U.S. v. Wilks, No. 94-5208

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore ANDERSON and BALDOCK, Circuit Judges, and BROWN; BALDOCK
Citation58 F.3d 1518
Decision Date06 July 1995
Docket NumberNo. 94-5208
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry Francis WILKS, Defendant-Appellant.

Page 1518

58 F.3d 1518
64 USLW 2053
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry Francis WILKS, Defendant-Appellant.
No. 94-5208.
United States Court of Appeals,
Tenth Circuit.
July 6, 1995.

Submitted on the briefs: *

David Pierce, John Thomas Kennedy, Muskogee, OK, for defendant-appellant.

Stephen C. Lewis, U.S. Atty., Allen J. Litchfield, Asst. U.S. Atty., Tulsa, OK, for plaintiff-appellee.

Page 1519

Before ANDERSON and BALDOCK, Circuit Judges, and BROWN, District Judge. **

BALDOCK, Circuit Judge.

Defendant Larry Francis Wilks appeals his conviction for illegal possession or transfer of machineguns, 18 U.S.C. Sec. 922(o ), and illegal transfer of a firearm, 26 U.S.C. Sec. 5861(e). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

The facts are not disputed. Defendant transferred two silencers and sold three machineguns to undercover Bureau of Alcohol, Tobacco, and Firearms ("BATF") agents while operating a gun shop in Tulsa, Oklahoma. BATF agents also discovered two machineguns in Defendant's possession during a search of Defendant's home. Defendant was arrested and charged with three counts of illegal transfer of a machinegun, 18 U.S.C. Sec. 922(o ); one count of illegal possession of a machinegun; id.; and one count of illegal transfer of a firearm, 26 U.S.C. Sec. 5861(e). 1

Prior to trial, Defendant filed a motion to dismiss the indictment as to the machinegun counts, claiming Sec. 922(o ) was unconstitutional. The district court denied the motion. Defendant then entered conditional pleas of guilty to four counts of illegal possession and transfer of machineguns, 18 U.S.C. Sec. 922(o ), and one count of illegal transfer of a firearm, 26 U.S.C. Sec. 5861(e). The district court sentenced Defendant to thirty-four months imprisonment. This appeal followed.

I.

Defendant first contends the district court erred in failing to grant his motion to dismiss the indictment because Sec. 922(o ) asserts no nexus with interstate commerce, and is thus beyond the constitutional power granted to Congress to regulate commerce. 2 We review challenges to the constitutionality of a statute de novo. Johnston v. Cigna Corp., 14 F.3d 486, 489 (10th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 1792, 131 L.Ed.2d 720 (1995).

Congress passed Sec. 922(o ) as part of the Firearms Owners' Protection Act of 1986 ("FOPA"), Pub.L. No. 99-308, 100 Stat. 449 (1986), which amended the Gun Control Act of 1968 ("GCA"), 18 U.S.C. Secs. 921-28. 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.

The legislative history surrounding Sec. 922(o) is virtually nonexistent. The provision was a last minute floor amendment, no hearings were conducted, and no committee report refers to it. See David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb.L.Rev. 585, 670-71 (1987). The scant legislative history merely contains a discussion of an earlier bill proposed in the House of Representatives which "prohibited the transfer and possession of machine guns, used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime." H.R.Rep. No. 495, 99th Cong., 2d Sess. 4 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1330. "The only apparent explanation for it is the statement of its sponsor, Representative Hughes, that 'I do not know why anyone would object to the banning of machine guns.' " Lopez, 2 F.3d at

Page 1520

1356 (citing Farmer v. Higgins, 907 F.2d 1041, 1044 (11th Cir.1990), cert. denied, 498 U.S. 1047, 111 S.Ct. 753, 112 L.Ed.2d 773 (1991) (quoting 132 Cong.Rec. H1750 (1986)) (statement of Rep. Hughes)).

In United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993), the Eighth Circuit upheld Sec. 922(o ) as a proper exercise of Congress' Commerce Clause power, noting that the legislative history of FOPA indicated that "Congress considered the relationship between the availability of machine guns, violent crime, and narcotics trafficking." Id. at 1018 (citing H.R.Rep. No. 495, 99th Cong., 2d Sess. 1-5, reprinted in 1986 U.S.C.C.A.N. 1327, 1327-31). Additionally, the court noted that Congress found that there was a nexus between the regulation of firearms and the commerce power when it first enacted Sec. 922 in 1968. Id. (citing Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 225 (1968) ("Omnibus Act")). Because the 1986 amendments adding subsection (o ) did not alter these findings, the court concluded Sec. 922(o ) was a proper exercise of Congress' Commerce Clause power. Id.; see also United States v. Pearson, 8 F.3d 631, 633 (8th Cir.1993) (reaffirming Hale), cert. denied, --- U.S. ----, 114 S.Ct. 2132, 128 L.Ed.2d 863 (1994). 3

Hale was decided prior to 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 defendant carried a concealed handgun onto the campus of a San Antonio, Texas high school. Following his arrest, Defendant was charged with and convicted of a violation of the Gun-Free School Zones Act of 1990 which prohibits the mere possession of a firearm "at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. Sec. 922(q)(2)(A). On appeal, the defendant challenged his conviction contending that Congress exceeded its authority under the Commerce Clause when it enacted Sec. 922(q).

In examining whether Sec. 922(q) violated the Commerce Clause, the Court first enumerated three categories of activity which Congress could regulate under the Commerce Clause: (1) 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) activities which have "a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce." Id. at ---- - ----, 115 S.Ct. at 1629-30.

Within this framework, the Court first determined Sec. 922(q) was not a regulation of the channels of interstate commerce nor was it a regulation of an instrumentality of interstate commerce or persons or things in interstate commerce. Id. at ----, 115 S.Ct. at 1629. Thus, the Court examined Sec. 922(q) under category three to determine whether it was a regulation of an activity that substantially affected interstate commerce. The Court held it was not. Specifically, the Court determined that Sec. 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. Thus, the Court held that "[t]he possession 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. The Court further determined that Sec. 922(q) contained no jurisdictional element "which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id. at ----, 115 S.Ct. at 1631. Thus, because Sec. 922(q) did not...

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38 practice notes
  • Doe v. Doe, No. 3:95cv2722 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • June 19, 1996
    ...1995); U.S. v. Gonzalez, 893 F.Supp. 935 (S.D.Cal.1995); U.S. v. Garcia-Salazar, 891 F.Supp. 568 (D.Kan.1995). 12 See U.S. v. Wilks, 58 F.3d 1518 (10th Cir. 13 See, e.g., U.S. v. Bolton, supra; U.S. v. Stillo, 57 F.3d 553 (7th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 383, 133 L.Ed.2d 30......
  • U.S. v. Kirk, No. 94-50472
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 3, 1997
    ...922(o) was added to FOPA as a last minute amendment on the House floor and its provisions were not debated. See United States v. Wilks, 58 F.3d 1518, 1519 (10th Cir.1995); United States v. Lopez, 2 F.3d 1342, 1356 (5th Cir.1993), aff'd, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); ......
  • U.S. v. Trupin, Nos. 524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1997
    ...United States v. Kenney, 91 F.3d 884, 885-91 (7th Cir.1996) (same, upheld as third-category regulation); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (same, upheld as second-category regulation); United States v. Wall, 92 F.3d 1444, 1449-52 (6th Cir.1996) (upholding 18 U.S.C. ......
  • U.S. v. Rybar, No. 95-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1996
    ...denied, --- U.S. ----, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir.1995) 1; United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Pearson, 8 F.3d 631 (8th Cir.1993), cert. denied, 511 U.S. 1126, 114 S.Ct. 2132, 128 L.Ed.2d 863 (1994). No......
  • Request a trial to view additional results
38 cases
  • Doe v. Doe, No. 3:95cv2722 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • June 19, 1996
    ...1995); U.S. v. Gonzalez, 893 F.Supp. 935 (S.D.Cal.1995); U.S. v. Garcia-Salazar, 891 F.Supp. 568 (D.Kan.1995). 12 See U.S. v. Wilks, 58 F.3d 1518 (10th Cir. 13 See, e.g., U.S. v. Bolton, supra; U.S. v. Stillo, 57 F.3d 553 (7th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 383, 133 L.Ed.2d 30......
  • U.S. v. Kirk, No. 94-50472
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 3, 1997
    ...922(o) was added to FOPA as a last minute amendment on the House floor and its provisions were not debated. See United States v. Wilks, 58 F.3d 1518, 1519 (10th Cir.1995); United States v. Lopez, 2 F.3d 1342, 1356 (5th Cir.1993), aff'd, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); ......
  • U.S. v. Trupin, Nos. 524
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 27, 1997
    ...United States v. Kenney, 91 F.3d 884, 885-91 (7th Cir.1996) (same, upheld as third-category regulation); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (same, upheld as second-category regulation); United States v. Wall, 92 F.3d 1444, 1449-52 (6th Cir.1996) (upholding 18 U.S.C. ......
  • U.S. v. Rybar, No. 95-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 30, 1996
    ...denied, --- U.S. ----, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir.1995) 1; United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Pearson, 8 F.3d 631 (8th Cir.1993), cert. denied, 511 U.S. 1126, 114 S.Ct. 2132, 128 L.Ed.2d 863 (1994). No......
  • Request a trial to view additional results

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