United States v. Dawson

• Decision Date: 05 October 1972
• Docket Number: No. 71-1711.,71-1711.
• Citation: 467 F.2d 668
• Parties: The UNITED STATES, Appellee, v. James DAWSON, a/k/a Roach, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

467 F.2d 668 (1972)

The UNITED STATES, Appellee, v. James DAWSON, a/k/a Roach, Appellant.

No. 71-1711.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1972.

Decided October 5, 1972.

Rehearing and Rehearing Denied October 31, 1972.

COPYRIGHT MATERIAL OMITTED

James A. Stemmler, of Stemmler & Stemmler, St. Louis, Mo., for appellant.

Mervin Hamburg, Atty., U.S. Dept. of Justice, Daniel Bartlett, Jr., U.S. Atty., E. D. Mo., Sidney M. Glazer, Atty., U.S. Dept. of Justice, Washington, D.C., for appellee.

Before ROSS and STEPHENSON, Circuit Judges, and URBOM,^* District Chief Judge.

Rehearing and Rehearing En Banc Denied October 31, 1972.

STEPHENSON, Circuit Judge.

James Michael Dawson was convicted in the United States District Court for the Eastern District of Missouri on two counts of selling, storing, and disposing of stolen explosive materials knowing them to be stolen, in violation of 18 U.S.C. § 842(h)¹ The conviction is appealed on the ground, among others, that § 842(h) is beyond the scope of the legislative power conferred on Congress by the Commerce Clause of the Constitution, and thus an improper intrusion upon legislative power reserved by the Tenth Amendment to the States, because the statute fails to require an evidential nexus between the proscribed activity and interstate commerce. It is urged that the statute must be stricken because it purports to prohibit all traffic in stolen explosive materials, including that conducted purely intrastate. We sustain the constitutionality of § 842(h) as a valid exercise of the Commerce power and we affirm the conviction.

I

Long-standing decisions of the Supreme Court make clear that Congress may invoke the Commerce Clause as a basis for regulating purely intrastate activities which affect substantially interstate commerce. See, e. g., Perez v. United States, 402 U.S. 146, 150-154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), and the cases there cited and discussed. In United States v. Darby, 312 U.S. 100, 118, 120-121, 61 S.Ct. 451, 85 L.Ed. 609 (1941), the Court, in delineating criteria by which to determine which activities intrastate affect commerce interstate, empowered Congress to consider the cumulative impact on commerce of those activities as a class. Once it is determined that a given class of intrastate activity substantially affects the commerce, or the exercise of congressional power over it, there need not be proof that an isolated activity within that class itself has an effect on commerce. Maryland v. Wirtz, 392 U.S. 183, 188-193, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968), and Katzenbach v. McClung, 379 U.S. 294, 304-305, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). See also, Schneider v. United States, 459 F.2d 540, 541-542 (C.A.8, 1972), and White v. United States, 399 F.2d 813, 822-824 (C.A.8, 1968).

The constitutional inquiry, rearticulated in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964), is (i) whether Congress had a rational basis for finding that the particular class of intrastate activity against which the sanction of the statute is laid affects commerce, and (ii) if so, whether the means selected by Congress to eliminate the evil are reasonable and appropriate. In making this inquiry we are not limited to specific and formal findings made by Congress, but we can consider too the nature and effect of the evidence laid before Congress concerning the class of activity and the concomitant burdens on commerce which Congress meant to alleviate. Katzenbach v. McClung, supra, p. 304 of 379 U.S., 85 S.Ct. 377, citing United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Semble, United States v. Bass, 404 U.S. 336, 349-350, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The primary parameter for a valid exercise of the Commerce power, therefore, is not formal congressional findings, but the presence of factual data before the Congress supportive of a finding that the chosen regulatory scheme is necessary to the protection of commerce. Accord, United States v. Darby, supra, p. 120 of 312 U.S., 61 S.Ct. 451.

II

§ 842(h) provides:

"It shall be unlawful for any person to receive, conceal, transport, ship, store, barter, sell, or dispose of any explosive materials knowing or having reasonable cause to believe that such explosive materials were stolen."

It is part of Title XI of the Organized Crime Control Act of 1970, Pub.L. 91-452, § 1101 et seq., 84 Stat. 952. That title represents a seriously conceived and comprehensive attempt by Congress to protect interstate and foreign commerce against disruption by reducing the hazards to persons and property associated with the misuse of explosive materials while protecting the rights and privileges of legitimate users of explosives.^1a This laudable objective is achieved through a detailed and particularized regulation of the importation, manufacture, distribution and storage of explosive materials.

Appellant, while avoiding the plain purport of the factual data before Congress when it enacted Title XI, asserts that § 842(h) is infirm because its enactment was not accompanied by congressional findings concerning the manner in which the misuse of explosives affects interstate commerce. This failure to verbalize a connection between the devastation brought about by the unlawful use of explosives and commerce, it is argued, convincingly demonstrates that Congress cavalierly invoked the Commerce Clause as a subterfuge for implanting federal regulation on an area of national activity reserved by the Tenth Amendment to State control. We conclude that the congressional failure to make formal findings of fact in connection with the drafting of Title XI does not, against the glare of legislative history, render invalid the underlying legislation.

The legislative history of Title XI² rather clearly reveals a well-founded congressional concern that the wave of bombings prevalent in our Nation during the mid-to-late 1960's posed serious threats to the free flow of interstate and foreign commerce. Although there is no explicit and formal finding to that effect,³ it would be perverse to assume that the congressional drafters did not view these terroristic acts—with the attendant cost in lives, in fear, and in dollars⁴ —as having a deleterious impact on commerce. Statistical data laid before the Congress indicated that between January 1969 and April 1970—a period of sixteen months—the Nation had been plagued with no fewer than 1000 explosive bombings and 3500 incendiary bombings.⁵ The magnitude of this senseless destruction, coupled with the fact that the attacks focused most heavily on police stations, court buildings, military facilities, college campuses, and corporate offices meaningfully point toward the need for prompt and effective federal sanctions over the unlawful use of explosive materials lest the attacks spread to the instrumentalities of commerce. To reason that purely intrastate misuse of explosive materials should have been a matter of less concern to Congress than misuse interstate is to reason mechanically and fallaciously. To the contrary, the residual climate of vituperation in existence at the time of Title XI enactment called for federal regulation of explosive materials without regard to a showing in each particular instance of a connection with commerce.

There is yet another shortcoming in appellant's appeal to a literalistic interpretation of the delegation of powers doctrine. Testimony before the House Subcommittee indicated that, at the time Title XI was promulgated, no more than 18 States were in the business of serious explosives regulation.⁶ Thus, while there is merit in the notion that criminal statutes are best enacted and enforced at the State level, State inaction, as in this instance, might often undercut allegiance to that principle. Moreover, the case with which one may go from one jurisdiction to another emphasizes the need for effective and uniform explosives regulation, for in its absence, circumvention of existing State law likely would be the rule rather than the exception.

The free and uninterrupted movement of goods through the channels of commerce must depend on public order and safety. In a bill whose very purpose was to reduce to a minimum a substantial threat to these imperatives, the Congress, in imposing a stringent regulatory framework governing explosives, essayed an appropriate and reasonable means to eliminate a pervasive evil. There being a rational basis upon which Congress properly could have determined that the misuse of explosive materials is one activity which, as a class, affects commerce, the Government need not specifically allege and prove a connection between interstate commerce and the conduct made criminal by § 842(h).

Appellant also argues that the statute is overinclusively drafted. He does not contend specifically that his own conduct is beyond the proscription of § 842(h), and thus might itself constitutionally be punished, but he urges that, hypothetically, the statute lends itself to at least two impermissible applications. First, he asserts that the statute covers one who has perfectly good title to explosive materials that, at some time previously, had been stolen. Second, he contends that the statute applies even to an owner who, after recovering explosives stolen from him, wishes to sell or to continue to possess those materials.

The usual approach to measuring the constitutionality of an allegedly overbroad statute is to weigh the consequences of the statute's application in the instant case. Yazoo & Mississippi Valley Railroad Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220, 33 S.Ct. 40, 57 L.Ed. 193 (1912), and United States v. Raines, 362 U.S. 17, 20-24, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Since appellant fails even to suggest that his own conduct falls within either of the hypothetical situations, and in view of the trial court's...