U.S. v. Rambo

• Decision Date: 03 November 1995
• Docket Number: No. 94-30426,94-30426
• Citation: 74 F.3d 948
• Parties: 96 Cal. Daily Op. Serv. 523, 96 Daily Journal D.A.R. 843 UNITED STATES of America, Plaintiff-Appellee, v. Charles Roy RAMBO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 948

74 F.3d 948

96 Cal. Daily Op. Serv. 523, 96 Daily Journal

D.A.R. 843

UNITED STATES of America, Plaintiff-Appellee, v. Charles Roy RAMBO, Defendant-Appellant.

No. 94-30426.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 3, 1995 ^*.

Decided Jan. 25, 1996.

Jay F. Lansing, Moses Law Firm, Billings, Montana, for defendant-appellant.

C. Ed Laws, Assistant United States Attorney, Billings, Montana, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT, BEEZER and HAWKINS, Circuit Judges.

Opinion by Judge BEEZER.

BEEZER, Circuit Judge:

Charles Roy Rambo appeals his convictions of one count each of unlawful possession of a firearm and possession of an unregistered silencer. 18 U.S.C. Sec. 922(o); 26 U.S.C. Secs. 5841, 5861(d), 5871. He challenges his conviction for unlawful possession of a firearm on the ground that 18 U.S.C. Sec. 922(o) is unconstitutional. He also argues that the district court erred in denying his motions: (1) to suppress evidence discovered during a search; (2) to suppress statements made by Rambo to the police; (3) to dismiss the indictment because of government misconduct violating his right to due process of law; and (4) for a judgment of acquittal. Finally, he contends that the district court erred in admitting evidence of the serial number on the firearm.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

Rambo first argues that his conviction for unlawful possession of a firearm should be reversed because 18 U.S.C. Sec. 922(o) is unconstitutional. Rambo contends that section 922(o) exceeds the authority granted to Congress under the Commerce Clause. We review de novo the constitutionality of a statute. United States v. Sahhar, 56 F.3d 1026, 1028 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 400, 133 L.Ed.2d 320 (1995). We hold that section 922(o) is a proper exercise of the authority granted to Congress under the Commerce Clause.

Section 922(o) states:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to--

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

We review section 922(o) in light of the Supreme Court's recent decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Supreme Court held that the Gun-Free School Zones Act of 1990, 18 U.S.C. Sec. 922(q), is beyond the scope of the authority granted Congress by the Commerce Clause, and is thus unconstitutional. Section 922(q) made it unlawful "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."

In reviewing the constitutionality of section 922(q), the Supreme Court explained that there are three categories of activity that Congress can regulate or protect under the Commerce Clause: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having a substantial relation to interstate commerce." Id. at ---- - ----, 115 S.Ct. at 1629-30. Section 922(q) does not fall within any of these categories.

The Court first determined that section 922(q) does not fall within the first two categories because it does not regulate the channels of interstate commerce nor does it protect an instrumentality of interstate commerce. The Court then examined the section under the third category. The Court held that section 922(q) "by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at ---- - ----, 115 S.Ct. at 1630-31. "[P]ossession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at ----, 115 S.Ct. at 1634. Thus, because section 922(q) does not regulate an activity that substantially affects interstate commerce, the Court held that section 922(q) is unconstitutional under the Commerce Clause.

Although Lopez is instructive, it does not control our analysis of section 922(o). We agree with the Fifth and Tenth Circuits that section 922(o) represents a permissible exercise of the authority granted to Congress under the Commerce Clause. United States v. Kirk, 70 F.3d 791 (5th Cir.1995); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995).

Section 922(o) prohibits the possession or transfer of machineguns only if they were not lawfully possessed before May 19, 1986. In other words, there can be "no unlawful possession under section 922(o) without an unlawful transfer." Kirk, 70 F.3d at 796. Regulating this category of possession, therefore, regulates commerce. "In effect, the ban on such possession is an attempt to control the interstate market for machineguns by creating criminal liability for those who would constitute the demand-side of the market, i.e., those who would facilitate illegal transfer out of the desire to acquire mere possession." Id.

Unlike section 922(q), section 922(o) comes within the first category enumerated by the Supreme Court in Lopez. Id. Section 922(o) is "a regulation of the use of the channels of interstate commerce" because it is "an attempt to prohibit the interstate transportation of a commodity through the channels of commerce." Lopez, --- U.S. at ----, 115 S.Ct. at 1630. By regulating the market in machineguns, including regulating intrastate machinegun possession, Congress has effectively regulated the interstate trafficking in machineguns. "[T]here is a rational basis to conclude that federal regulation of intrastate incidents of transfer and possession is essential to effective control of the interstate incidents of such traffic." Kirk, 70 F.3d at 797.

The prohibition of possession under section 922(o) differs greatly from the prohibition in section 922(q). Section 922(q) did not regulate the market in weapons, and instead regulated merely the possession of a weapon in a specific geographic area. Section 922(o), on the other hand, prohibits the possession of all machineguns illegally transferred. Section 922(o) regulates the use of the channels of interstate commerce. Therefore, we join the Fifth and Tenth Circuits in holding that section 922(o) is a proper exercise of the authority granted to Congress under the Commerce Clause.

II

Rambo next argues that the district court erred in denying his motion to suppress the firearm and silencer that were the subjects of his convictions. Rambo contends that he had a legitimate expectation of privacy in the black canvas bag containing the two items at issue, and that Deputy Sheriff William Graf improperly opened the bag without a search warrant. We disagree.

We review de novo the validity of a warrantless search. United States v. Ogbuehi, 18 F.3d 807, 812 (9th Cir.1994).

No one disputes what occurred during the search, the only disagreement is over whether it was an illegal search and seizure. On February 25, 1993, Deputy Graf received a call regarding a burglary at Rambo's residence. When Graf arrived, he spoke to Jim Morgan, Rambo's brother-in-law, who observed the flight of the burglar. Morgan told Graf that the burglar was carrying two VCRs and a black canvas bag. Graf conducted an investigation at the scene of the crime and discovered an empty drawer lying on the floor with a few items of jewelry scattered nearby; he deduced that items of jewelry were also taken by the burglar.

The burglar did not get far with his loot. Based on information provided by Morgan to the police, a car driven by William Henman was stopped by a highway patrol officer near Billings. Henman and his vehicle were taken to the Yellowstone County Sheriff's Office where Morgan positively identified Henman as the burglar. After obtaining the consent of Henman's parole officer, Deputy Graf searched Henman's vehicle. ¹ He found two VCRs and a black canvas bag. Graf searched the partially unzipped canvas bag, where he discovered the stolen jewelry along with a .45 caliber pistol and a silencer.

The district court determined that Rambo had no legitimate expectation of privacy in the bag after it was stolen and, even if he did, the search of the bag was reasonable under the Fourth Amendment. On appeal, the United States does not argue that Rambo lacked a legitimate expectation of privacy in the bag. Notwithstanding that concession the United States still contends that the search was constitutional. Rambo, of course, did not consent to the search of his bag, so we must determine whether Deputy Graf's search of constitutionally protected property was reasonable.

The Fourth Amendment proscribes unreasonable searches. As a general rule, searches conducted without a warrant and probable cause are presumptively unreasonable, subject to a number of "specifically established and well-delineated" exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). But see United States v. Barona, 56 F.3d 1087, 1092 n. 1 (9th Cir.1995) ("[r]easonableness, not probable cause, is undoubtedly the touchstone of the Fourth Amendment."). One such exception is the so-called automobile exception. California v. Acevedo, 500 U.S. 565, 566, 111 S.Ct. 1982, 1983, 114 L.Ed.2d 619 (1991). Under this doctrine, as developed by the Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) and Acevedo, "[t]he police may search an automobile and the...