U.S. v. Wilks, 94-5208

• Decision Date: 06 July 1995
• Docket Number: No. 94-5208,94-5208
• Citation: 58 F.3d 1518
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Francis WILKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

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.

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 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

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)).

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 regulate a commercial activity substantially affecting interstate commerce or contain a requirement that the possession be connected in any way to interstate commerce, the Court held Sec. 922(q) was unconstitutional under the Commerce Clause.

Lopez does not dictate a similar result in the instant case. Unlike Sec. 922(q), Sec. 922(o ) embodies a proper exercise of Congress' power to regulate "things in interstate commerce"--i.e., machineguns. Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1629-30; see, e.g., United States v. Atkinson, 513 F.2d 38, 39-40 (4th Cir.1975) (holding Congress could regulate narcotics including intrastate narcotics possession to effectively regulate the interstate trafficking in narcotics); United States v. Evans, 712 F.Supp. 1435, 1442 (D.Mont.1989) ("It is beyond dispute the commerce power vests Congress with the authority to regulate the interstate transportation of products, including firearms."). Whereas Sec. 922(q) sought to regulate an activity which by its nature was purely intrastate and could not substantially affect commerce even when incidents of those activities were aggregated together, see id. at ----, 115 S.Ct. at 1631, Sec. 922(o ) regulates machineguns, which by their nature are "a commodity ... transferred across state lines for profit by business entities." United States v. Hunter, 843 F.Supp. 235, 249 (E.D.Mich.1994). The interstate flow of machineguns "not only has a substantial effect on interstate commerce; it is interstate commerce." Id. Section Sec. 922(o ) regulates this "extensive, intricate, and definitively national market for machineguns", id. (emphasis added), by prohibiting the transfer and possession of machineguns manufactured after May 19, 1986. As such, Sec. 922(o ) represents Congressional regulation of an item bound up with interstate attributes and thus differs in substantial respect from legislation concerning possession of a firearm within a purely local school zone. See Lopez, 2 F.3d at 1356 (Section 922(o )'s restriction to machineguns "is more suggestive of a nexus to or affect on interstate or foreign commerce than possession of any firearms whatever, no matter when or where originated, within one thousand feet of the grounds of any school.").

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