USA v. Nathan, 98-4750

• Decision Date: 28 October 1999
• Docket Number: No. 98-4750,CR-98-116,98-4750
• Citation: 202 F.3d 230
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRURIEL B. NATHAN, Defendant-Appellant. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 230

202 F.3d 230 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRURIEL B. NATHAN, Defendant-Appellant.

No. 98-4750 (CR-98-116).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: October 28, 1999.

Decided: January 19, 2000.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

COUNSEL ARGUED: Steven D. Benjamin, BENJAMIN & DESPORTES, P.C., Richmond, Virginia, for Appellant. John Staige Davis, V, Assistant United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Betty Layne DesPortes, BENJAMIN & DESPORTES, P.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Richmond, Virginia, for Appellee.

Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Williams and Senior Judge Hamilton joined.

OPINION

NIEMEYER, Circuit Judge:

Truriel B. Nathan was arrested in Richmond, Virginia, by Richmond police officers for possession of a firearm and ammunition and thereafter charged with firearm offenses under both state and federal laws. His state charges were dismissed, however, and he was tried and convicted in federal court for violating 18 U.S.C.§ 922(g)(1). On appeal, he makes several challenges to his conviction, including a federalism-based constitutional challenge to "Project Exile," a cooperative federal-state venture under which firearm-related offenses are prosecuted federally.

We affirm.

I

On the night of February 24, 1998, two Richmond police officers followed Nathan as he drove his car into a convenience store parking lot because the car's headlights were not on. After Nathan parked his car and began to walk toward the store, Officer Mills asked to speak with him. The officer noticed a bulge on the upper left side of Nathan's coat as Nathan walked toward him. Reaching out and patting the pocket, Officer Mills asked, "What is this?" When Nathan responded that it was ammunition, Officer Mills asked Nathan if he had a gun, and Nathan responded that he did. Officer Mills and Officer Robinson then handcuffed Nathan and recovered a loaded .380 caliber semiautomatic pistol, manufactured in Ohio, and a box of .380 caliber ammunition, manufactured in Arkansas.

Although Nathan was originally charged with a state crime, his case was handled under "Project Exile," a federal-state law enforcement program in Richmond under which many firearms offenses are prosecuted in federal rather than state court by agreement of state and federal law enforcement officials. Because Nathan had previously been convicted of a felony, he was indicted for violating 18 U.S.C. § 922(g)(1), the federal felon-in-possession firearm statute. At the preliminary hearing on Nathan's state charges, a nolle prosequi was entered on the motion of the Commonwealth's Attorney, and Nathan's state charges were dismissed.

Project Exile is a federal-state law enforcement initiative jointly run by the Virginia Commonwealth's Attorney for the City of Richmond and the U.S. Attorney for the Eastern District of Virginia. The project was implemented in Richmond in February 1997 with the goal of reducing Richmond's high rates of violent crime by prosecuting firearm-related crimes federally whenever possible. As part of the project, local police officers are trained to identify state firearm offenses that also constitute federal offenses. Local police officers are encouraged to contact a federal agent using a 24-hour pager number whenever they encounter a gun in performing their duties, and, together with the federal agent, to determine whether federal law has been violated. An assistant Commonwealth's Attorney assists the U.S. Attorney with the federal prosecution of cases under Project Exile. The project is publicized through advertising on television, on billboards, on buses, and in other venues, all paid for by the "Project Exile Citizens Support Foundation," a private group for which the U.S. Attorney helps to solicit contributions from local merchants.

Before trial, Nathan filed a motion to dismiss his indictment on several grounds, including a constitutional challenge to Project Exile. He argued that he was denied due process of law in violation of the Fifth Amendment because his federal prosecution was vindictive and biased and that moving prosecutions from state to federal court violated principles of federalism in violation of the Tenth Amendment. The district court denied the motion, and the case proceeded to trial. At trial, the district court instructed the jury that the government was required to prove that Nathan's possession of the firearm and ammunition "was in or affecting interstate or foreign commerce because the firearm or ammunition had traveled in interstate or foreign commerce at some point during its existence." The court explained to the jury that "[t]he Government may meet its burden with respect to this element by proving that the firearm or ammunition in question . . . previously traveled in interstate commerce." Nathan objected to these instructions, arguing that, under 18 U.S.C. § 922(g), a jury must find that the possession of a firearm "substantially affected" interstate commerce.

The jury convicted Nathan on one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and the court sentenced him to 180 months in prison. He now appeals.

II

Nathan first challenges the constitutionality of Project Exile, claiming that his federal prosecution under the project violates principles of federalism embodied in the Tenth Amendment and contravenes the rule of Younger v. Harris, 401 U.S. 37, 53 (1971), which confines narrowly the availability of federal injunctive relief against state prosecutions.

To make his argument, however, Nathan mischaracterizes Project Exile by representing that the program suspends Virginia state law, interferes with state criminal proceedings, and conscripts state resources. To the contrary, Project Exile is a voluntary, cooperative...