United States v. Alderman

sure, Ryen and in the station no investigation the Lease house For or trial (and wagon, perfect. Judge where a hand-rolled butt McKeown makes this butt) concurrence, point panel IV, consistent his sa- in her Cooper manufactured with 1007, yet recognizes fragments liva found. Hairs and hair were the law agree demands affirmance. I the car were likewise consistent with the full court’s decision that is so. Cooper’s. Cooper incriminating tossed evidence—

including shoes prison his tennis —issued clothing-over-board

and other into prison got

the ocean from boat on which he

job leaving Ensenada after Lease could,

house. jury pre- and we must did, sume that infer consciousness America, UNITED STATES of guilt from this conduct. No “other killer” Plaintiff-Appellee, says toward whom dissent “evi- points” dence is African-American. Coo-

per’s expert who agreed person ALDERMAN, Cedrick Bernard deposited hallway A-41 the wall of the Defendant-Appellant. Ryen was African-American. house No. 07-30186. testing, Postconviction DNA requested Cooper, him. inculpates Appeals, United States Court of Ninth Circuit.

No item pointed test on has ever includes, any one else the killer. This Argued and Submitted March A-41, in addition to tests of on the blood May 12, Filed hatchet taken from Lease house Ryen matched Jessica Doug and and Chris

Hughes; rope in the bloodstained found

Lease bedroom to a closet was similar Ryens’

bloodstained found on rope

driveway; cigarette butts found in the

Ryen station wagon headboard slept

bed on which one Cooper night house;

Lease recovered hairs from

Ryen’s wagon; station fingerprints house;

Lease in the hairs sink and shower

at the Lease that were house consistent Doug Ryen’s;

with Jessica’s and and the

tan T-shirt.

The state found no courts evidence respect prints,

tampering with to the shoe butts, A-41,

cigarette testing. or DNA testing,

Neither EDTA mitochondrial testing, anything

DNA presented nor else court, evidentiary hearing in district

clearly convincingly shows otherwise. Brunner, J. Assistant United

Helen WA, Seattle, Attorney, for the plaintiff-appellee. Tsuchida, Federal Pub-

Brian Assistant (on brief) Defender, lic Seattle WA Lai, De- Vicki Assistant Federal Public (on fender, Seattle WA the brief and oral argument) defendant-appellant. for the FLETCHER, M. Before: B. McKEOWN, RICHARD A. MARGARET PAEZ, Judges. Circuit by Judge MCKEOWN; Dissent Opinion by Judge PAEZ.

McKEOWN, Judge: Circuit impression in the This case first us consider requires Ninth Circuit authority whether Clause of the United States Constitution, I, 8,§ art. cl. criminal- ... body armor we us otherwise follow felon ize for sale unwaveringly.”). has been “sold or offered We conclude that are §§ 931 commerce.” 18 U.S.C. precedent bound Su- —absent 921(a)(35). way, the issue Put another and or our en preme telling banc court in inter- the sale of armor is whether us that the felon-in-posses- otherwise—and nexus commerce creates a sufficient state passes armor statute sion of muster. possession of the and Background to allow for federal commerce au- Congress’s Commerce Clause under Cedrick Alderman was arrested in 2005 thority. sting during operation involving at- years, Supreme tempted purchase recent Court has controlled of cocaine. landscape of con altered the aware that had significantly Officers were Alderman power under the Commerce gressional previously felony been convicted of rob- See, v. Morri e.g., United States Clause. bery.1 The offi- arresting 7-9]. SER [see 1740, son, 598, 529 U.S. 120 146 S.Ct. cer wearing discovered Alderman was (2000) 658 statute (striking L.Ed.2d down vest. bulletproof [SER 36]. Alderman remedy provided a federal for civil possession for was booked and vest violence); gender-motivated of victims the conditions violating supervi- of his 549, v. United 33], sion. Dkt. [See (strik (1995) 1624, 131 L.Ed.2d 626 Washington Because law does posses ing regulating down federal statute armor, criminalize felon zones). guns in school Nonethe sion the matter was referred to the federal less, is found in the resolution to this case authorities. Alderman was indicted under prece Supreme Court and Ninth Circuit 931(a), § which U.S.C. makes it unlaw- that addresses a ele dent person ful for a convicted of a in- felony nearly ap ment identical to the one volving a “crime violence” to possess § plies Scarborough 931. See United See body armor. James Guelff and Chris States, 577, Body McCurley Armor Act of (concluding 52 L.Ed.2d 582 11009(e)(2)(A), (crimi- § 18 U.S.C. that, the context of Title VII nalizing Act, Omnibus Crime Control proof 2002). of Nov. felons as firearm traveled sup filed a Alderman motion to the required pos satisfies nexus between press sought evidence.2 commerce); certain He also of the firearm session and F.3d dismissal of indictment on States v. various (9th Cir.2002) grounds, including that carjack n. 2 statute was (upholding vitality unconstitutional because its ex stating that “the enactment Congress’s engenders significant authority de ceeded 60-62], bate,” but Court tells ER The “[u]ntil [See Commerce Clause. Washing- Although Appeal 1. Alderman had been convicted Alderman’s Notice of in cludes the district court’s denial of his motion robbery state court of in the second de- ton 15], suppress ER [see Alderman did not gree and sentenced to fourteen months in agree in his briefs. We raise the issue prison. charge, Alderman addition to that his the Government Alderman waived charges, drug been had convicted of several appeal suppress. of the motion to See Smith including possession to deliver with intent Marsh, 1999). Cir. cocaine. cocaine 4], [See also RED ” 18 U.S.C. foreign commerce.... mo- or all of Alderman’s denied court district 921(a)(35). a conditional entered Alderman tions. the plea Under plea. 17-23]. guilty [ER to a response 931 in Congress enacted for appeal preserved Alderman agreement, involving heavily clashes of violent spate constitutionality of disputed un- comparatively armored assailants the factual basis As ER 18].3 [See Congres- police officers. protected included agreement plea plea, for the examples: findings cite as sional had the vest admission

Alderman’s Police Offi- murder of San Francisco the vest Specifically, lines. crossed an assailant wear- by James Guelff cer in California manufacturer by the was sold armor, a 1997 bank layers body The Washington state. to a distributor California, Hollywood, out in north shoot to the Wash- the vest then sold distributor heavily sus- and 2 armed police of Corrections. Department ington State armor, and the outfitted pects how the vest record reveals Nothing McCurley Captain 1997 murder of Chris Corrections, it but Department of left the Drug County, Alabama of the Etowah subsequently the vest undisputed by drug dealer shielded Task Force possession. [Dkt. Alderman’s came into body armor. protective and factual recitation stipulation The 33]. pt. Rep. H.R. jurisdic- to ensure that designed were reality that “nation with the Confronted was met. See element of the statute tional ordinary citizens ally, police officers and 921(a)(35) appli- (limiting 18 U.S.C. danger as criminals facing are increased that have been § 931 to vests cability of armor, deadly weaponry, use more sale, in interstate or offered for “sold or gear,” assault Con sophisticated and other commerce”). foreign a “serious threat concluded that gress safety posed by criminals community [is] Analysis during the commis body armor who wear I. The Statute Congress Id. a violent crime.” sion of level found that “crime at the local further a district court’s denial

“We review movement by the interstate an indictment on is exacerbated motion to dismiss of a and gear” and other assault de novo.” United grounds constitutional controls over Latu, “existing [interstate] Federal adequately Cir.2007). do armor] it is a traffic [in 18 U.S.C. Under this traffic the States to control been convicted enable person for a who has crime own, borders.” Id. other their own felony “purchase, or within of a violent strife, words, domestic guns as with and the statutes body armor.” Unlike possess and Morrison, determined that felons Congress § 931 is at issue deadly combina potentially “are a condi express jurisdictional limited — Hayes, U.S. U.S. v. limits the tion nationwide.” jurisdictional hook tion—the 1079, 1087, -, 172 L.Ed.2d “body armor” that has reach of 931 to (2009). threat, Congress sale, To address this in interstate or offered for been “sold party Neither refer- man’s motion to dismiss. Appeal states that he Alderman’s Notice of oversight; Alderman’s this Motion to enced appeals [the] "from the denial of 14, 2006, ap- his plea agreement specifically reserves Suppress Evidence June Notice of peal right, we construe Alderman’s judgment sentence entered on from the encompassing the denial of Appeal as May The Notice of 15]. 2007.” [ER motion to dismiss. specifically mention Alder- Appeal does not pos- to forbid violent from perspective, implicitly elected felons assumed the con- sessing body been stitutionality armor that had sold of the “in commerce” require- through interstate channels. ment. It difficult to distinguish case our Scarborough. from Alderman ex argues In considering vitality the continuing authority its ceeded have consistently upheld legislation. when it enacted felon-in-possession See, similar statutes. disagree. We e.g., Jones, United States cautioned us that for the respect “[d]ue (9th Cir.2000) (upholding statute crimi- decisions coordinate branch Govern nalizing felon’s of a firearm be- ment demands that a con we invalidate cause the hook in the gressional plain enactment upon a case-by-case “insures on basis that the showing that Congress has exceeded its actions implicate defendant’s constitutional bounds.” a constitutionally commerce to adequate 120 S.Ct. 1740. No such degree.”) (quoting United States v. Polan- showing opt has been made here. We (9th co, 93 555 Cir.1996)); F.3d United the in Supreme Court’s lead Scar follow Hanna, (9th States v. 55 F.3d 1462 borough. Cir.1995) (quoting Scarborough, 431 U.S. Scarborough 97 stating and Re- II. United States v. requires Scarborough “only ‘the minimal lated Circuit Cases been, nexus that the firearm have at some guided are in first analysis We our time, ”); in interstate commerce.’ see also by the Supreme foremost Court’s decision Cortes, 1037 (upholding federal Scarborough. Scarborough, in In the carjacking because, statute taken together, addressed a Court statute, the context of the congressional nearly identical to the one that findings, requirement and the car that the Scarborough, 931. U.S. at limits 431 been transported affected have in inter- S.Ct. 1963 18 (quoting U.S.C. state commerce “ensure that carjackings 1201-03). §§ As we outlined in the covered 18 U.S.C. in Supreme Scarborough Court “consid commerce.”). affect interstate proof illegally pos ered whether that an previously firearm in inter sessed traveled We are not alone in adhering to Scar- state commerce to satisfy borough. Patton, was sufficient United States v. recently the nexus between fire Tenth Circuit considered arm and commerce.” light Scarborough 299 F.3d at 1036-37. Supreme and the affirmatively; “The Court answered if the post-Lopez ju- Court’s Commerce Clause (10th Cir.2006). proved government Scarborough’s risprudence. 451 F.3d 615 had at in in conducting firearms some time traveled After exhaustive review commerce, sufficiently Supreme terstate close nex precedent, and circuit Court “[ojther pointed us between of the firearms and Tenth out cir- Circuit commerce was As similarly established.” Id. cuits have continued to follow it; Court Supreme explained Scarborough” “[T]here is “[al- concluded that question no intended no though the fit statute does not more than a minimal requirement.” Lopez nexus within it is categories, Scarborough, supported by pre-Lopez precedent Thus, although did not 634. Scarborough Court United States.” Id. at the statute emphasized address from constitutional The court that in combination, commerce, pro- considered that Con- Court “assumed Supreme nexus and effect on regulate vide sufficient constitutionally could gress uphold interstate commerce solely they possession of firearms across state lines.” moved previously had Jurispru- III. Recent Commerce Clause Thus, Mr. bullet- Patton’s “[b]ecause Id. dence state lines at across vest moved proof existence, Scarborough as Congress may Although we consider point its some case, defining ignore we cannot Scarborough ...” Id. it under emphasis its shifting Court’s that have addressed district Two courts over the jurisprudence accord. See are Alderman that Scar- Marler, past posits decade. 402 F.Supp.2d States v. United borough by the Court’s (N.D.Ohio has been overruled 2005); States v. (E.D.Pa.2004). recent Our re- Commerce Clause cases. Kitsch, F.Supp.2d support view of those authorities similarly endorsed Other circuits have Scarborough has not been dis- view— continuing Scarborough, al vitality of (not- Hanna, 55 F.3d at 1462 carded. See skepticism, in deci beit sometimes with via- continues to be variety of fire dealing with a felon sions Lopez). ble after See, e.g., arm statutes. United States v. Lemons, 772-73 Cir. and its the Su progeny, 2002) (noting “Scarborough that because general preme delineated “three suggested that movement the fire prior categories in which arm in interstate commerce would suffice engage to its com authorized is. element], Raich, to meet we [the merce v. 545 power,” Gonzales have, Lopez, in the repeatedly wake of 1, 16, 2195, L.Ed.2d 1 U.S. 125 S.Ct. 162 “(1) (2005). rejected challenges Commerce Clause categories include: These felon-in-possession stat application use of the of interstate com channels ute”; any Lopez, (2) merce; as to conflict with “it is inter the instrumentalities of hold.”); (3) Supreme ...; for the to so Unit hav state commerce activities (1st Smith, States v. 101 F.3d 215 ed a substantial relation to interstate Cir.1996) rath (deciding commerce, i.e., that sub those activities Lopez, applied juris er than stantially affect interstate commerce.” statute); Jones, dictional hook in the United at 514 (quoting 231 F.3d 514 (6th 1624) (internal F.3d Chesney, States v. 86 571 115 U.S. at Cir.1996) Scarborough). Al (adhering omitted); quotes and alterations see also with though pos Raich, these decisions dealt 2195 than body of firearms rather ar session (Scalia, J., concurring) (noting that for mor, agree the Tenth Circuit that we thirty years, over “our cases have mechan possessing body armor “prohibition on ically recited that distinguished prohibi cannot be from permits congressional regulation three possessing on firearms have categories”). tions we Patton, 451 F.3d at 635. upheld.” “categories. never been have mandatory.” a circuit on or United split decline to create deemed exclusive We Clark, or to from 435 F.3d binding prece- this issue deviate Cir.2006). findings, categories guide, The- the na- “The are congressional dent. statute, Hence, not a Id. while we straitjacket.” ture of the and the in framework requirement generally analyze a sale cases in the express categories, eluding of these three we are not obli- carjacking that a statute contained gated “jam[ square peg express jurisdictional into round ] hook because it especially peg when that has al- was limited to vehicles “transported, hole”— ready had a spot shipped, suitable its own carved or received in interstate or for- commerce”). out Id. at 1103. eign Court. Significantly, “jurisdictional in hook” sure, categories

To be the first two this statute substantially different from particularly are not applicable here.4 The provision rejected essentially category third described in “de meaningless McCoy, 323 F.3d at 1116. Congress’s the extent of power fine[s] over In McCoy, we examined a pornogra- child purely intra state that none [ ] activities phy with a provision theless have substantial inter state ef that allowed the statute to be applied to all Robertson, fects.” United States v. pornography child “which was produced 669, 671, L.Ed.2d using materials which have been mailed or (emphasis original). In Mor so shipped transported” or rison, “interstate Court “established (em- foreign or commerce.” Id. at 1116 controlling what is now the four-factor test phasis original, omitted). emphasis some determining a regulated whether activ We noted that “the limiting jurisdictional ity ‘substantially affects’ interstate com factor [was] almost useless” because “all merce.” States McCoy, United (9th Cir.2003). but the most self-sufficient child pornogra- One of these phers film, rely cameras, will considerations is chemi- “whether statute con ” cals that traveled ‘express jurisdictional tains element.’ will therefore fall sweep 529 U.S. at within the S.Ct. 1740. the statute.” purpose “The of a Id. at 1125 (quoting hook is to Rodia, (3rd limit the reach States v. particular statute to a Cir.1999)). discrete set of cases that af fect interstate McCoy, commerce.” 323 By contrast, § 931 body affects ar- F.3d at 1124. jurisdictional “Such a ele mor that is itself “sold or offered sale” may ment establish that the enactment is in interstate commerce. 18 U.S.C. pursuance Congress’ regulation 921(a)(35). § Thus, for example, home- interstate commerce.” 529 U.S. made armor or armor produced (2000). 612, 120 S.Ct. 1740 intra-state would not be caught within the Unlike the statutes at in Lopez issue sweep Polanco, of the statute. 93 F.3d Cf. Morrison, § 931 is limited an express at 563 (holding jurisdictional that a ele- jurisdictional provision. Specifically, the ment “requiring government prove to regulates body armor “sold or of- shipped, defendant transported, sale, fered for in interstate foreign or com- or possessed a firearm in interstate com- (con- merce.” merce, 299 F.3d at 1036 or received a firearm that had been Cf. party seriously Neither contends that 931 interstate commerce.” United States v. Pat- ton, justified (2006). can be under either of the first two 621 Nor can the categories. explained As the Tenth Circuit regulating statute be understood as an instru- Patton, "prohibits mentality "thing station or in” commerce because ary entirely possession” intrastate act of protect body the statute “does not and "is not moving directed at the movement of shipment while it is in interstate [nor] through the channels of interstate com is [it] directed at the use of armor in merce upheld ways ... cannot be injure [§ 931] under that threaten or the instrumental- Congress’s power to the channels of ities of interstate commerce.” Id. at 622. Conclusion transported in interstate com- shipped basis, insures, a case-by-case ... merce inconsistency “Any doctrinal inter- implicate that a defendant’s actions Scarborough and the Court’s constitutionally to a ade- more is not for recent decisions this Court degree.”); quate (cit- Patton, remedy.” 451 F.3d at 636 Felton, Agostini v. 521 U.S. recognize hook We (1997)). 138 L.Ed.2d 391 always not “a talisman wards off prudent Nor do we think it to create a Patton, challenges.” constitutional split important statutory circuit on this explained, F.3d at 632. As we have issue as na- having views decisions in Lo- Supreme Court’s [t]he implications. tionwide Because we are [], pez reject and Morrison view by Scarborough juris- and our bound own element, standing that a prudence, we decline embrace Alder- alone, a statute from serves shield challenge §to man’s constitutional infirmities under Com- AFFIRMED. most, At merce the Court has Clause. “may

noted that such estab- PAEZ, Judge, dissenting: Circuit pursuance lish that the enactment is I respectfully dissent. Congress’ regulation of view, In my felon-possession commerce,” may sup- or that “lend not armor does have a substantial effect on port” to this conclusion. commerce; prohibition its under regulates U.S.C. neither com- McCoy, (quoting 323 F.3d at 1125 Morr ison, 1740). any sort economic enterprise merce or intrastate, nor regulates ac- non-economic Consequently, traveling when uncharted tivity is essential to a comprehensive waters, we must consider regulatory federal scheme. We should together factors, hook with additional such failings overlook these substantial and nev- Id.; congressional see findings. also ertheless affirm Alderman’s un- conviction Kirk, United States v. 105 F.3d 997 pre-United der enlarging Cir.1997) banc) (evenly en divided court Lopez1 precedent gun machine (upholding ban third States, v. United 97 prong of rather prede than under (1977), merely L.Ed.2d be- Here, Scarborough). cessor case to we jurisdictional present. cause a element is by unique are confronted situation approach, my view, The majority’s effec- a nearly where identical hook tively the Supreme renders Court’s three- by Supreme has been blessed Court. analysis superflu- Commerce Clause Therefore, engage need not in the we care permits Congress, ous and the use through parsing ful of case law that post-Lopez any of stripe, to Rather, be required. would otherwise we congressional authority “convert recognize determination is con general police pow- Commerce Clause to a by analysis trolled the Court’s Scarbor er of the sort retained the States.” ough, Supreme and that “[u]ntil Court Lopez, 514 115 1624. U.S. S.Ct. us ... tells otherwise follow [must] Scarborough unwaveringly.” my part company 299 to Because decision 2. majority .guided F.3d 1037 n. with the is the court’s (1995). 1. 514 131 L.Ed.2d S.Ct. (Scalia, J., jurisprudence concurring) (noting

recent thirty years, ele- over “our and its treatment cases have mechan- ments, ically to the Court’s recent I turn first recited that the Commerce Clause I then address permits congressional Commerce Clause cases. regulation three decision in ulti- categories”). the Court’s majority As the acknowl- mately concluding does edges, parties seriously argue do not challenge Alderman’s to Con- not foreclose justified 931 can be under either of authority gress’s regulate to categories,2 agree. I first two And, body armor. because 931 is not a Therefore, if intrastate of an Congress’s power, valid exercise would object all, can be it must be reverse Alderman’s conviction. done category within the third of Con-

gress’s authority. Commerce Clause * * * developed third Court set forth now- category authority “to define the extent familiar “broad categories” three activi- of Congress’s over power purely mirastate ty may constitutionally that Congress reg- commercial activities that nonetheless have ulate: substantial interstate effects.” United First, Congress may regulate the use of Robertson, 669, 671, States v. 514 U.S. the channels interstate commerce. (1995). S.Ct. 131 L.Ed.2d 714 A Second, Congress empowered regu- substantial is required effect late and the instrumentalities of protect punishment “[t]he of intra commerce, persons interstate or or violence that not directed at the commerce, things in interstate even instrumentalities, channels, goods in may threat from though the come volved in always interstate commerce has Finally, Congress’ activities. intrastate province been the of the States.” United authority power commerce includes the 598, 618, States v. 529 U.S. having those activities a sub- (2000). S.Ct. 146 L.Ed.2d 658 Ac commerce, stantial relation interstate cordingly, whether rational had ie., substantially those activities that af- regulated activity, basis to find that the fect commerce. interstate substantially taken in the aggregate, would (citations 558-59, Id. at affect be the should Raich, Raich, omitted); 1, primary inquiry. focus of our Gonzales 22, 125 162 L.Ed.2d 1 U.S. at Patton, commerce,” United States instrumentalities Cir.2006), nor affect Tenth Circuit held that does the statute com- justified 931 could not be as valid exercise merce. Id. at 634. The court never- theless, here, majority proceeded of the Commerce Clause under as the Lopez categories. explained uphold permissible § three The court 931 as on the basis of "prohibits Supreme that the statute the the station Court’s 1977 decision Scar- ary entirely possession” borough precedent and of intrastate act and Tenth Circuit validat- body regulate possession it is not at the that directed movement statutes felon through agree the with channels of interstate com firearms. Id. at 634-36. Pat- merce, § can the ton’s that be nor statute be understood as conclusion 931 cannot sus- any regulating instrumentality "things Lopez catego- an or in” tained under of the three ries, infra, pro disagree, explain the as I commerce because statute "does not but moving majority tect armor while it is in inter Patton court and that Scarbor- ough shipment category at the fourth of Com- [nor] is directed use mandates [it] injure analysis. ways that threaten or merce 650 any or sort of Morrison, regulates held ute commerce Supreme Court Act, 42 Against view, Women the Violence it does enterprise. my economic exercise of 13981, an invalid was

U.S.C. in Lo Like statute struck down not. the Commerce power federal is its pez, 931 a “criminal statute 617, 1740. 120 S.Ct. 529 at Clause. U.S. nothing has to do with ‘commerce’ terms notes, Supreme Court majority As the any enterprise, howev or sort of economic making for four-factor test established a broadly might those terms.” er one define (1) whether the stat- that determination: 561, 514 at 115 S.Ct. U.S. “activity regulates [that] ute We have never found mere any sort commerce” “or affect[s] is, itself, an activity. economic See United (2) enterprise;” economic whether (Stewart II), F.3d v. States Stewart any “express jurisdictional statute contains (9th Cir.2006) 1071, (stating pos limit reach to might which its is an guns session of machine not economic explicit set” that “have an discrete of cases (“sim activity); F.3d McCoy, 323 or effect on interstate connection with home-grown ple possession [of intrastate (3) commerce;” “its statute or whether not, itself, is either pornography] child con- history express contains- legislative nature”). Nor commercial or economic findings regarding the effects gressional object is mere consistent activity] regulated upon interstate [of Supreme with activities the (4) commerce;” “the link be whether See, v. e.g., to be Perez found commercial. activity] and a sub regulated tween [the 157, States, 146, 154, 402 U.S. United interstate commerce [is] stantial effect on (loan (1971) 1357, L.Ed.2d at 610- attenuated.” Mining marks and & (quotation sharking); 120 S.Ct. 1740 Hodel v. Va. Surface omitted); Ass’n, see also States brackets United Reclamation U.S. (9th McCoy, 323 F.3d Cir. (indus 2352, 69 L.Ed.2d 1 101 S.Ct. 2003). applied that test to We have since mining). trial statutes, including a number of criminal activity not where the Even as those with elements such commercial, however, regulation can See, e.g., §in the one justified having be as a substantial still 1035-37 Cir. effect on and non-attenuated commerce 2002); Be McCoy, 323 F.3d 1129-30. ways regulating as a means of two the first and fourth factors cause we view —either armor, as the interstate market for test —whether the statute Morrison Raich, or enter regulates commerce economic see U.S. at prise, whether link between controlling as uses of at regulated activity and commerce is too com- might armor that affect interstate important, I turn to tenuated —as the most merce, Morrison, 529 see McCoy, those factors first. See Turning 120 S.Ct. 1740. first to whether at 1119. regulation felon succeeds interstate market possession prong 1. The 931 does armor, I conclude it does not. commerce or economic activity, pos- link recent decision in Court’s highly at- session and reg- “Congress Raich established that can tenuated. purely activity ulate intrastate that is not ‘commercial,’ pro- in that it is not itself Although these factors are considered sale, the stat- for if it that failure together, first consider whether duced concludes activity that class of phy by would criminalizing possession of such undercut the interstate pornography “production, where the distri- commodity.” market in that U.S. bution,[and] receipt” regulated. was also (citing 125 S.Ct. 2195 Wickard v. Adams, 343 F.3d at 1032. Filburn, 111, 82, 63 S.Ct. Here, however, there is no evidence that (1942)) added). (emphasis L.Ed. 122 prohibition 931’s possession felon Raich, contrasted the statute Court body armor general was either itself “a prohibited struck in Lopez, down which regulatory statute bears a [that] substan- zone, gun in a school with commerce,” tial relation to or an “essential comprehensive regulatory scheme of part” of regulatory some other scheme. (“CSA”), the Controlled Act Substances 558, 561, 514 U.S. at 115 S.Ct. 1624 “lengthy which Court described as a omitted). (quotation emphasis marks and and detailed statute a creating comprehen To contrary, 931 is like the statute regulating produc sive framework for Lopez: “brief, struck down in single- tion, distribution, and of five ” subject statute making it a crime for [a classes ‘controlled substances.’ to possess [body Raich, felon] armor].” 125 S.Ct. 2195. Even though 2195; U.S. at 125 S.Ct. see also id. respondents possessed Raich mari (quoting S.Ct. 2195 Lopez, 514 juana produced that was intrastate and for (“‘Section 1624) U.S. at 115 S.Ct. no commercial purpose, the deter- 922(q) is not an part essential of a larger mined that regulated by the activities regulation of economic activity.... It can- distribution, “production, CSA—the and not, therefore, be sustained under our consumption” of controlled substances— upholding regulations cases were indeed economic. activities Id. at 125 S.Ct. Further, arise out of or light are connected of the “estab- lished, lucrative, transaction, commercial interstate market” which viewed in substances, for prohibiting aggregate, controlled non- affects inter- ”). commercial intrastate possession Further, was “a state commerce.’ it is unrelat- ... rational means of regulating” that any ed to broader attempt to control or 2195; market. Id. at suppress the market in body armor. Con- cf. Adams, United States v. gress regulated has not manufacture, (9th Cir.2003) (“the statute criminal- distribution, sale, possession, or use of izing possession por- of commercial child Moreover, armor. the statute does nography larger congres- not any aspect control of the commercial sional scheme to eradicate the market for armor; marketplace for perfect- child pornography”). ly legal, example, sell armor to buy body a felon or to armor from a felon.

Accordingly, when federal prohibits statute —which posses- possession, criminalizes mere intrastate we felon sion, ownership, purchase have considered whether that statute is —criminal- by izes certain conduct part of a felons rather than regulatory broader scheme. In- deed, regulating interstate have commerce in ar- Congress held that could perfectly legal criminalize mor. Where it is guns of machine sell felons, body armor to guns legiti- where those “are and the entire a de- comprehensive statutory manufacture, tailed and mate market in re- armor — II, gime.” distribution, Stewart 451 F.3d at 1076. We sale—is untouched have also determined that could 931 or related legislation, there nois “stamp out” the market for child pornogra- rational basis for concluding that criminal- have a effect on interstate commerce.” at

izing possession felon would dis- Id. substantial, 617-18, Likewise, cernible, on 120 S.Ct. in Lo- alone effect let pez, specifically Significantly, “pile the Court declined to interstate commerce. Con- upon that the statute inference inference” find that ei- gress itself estimated per year. impacts than ten cases ther the “costs of crime” or on would effect fewer 107-193, could pt. productivity” No. at 7 “national affect com- H.R.Rep. See constitutionally a adequate merce to de- (2001). 564, 567, 1624; gree. 514 U.S. 115 S.Ct. the statute in Wickard was Whereas Morrison, 529 U.S. primarily enacted to control market 1740 (rejecting argument that “Con- wheat, price of 317 U.S. at regulate any gress long crime as [could] regulating machine guns and statutes nationwide, impact that aggregated of pornography II child Stewart effects employ- crime has substantial on part regulatory of broad Adams were transit, ment, or production, consumption” objectives whose were com frameworks requires because Constitution a dis- “[t]he prehensive suppression, market is a truly tinction between what is national designed only stand-alone local.”). truly what is body keep possessing felons from armor. Here, Accordingly, Lopez’s there is no here even rational basis when and Morri- Congress on which could son’s read light have concluded instructions are in the regulation that federal of intrastate felon most favorable to of congressional exercise possession body of an power, potential armor is essential effect on of commerce part possession of effective federal control of the Alderman’s armor is broader, spare market. both and particularly attenuated. The possession subject been may regu- Whether have not be coupled possession 931 need lating possession felon as a means of con- a weapon or connected with commis- trolling might uses of armor that crime, sion of a federal circumstances way affect interstate commerce that is fairly might which be said to “attenuated,” “significant,” and not must case, economy. national affect the In this Morrison, also be considered. See possession Alderman’s of body armor I recog- S.Ct. 1740. posed danger; walking no he was down Congress’s nize and am sensitive to con- street, unarmed, his vest invisible beneath possession cerns that his shirt. His conduct had no adverse may felons facilitate criminal acts and that impact economic commercial whatsoev- can impact crime have a substantial on the and, further, er in the of any absence However, economy. national arguments activity, affirmative criminal or other it possession about these concerns—that had potential impact. no for such an Even firearms near schools and gender-motivat- conceding that Alderman’s violence, respectively, ed could and did facilitate, might con- criminal significant have effects on economic activi- nonetheless, duct pat- Morrison ty patently rejected by a majority —-were ently reject the argument of the Court over forceful dissents in both crime, object facilitates Lopez. Morrison and object be under Congress’s can “rejected] emphasized power. argument Congress may noneconomic, therefore, conclude, violent criminal conduct would that felon solely aggregate based conduct’s armor is not attempt broader the interstate Captain der of McCurley Chris of the market that it does not have a sub- County, Etowah Drug Alabama Task by stantial and unattenuated effect on inter- drug Force dealer by shielded pro- body armor, state commerce. tective demonstrate the serious community threat safety congressional findings accompa- 2. The posed by criminals who body wear ar- nying § 931 do not demonstrate that mor during the commission of a violent possession substantially affects in- crime.... terstate commerce. 107-193, 1, H.R. Rep. pt. at 2. Whether Congressional findings that address the these findings support a rational basis for impact national of the activity in position body armor question can in determining assist whether substantially affects interstate commerce activity substantially affects interstate Raich, is not so clear. 22, See 545 U.S. at 562-63, commerce. Lopez, 514 U.S. at 115 125 S.Ct. 2195. S.Ct. 1624. Their use is in enabling a First, the conclusion that “there is a court legislative “to evaluate the judgment traffic in body armor moving in or other activity question substantially wise affecting interstate commerce” is an commerce, affected though interstate even eminently reasonable one. Rep. H.R. 107- no such substantial effect was visible to the 1, pt. at 2. Patton, Like the court in eye.” naked Id. at 115 S.Ct. 1624. recognize found that “exist congressional The relevant findings here ing Federal controls over ... traffic [in are limited. There are preambulatory no body do not adequately armor] enable the findings statute, enacted as traffic,” States to control this 451 F.3d at however the Report House contains find- but I fail to see how 931 is ings as follows: responsive to that finding it where

(1) nothing to limit the nationally, police officers and ordi- movement of body armor. nary facing citizens are of felon pos increased dan- wholly And, session is ger as intrastate. deadly criminals use more where Congress itself weaponry, armor, determined that the body prohi and other so- possession, bition on purchase, phisticated gear; assault and owner ship body by felons prob “would (2) crime at the local level is exacerbat- ably affect fewer than year,” 10 cases each by ed interstate movement of Rep. H.R. pt. it espe gear; and other assault cially perceive difficult to how felon-pos (3) there traffic in armor mov- session of armor substantially affects ing in or affecting otherwise best, interstate traffic. At by federalizing commerce, and existing Federal controls crimes, traditional state the statute dupli such over traffic do not adequately en- cates similar state prohibitions. See Pat able the control this traffic ton, 451 F.3d at 631 n. (listing thirty-one within their own through borders states which armor is police power; exercise of their regulated). worst, tampers At poli incidents, recent such as the murder cy by choices in an police states area — of San Francisco Police Officer James powers which states are sovereign. —in Guelff wearing layers assailant body armor, a 1997 bank shoot out in Congress’s conclusion that “crime at the Hollywood, California, north local level is exacerbated the interstate police heavily suspects body armor,” armed out- movement of Rep. H.R. 107- armor, fitted in mur- pt. well-taken; the 1997 is likewise requires in federal statute that guns provision at a however, Lopez, in in which were did not issue, establish government specific a similar concern the to establish facts possessions substan- prohibited the jurisdic that exercise federal justifying the of interstate commerce. tially affected appli tion an individual in connection with the that rejected idea Lopez, the Court Lopez, cation the statute. 514 U.S. at of rely generalized on “costs Congress could 561-62, 115 1624. S.Ct. to “not power of crime” the Here, majority government the and the crime, but all activities all violent only jurisdictional element and point to 931’s crime, regard- might lead to violent that government that because the conclude they relate inter- tenuously to of how less must that the armor at issue in show at commerce.” 514 U.S. particular a case was or offered for sold added). (emphasis To the con- S.Ct. sale in alone is suffi- interstate commerce a close nexus trary, required the Court possession the bring cient to conduct and in- the criminalized between explained scope Congress’s authority. The Court of terstate commerce. within the the absence of such nexus raised that particular, majority the that Scar- holds “the federalism concerns because grave borough preceded Lopez two —which crime and violent the vindi- suppression the in this case. decades—controls result quintessentially is of its victims” cation explains, majority As the police power several within interpreted predecessor Morrison, states. that 922(g) require statute to Although Congress con- was S.Ct. in inter- previously firearm had traveled ordinary “police officers cerned satisfy state commerce order to are as facing danger” citizens increased nexus and commerce. ar- felon-possession the result I do believe that controls not mor, Rep. H.R. it is pt. here, conclusion, and such a result de- precisely this area that Court has view, my contrary precedent. to our to be termined one of traditional state Remaining prece- explained, concern. faithful this As we have dent, a rational I cannot discern basis decisions Court’s have concluded that which could ..., reject the view that a Morrison substantially af- jurisdictional element, standing alone, interstate commerce. fects from serves to shield statute constitu remaining I therefore turn to the Morri- tional infirmities under the Commerce jurisdiction- factor: whether there is a son most, At Clause. the Court noted limits the reach of the al element “may an element establish such prong § 931 to a set discrete pursuance the enactment is in affect of cases Congress’ regulation of interstate com Morrison, 529 U.S. at commerce. merce,” it may support” or that “lend S.Ct. Morrison, 529 U.S. at conclusion. 612, 613, 120 1740, 146 L.Ed.2d 658 element 3. Section 931’s added). Thus, “jurisdic (emphasis posses- render the serve to be considered tional element” must prong sion the statute a valid listed in along with other factors Congress’s exercise of Morrison. authority. McCoy, (noting 323 F.3d at 1125 element, A as the term has agree a Third and Seventh Circuits with that been used and after refers to Indeed, in is the analysis).3 McCoy, though well as tion. This case here even Cortes, we conducted a substantial effects ‘jurisdictional “the hook’ in the statute and in Lo “[f]ollowingthe rubric outlined test the item which affects interstate commerce and Jones pez, [v. same,” McCoy, are one and States, 1129, because the crux of analysis Cortes, 299 F.3d at L.Ed.2d 902 ].” whether the guaran- Our anal 1035; McCoy, 323 F.3d at 1119. regulated possession tees that the substan- contemplated that of a ysis purpose “[t]he Here, tially affects interstate commerce. hook is to limit the reach of a jurisdictional is, at by statutory issue statute to a set of cases particular discrete both from design, attenuated the interstate com substantially that affect interstate body any market in armor and that use of McCoy, 323 1124. The merce.” F.3d at during activity might armor jurisdictional element does presence affect interstate commerce. Consequent- ipse dixit result in a constitutional not ly, jurisdictional element not of Congress’s exercise Commerce Clause required purpose of limiting serve its power. felon-possessions statute to that have light precedent, agree In of this direct and substantial affect on interstate in the Tenth Patton Circuit’s observation commerce. element, jurisdictional 931’s which contrary, virtually To the every posses- ‘body any “limits the definition of to armor’ sion fall within the stat- sweep will sale, in product sold or offered for inter- ute. precise- The Court avoided foreign commerce, personal state Jones, ly this result 529 U.S. at protective covering” “does seri- Jones, limit 451 120 ously the reach of the statute.” S.Ct. 1904. nar- Court jurisdictional 633. rowly interpreted the ele- statute, ment in the federal arson Nearly all armor meet that will 844(i), to avoid “grave is U.S.C. important, test. More there no rea- questions” to think that doubtful constitutional son 844(i) armor that satisfies the would arise “were we to read to any greater hook has effect on interstate ‘traditionally render the local criminal con- any than other commerce petitioner duct’ in engaged which Jones ‘a ” body armor.... matter for federal enforcement.’ Id. particular, 120 S.Ct. 1904. Where chosen allow distribution, expressed concern with the production, govern- and sale Court ... interstate commerce that the ment’s view home was “used why possession hard understand affecting ... activities commerce” because description meets that had in- mortgaged the homeowner objectionable more than other. property through sured the out-of-state entities, gas and the home received natural Or, put slightly differently, as in Id. from interstate sources. Id. at McCoy, the connection the activi- (quotation S.Ct. 1904 marks and brackets element ty omitted). gov- To read the statute as the jurisdictional is attenuated —the argued ernment would have the provide adequate support does not for the constitu- jurisdic- tionally dubious result of government’s “mak[ing] assertion of federal virtu- Raich, may holding, McCoy, be in but and not its there need tension with is no McCoy application I cite to address this tension here. its that other- country element cannot save arson in the a federal ally every required 120 S.Ct. 1904. wise lacks the effect. Id. at offense.” juris- narrow construction Court’s amply Our Cories demon- decision only element ensured arson dictional There, point. strates this we conducted affecting substantially crimes effects test under Morrison substantial prosecuted under the commerce could be carjacking and found that “the statute was 858-59, 120 Id. statute. a larger enacted as ‘an essential Here, inter- ” narrowly it is impossible activity,’ id. at regulation of economic element, as the pret 931’s (quoting Lopez), and that because Jones, posses- did so substantially affect inter- “carjacking does affecting sions commerce,” fact particu- that “a may prosecuted. Congress be carjacking may lar instance of have a de to the specified that it intended on commerce is minimis effect interstate “any of sold or offered product Turning at consequence.” of no Id. commerce, sale, foreign in interstate or element, only jurisdictional then we to the personal protective covering.” 18 as rejected argument the ele- Cortes’s 921(a)(35). plausible § No inter- U.S.C. ment broad as to invalidate the was so § the 931 cabins statute’s pretation statute, reasoning “carjackings that where to a of cases. This reach discrete set is substantially § targeted by 18 U.S.C. however, as because we have problematic, commerce” minimal nex- affect interstate a noted, “virtually all criminal in- [conduct] “provides necessary us connection be- object of some that has use volved of carjacking tween each instance covered interstate commerce.” passed through by the commerce.” statute and interstate McCoy (quotation 323 F.3d at 1126 marks words, at presence Id. other omitted). and citation Section 931’s re- jurisdictional a factor was quirement government that the show that substantially in the analysis that followed traveled once affects determination —it not the sole was regu- not ensure does reason for that determination. requisite lated conduct has the substantial effect interstate commerce. majority’s view, neither Contrary to the in Scarbor- Court’s decision particular, § ele- 931’s ough nor our court’s treatment of Scarbor- prevent Congress does to nothing ment analysis. ough Scarborough alters this claiming general police power from statutory decided inter- only question that the Constitution “denied National predecessor pretation about statute in the reposed Government and States.” 922(g). Scarborough that —on a held 1740.4 mini- reading fair the use a broad While statute — required mal nexus commerce was element does not invalidate a statute that felon-possession of a “substantially otherwise affects ... com- demonstrate that merce,” substantially an firearm affected commerce. such Laurent, Reconstituting shifting 4. See also balance in [the federal/state] Andrew St. Lopez: government. Another Look at Feder- favor has been of the federal As Law, demonstrated, al Criminal 31 Colum. J.L. & Soc. amply virtually ac- all criminal ("A purely Probs. nominal tions in the United States involve the use requirement, entity that some object passed through some that has inter- object involved in the crime be drawn from commerce.”). commerce, nothing prevent ed, 97 S.Ct. 1963. the “de minimis character of each nor individual is Lopez implied itself neither stated irrelevant where ... possession noted that more when the express jurisdictional general regulatory 922(q) no substantial- “ha[d] ly limit relates might element which its reaeh to a to interstate commerce.” Id. at possessions,” discrete set of firearm 1156-57. “sustained

statute could not be under our not, Such a regulatory scheme is howev- cases of activities upholding regulations er, what is at plain issue here. The differ- that arise out of or are connected with a ences in these various statutes confirm transaction, which commercial viewed constitutionality that the of the prohibition aggregate, affects inter firearms, on felon as evi- Lopez, state commerce.” U.S. at 561- denced context-specific. added). (emphasis That a minimal was nexus sufficient in one After noted that context does not it every make sufficient in rejected otherwise, had other not been overturned chal context. Were Morri- framework, Jones, lenges constitutionality to the son’s and our non holding 922(g) not “alter precedent did be either super- [the] would analysis,” Scarborough, and that fluous or incoherent. Scarborough may requirement have the 922(g)’s appearance trump, “[s]ection a as the time, been, holds, majority essentially firearm have at some in inter but a careful reading sufficient to of post-Scarborough precedent es [remains] constitutionality.” Supreme tablish its United Court’s instructions in Hanna, Lopez States n. 2 progeny clearly v. 55 F.3d and its foreclose the (9th Cir.1995) precedent notion that a (citing pre-Lopez statute is constitutional mere- ly proposition Scarborough’s because a element or Indeed, minimal “hook” applies present. nexus standard as § 922(g)). then, as the majority plain, Since em makes element is a phasizes, routinely upheld subsidiary we have element of substantial ef- constitutionality § in analysis of 922 cases that are fects that the govern- ensures —it the direct ment Scarborough, specific decedents establishes facts justifying precedent. jurisdiction therefore controlled its the exercise of federal con- This constitutional nection any particular application framework —consider of a § first statute at whether the issue sub statute like stantially jurisdiction affects interstate commerce and S.Ct. 1624. The itself, § then considering scope by any the nature and also 931 does not fair any jurisdictional reading, not requisite element —does dis establish the substantial precedent. turb that settled interstate effects.

Further, here, acknowledge Although that absent en the majority like the Patton, review, Supreme banc or Tenth Court must Circuit declares itself having view a sufficient bound 922(g) nexus this result is not compelled. to interstate commerce. See Only Supreme United where Latu, precedent application” States v. 479 F.3d has “direct a case Cir.2007). Indeed, “directly Raich after and our controls” should we “followthe Latu, preroga decisions in Stewart II and the con- case Court the [and leave] stitutionality §of in all of tive of its own provi- overruling its decisions.” Grisel, sions is sound. the court in Latu not- United States v. As banc) (9th Cir.2007) (en substantially affects interstate Agostini section 931 (quoting 203, 237, 117 at 634. Felton, commerce.” Id. omitted). (brackets (1997)) 138 L.Ed.2d 391

Here, all the dis addition to reasons above, Scarborough not con cussed require govern- Section did not limits—not trol because constitutional possession ment to that Alderman’s show crux of interpretation 922(g) the—are a commercial involved the extent here. To issue travel, transaction, the commis- dimension, is, has constitutional any crime, of a fire- sion best, per I therefore cannot silentio. sub arm, or factor which would dem- any other a stat holding interprets ceive how onstrate his “directly here controls” ute not at issue affected interstate commerce. Scarbor- case, especially of this where outcome nor cures defi- ough neither controls the out Scarborough has “controlled” ciency. Congress’s Commerce Clause non 922 case that has come in other broad, powers but as the are element.5 involved us, they instructed specifically Court has consid Notably, every court view, my do have limits. constitutionality ered of 931 has sim those prong §of 931 exceeds limits. Ac- ply armor is “analo declared cordingly, I reverse Alderman’s con- would Harkness, to, gous” viction. (M.D.Fla. Mar.21, WL at *4-5 2007), as, United States v. the “same”

Marler, 854-55 F.Supp.2d

(N.D.Ohio 2005), to, or “identical” United Kitsch, F.Supp.2d 660- (E.D.Pa.2004), ex firearms without why they be distin plaining “cannot Bradley MORRISON, Petitioner- K. Patton, F.3d at But guished,” 635-36. Appellants, analysis our Commerce Clause never case-specific. been it has been fungible; assertions, pre

Bald as well Patton’s OF INTERNAL COMMISSIONER sumption Scarborough effectively cre REVENUE, Respondent- category ates fourth Appellee. 451 F.3d at should power, No. 06-75332. skepticism.

be viewed with Appeals, States Court of sum, felon where Ninth Circuit. intrastate, not an essential scheme, and regulatory a comprehensive July Argued Submitted 2008. activity that to criminal connected May 2009. Filed commerce, might there is affect interstate concluding “no basis for that the rational prohibited by

possession elusion, Indeed, of the other reference on the basis Morrison factors, con- carjacking "reinforce[ ] [the court’s] served affected juris- the sheer breadth of the viction” interstate commerce. element did not undermine its con- dictional

Case Details

Case Name: United States v. Alderman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 12, 2009

Citation: 565 F.3d 641

Docket Number: 07-30186

Court Abbreviation: 9th Cir.