United States v. Spann, Criminal Action No. 3:12-CR-126-L

• Decision Date: 24 September 2012
• Docket Number: Criminal Action No. 3:12-CR-126-L
• Parties: UNITED STATES OF AMERICA v. LUCIAN LEE SPANN
• Court: U.S. District Court — Northern District of Texas

UNITED STATES OF AMERICA

v.LUCIAN LEE SPANN

Criminal Action No. 3:12-CR-126-L

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Filed: September 24, 2012

MEMORANDUM OPINION AND ORDER

Before the court is Defendant's Motion to Dismiss the Indictment, filed August 17, 2012. After careful review of the motion, response, record, and applicable law, the court denies Defendant's Motion to Dismiss the Indictment.

I. Procedural and Factual Background

In this criminal action, by Indictment filed May 1, 2012, Defendant Lucian Lee Spann ("Defendant" or "Spann") has been charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). In August 2011, a Dallas police officer observed Defendant standing near a 1996 Toyota Camry with all four doors and the trunk open in a local motel parking lot. The officer checked the car's license plates and learned that the car had been reported stolen. When the officer directed Defendant to get on the ground, Defendant began to flee from the officer on foot. Eventually, the officer caught up with Defendant and was in the process of taking him into custody when a CZ 7.65 millimeter semi-automatic handgun fell from Defendant's waistband. Subsequent investigation revealed that the handgun was not manufactured in Texas.

Prior to the Indictment, Defendant had been convicted fourteen times between 1987 and 2011 in Dallas County, Texas, for offenses punishable by at least one year in prison.

II. Analysis

Defendant has moved to dismiss the Indictment on the basis that 18 U.S.C. § 922(g)(1) is unconstitutional, both facially and as applied to him. Defendant's challenges are based on the Supreme Court's recent decision in National Federation of Independent Businesses v. Sebellius ("National Federation"), --- U.S. ---- , 132 S. Ct. 2566 (2012), which Defendant claims "has worked a sea-change in the law concerning what it means to 'possess' an item for purposes of invoking federal jurisdiction under the Commerce Clause." Mot. to Dismiss at 2.

A. Facial Challenge to the Constitutionality of 18 U.S.C. § 922(g)(1)

Defendant's facial challenge to the constitutionality of § 922(g)(1) is two-pronged. First, Defendant argues that in light of National Federation, § 922(g)(1) is facially unconstitutional because economic activity in the past is no longer sufficient to invoke jurisdiction. Second, relying on the decisions in National Federation and United States v. Lopez, 514 U.S. 549 (1995), and the dissent from denial of certiorari in Alderman v. United States, 131 S. Ct. 700 (2011) (Thomas, J., dissenting from denial of certiorari), Defendant contends that § 922(g)(1) is facially unconstitutional because it does not reflect the requirement that the firearm has "substantially affected" interstate commerce. Mot. to Dismiss at 6. Neither argument has merit.

Section 922(g)(1) provides that it is unlawful for any person convicted in any court of "a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreigncommerce." 18 U.S.C. § 922(g)(1). The Fifth Circuit, in United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), cert. denied, 497 U.S. 1006 (1990), held that this section is a constitutional exercise of Congress's authority under the Commerce Clause. Since then, the Fifth Circuit has reaffirmed this holding on numerous occasions, including after the Supreme Court's commerce clause decision in Lopez.¹ See United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996) (holding that "neither the holding in Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1)"); see also United States v. Schmidt, 487 F.3d 253, 255 (5th Cir. 2007) (holding that the Supreme Court's commerce clause decisions in Lopez, Jones v. United States, 529 U.S. 848 (2000), and United States v. Morrison, 529 U.S. 598 (2000), "do not alter th[e] conclusion" § 922(g)(1) is constitutional); United States v. Daugherty, 264 F.3d 513, 518 (2001), cert. denied, 534 U.S. 1150 (2002) ("[Defendant] urges us to reconsider the interstate commerce element of § 922(g)(1) in light of two recent, intervening decisions: [Morrison and Jones]. . . . Neither Jones nor Morrison affects or undermines the constitutionality of § 922(g)."); United States v. Baltazar-Lopez, No. 00-21130, 2001 WL 1067700, at *1 (5th Cir. Aug. 16, 2001) (per curiam), cert. denied, 534 U.S. 1147 (2002) ("We have declined to entertain the advanced constitutional challenge to 18 U.S.C. § 922(g)(1). . . . [the decisions in Jones and Morrison] do not affect our consistent determination respecting the constitutionality of 18 U.S.C. § 922(g)."). Because the constitutionality of § 922(g)(1) has been so frequently litigated before the Fifth Circuit to the same conclusion, the court has often stated that "the constitutionality of § 922(g) is not open to question." Daugherty, 264 F.3d at 518 (citing United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999), cert. denied, 528 U.S. 863 (1999)).

Defendant urges that National Federation constitutes a dramatic shift in the Supreme Court's Commerce Clause jurisprudence—so much so that it implicitly overruled the Fifth Circuit's decisions consistently upholding the constitutionality of § 922(g)(1). Spann points to Chief Justice Roberts's Commerce Clause discussion in National Federation—which, notably, no other justice joined—for the proposition that the Commerce Clause requires that any targeted individuals targeted by § 922(g)(1) be "currently engaged" in a relevant market. According to Defendant, Chief Justice Roberts's focus in National Federation on the need for a temporal nexus to establish whether commerce is "actually affected," suggests that mere economic activity in the past is no longer sufficient to invoke jurisdiction under § 922(g)(1). Mot. to Dismiss at 6. The court disagrees.

The issue before the Supreme Court in National Federation was whether Congress had the power under Article I of the Constitution to enact a provision in the Patient Protection and Affordable Care Act ("PPACA") requiring non-exempted federal income taxpayers to maintain a minimum level of health insurance or otherwise pay a tax penalty. 132 S. Ct. at 2580, 2595-600. The Court upheld the minimum coverage provision as a valid exercise of Congress's taxing power. Id. at 2594-600. Five justices separately concluded that the minimum coverage provision was not authorized by Congress's commerce power; however, no single opinion was joined by a majority of the Court on this issue. See id. at 2585-91 (Roberts, C.J.); id. at 2644-50 (Scalia, Kennedy, Thomas, Alito, JJ., dissenting). Chief Justice Roberts wrote the opinion of the Court upholding the minimum coverage provision under the taxing power, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Id. at 2594-95. Chief Justice Roberts also wrote a separate opinion expressing the view that Congress could not require individuals to purchase health insurance under its commerce power because the Commerce Clause only gives Congress the power to regulatecommerce, not to compel it. Id. at 2585-93 (Roberts, C.J.).² According to Chief Justice Roberts, the minimum coverage provision did not regulate existing commercial activity—rather, it attempted to regulate inactivity, on the ground that the failure to purchase health insurance affects interstate commerce. Id. Chief Justice Roberts, however, only wrote for himself on this issue. In a separate opinion, styled as a "joint dissent," Justices Scalia, Kennedy, Thomas, and Alito similarly argued that the Commerce Clause did not authorize Congress to compel entry into commerce. Id. at 2642-50 (Scalia, Kennedy, Thomas, Alito, JJ., dissenting). As indicated above, the dissenters did not join any portion of Chief Justice Roberts's opinion, nor did they agree to the judgment of the Court. Id. at 2642-77 (Scalia, Kennedy, Thomas, Alito, JJ., dissenting).

As one court recently noted, there has been considerable debate whether the Chief Justice's Commerce Clause discussion is dicta or binding precedent. United States v. Henry, 688 F.3d 637, 641 n.5 (9th Cir. 2012) (citing David Post, Commerce Clause "Holding v. Dictum Mess" Not So Simple, The Volokh Conspiracy, (July 3, 2012, 8:17 AM), http://www.volokh.com/2012/07/03/commerce-clause-holding-v-dictum-mess-not-so-simple/. While some courts have regarded the Chief Justice's Commerce Clause discussion as the opinion of the Court, others have viewed his opinion as a concurrence. Compare United States v. Williams, No. 12-60116-CR-RNS, 2012 WL 3242043, at *3 (S.D. Fla. Aug. 7, 2012) (stating that Chief JusticeRoberts was "writing for the Court" when discussing Congress's commerce power) with United States v. Moore, No. CR-12-6023-RMP, 2012 WL 3780343, at *3 (E.D. Wash. Aug. 31, 2012) (finding that in National Federation, Chief Justice Roberts, wrote "a concurring opinion" finding that the Commerce Clause did not authorize the health care statute because Congress cannot regulate inactivity).³

To find the Chief Justice's Commerce Clause discussion binding as legal precedent, as Defendant would have this court hold, one must combine the opinions of the four dissenting Justices with the Chief Justice's opinion, even though the dissenters did not join any portion of the Chief Justice's opinion, or concur in the judgment. The issue of whether concurring and dissenting votesmay be counted together to create a new legal rule has been addressed by several courts. While some courts have combined a dissent with a concurrence to create a binding majority decision, other courts have declined to do so. Compare King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991), cert. denied, 505 U.S. 1229 (1992) ("[W]e do not think we...