U.S. v. Tisor

• Decision Date: 06 September 1996
• Docket Number: No. 95-30343,95-30343
• Parties: 45 Fed. R. Evid. Serv. 753, 96 Cal. Daily Op. Serv. 6816, 96 Daily Journal D.A.R. 11,024 UNITED STATES of America, Plaintiff-Appellee, v. Henry John TISOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 370

96 F.3d 370

45 Fed. R. Evid. Serv. 753, 96 Cal. Daily Op.

Serv. 6816,

96 Daily Journal D.A.R. 11,024

UNITED STATES of America, Plaintiff-Appellee, v. Henry John TISOR, Defendant-Appellant.

No. 95-30343.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 5, 1996.

Decided Sept. 6, 1996.

Robert P. Kingsley, Spokane, Washington, for defendant-appellant.

Earl A. Hicks, Assistant United States Attorney, Steven J. Larsen, Spokane, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Fred Van Sickle, Senior District Judge, Presiding. D.C. No. CR-95-00122-FVS.

Before: ALARCON, NORRIS and KLEINFELD, Circuit Judges.

ALARCON, Circuit Judge:

Henry John Tisor seeks reversal of the judgment of conviction for violating sections 841(a), 843(b), and 846 of Title 21 of the United States Code. Tisor contends that the district court lacked subject matter jurisdiction because Congress exceeded its authority to regulate interstate commerce by making purely intra state drug trafficking a federal crime. We conclude that the district court had subject matter jurisdiction because Congress reasonably determined that intrastate drug trafficking has a substantial effect on interstate commerce. We affirm because none of Tisor's challenges to the judgment has merit.

I

On January 17, 1995, a Drug Enforcement Agency ("DEA") undercover operation resulted in the purchase of methamphetamine by DEA informant Terry Anderson from Regina Chapman and Norman Jones. John Tisor was identified as the source of the methamphetamine sold to Anderson. The purchase was monitored by DEA Agent Levy. Anderson wore a hidden radio transmitter and a microcassette recorder during the drug transaction.

On February 2, 1995, DEA Agent Levy directed Anderson to purchase additional methamphetamine from Tisor. Pursuant to DEA Agent Levy's instructions, Anderson made two telephone calls to Tisor to arrange the purchase of the drugs. On February 6, 1995 Anderson telephoned Chapman concerning the proposed purchase. That same day, Anderson, again wearing a radio transmitter and a microcassette recorder, purchased methamphetamine supplied by Tisor at the Jones residence. Tisor was observed at the residence by Anderson and DEA Agents Levy and Landers.

Tisor was arrested on May 24, 1995, and charged with one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846; two counts of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1); and, five counts of use of a communication facility in a drug trafficking crime in violation of 21 U.S.C. § 843(b).

At trial, Anderson testified that Tisor was the source of the methamphetamine he purchased on January 17, 1995, and February 6, 1995. Anderson testified further that on each occasion Tisor handed the drugs to Chapman.

DEA Agent Levy testified that he witnessed Tisor enter Jones' house, the site of the purchase. DEA Agent Landers testified that he witnessed Tisor drive to and from Jones' house on the dates the drugs were purchased.

DEA Agent Levy testified that he instructed Anderson to telephone the co-conspirators to set up both drug purchases. DEA Agent Levy recorded these telephone conversations. DEA Agent Levy listened to the telephone conversations and the drug purchases while they were simultaneously recorded.

In his opening statement, the prosecutor informed the jury that Norman Jones would testify that Tisor distributed methamphetamine to Anderson. When Jones was called as a witness he invoked the privilege against self incrimination in proceedings outside the presence of the jury.

On August 7, 1995, the jury found Tisor guilty on all counts. On September 8, 1995, Tisor moved for a judgment of acquittal. The motion was denied on October 6, 1995. Judgment of conviction was entered on October 26, 1995. Tisor was sentenced to 150 months of imprisonment on the same day.

II

Tisor contends that the district court lacked subject matter jurisdiction of the offenses defined in 21 U.S.C. § 801 et seq. (the "Controlled Substances Act") because intrastate drug trafficking does not "substantially affect" interstate commerce. "We review de novo a district court's assumption of [subject matter] jurisdiction." United States v. Vasquez-Velasco, 15 F.3d 833, 838-39 (9th Cir.1994). Tisor's reliance on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), for this proposition is misplaced. The activity condemned by the statute interpreted in Lopez did not involve a commercial transaction. Id. at ---- - ----, 115 S.Ct. at 1630-31. In enacting 18 U.S.C. § 922(q)(1)(A) (the "Gun-Free School Zones Act of 1990"), Congress purported to regulate the possession of a gun within one thousand feet of a school. Id. at ----, 115 S.Ct. at 1626.

The Court noted in Lopez that the Commerce Clause authorizes Congress to regulate the use of the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that "substantially affect" interstate commerce. 514 U.S. at ----, 115 S.Ct. at 1629. The Court instructed that a wholly intrastate activity which "has nothing to do with 'commerce,' " must "substantially affect" interstate commerce in order to comply with the Commerce Clause. 514 U.S. at ---- - ----, 115 S.Ct. at 1630-31. To constitute a constitutionally authorized exercise of power under the Commerce Clause, the Controlled Substances Act must regulate one of the activities identified by the Court in Lopez.

Section 841(a) provides as follows:

[I]t shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

21 U.S.C. § 841(a).

Section 843(b) states:

It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term "communication facility" means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.

21 U.S.C. § 843(b). Section 846 reads as follows:

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or the conspiracy.

21 U.S.C. § 846.

Before passing the Controlled Substances Act, Congress made findings describing the impact of intrastate drug trafficking on interstate commerce. Congress found that:

(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

....

(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

21 U.S.C. § 801(4) & (6). Based on these findings, Congress concluded that "manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce...." 21 U.S.C. § 801(3). Sections 841(a), 843(b), and 846 are part of a statute that prohibits intrastate and interstate commerce in drugs. See 21 U.S.C. § 801 et seq.

The presence of Congressional findings in support of the Controlled Substances Act distinguishes this case from the situation presented to the Court in Lopez. The Court noted in Lopez that Congress did not make any findings prior to enacting the Gun-Free School Zones Act of 1990 regarding the effect of intrastate gun possession on interstate commerce. Id. at ---- - ---- & n. 4, 115 S.Ct. at 1631-32 & n. 4.

In United States v. Staples, 85 F.3d 461 (9th Cir.1996), we addressed the question of the effect of drug trafficking on interstate commerce. In that matter, we upheld the constitutionality of 18 U.S.C. § 924(c)(1) under the Commerce Clause. Id. at 463. Section 924(c)(1) provides in pertinent part:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....

18 U.S.C. § 924(c)(1) (emphasis added). The term "drug trafficking crime," as used in section 924(c), includes violations of sections 841(a), 843(b), and 846. Section 924(c)(2) provides that "[f]or purposes of this subsection, the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)."

The accused in Staples was not charged with a violation of section 841(a). In deciding that it was not necessary for the indictment to allege the commission of a drug trafficking crime in order to demonstrate a violation of section 924(c)(1), we adopted the reasoning of the Eighth Circuit in United States v. Brown, 72 F.3d 96 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996). The Eighth Circuit reasoned as follows:

Prosecution under section 924(c)(1) does not occur in a vacuum. Rather, it is triggered when one "uses or carries" a firearm during a drug trafficking offense or violent crime for which the individual may be independently prosecuted. We note that intrastate drug activity affects interstate commerce, 21 U.S.C. § 801; that Congress may regulate both interstate and...