. The Court placed a great deal of emphasis on whether the activity to be regulated was economic in nature: "Lopez's review of Commerce Clause case law demonstrates that in those cases where we have sustained federal regulation of intrastate activity based upon the activity's substantial effects on interstate commerce, the activity in question has been some sort of economic endeavor." Morrison, 529 U.S. at 611, 120 S.Ct. 1740 (emphasis added). At the same time, the Court made it clear that, when it comes to Congressional findings, "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." Id. at 614, 120 S.Ct. 1740. This is particularly so when Congressional findings in support of the VAWA were "substantially weakened" by an attenuated link between interstate commerce and gender-motivated violence. Id. at 615, 120 S.Ct. 1740. "Indeed, we can think of no better example of police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." Id. at 618, 120 S.Ct. 1740.
The teachings of Lopez and Morrison are what guide this court's analysis in Nicholson's case. Nicholson challenges 18 U.S.C. § 241 and 42 U.S.C. § 3631, two statutes that are very much related: both are criminal provisions which penalize civil rights violations, and both were under serious debate during the civil rights movement in the early to mid-1960's. Section 241 is the older of the two statutes, having been originally passed in 1948 and first amended in 1968. Section 241 provides criminal penalties for conspiracies to intimidate another from enjoying...
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...racial attacks against Jews as a valid exercise of congressional power under the Thirteenth Amendment); United States v. Nicholson, 185 F. Supp. 2d 982 (E.D. Wis. 2002) (holding that 18 U.S.C. [section] 241, the civil rights conspiracy statute, and 42 U.S.C. [section] 3631, the criminal pro......