U.S.A. v. Rogers

• Citation: 270 F.3d 1076
• Decision Date: 25 October 2001
• Docket Number: No. 01-2097,01-2097
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. John W. Rogers, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1076

270 F.3d 1076 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. John W. Rogers, Defendant-Appellant.

No. 01-2097

United States Court of Appeals, Seventh Circuit

Argued September 11, 2001

Decided October 25, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 977--Charles R. Norgle, Sr., Judge.

Before Cudahy, Easterbrook, and Williams, Circuit Judges.

Easterbrook, Circuit Judge.

Federal agents found in John Rogers's garage a home-made silencer for a MAC-11 semiautomatic pistol. He has been convicted of possessing a "firearm" (the silencer, see 18 U.S.C. § 921 and 26 U.S.C. § 5845(a)(7)) not registered to him in the National Firearms Registration and Transfer Record. Every "firearm" (a term of art, see Staples v. United States, 511 U.S. 600 (1994)) must be registered in this Record, see 26 U.S.C. § 5822, 5841, by its maker and by each transferor. The initial entry into the Record and each transfer occasion a $200 tax. See 26 U.S.C. § § 5811, 5821. Possessing an unregistered firearm is a felony. 26 U.S.C. § 5861(d). Rogers has been sentenced to 70 months' imprisonment--well short of the 120-month maximum, 26 U.S.C. § 5871, but twice the presumptive Guideline range for the offense. He contests both the conviction and the sentence.

Section 5861(d) makes it unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record". Rogers possessed a device that the jury found to be a "firearm." He concedes that this firearm was not registered to him. Nonetheless, Rogers insists, he did not violate § 5861(d)--and, if he did, that § 5861(d) is unconstitutional. His reasoning is that § 5861(d) could not be sustained under the Commerce Clause because it does not depend on any link between the firearm and interstate commerce. Thus the legislative authority must depend on the taxing power. See United States v. Copus, 93 F.3d 269, 275-76 (7th Cir. 1996). Yet Congress has not "really" tried to raise revenues, Rogers insists, and to support this argument he observes that the Secretary of the Treasury will not register a firearm that the maker or transferee cannot lawfully possess in the state where the firearm would be kept. "Applications [for making or registering firearms] shall be denied if the making or possession of the firearm would place the person making the firearm in violation of law." 26 U.S.C. § 5822. See also 26 U.S.C. § 5812. It is unlawful to possess any silencer in Illinois, the state where Rogers lives. See 720 ILCS 5/24-1(a)(6). Thus the Secretary would have denied an application for permission to make the silencer, and a nonexistent silencer cannot be registered and taxed.

This line of argument encounters difficulties, the first of which is that Rogers is presenting it for the first time on appeal. He says that jurisdictional arguments may be advanced at any time, but the district court had subject-matter jurisdiction. The indictment charged Rogers with an offense against the United States; no more was necessary. Courts sometimes call the link between a statute and a source of national authority a "jurisdictional" requirement, but arguments along these lines must be raised in the district court as objections to the indictment. Only limits on the adjudicatory power of the court are open at any time. We used the word "jurisdiction" loosely in Copus, the case that gave Rogers the idea that he could bypass the district court. United States v. Martin, 147 F.3d 529 (7th Cir. 1998), clarifies the different uses of "jurisdiction" by holding that proof of an interstate transaction is no different from proof of any other element of a federal crime. "[T]he nexus with interstate commerce, which courts frequently call the 'jurisdictional element,' is simply one of the essential elements of [the offense]. Although courts frequently call it the 'jurisdictional element' of the statute, it is 'jurisdictional' only in the shorthand sense that without that nexus, there can be no federal crime . . . . It is not jurisdictional in the sense that it affects a court's subject matter jurisdiction, i.e., a court's constitutional or statutory power to adjudicate a case, here authorized by 18 U.S.C. § 3231." 147 F.3d at 531-32 (citation omitted). Martin modified earlier cases in this circuit that had occasionally failed to distinguish precisely among a "jurisdictional element" of the offense, the legislative power of Congress under Article I, and the subject-matter jurisdiction of the court. "Even if the government fails to establish the connection to interstate commerce [or some other source of national power], the district court is not deprived of jurisdiction to hear the case." 147 F.3d at 532. See also, e.g., Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999); McCoy v. United States, 266 F.3d 1245, 1251-52 (11th Cir.2001). So to get anywhere on appeal Rogers must establish plain error, Fed. R. Crim. P. 52(b), under the standards of Johnson v. United States, 520 U.S. 461 (1997), and United States v. Olano, 507 U.S. 725 (1993).

Section 5861(d) prohibits possessing any unregistered firearm; a silencer is a firearm; Rogers possessed a silencer; that silencer was unregistered. Where's the error, plain or concealed? True enough, Rogers could not have registered the silencer while it was in Illinois-- the national government will not put its imprimatur on firearms that are contraband under state law--but this differs from saying that Rogers could not have registered it at all. He just had to keep it elsewhere. (Wisconsin, for example. See Wis. Stat. § 941.298(3)(c).) Or Rogers could have complied with both state and federal laws by refraining from making or possessing a silencer in Illinois. See United States v. Ross, 9 F.3d 1182, 1192-94 (7th Cir. 1993), remanded on other grounds, 511 U.S. 1124 (1994), decision on remand, 40 F.3d 144 (7th Cir. 1994). It was Rogers's decision to violate Illinois law that rendered him unable to comply with federal law. That hardly implies the lack of any genuine federal interest; § 5861(d) (and the associated sections) simply channel firearms manufacture and use (plus the associated federal taxation) to jurisdictions where that conduct is lawful, just as federal laws channel the manufacture, use, and taxation of alcohol and tobacco products, and gambling devices, to places where the underlying behavior complies with state rules.

The United States prohibits smuggling, but a smuggler still is liable for duties on the goods he imports. Extortion is unlawful in all 50 states, but extortionists must pay income tax on the pelf. Rutkin v. United States, 343 U.S. 130 (1952). The national government does not seek to raise revenue from excise taxes on the sale of tobacco products to minors, but it does not follow that a minor who buys cigarettes in violation of state law is entitled to evade the excise tax as a bonus. Just so with taxes on firearms. Rogers cites United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), which held that a statute making it unlawful to possess a particular kind of firearm repealed § 5861(d) by implication. But Ross disapproves Dalton and holds that the possibility of complying with both laws prevents any implication of repeal. Likewise with gambling, subject to federal tax but unlawful in many places. Gambling must be carried on where it is lawful--and the tax must be paid whether the gambling is lawful or not. In his reply brief, Rogers denies that he is arguing for implied repeal and insists that § 5861(d) continues to function in states that allow silencers. Thus the more a state does to prohibit a given kind of firearm, the less the federal government does (or can do) to regulate it. Why should that be so?

The relation of § 5812 and 5822 to the registration requirement is replicated in other regulatory systems. Consider, for example, the dispensing of morphine and other narcotic drugs that have lawful uses. A federal license is necessary to write prescriptions for such drugs, and the license is available only to physicians in good standing. A person who has never been to medical school--or who has a medical education but has abused his position and been convicted of a crime--is ineligible for the federal license. The line of argument Rogers uses implies that, because the federal government won't issue a license to a non-physician (or a convicted physician), such a person may dispense narcotics freely: the ban on issuing a license cancels the prohibition on unlicensed distribution. That's perverse, yet it is logically equivalent to Rogers's position that, because he can't lawfully have silencers registered in his name, he is free to make and possess them without taxation or regulation from the federal government. Nor does the argument fare better in constitutional than in statutory terms. Rogers must think that the national government lacks the power to levy any tax that has among its effects not only raising revenue (and keeping tabs on the taxable items through registration) but also diverting activity to states where the taxed conduct is lawful. Why that combination would exceed national power, when a tax simpliciter is proper, Rogers does not explain. Long ago the Supreme Court held that the taxing power may be employed to achieve a regulatory end. E.g., McCray v. United States, 195 U.S. 27 (1904); United States v. Doremus, 249 U.S. 86 (1919). The licensing and transfer taxes on firearms have been sustained despite recognition that a major, if not principal, goal is regulation rather than revenue. See Sozinsky v. United States, 300 U.S. 506 (1937). So we see no error and need not reach the additional ingredients of the plain-error standard.

The silencer was found, as we said at the outset, during a search of Rogers's garage. That search had been authorized by a warrant, and before trial Rogers...