US v. Ornelas

• Decision Date: 12 January 1994
• Docket Number: No. 93-CR-317.,93-CR-317.
• Citation: 841 F. Supp. 1087
• Parties: UNITED STATES of America, Plaintiff, v. Alejandro Diego ORNELAS, Defendant.
• Court: U.S. District Court — District of Colorado

841 F. Supp. 1087

UNITED STATES of America, Plaintiff, v. Alejandro Diego ORNELAS, Defendant.

No. 93-CR-317.

United States District Court, D. Colorado.

January 12, 1994.

Thomas O'Rourke, Asst. U.S. Atty., Denver, CO, for plaintiff.

Raymond Moore, Asst. Federal Public Defender, Denver, CO, for defendant.

ORDER DENYING MOTION TO DISMISS INDICTMENT

CARRIGAN, District Judge.

On October 7, 1993, a federal grand jury returned an indictment charging that eighteen year old Alejandro Diego Ornelas had violated 18 U.S.C. § 922(q)(1)(A). The indictment alleged that on August 31, 1993, Mr. Ornelas knowingly had possessed, in and near the grounds of West High School in Denver, Colorado, a Bryco-model 48 .380-caliber pistol that had been transported in interstate commerce. Mr. Ornelas has moved to dismiss the indictment. The government has responded by opposing that motion. The issues have been briefed, and oral argument has been heard.

Section 922(q)(1)(A), enacted as part of the Comprehensive Crime Control Act of 1990,¹ provides in pertinent part:

"It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe is a school zone."

A "school zone" is defined by the statute as a place:

"(A) in, or on the grounds of, a public, parochial or private school; or

(B) within a distance of 1000 feet from the grounds of a public, parochial or private school." 18 U.S.C. § 921(a)(25).²

In defining the crime, Congress did not expressly provide as an element any nexus with interstate commerce. That is, Congress omitted the language usually found in such statutes to invoke federal jurisdiction under the Commerce Clause: a requirement that the gun involved had travelled in interstate commerce. Nor is it apparent that Congress intended to rest federal jurisdiction on the spending power, as in statutes regulating schools that receive federal funds, or on federally protected civil rights, frequently invoked to justify federal regulation of local schools. Thus the courts are left to guess at the federal jurisdictional ground intended by Congress, if Congress considered the matter at all. The government suggests the Commerce Clause must have been the intended nexus, and, in an effort to cover the statute's facial omission, has alleged in the indictment that the gun had travelled in interstate commerce.

Mr. Ornelas has filed a motion to dismiss the indictment, claiming that § 922(q) violates the Tenth Amendment to the United States Constitution,³ and that Congress exceeded its authority under the Commerce Clause by enacting it.⁴ Mr. Ornelas' motion relies upon United States v. Lopez, 2 F.3d 1342 (5th Cir.1993), which reversed a § 922(q) conviction because "Congress has not done what is necessary to locate section 922(q) within the Commerce Clause." Id. at 1368.

I. ANALYSIS.

Some courts, including our highest Court, have held that under Congress's extensive commerce power, it may regulate a class of activities that affects interstate commerce without proof or special findings that any particular intrastate activity within that class had an effect on interstate commerce. Thus, in reviewing the validity of a statute under the Commerce Clause, a court must determine whether Congress reasonably could have found a nexus between the class of regulated activity and interstate commerce. Perez v. United States, 402 U.S. 146, 152-56, 91 S.Ct. 1357, 1360-61, 28 L.Ed.2d 686 (1971); United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991); United States v. Holland, 841 F.Supp. 143 (E.D.Pa.1993).

A. Congress's Powers Under the Commerce Clause Are Extensive.

The United States Supreme Court recognized the broad scope of congressional authority under the Commerce Clause as far back as 1824. See Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L.Ed. 23 (1824). Since that time,

"the volume of interstate commerce and the range of commonly accepted objects of government regulation have ... expanded considerably ... and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within the scope of Congress' commerce power." New York v. United States, ___ U.S. ___, ___ - ___, 112 S.Ct. 2408, 2418-19, 120 L.Ed.2d 120 (1992).

Indeed, only twice in the past fifty-six years has the Supreme Court held legislation to be beyond the scope of Congress's commerce power, and one of those decisions was overruled nine years later. See id.; National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), overruled by Garcia v. San Antonio Metro. Transit. Auth., 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). In overruling National League of Cities, the Garcia Court stated, "State sovereign interests ... are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." 469 U.S. at 552, 105 S.Ct. at 1018.

B. Congress May Regulate Intrastate Activities That Affect Interstate Commerce and Need Not Explicitly Require Proof of a Commerce Nexus in Each Statute.

Mr. Ornelas emphasizes that, unlike various other federal criminal statutes enacted under the authority of the Commerce Clause, § 922(q) does not require the government to prove a nexus to interstate commerce as an element of the offense. In plain language, he points out that the statute he attacks does not require proof that the gun possessed had travelled across a state line, as is required by nearly all other federal firearms statutes. However, under its extensive commerce power, Congress may regulate purely intrastate activities that affect interstate commerce,⁵ and it need not require proof of a nexus between the activity and interstate commerce. See, e.g., Perez v. United States, 402 U.S. 146, 153, 91 S.Ct. 1357, 1361, 28 L.Ed.2d 686 (1971) (upholding 18 U.S.C. §§ 891-894, which prohibit extortionate credit transactions but do not expressly require proof of an interstate commerce nexus); United States v. Hale, 978 F.2d 1016, 1018 (8th Cir.1992) and United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991) (upholding 18 U.S.C. § 922(o) and 26 U.S.C. § 5861, which prohibit, inter alia, possession of machine guns and unregistered firearms but do not expressly require proof of an interstate commerce nexus); United States v. Lane, 883 F.2d 1484, 1492 (10th Cir.1989) (upholding 18 U.S.C. § 245(b)(2)(C), which prohibits interference with applications for or enjoyment of private employment because of race, color, religion, or national origin but does not expressly require proof of an interstate commerce nexus).

C. Congress Need Not Make Particularized Findings in Order to Legislate.

Not only may Congress regulate purely intrastate activities without requiring proof of a nexus to interstate commerce, the Supreme Court has indicated that Congress need not make particularized findings in order to legislate in this area. Perez, 402 U.S. at 156, 91 S.Ct. at 1362.⁶ Under Perez, Congress properly may regulate a class of activities that affects interstate commerce without proof that the particular intrastate activity regulated had an effect on commerce. Id. at 152, 91 S.Ct. at 1360; see also id. at 154, 91 S.Ct. at 1361 ("Where the class of activities is regulated and that class is within the reach of the federal power, the courts have no power `to excise, as trivial, individual instances' of the class." (quoting Maryland v. Wirtz, 392 U.S. 183, 193, 88 S.Ct. 2017, 2022, 20 L.Ed.2d 1020 (1968))); United States v. Smaldone, 485 F.2d 1333 (10th Cir.1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974) ("Activities within a regulated class of activities which do not exceed the reach of the federal power under the Commerce Clause need not be shown, in each individual case, to affect interstate commerce."). The only function of the courts, therefore, is to determine whether the activity regulated is within the reach of the federal power. United States v. Darby, 312 U.S. 100, 120-21, 61 S.Ct. 451, 460, 85 L.Ed. 609 (1941).

In making that determination, courts appropriately may consider the history of other, earlier legislation regulating the same class of activities.⁷ The Tenth Circuit followed this approach in United States v. Lane, 883 F.2d 1484 (10th Cir.1989). Defendants in Lane challenged 18 U.S.C. § 245(b)(2)(C), which criminalized interference with applications for or enjoyment of private employment because of race, color, religion, or national origin. They argued that the statute had not been validly enacted pursuant to Congress's commerce power because there were no legislative findings regarding the effect of racial discrimination on interstate commerce. Id. at 1487, 1492.

The court, however, quoted Perez and declared: "Congress is not required to make `particularized findings in order to legislate.'" Id. at 1492. The court noted that, although Congress had made no interstate commerce findings in 1988, when it enacted 18 U.S.C. § 245, it had "heard extensive evidence on the burdens that racial discrimination places on interstate commerce in connection with its enactment of the Civil Rights Act of 1964." Id. The court concluded that there was no reason Congress could not have relied upon that earlier evidence to support § 245 as well. Id.

Similarly, the Eighth Circuit in Hale, 978 F.2d 1016, 1018 (8th Cir.1992), considered the legislative history of the original § 922, promulgated as part of the Omnibus Crime Control and Safe Streets Act of 1968. The court noted that, although Congress had made no interstate commerce findings in 1986 when it enacted 18 U.S.C. § 922(o) regulating the possession of machine guns,

"when it first enacted section 922, Congress found facts indicating a nexus between the regulation of firearms and the commerce

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