USA. v. Jones

• Decision Date: 02 November 2000
• Docket Number: No. 99-10462,99-10462
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL CHARLES JONES, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 508

231 F.3d 508 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL CHARLES JONES, Defendant-Appellant.

No. 99-10462

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 15, 2000

Filed November 2, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Mark J. Reichel, Assistant Federal Defender, Sacramento, California, for the defendant-appellant.

Norman Y. Wong, Assistant United States Attorney, Sacramento, California for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California David F. Levi, District Judge, Presiding. D.C. No. CR-98-00375-DFL

Before: Ruggero J. Aldisert^*, Susan P. Graber and Raymond C. Fisher, Circuit Judges.

ALDISERT, Circuit Judge:

Section 922(g)(8) of Title 18 makes it illegal for persons to possess a firearm if they are subject to a domestic violence protection order.¹ The primary issue in this appeal by Michael Charles Jones is whether the district court erred in denying Appellant's motion to dismiss count one of the indictment charging him with violating S 922(g)(8). He raises a number of constitutional challenges to the section based on due process, the Commerce Clause and the Tenth Amendment.

The jury convicted Appellant on count one. It also convicted Appellant on count two, being a felon in possession of firearms, 18 U.S.C. S 922(g)(1); count three, making false statements on firearms records, 18 U.S.C. S 922(a)(6); and count four, making a false statement on a firearm license renewal application, 18 U.S.C. S 924(a)(1)(A). In addition to his constitutional contentions, Appellant argues that there is insufficient evidence to support his conviction, specifically contending that the government failed to prove beyond a reasonable doubt that he was not entrapped as to counts one and two and that there was insufficient evidence to establish venue as to count four.

He challenges also the sentence imposed, alleging that the district court erred in increasing his sentence because he had a prior conviction in the California state courts for the crime of stalking. This state conviction was viewed by the district court as a crime of violence, thereby meriting a two-level increase under sentencing guidelines.

We hold that S 922(g)(8) is constitutional and that there was sufficient evidence to support Appellant's conviction on all counts. After the sentencing in the district court, however, California state courts interpreted the state's stalking statute in a different manner than the district court had. This new interpretation requires that the sentence be vacated and remanded to the district court for re-sentencing.

I.

Appellant, a federally licensed firearms dealer, lived in Sacramento with his girlfriend, Christine Bush, prior to 1997. After the relationship ended in late 1996, he began harassing Bush. In early March 1997, he struck her and fractured her nose. On March 26, 1997, Bush obtained a restraining order from the Superior Court of California, County of Sacramento, following a hearing at which Appellant was present. The order prohibited Appellant from contacting, attacking, threatening or coming within 100 yards of Bush's residence. The order was to expire on March 26, 2000.

In late April or early May 1997, Appellant filed an application to renew his firearms license with the United States Treasury Department, Bureau of Alcohol, Tobacco and Firearms ("ATF"). The license renewal application asked whether the applicant was subject to a domestic abuse restraining order such as the one Bush had obtained. Although he knew he was subject to such an order, Appellant denied this on the renewal application.² He continued to stalk and harass Bush in violation of the restraining order and, upon her complaint, a state arrest warrant for felony stalking was issued. Appellant was arrested in Kansas on the warrant in June 1997 and returned to California where he pleaded no contest to the stalking charge. He was given a suspended sentence and placed on five years' formal probation with the condition that he serve 90 days in jail.

Through a regular compliance check of Best's Collateral, a pawn shop in Marysville, California, ATF special agents learned that Appellant had pawned firearms there. In May 1998, Special Agent Russell Barlowe, a criminal investigator, contacted the pawn shop to verify that Appellant had, in fact, pawned firearms at that shop. Barlowe testified that he intended to collect the guns because he believed that they were evidence of a criminal violation. During that conversation, Mel King, the manager of the pawn shop, discussed his concerns about the financial loss the pawn shop would suffer if the government confiscated the guns at that time. After his conversation with Agent Barlowe, King spoke with the vice president of Best Collateral and they decided not to renew Appellants' loans because they did not want to lose the money the pawn shop had invested in the guns. At Best Collateral, the normal loan period is four months. At the end of four months, the person who pawned the item must redeem it and pay off the loan or renew the loan on the item. King testified that the pawn shop has the right to "call the loan," which means that the shop decides not to renew the loan for another four month period.

King asked the ATF to allow the pawn shop to carry out its decision not to renew the loans so that the shop could try to get its money back. The government agreed not to confiscate the firearms at that time, and King agreed to notify the ATF if Appellant decided to come in to redeem the firearms.

Toward the end of the current loan period, Appellant contacted King regarding renewing his loans. King told him that the pawn shop was not going to renew his loans because they were getting out of the firearm business. King testified that he said this because he did not want to prolong the transaction. Appellant asked for an extension of time to pick up the guns, and King gave it to him because the pawn shop wanted to recoup its money. King then informed the ATF that Appellant was scheduled to come in on August 15, 1998. On that date, Appellant came to the pawn shop and was given two forms to fill out prior to possessing the guns. On both forms, he falsely stated that he was not a felon and that he was not subject to a domestic violence restraining order.³ He received the guns, left the pawn shop and was arrested outside the pawn shop by ATF agents.

On August 28, 1998, a grand jury indicted Appellant on four counts: (1) for possessing firearms while subject to a restraining order, (2) for being a felon in possession of firearms, (3) for making false statements on firearms records, and (4) for making a false statement on a firearms license renewal application. On April 29, 1999, following a four-day trial, a jury convicted him on all four counts of the indictment and he was duly sentenced.

The district court had jurisdiction pursuant to 18 U.S.C. S 3231. This court has jurisdiction under 28 U.S.C. S1291. The appeal was timely filed under Rule 4(b), Federal Rules of Appellate Procedure.

II.

Appellant first contends that the district court erred in denying his motion to dismiss count one of the indictment because S 922(g)(8) violates the Constitution in three respects: it offends the due process clause, exceeds Congress' authority under the Commerce Clause and infringes on rights reserved to the states under the Tenth Amendment. We review de novo the district court's determination of the constitutionality of a federal statute. Crawford v. Lungren , 96 F.3d 380, 384 (9th Cir. 1996).

A.

The statute at issue in this case prohibits a person who is subject to a domestic violence restraining order from possessing a firearm. 18 U.S.C. S 922(g)(8). Appellant originally argued that S 922(g)(8) was an obscure statute that punished the generally lawful practice of possessing firearms and therefore should allow for an "ignorance of the law " defense to avoid a conflict with the due process clause. However, at oral argument, Appellant conceded that this court's recent decision in United States v. Kafka, 222 F.3d 1129 (9th Cir. 2000), controls and therefore disposes of his due process argument.

In Kafka, the defendant, who was convicted under S 922(g)(8), raised the same due process challenge. This court noted that "the issuance of the [restraining ] order itself should have alerted Kafka to the possibility of other limitations on his conduct, including the prohibition on his possession of firearms." Id. at 1132-1133. The court distinguished S 922(g)(8) from the situation in Lambert v. California, 355 U.S. 225 (1957), in which the Court required notice of the statute when a person could be penalized for the passive omission of failing to register with the municipality. Kafka, 222 F.3d at 1130-1131. Accordingly, this court already has held that S 922(g)(8) is constitutionally valid because it does not "fall within Lambert's exception to the traditional rule that ignorance of the law is no defense." Id. at 1133.

B.

Under S 922(g)(8), it is unlawful for a prohibited person to "possess in or affecting interstate commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. S 922(g)(8). Appellant contends that this provision violates the Commerce Clause based on the reasoning in United States v. Lopez, 514 U.S. 549 (1995). In Lopez, the Court invalidated former S 922(q) (the Gun-Free School Zones Act) on the ground that it lacked a jurisdictional element that would ensure that the firearm possession in question affects interstate commerce.

The Lopez analogy is not well taken because, unlike the Gun-Free School Zones Act, the statute before us contains a jurisdictional element explicitly requiring a nexus between the possession of firearms and interstate commerce....