United States v. Gary E. Chesney

occasions, then, On both and once 1995. “voluntary withdraw termination that the responsibility. To accepted conduct that that criminal the defendant means al” factor acceptance respon acceptance, of court following validity of that an test the continues factors, is of the the conduct of sibility, especially when is entitled to evaluate number underlying related to the type among as or the defendant volun- same which is whether offense, consideration that significant ais tarily terminated his criminal conduct follow- instance, every a down will, make in almost ing “acceptances.” After either both See, e.g., adjustment inappropriate. ward to the offense conduct Childers admitted 730; Morrison, States v. United voluntarily opportunity to he had an (6th Cir.1991); Lassiter, criminal conduct. He chose terminate his (6th Cir.1990), Snyder, F.2d 300 States v. Instead, of not to. he continued course 709, 112 denied, 498 U.S. cert. involving some of the same criminal conduct (1991). L.Ed.2d or similar offenses. The district court was certainly permitted to consider this continu- argu defendant’s The essence illuminating sinc- ing criminal conduct as however, ment, the determination is that thereof, erity, or lack of the defendant’s responsibility must be accepted he acceptance responsibility. We claimed occurring solely to events a view made with that, agree district court based on with the He claims the events follow after his arrest. it, the record before the defendant’s actions pertinent, are not ing his 1992 confession with his claims of remorse were inconsistent charged not at the time with because he was contrition, and the court did not err crime, thus had no notice his acceptance denying a sentence reduction for have an during that time would behavior responsibility. sentencing for his on the eventual effect position takes crimes. Childers acceptance responsibility only relevant IY. arrest, place his 1995 because

took after AFFIRM. We first accept responsibility, he needed order to Since, following charged a crime. to be arrest, engaged he in no criminal con

duct, nothing asserts that there is Childers accep from his

that would tend to detract responsibility.

tance of correct there does not

Childers is deciding explicitly law

appear to be case Nonetheless, it. the issue as he has framed America, UNITED STATES unpersuaded by argument we are Childers’s Plaintiff-Appellee, guide- need look no farther than the and we case. No- lines themselves to decide this state, sug- guidelines or even

where do the Gary CHESNEY, E. Defendant- gest, only “acceptance of relevant Appellant. responsibility” is that which follows arrest No. 95-5203. for the offense of conviction. Instead, provide simply that guidelines Appeals, Court of United States adjust- a downward a defendant is entitled to Sixth Circuit. “clearly acceptance ment if he demonstrates Argued Nov. 1995. To deter- responsibility for his offense.” clearly dem- mine whether a defendant Decided June acceptance responsibility, onstrated may he truth- district court consider whether

fully culpability the conduct admitted Here,

constituting the the defen- offense.

dant did occasions: once in so two Ward, briefed), (argued

Hugh B. Jr. Knoxville, TN, Atty., plain- for Office U.S. tiff-appellee. briefed), (argued and Fed-

Leah J. Prewitt Knoxville, TN, Services, eral Defender defendant-appellant. CONTIE, BATCHELDER, and

Before MOORE, Judges. Circuit J., MOORE, opinion of the delivered the CONTIE, J., court, joined. in which 574-82), BATCHELDER, government (pp. delivered a Clause because failed to J. concurring parts prove a substantial nexus between the crime opinion all separate Second, charged and majority’s opinion and in the results of interstate commerce. Chesney claims that the district court erred II.B and II.C. Parts by admitting evidence about the June 5 rob- MOORE, Judge. Circuit Third, bery Wingfield. Chesney argues Gary Chesney ap- Defendant-Appellant E. by instructing the district court erred posses- conviction and sentence for peals his joint Fourth, jury possession. on Ches- a firearm a convicted felon sion of ney argues jury proposed that his instruction of 18 and 18 violation U.S.C. credibility of witnesses should have been 924(e). find no merit Ches- U.S.C. We given by Finally, Chesney the court. asserts ney’s assignments of error and affirm. permitted argue that he been should have jury punishment to the about he would receive if convicted. 5, 1992, two men robbed Jerome On June gunpoint. Wingfield at One of the robbers II body gun, a Wingfield about the beat Wingfield chrome-plat- described as which 922(g)(1) provides: Section Wingfield at .38 or .357 revolver. shot ed any person It for ... shall be unlawful who back, robbers, who shot but the robbers es- any has been convicted court of a crime caped. Wingfield described the robbers to punishable imprisonment for a term Chesney police, who identified robbers exceeding year ship one ... or trans- Ricky and Golden. commerce, port foreign in interstate or or 1992, 10, Myers (“Myers”), Ann On June possess in any or fire- officer, Chesney’s probation state informed ammunition; arm or or to receive Chesney police Knoxville was her firearm or ammunition which has been police officers office. When the Knoxville shipped transported or in interstate or for- office, Myers’s Myers told them arrived eign commerce. Chesney had left in a 1980 Pontiac Chesney claims that the police stopped Knoxville Bonneville. The —Lopez, v. decision United States Myers automobile that had described. Ches- -, (1995), 1624, L.Ed.2d 115 S.Ct. 131 626 automobile, ney passenger in the was a requires pursu- us to invalidate his conviction driving. police The Knoxville Golden was 922(g)(1) ant because he claims that searched the vehicle and found a .357 officers 922(g)(1) beyond Congress’s Commerce Chesney’s prison among state revolver powers, government and because the in the trunk of the car. The car clothes prove Chesney’s possession failed to Chesney’s girlfriend. belonged to particular gun on had substantial effect Chesney being a felon in was indicted Chesney appears thus interstate commerce. possession of a firearm in violation of 18 challenge statute both on face and 924(e). Chesney 922(g)(1) §§ U.S.C. applied to him. convicted of a stipulated he had been mag- felony, and that the firearm was a .357 A not manufactured in num revolver was shipped and had been or trans- Tennessee Chesney did not raise the issue of the Chesney ported in was interstate commerce. constitutionality 922(g)(1) §of below. Nor trial, two-day jury guilty after a found mally, preclude such a waiver would our con to 262 months of incarceration was sentenced appeal. Foster v. sideration of the issue years supervised release. and five Cir.1993). (6th Barilow, 405, 6 F.3d 407 However, may Chesney appeal. we exercise our discretion to raises five issues on “ First, ‘excep Chesney argues 922(g)(1) is un- review an issue not raised below ” circumstances,’ particular allegedly it exceeds tional cases constitutional because produce plain ‘a mis- the Commerce “when the rule would 568 — U.S.-, 1995), denied, 116 Pinney cert. (quoting justice.’” Id.

carriage of (1996)). 966, also Unit Corp., 133 L.Ed.2d 887 Penn Transport v. Central Dock & Co. (3d Gateward, 670, denied, (6th v. 84 F.3d 672 Cir.), ed States 1445, cert. 1461 F.2d Cir.1996); Bradford, States v. 78 F.3d 196, United 880, 102 L.Ed.2d 166 488 U.S. (7th denied, 1216, Cir.), cert. (1988)). - —1581, -, L.Ed.2d exceptional circum find that such We 1101, (1996); Bates, States v. 77 F.3d United case here because stances exist (8th Cir.1996); United States v. McAl court entered the district was decided after (11th lister, 387, Cir.1996); F.3d 389-90 Thus, Chesney’s Lo judgment in this case. Bennett, 40, v. 75 F.3d 48-49 United States was not available pez challenge to (1st Bell, Cir.1996); v. 70 F.3d United States Moreover, constitutionality of below. (7th Cir.1995); 497-98 United States question that has 922(g)(1) purely legal (8th Rankin, Cir.), cert. 64 F.3d parties. fully by both been briefed denied, Property Known & Numbered v. Real Hanna, (1995); L.Ed.2d 500 United States Street, Lexington, Main New As South (9th Cir.1995). Thus, 1461-62 Cir.1995) (“Al Ohio, appeals that all ten courts of have considered issue though did not raise this [claimant] constitutionality §of Lo since below, appeal, because the address it on we pez upheld the statute. have legal presents purely issue not question below____ rejected In addi- uniformly to have facial [claimant] available Courts issue.”). tion, parties challenges 922(g)(1) 922(g)(1) § § have briefed the both to because jurisdictional provision that re contains a B government prove quires the Chesney’s appeal possessed affecting “in or com firearm was Since the submission (“Re Turner, panel E.g., of this court has merce.” 77 F.3d at 889 panel, another government 922(g)(1) quiring § constitutional. In each case to held to be (6th Turner, prove possessed a 77 F.3d 887 that a felon has firearm United States v. Cir.1996), ‘in panel a unanimous held that commerce’ ensures question “§ inter 922(g)(1) represents a valid exercise of firearm affects 922(g) § legislative power the Commerce state commerce and saves from the § jurisdictional 922(q) Id. at 889. As this court wrote defect doomed Clause.” Turner, appeals Lopez]”)', invalidated in McAl “Every [the court of has statute (“This lister, jurisdictional question Lopez since 77 F.3d at 389-90 been faced with this jurisdictional challenge defeats McAllister’s facial held that element element § requisite constitutionality 922(g)(1).”); § 922(g) provides nexus (“Section Bell, § 922(q) lacked.” 70 F.3d at 498 does interstate commerce Sorrentino, (citing v. 72 not from the same infirmities [as Id. United States suffer (2d 294, Cir.1995); 922(q)]. explicit require § It an F.3d 296 United States v. contains Hinton, 95-5095, 623876, at *2 ment that a nexus to interstate commerce be No. 1995 WL (4th 1995) curiam) Hanna, 25, established.”); (per (unpublished), 55 F.3d at 1462 n. 2 Cir. Oct. — (“Section denied, U.S.-, 922(g)’s requirement 116 that the fire t. S.Ct. cer 1026, (1996); been, time, in 134 L.Ed.2d 104 States arm have at some United Lee, (7th Cir.1995); 55, v. is sufficient to establish its consti F.3d United (8th Shelton, 991, Clause.”); tutionality 992-93 under the Commerce 66 F.3d — (same). Cir.1995) Bolton, curiam), denied, (per agree at 400 cert. U.S. 68 F.3d We (1996); -, 1364, presence with these courts that the of the 116 S.Ct. 134 L.Ed.2d 530 Collins, Chesney’s jurisdictional defeats fa United States v. element — (9th Cir.), denied, U.S.-, 922(g)(1), particularly § challenge cial 1383-84 cert. (1995); approval light of former 133 L.Ed.2d 446 Bolton, 1202(a),1 interpreted § States v. Cir. 18 U.S.C. Unit- 1202(a) Any person who ... has been convicted Section read: the United States or of a State or court of Bass, face, Chesney’s tional on its facial U.S. ehal- ed States (1971). lenge L.Ed.2d 488 must fail. 1202(a) predecessor is the 18 U.S.C. presence jurisdictional Chesney 922(g)(1), provision ele

statute challenges Lopez, important In here. ment for several 922(q), the Gun- held that 18 U.S.C. reasons under the framework. Act, unconstitutional Free Zones was School categories establishes broad “three of activi beyond scope it was of Con- because ty Congress may regulate under its — gress’s power. Commerce -, power.” at 1626. As one of its category S.Ct. at 1629. The third “includes unconstitutional, holding 922(q) reasons for regulate having those activities the Court stated: a substantial relation to interstate Second, jurisdictional 922(q) contains no i.e., substantially those activities that affect ensure, through element which would ease- at-, interstate commerce.” Id. by-case inquiry, posses- the firearm (citations omitted).2 explaining at 1629-30 question sion affects interstate com- proper requires analysis “that the test an merce____ Unlike the statute Bass regulated activity ‘substantially whether the 1202(a)], 922(q) express juris- has no [§ commerce,” affects’ interstate the Court stat- might dictional element which limit its ed that two factors are relevant to determine posses- reach to a discrete set of firearm statute falls within this third cate- additionally explicit sions that have an con- wrote, gory. “First, As the Court we have nection with effect upheld variety congressional a wide Acts merce. regulating activity intrastate economic where 115 S.Ct. at 1631. we have concluded that the substan- Turner, § 922(g)(1) As this court held in tially affected interstate commerce.” Id. at element, just jurisdictional contains such a -, alia, (citing, 115 at S.Ct. 1630 inter government required prove and the is States, 146, Perez v. United S.Ct. the firearm at issue affects commerce. 1357, (1971)). 28 L.Ed.2d 686 It is at this Moreover, jurisdictional element of point § 922(q), that the Court noted that 922(g)(1), requires gun § which that the be question in in Lopez, statute affecting “in possessed or commerce” is vir- is a criminal statute that its terms has tually jurisdictional identical to the element nothing any to do with “commerce" or sort 1202(a), § required gun of which be enterprise, broadly of economic however possessed affecting “in commerce or com- might one define those terms. Section Lopez approv- merce.” The Court evidenced 922(q) larger is not an essential of a 1202(a) constitutionality § al of the of in its regulation activity, of economic which Bass, significant discussion of and no distinc- regulatory scheme could be undercut jurisdictional tion between the elements of 1202(a) regulat- unless the intrastate were § § 922(g)(1) and exists. Tur- See (“While cannot, therefore, ner, ed. It be sustained un- at the Bass court upholding regulations der our cases of ac- constitutionality not did decide the 1202(a), Lopez § tivities that arise out of or are the citation of Bass in connected transaction, strongly implies jurisdictional with a commercial ele- sufficient.”) Thus, very aggregate, substantially ment was under the viewed af- § language 922(g)(1) is constitu- fects interstate commerce. political felony pro subdivision ... and of interstate commerce” and thereof receives, possesses, transports who or in com- of “the instrumentalities tection of interstate affecting merce or ... firearm commerce, persons things or or interstate $10,000 shall fined not than or more im- commerce, though may even the threat come prisoned years, more than two or both. at-, only from intrastate activities.” -U.S. States, Scarborough

See v. United 431 U.S. 115 S.Ct. at 1629. (1977). 52 L.Ed.2d 582 Lopez categories, 2. The other two not relevant here, regulations are of “the use of the channels Bell, 296; Sorrentino, (emphasis 72 F.3d at 70 F.3d 1630-31

Id. omitted). (“to 922(g)(1) § under The Court secure a conviction added footnote “Second, government prove exactly a second factor: then had to what discussed jurisdictional § no element 922(q) missing § contains 922(q)”); Bol- found ensure, through case-by-case in- Rankin, ton, 400; 339; which would 64 F.3d at F.3d at question possession in quiry, that the firearm Hanna, at 1462. 55 F.3d commerce.” Id. at interstate affects prior accordance with the decisions Next, Court at 1631. Fourth, Second, Third, Sixth, First, Sev- 1202(a), 922(q) § § explicitly with contrasted enth, Ninth, Tenth, Eighth, and Eleventh 922(g)(1), in Bass that is now the statute Circuits, § 922(g)(1) we conclude that is con- Chesney’s appeal. the statute involved face under the stitutional on its Commerce jurisdictional Thus, nex- the existence analysis used significant 922(g)(1) §in under both us Lopez. category. components the third component, first respect to the With directly 922(q) with 922(g)(1) contrasts C “by explicitly terms” because Chesney, unlike the defendant Tur relationship with

requires commerce: ner, challenges applied also § 922(g)(1) makes it unlawful for felons “to him his conviction uncon arguing that foreign ship transport in interstate or or government stitutional failed to because commerce, affecting in or possess or prove any nexus “substantial between ammunition; merce, any firearm or or to charged crime and interstate commerce.” any firearm or ammunition which has receive Chesney gun stipulated that moved had shipped transported in interstate or been or stipula and such Chesney foreign charged commerce.” was support tion is evidence to sufficient Ches affecting a firearm in possession ney’s pursuant 922(g)(1). only was his di- conviction commerce. Not Lee, rectly under United linked to Cir.1995) statutory language, posses- (stipulation gun but also the af was directly fecting sup sion in or commerce is commerce sufficient evidence to part of by Congress pro- a statute port 922(g)(1)). linked a conviction under Ches hibiting related economic activities of however, ney argues, Lopez requires that shipping, transporting, or receiv- interstate government prove Chesney’s posses that to ing 922(g)(1), § Congress of firearms. In sion of in had a the revolver itself substantial prohibited of a in possession firearm connection to interstate commerce. Unfortu affecting commerce as “an essential of a nately, Chesney Lopez broadly.. reads too larger regulation activity, in of economic Supreme prece did not disturb Court regulatory which the could be under- scheme States, dents such as Perez v. United 402 regu- cut unless the intrastate were 146, 154-56, U.S. 91 S.Ct. 28 L.Ed.2d — at-, lated.” Lopez, U.S. 115 at S.Ct. (1971), 686 in which the Court that held Thus, complete 922(q) § in contrast to Congress regulate purely could intrastate ac Lopez, comprehensive § in ais stat- tivities, long as the activities affect inter regulating ute in firearms fel- Lopez, state commerce. See U.S. at ons. ---, (citing 115 S.Ct. at 1629-30 Per ). at-, ez 115 also id. S.Ct. at 1637 respect With component, to the second O’Connor, J., (Kennedy, concurring) § J. 922(g)(1) clearly “jurisdictional a contains (“[Perez ensure, authorities are ] and like within the through element which would ease- practical conception fair by-case ambit of the Court’s inquiry, possession that firearm and are question commercial not called affects interstate commerce.” question by today.”) our decision And S.Ct. at 1631. circuits, own, Supreme including also did not disturb Numerous our have precedents upheld 922(g)(1), focusing § which indicate a fire- primarily on this Court’s that Turner, See, 889; e.g., transported any factor. 77 F.3d at arm has been time result, trary particularly effect on when the commerce has sufficient Bass interstate Congress regulate to allow Court construed the statute to avoid a consti pursuant of that firearm possession question. tutional When Court construes powers. question, Commerce a statute to avoid a constitutional the Court’s construction must itself be consti has held that The States, tutional. See Gomez v. United in interstate com proof that a firearm moved 858, 864, 2237, 2241, any time is sufficient to meet the merce at (1989) (court L.Ed.2d 923 will avoid construc “in government’s proving burden of com presents tion of statute that constitutional merce or commerce” element questions “if a reasonable alternative inter 1202(a), § predecessor 922(g)(1). § pretation poses questions”); no constitutional States, Scarborough v. United 431 U.S. Communications Workers America v. 1963, 1964-65, 566-67, 52 L.Ed.2d Beck, 735, 762, 108 2641, 2657, 487 U.S. S.Ct. (1977). Although Scarborough was de (where (1988) 101 L.Ed.2d 634 doubts about construction, statutory cided as a matter of exist, constitutionality a statute’s the court Congress how to the Court noted that knew “ trywill “in construe the statute a manner power so ‘its full Commerce Clause assert valid”). constitutionally it renders activity substantially affecting as to cover all commerce,’” and that appeals All of the courts of to con to exercise the full extent of its intended sider issue since have concluded enacting Commerce Clause when § 922(g)(1), require only as construed to 1202(a). 571-72, at 1967-68 Id. at minimum approved nexus to commerce Bldg. (quoting United States v. American See, Scarborough; e.g., is constitutional. Industries, Maintenance McAllister, 390; Sorrentino, 77 F.3d at (1975)). 2150, 2156, 45 L.Ed.2d 177 296; Shelton, 992; F.3d at 66 F.3d at Han of whether The Court did reach the issue na, 55 n. 2. As the Eleventh 1202(a), possession as construed to reach McAllister, Circuit wrote had moved at time of firearms that Congress’s was within 922(q), 922(g) contrast to is an at- however, power; Commerce Clause tempt regulate guns have connec- the conviction in Court affirmed Scarbor commerce; tion to interstate the statute ough. The silence on the constitu Court’s explicitly requires such a connection. statute, tionality coupled with the aggregate, pro- When viewed law language Congress’s about intent hibiting gun by a felon authority, its full Commerce Clause exercise guns in stems the flow of interstate com- indicates the Court believed Nothing Lopez sug- merce to criminals. 1202(a) construed, 922(g)(1), and thus gests that the “minimal nexus” test should power. clearly was within government changed. Because the conclusion that is constitutional is possessed demonstrated that the firearm by decision buttressed by previously had in McAllister travelled Bass, in which the Court construed commerce, the statute is not un- interstate 1202(a) requiring a nexus to commerce applied constitutional as to him. question part to avoid the constitutional McAllister, agree 77 F.3d at 390. We with possession of punishment whether for mere Congress constitutionally that these courts felons, firearms without may prohibit possession by a a felon of nexus, constitutionally permissible. would be firearm in or commerce as Bass, 4,n. at 518 n. 404 U.S. at 339 statutory prohibiting framework felons from a 4. The fact that the Court twice construed trafficking interstate in firearms. Prohibit- require only minimum statute to a nexus ing possession felons limits the market for but did not discuss whether constitutional, firearms, discourages shipping, and trans- statute as construed was porting, receiving firearms in or from clearly indicates that the Court believed that Regulation commerce. of inter- the statute as construed was constitutional. clearly gun trafficking, illogical to infer a con- state which It would be indeed by regula- of discretion standard. Then the dis facilitated abuse activity, is thus mercial court must determine as a matter of law affecting commerce. trict possession in or tion of admissible language of whether the other act evidence is spirit satisfies both This motive, intent, knowledge, or as evidence of under our cases Lopez, and can “be sustained purpose. other lawful We review of activities that arise for some upholding regulations Finally, legal determination de novo. with a commercial or are connected out of whether transaction, aggregate, the district court must determine viewed probative value of the other act evidence substantially interstate commerce.” affects —- unfairly prejudicial ef outweighed review this determination for an fect. We gun that had Chesney’s stipulation Gessa, abuse of discretion. United States commerce was transported in interstate been (6th Cir.1992) (en 1261-62 922(g)(l)’s “in or affect- sufficient to meet —— remand, banc), cert. denied after that ing requirement. The fact commerce” (1996). -, L.Ed.2d 769 Chesney gun previously had possessed a provides a moved district court’s determination The Chesney’s conduct sufficient nexus between was sufficient evidence that there and interstate commerce to allow clearly robbery is not erro June 5 occurred Chesney’s pursuant to regulate to conduct Chesney pleaded guilty neous. to state rob Therefore, Clause. Commerce bery charges based on the June 5 incident applied to is constitutional posses before his trial on the felon in federal Chesney. charge began. sion The district court also was correct Ill its determination the evidence Chesney argues also the trial court robbery under June was admissible Fed. robbery by admitting erred evidence of the 404(b) knowledge. gov R.Evid. show 5,1992. place that took on June the June required prove Chesney ernment was Chesney robbery, gun used a identified as knowingly possessed gun in order to being similar to the one found the car that 922(g)(1). obtain conviction under Unit Chesney argues driving. Golden was Hatfield, ed 815 F.2d robbery the evidence of the June 5 was inad- Cir.1987) (6th (government required prove acts, prior missible evidence of bad and was knowledge predecessor statute prejudicial so as to be inadmissible under Odom, 922(g)(1)); United States v. government argues Fed.R.Evid. 403. The denied, Cir.), cert. that the evidence was admissible under Fed. (1994) L.Ed.2d 62 404(b) gestae” R.Evid. and under “res theo- (approving jury “knowledge instruction on ry the evidence was admissible to ex- —that § 922(g)(1) element of the offenses” under plain crime. 924(a)(2)). Chesney’s and 18 U.S.C. fact, knowledge was in issue this case—in 404(b) provides: Fed.R.Evid. Chesney knowingly possessed crimes, wrongs, of other or acts Evidence only gun found in the ear was the issue in prove is not admissible to the character of Chesney stipulated this case because had person in con order show action Moreover, the other elements of the crime. however, formity may, therewith. It Chesney’s knowledgeable posses evidence of purposes, admissible for other such as knowledge sion was admissible because his motive, intent, proof opportunity, prepa presence was not inferable from the mere ration, plan, knowledge, identity, or ab Hatfield, the firearm in the car. 815 F.2d at accident____ sence of mistake (knowledge 1072 in issue when not inferable added). 404(b) (emphasis To admit Rule evi- van). presence from the mere of firearm dence, the district court must first determine Finally, as a matter of fact is sufficient the district court did not whether there determining prior act abuse its discretion in that the evidence occurred. We robbery probative value of the 5 evi- review this factual determination under an June (2) requested prejudicial instruction is not sub- outweighed its significantly dence stantially in- robbery covered other delivered evidence of the June effect. structions; and probative value. Evidence had substantial (3) robbery give a firearm a im- used the failure to the instruction that a defendant possession pairs theory defendant’s case. days he was found before five would increase the likeli firearm similar (6th Carr, 5 F.3d United States knowingly possessed that the defendant hood Cir.1993). The district court also firearm. the similar Chesney’s claim that the district instruction, cautioning the limiting gave a by giving joint court erred an instruction on use the evidence of Ches jury that it could possession is without merit. The district only to determine whether ney’s other acts jury joint possession court instructed the on the firearm on June knowingly possessed he 2.11, using Sixth Circuit Pattern Instruction limiting instruction lowered the This persons may which states that two or more prejudicial of the admission of the rob effect item, possession of an and that share the law Clemis, bery See United States evidence. legal posses each of them to have considers (6th Cir.1993), cert. de 11 F.3d gave sion of the item. The district court also —nied, by Chesney, requested an instruction which (1994) (noting that no abuse of L.Ed.2d 481 jury rely that it informed the could not on 404(b) admitting occurred Rule discretion Chesney’s proximity gun to the or his associ cautionary in- appropriate when evidence possessed ation with someone else who Although given). the evi- structions were gun Chesney knowingly pos find that robbery certainly dence of June Chesney gun. argues sessed the nonetheless case, damaging Chesney’s perceive we no jury not that the should have been instructed discretion the district court’s abuse of However, joint joint possession on at all. probative out- that its value determination possession applicable in this instruction was weighed prejudicial effect this context. case, given people riding that two were in the found, gun

car which the was correctly district court’s instruction states 1Y Therefore, in the law. the district court’s the district Chesney also claims that error, joint possession was not struction on jury were erroneous in court’s instructions let alone reversible error. First, Chesney respects. claims two give The district court’s failure to not have instructed the district court should pertaining Chesney’s requested instruction joint the instruc- jury on because credibility particular witness likewise theory allegedly nullified the defense tion gave a was not error. The district court Golden, belonged to the revolver assessing lengthy instruction on the credibili Second, Chesney. Chesney claims that the witnesses, ty instruction included by refusing give his district court erred jury factors the could consider and how the assessing jury proposed instruction appeal, jury weigh should those factors. On credibility of witnesses. Chesney requested characterizes his instruc given by the instructions We review being Pat tion as drawn from Sixth Circuit “ ‘whether the a district court to determine Although Instruction 1.07. Sixth Circuit tern whole, fairly and ade charge, taken as a Instruction 1.07 is a correct state Pattern applicable law quately submits the issues law, credibility instruction ment ” Buckley, jury.’ States v. to the United conveyed given by the district court substan Cir.1991) (6th (quoting tially the same information as contained Martin, States v. fact, giving pattern instruction. Ches Cir.1984)). We will reverse a conviction ney’s requested essentially instruction would jury give requested instruction failure to portions of the instructions duplicated have only when: Therefore, given the district court. give (1) by failing to district court did not err requested instruction is correct law; Chesney’s requested instruction. of the statement jury consequences

Y be informed of the Thus, argument possible its verdict. about error, assignment of In his final punishment Chesney’s case foreclosed district court violat Chesney claims that the precedent, well-settled and the district right to a fair trial his Fifth Amendment ed refusing permit court did not err in to Ches- permit argue him to to the by refusing to ney argue possible punishment. to about his punishment jury he would receive about Chesney if relies on United convicted. Datcher, F.Supp.

States v. VI (M.D.Tenn.1993), in which a district court constitutional, § 922(g)(1) Because permitted jury to inform the the defendant the district court because did not err jury mandatory provide to his sentence admitting robbery, in evidence of the June 5 jury upon which the could with information jury instructions, giving by refusing power. its nullification exercise Chesney argue punish- to allow about his supports the Datcher decision Ches- While jury, Chesney’s ment we AFFIRM ney’s argument, the Datcher decision is con- conviction and sentence. trary Supreme pronouncements on Supreme this issue. The Court has stated BATCHELDER, Judge, Circuit that, juries sentencing, have roles in unless concurring. capital sentencing proceedings, such as parts majority’s I concur in all opin- juries should be instructed not to consider However, ion. I concur in the result of Part possible during defendants’ sentences delib- only II.B because I believe that we are erations. “It is well established that when recently published bound this Circuit’s function, jury sentencing has no it should be Turner, opinion of United v. States 77 F.3d its verdict admonished ‘reach without re- ” (6th Cir.1996), uphold 18 U.S.C. gard might imposed.’ to what sentence (“§ — 922(g)(1)1 (Supp.1995) 922(g)(1)”) States, -, v. Shannon United U.S. against charge it lies outside the -, 2419, 2424, 129 L.Ed.2d 459 scope Congress’s authority regulate “to (1994) States, (quoting Rogers v. United ... among Commerce several 35, 40, 2091, 2095, U.S. 45 L.Ed.2d 1 States____” I, 8,§ art. cl. 3. Const., (1975)). The Shannon Court went on to note (1991) (“Reported See 6th Cir. I.O.P. 22.4.1 jurors generally are not informed of panel opinions binding are subsequent mandatory minimum or maximum sentences Thus, panels. subsequent no panel overrules probation, parole, or instructed on and sen- published opinion previous panel.”). I tencing ranges lesser included of- — concur in the result of Part II. C because I fenses. S.Ct. at 2428. constitutional, if believe that the statute is Thigpen, also United States v. 4 F.3d Chesney’s stipulation gun moved 1573, 1578 (11th Cir.1993) (en banc), n. 3 cert. likely permit interstate commerce suffices to denied, application of the statute to him. (1994) (stating L.Ed.2d 865 that courts have duty” juries “no to inform of the conse- separately I explain write in this case to quences statutory of their verdicts absent why today, I believe the result we reach like requirements) (quoting White Turner, square the result does not States, Cir.1967)). 367-68 recent decision Unit- trial, In Chesney’s jury U.S.-, had no sen- ed function, (1995). tencing required addition, and no statute 131 L.Ed.2d 626 922(g)(1) provides 1. 18 transported foreign U.S.C. that "It shall be in interstate or commerce.” any person challenges unlawful for ... only who has been con- The case before us any punishable by prohibits victed in court of a crime insofar as it a convicted felon from imprisonment exceeding year; possessing affecting for a term one ... a firearm in or commerce. statute, ship transport foreign or in interstate or The references to the unless otherwise merce, context, possess any in or made clear in should be understood to ammunition; only felon-in-possession aspect firearm or or to receive fire- refer to the shipped arm or ammunition which has been statute. commodity through transportation I of a explain why, even if separately to write commerce; nor can channels of interstate principle matter of with agree as a could justified regulation by 922(q) § as a be majority proper resolution today’s Congress sought protect to an has question presented Clause the Commerce instrumentality majority’s of interstate commerce or case, accept I could Thus, if pre- thing in interstate commerce. Supreme Court dealing with manner of sustained, it 922(q) is to be must be cedent. category regulation of under the third as a I. substantially activity that affects inter- an state commerce. A. Said What at-,115 Id. S.Ct. at majority Lopez. As the cor- begin mind, background the Court With notes, the former rectly Lopez struck down Congress’s power under the third considered (1988 V) ed., Supp. 922(q)(l)(A) 18 U.S.C. holding category 922(q). enact Id. to (“ Act Free Zones 922(q)”), the Gun School 922(q) an invalid exercise of 1990,2 beyond Congress’s Commerce activi- power regulate intrastate economic at-, Lopez, power. Clause ty, wrote: the Court began analysis The Court at 1626. S.Ct. canvassing 922(q) its Commerce is a criminal statute that in that case Section jurisprudence, nothing and drew from that has to do with “com- its terms categories” of ac- enterprise, three “broad sort of economic jurisprudence merce” or constitutionally broadly might authorized define those tivity however one explained: 922(q) is not an essential regulate. As the Court terms. Section larger regulation part of a of economic categories three broad have identified [W]e regulatory activity, in which the scheme Congress may regulate un- activity that could be undercut unless the intrastate First, power____ Con- its commerce der cannot, activity regulated. It there- were channels gress may regulate the use of the fore, uphold- our cases be sustained under Second, Con- of interstate commerce---- ing regulation of activities that arise out of pro- empowered regulate gress is or connected with a commercial trans- are of interstate tect the instrumentalities action, aggregate, in the sub- which viewed commerce, things in inter- persons or or stantially commerce. affects interstate commerce, though the threat even state may only from intrastate activi- come at-, at 1630-31. Id. ties____ Finally, Congress’ au- language that a federal I deduce from this regulate thority includes the must, in order to be sus- criminal statute having a rela- activities substantial those category Congress’s third tained under the commerce, i.e., ... those tion to interstate power, satisfy one of two thresh- substantially inter- affect activities A criminal statute requirements. old federal commerce. state (1) something by its terms have must either (citations at-, at 1629-30 Id. sort of eco- to do with “commerce” or-some omitted). (2) part enterprise, an essential nomic or to determine that:

The Court went on activity “in larger regulation of economic regulatory scheme could be under- of which the 922(q) is not a of the use activity regu- unless the intrastate were nor is cut channels of interstate (1) (2) satisfied, two If either prohibit the interstate lated.” attempt an it only authority. where knowingly But it can do so "any merce individual 2. The Act forbade knows, regu place possess [he] a firearm at a the non-"commercial” or non-"economic” believe, is, is a school explained, cause to reasonable “an essential lation at-, 115 S.Ct. at 1626 zone.” activity, larger regulation in which of economic 922(q)). (quoting regulatory undercut unless scheme could be Lopez activity regulated.” were the intrastate , then, it, regulate Congress can 3. As I understand S.Ct. at 1631. —U.S. or non-“economic” non-"commercial” category of its interstate under the third 576 degree inquiries must be made in order to caused a considerable of confusion.

additional view, my a statute falls within the In determine whether both courts and commentators Congress reg- can category interpreted portion Lopez third of activities have mis of power.4 establishing ulate under its interstate some sort of constitutional laun- statute, dry list which a federal criminal 922(q) satisfy of did either Because 922(q) 922(g)(1), such as or should be requirements, the threshold Court See, judged. e.g., Bishop, United States v. beyond down as Con- struck that statute (3d Cir.1995); F.3d 569 Deborah Jones Mer- Although holding gress’s power. effec- Commerce!, ritt, 94 Mich. L. Rev. 692- Court, tively the issue before the resolved (1995). Laboring misinterpre- under this Court, presumably purposes pro- of (not tation, courts and commentators have viding guidance in future cases which one surprisingly) concluded that a federal crimi- requirements could of the threshold be satis- jurisdictional nal statute which contains a fied, inquiries mentioned the two additional element must withstand Commerce Clause ruling that courts would have to make when (collect- Majority opinion attack. See at 568 constitutionality on the of a federal criminal authorities); Turner, 889; ing F.3d statute enacted under the Commerce Clause. Pollack, Foreword, Louis H. L. Rev. Mich. inquiries looks to One these the statute (1995) (nexus requirement in a new itself, while the other looks to the nature of “presum- Free School Gun Zones Act will activity. regulated ably” bumperguard act as a “constitutional First, § 922(q) the Court noted that con- judgment”); Kelly when it comes to G. “jurisdictional tained no element” that would Black, Note, Removing Intrastate Lawsuits: “limit the reach the statute to a discrete Affecting-Commerce Argument The After possessions additionally set of firearm United States v. 1995 B.Y.U. L. Rev. explicit have an connection with or on effect (jurisdictional 1130-31 element ensures at-, interstate commerce.” Id. constitutionality the Commerce second, at 1631. And the Court examined Clause). agree. I cannot Bishop, possession handguns whether in school (Becker, J., concurring, part, substantially zones could be said to affect dissenting, in part). Id. commerce. Reasoning not, at 1631-32. that it could § 922(q) held that was unconstitu- rejected government’s contention tional because it had its own terms noth- that either the costs of violent crime associat- ing any to do with “commerce” or sort of possession ed with of firearms in school enterprise, Lopez, economic U.S. at zones, impact or the adverse on the edu- ---, 1630-31, 115 S.Ct. at and be- process pos- cational caused such firearm cause it was not an larger essential sessions, had a substantial effect on inter- regulation activity of economic in which the -, state commerce. Id. at 115 S.Ct. at regulatory scheme could be undercut unless rejected government’s 1632. The Court regulated. the intrastate were Id. at government’s contention because the theories light 115 S.Ct. at 1631. of this went too far. put As the Court it: we “[I]f holding, it necessary logically was not accept were to arguments, Government’s go otherwise —for the Court to on to consider hard-pressed we are posit activity by 922(q) jurisdictional whether contained a an individual that is without possession element or whether of firearms regulate.” Id. substantially school zones affected interstate If, explained, commerce. as the Court

B. What Meant 922(q) could not be sustained a valid portion Lopez opinion dealing category” exercise of “third constitutionality with the 922(q) power,5 it follows that the consti- below, explain regulated 4. activity substantially As I in more detail the two the state commerce. affects inter- inquiries additional are jurisdictional contains a element and whether clarification, point I note as a that as I read Lopez's discussion of the Court's Com- Aecordingly, I that Lopez have no different would hold re- could been result tutional analyze presented by (a) jurisdic- quires the issue us had contained if: even (b) this ease as follows. element, possession of firearms tional had had substantial effect in school zones regulating 1. Does of fire- interstate commerce. by felons fall arms convicted within dispute fact that the Although any activity I not the categories do of the three of jurisdictional the ele- Congress regulate Court addressed can under its com- questions, powers? I and effects can- ment substantial merce who believe that the agree not "with those question instructs us that the first enable the did so was to lower reason Court § 922(g)(1) we must address is whether falls statute, a federal criminal uphold to courts any categories activity within of the three of Congress’s 922(g)(1), § under inter- such as can under Congress regulate that its inter- merely because power the state commerce that, power. I state commerce would find jurisdictional element.6 contains a statute Lopez, 922(g)(1) the like statute involved Instead, jurisdictional addressed the upheld catego- cannot the first be two questions in effects and substantial element activity Congress of ries is authorized to analyz- for to the fi-amework order establish regulate power. 922(g)(1) under that Section Clause cases which ing future Commerce regulation of is a the use channels activity, contradistinction to regulated the attempt of nor is it an interstate “commercial,” 922(q), considered could be prohibit transportation of a “commercial,” or, not itself “com- commodity through even where of the channels being Nor, matter, of essential to a mercial” virtue can commerce. for activity. justified at larger regulation 922(g)(1) regulation by of economic Id. as a eongres- sought 1631. Congress protect 115 S.Ct. at When an instru- of, in, activity descrip- sionally-regulated mentality thing fits either or a interstate com- tion, additionally Lopez, consider the merce. courts must U.S. short, “substantially 922(g)(1) clearly 1630. In jurisdictional and af- because element (as possession aims criminalize mere of questions. But it does not fects” where felons, 922(q)), jurisdictional Scarborough convicted firearms the case with was States, 563, 575, substantially questions affects United U.S. element and 1963, (1977) (“[T]he 1969, unnecessary. Bishop, 66 F.3d at 591 52 L.Ed.2d 582 are See (Becker, J., concurring, purpose proscribe Title VII mere part, and dissent- of was (“If ... activity possession but was some concern ing, part) the intrastate is there statute”), commercial, constitutionality of such jurispru- effects’ about the the ‘substantial regulate upheld of applies, allowing Congress if it is to be as a valid exercise dence Congress’s power, it un- activity aggregate substantially commerce must be if it otherwise, commerce; Congress’s category third of Commerce der affects interstate authority. I passing inapplicable is affords note doctrine and agree majority point. regulation”). and no basis activity have to interstate jurisprudence, the Court has con- state some relation merce Clause category any, impact, activities Con- fined third of What if does commerce? Perez gress may regulate pursuant States, 1357, to its interstate regulation upholding power "cases (1971) (finding that 28 L.Ed.2d 686 are that arise out of or connected of activities "[wjhere regulated class is activities of transaction, which viewed in with a commercial power, is within the reach of federal class aggregate, substantially affects interstate excise, trivial, have no 'to courts at-,-, Lopez, commerce." class") where individual instances' of the have regulated beyond is the class activities of true, power? majori- reach of federal Is it must, sooner or 6. Those who think otherwise implies, majority ty's reasoning opinion at see later, following questions. regu- aIf answer the regulated activi- that even if the class 570-71 cannot be lation of class of intrastate Congress's beyond ties interstate commerce category the third sustained under power, Congress regulate in- still can individual possible power, what difference could power? activity under that of such stances of such it make individual instances intra- 922(g)(1) anything ing 2. Does have possessory to do aspect §of from “commerce” or “commercial ac- that statute would not regulato- undercut the tivity,” it an or is essential ry purposes parts those regulation of broader economic activi- would remain. Scarborough, 431 U.S. at ty? 575 n. 97 S.Ct. at 1969 n. 11 (Congress intended no receipt distinction between Lopez, Like the statute involved in possession). authority then, On Lopez, § 922(g)(1) a criminal statute that has § 922(g)(1) cannot be sustained under those nothing to do with “commerce” sort of upholding cases enterprise, economic broadly however one activities that out arise of or are connected might define those terms. See transaction, with a commercial which viewed at---, 115 S.Ct. at 1630-31. aggregate, substantially affect inter- (like of a firearm a felon state Lopez, commerce. See at zone) possession of a firearm in a school is words, 115 S.Ct. at 1631. In other simply activity. not itself commercial § 922(g)(1)is unconstitutional. § 922(g)(1) Neither is “an part essential The fact 922(g)(1) juris- contains a larger regulation a activity, of economic cannot, dictional today’s element majority as regulatory which the scheme could be under- (like Turner, 889) majority the 77 F.3d at activity cut unless the regu- intrastate were concludes, majority opinion 568-69, at 569- —, lated.” Id. at 115 S.Ct. at 1631. Sec- (cid:127) — § 922(g)(1) rescue from constitutional at- 922(g)(1), tion in addition prohibiting the tack. Because is not itself a possession felon, of a firearm a convicted regulation of activity, commercial or even a prohibits such felons from shipping or trans- regulation of non-economic is porting firearms or ammunition in interstate essential to a regulation broader of economic commerce, as receiving well as from n firearmor ammunition that has activity, according we need not shipped been look to the statute to determine whether it in interstate commerce. assuming Even jurisdictional contains a element. For the argument’s sake that such prohibitory reasons, same inquire we need not “regulation scheme constitutes a of economic the of firearms convicted fel- activity,” I would statutory pro- find that the ons substantially affects interstate com- possessions by hibition on firearm convicted merce.7 felons is part” not an “essential of that Additionally, scheme. exception with the Majority’s reading C. The Mis Of certain hypothetical rarified instances “possessed” which an individual I judicial firearm in am aware of no opinion or aca- or commerce without ship- either demic commentary suggested that has pre- ping transporting receiving cisely a firearm in reading the just I have set commerce, versa, interstate or vice sure, eliminat- forth. To the easelaw and academic turning Chesney’s 7. In applied” reason, back "as chal- namely different that it demonstrates the lenge 922(g)(1), majority the finds that the majority's unwillingness acknowledge that Lo- government prove does not need to that Ches- pez Supreme precedents did not leave Court such ney’s possession substantially firearm affected in- undisturbed. Perez terstate commerce in order to sustain a convic- To required only the extent that Perez tion Majority opinion under that statute. at 570- activity prohibited under the statute involved in view, support 71. majority explains of its (intrastate that case loan-sharking) have "an ef- "Lopez Supreme did not pre- disturb Court fect” on longer interstate is no States, Perez cedents such as v. United Perez 154-56, certainly law. While 1357, 1361-62, paragon not a 28 L.Ed.2d (1971), clarity every point, indisputable it is in which the Court held that Con- Lopez requires gress regulate activities, that an intrastate purely could commercial ac- intrastate tivity long upon must have a as the substantial activities affect inter- interstate com- effect (citations Majority state opinion Congress's merce.” commerce in at order to fall within omit- ted). agree I majority's authority. Lopez, cannot with the conclu- -U.S. at-, government sion about what the does or 115 S.Ct. at does not prove need to Chesney’s in order to importantly, though, sustain More con- I draw attention to since, view, 922(g)(1), my viction under majority’s finding because I believe that the unconstitutional, statute is majority ignored and no important conviction can an distinction properly However, be sustained thereunder. I between the nature of the statute involved in draw majority’s attention to finding for a 922(g)(1). and the nature of Perez The statute Clause, process, spawned Lopez has more the Commerce commentary that major- approach today’s larger principles closely ignores announced follows Turner, See, e.g., mine. ity Lopez. does than it authorities); (collecting F.3d juris- majority opinion holds that McAllister, Cir. §in con- dictional nexus contained Bell, 1996); United States regulates into one that verts statute Pollack, (7th Cir.1995); Merritt, supra; su- activity. Majority opinion at 570. commercial pra. dicta, merely major- I suppose In what sense, why the In a can understand ity goes on to find that it For majority result has. has reached the possessions by felons convicted is “an firearm century, part better of this larger regulation of essential eco- meaningful no limits to Con- has found activity, regulatory in which the nomic regulate gress’s power be undercut unless intra- scheme could I sus- the federal Constitution. merce under regulated.” Majority activity were state reluctant, therefore, majority is pect that the (citing Lopez, opinion at 570 Lopez is than an “aberra- find that more 1631). I deal with each of these pause High in the tion” or a small holdings in turn. steady to- previously longstanding and trend regulates A statute that non-commercial turning ward enumerated activity cannot be into a converted statute gener- regulate interstate commerce into a regulates activity that commercial dint of police power. But there is still a alized legislative holding craftwork. But clever narrowly reading a between case difference jurisdictional the inclusion of a that element narrowly case that it is reading and a so 922(g)(1) §in that statute into a transforms hollow reduced to a shell. activity,9 regulation majority of commercial majority’s largely relies on The conclusion 570, majority the opinion reduces the Lo- para- a single drawn from two sentences analysis single question: a a pez Does Lopez opin- graph in the jurisdictional challenged contain statute a el- Washing- Compassion Dying v. See ion.8. question the answer to this is ement? When (9th Cir.1995) (“It ton, is “yes,” according majority, to the Lo- both error lift sen- commonly accounted an “regulation of commercial activities” pez’ s out of context paragraphs or one tences even “jurisdictional and its element” test are test thought into a and the abstracted insert Id. at 569-70. satisfied. rev’d, context.”), wholly F.3d 790 different Thus, majority opinion the embraces the Cir.1996) (en banc). majority con- affecting “in theory that if the words or into core of a two sentences the verts these statute, in a the appear commerce” federal measuring for wheth- constitutional standard required relationship with interstate com- comports with er a federal criminal statute — noted, Second, Perez, jurisdictional Lopez, 922(q) el- Lopez contains no the see as at-, ensure, "eco through 115 S.Ct. at involved case-by- U.S. would ement which activity,” not. does nomic which possession inquiry, the case firearm criticized) (and may have criticize commerce____ Commentators question Un- affects interstate distinction, really asking be whether it can this 1202(a) ], § 922(q) the in Bass [§ like statute that, magnitude. suppose one of constitutional express jurisdictional no element which has judges, But we cannot we can also criticize. might to a set of firearm limit its reach discrete done, ig majority which is to do what additionally explicit possessions an have by Lopez We are to adhere nore law. bound with or effect on interstate com- connection to the distinction commercial/non-commercial merce. constitutionality judging of federal criminal opinion (quoting Lopez,-U.S. Majority at 569 Because the Commerce Clause. statutes under 1631). at-, opinion totally disregards majority this dis tinction, only in the result I concur Congress’s inter a valid exercise of is analysis resting “commercial activities” In only powers, do that be state and language jurisdictional element on the already estab cause bound follow I am majority 922(g)(1), opinion contained in precedent of Circuit. lished possession implicitly of a fire- must concede that (or economic —I arm itself is not a commercial Lopez majority that the 8. The two sentences from activity. interchangeably) use these terms quotes follows: are as majority opinion did leave merce is established. ment. The does not ad- Congress’s findings question dress on the theory. open did it the doors to such a Nor whether of firearms convicted produce a permit magically to had) (or felons has a substantial effect on activity (possession of a “in mercial firearm commerce,10 findings or its on the commerce”) out of a non-com- question numerous state laws firearm) by a (possession mercial of con- one prohibiting possession handguns by con- ferring jurisdictional non- a credential on the (or were) inadequate victed felons are to the activity. commercial — regulation. Lopez, of such task 3; at-& n. 115 S.Ct. at 1631 & n. see dicta, majority rules Regan, also Donald How to Think About the § 922(g)(1) part larger is “an essential a Incidentally Federal Commerce Power and regulation activity, economic which the v. Lopez, Rewrite United States 94 Mich. L. regulatory scheme could be undercut unless (1995) (arguing Rev. that federal activity regulated.” were Ma- intrastate power under the Commerce Clause exists jority (citing opinion Lopez, at 570 only where and where is special there 1631). at-, major- 115 S.Ct. at While the it, justification suggesting ity language invokes the to the question in measuring relevant a federal law regulation effect non-commercial program Commerce Clause is: may as a sustained valid exercise govern- “Is there some reason the federal if is “an it this, must ment be able do some reason part larger why essential of eco- we cannot leave the matter to the states?”). activity,” points Consideration of these nomic principles they necessary rest majority S.Ct. at most majority’s analysis. By for the reading own opinion § 922(g)(1) is that has established simply reaffirming pre- the Court’s part not an essential “a —albeit —of vious, expansive jurispru- Commerce Clause larger regulation activity,” of economic see dence, majority the effectively holds that Lo- 570, 571-72, majority opinion at it pez nothing has Congress’s done to in rein regulation. such “facilitates” See at 572. id. power, perhaps save majority explain why The does not or how empty, establish some sort of formalistic re- possessory the elimination of the offense quirements with which Congress must com- 922(g) § from purposes undercut would the ply legislate power.11 order to under of that larger regulatory statute’s scheme. I, one, unprepared am to reduce the Saying it make it does does not so. Supreme Court’s to an decision ana- passing chronism to be ignored. noted but Additionally, majority opinion only the Congress’s powers, enumerated like Su- briefly mentions that involved an in- preme opinions Court setting forth their lim- quiry 922(q) § into whether constituted a its, are, view, my seriously, to be taken see activity of an intrastate Florida, Seminole Tribe Florida v. of of, with, arose out or was connected -, 1114, 116 U.S. 134 L.Ed.2d 252 transaction, 569-70, 571-72, mercial at id. (1996), taking seriously these matters essence, holding, inquiry that this is satis- requires that rule we unconstitu- by jurisdictional fied 922(g)(l)’s here ele- tional. original felon-in-possession 528, 10. The politan Authority, federal stat- Transit 469 U.S. 105 S.Ct. 1005, ute, (1985). 1202(a), 83 18 U.S.C. was L.Ed.2d 1016 enacted Con- 1968, gress Scarborough, see 431 U.S. at 563- true, Lopez, activity it is clarified that an 64, 1963-64, Congress' 97 S.Ct. at when inter- Congress might regulating think must have a power apex. state commerce was at its See effect,” just “substantial and not "an effect” on Motel, States, Heart v. Atlanta Inc. United 379 Congress may regu interstate commerce before 241, 261-62, 348, 359-60, U.S. 85 S.Ct. holding surely it. late While this more than (1964); McClung, L.Ed.2d 258 v. Katzenbach not, think, merely symbolic, it anything was I 294, 302-03, 382-83, 377, U.S. 85 S.Ct. than a more clarification of the “substantial ef (1964); Wirtz, Maryland L.Ed.2d 290 lurking Supreme test that been fects” had in the (1968), - 88 S.Ct. 20 L.Ed.2d 1020 prior along. caselaw all League Usery, overruled National Cities v. at 115 S.Ct. at 1630. Unlike the 426 U.S. 49 L.Ed.2d 245 majority, I think that does much more than (1976), simply type overruled Garcia San Metro- Antonio announce the effect an intra-

II. requiring a to commerce nexus question of avoid the constitutional wheth- agree princi- I inclined to Even if were punishment er for mere of fire- majority’s thrust of the ple the main with felons, armsby without commerce nex- agree Lopez, I could not reading of us, constitutionally permissible. would be majority reasons manner in which Bass, U.S. at 339 n. 92 S.Ct. at 518 already effectively Supreme Court n. 4. The fact that the Court con- twice constitutionality of passed require only strued a statute to a minimum power. To ex- nexus with but did not discuss so, forth, length, I at plain why this is set the statute as con- construed was find, trou- methodologically, I most what stitutional, clearly indicates the Court opinion: bling portion majority’s was believed statute as construed proof Supreme has held that illogical constitutional. It would be indeed in interstate com- that a firearm moved result, contrary particularly to infer a any time is sufficient meet merce Bass when the Court construed statute “in government’s proving burden question. to avoid a constitutional When element commerce or commerce” the Court construes a statute to avoid 1202(a), 922(g). predecessor question, constitutional the Court’s con- States, Scarborough 431 U.S. v. United must struction itself constitutional. 1963, 1964-65, 563, 566-67, (other Majority opinion at 570-71 citations (1977). Although Scarbor- L.Ed.2d omitted). statutory ough as a matter of was decided jurisprudence of no basis our know construction, Court noted that Con- “ rely upon permitting us to ‘its full Com- gress to assert knew how on a matter of constitutional Court’s silence all as to cover merce Clause so indication, significance as much less a substantially affecting indication, has, “clear” that the Court in ef- commerce,’” and that intended fect, already passed upon a constitutional the full extent of Commerce exercise question. always I have con- understood the 1202(a). enacting power when judi- imposed upon stitutional limitations 571-72, (quoting Id. at 1967-68 ciary by Article III of the Constitu- federal Bldg. Mainte- American United States v. rendering advisory preclude from tion us 271, 280, Industries, 422 nance opinions majority the the attributes to sort (1975)). 2150, 2156, 45 L.Ed.2d S.Ct. Supreme Court. the not the issue The Court did reach 1202(a), Conceding ped- Clause § as reach the Commerce construed to 1202(a) may igree §of be relevant to the possession of had moved at firearms that interpretation 922(g)(1), simply § I cannot in was with- time agree purport- Court has even Congress’s power; in Clause ever Commerce the. however, constitutionality of to rule on the the affirmed the conviction ed Court 1202(a) constitutionality the Scarborough. The less Court’s silence —much statute, Bass, 922(g)(1). Indeed, coupled § a ease on constitutionality the majority opinion heavily language which relies for with the Court’s about Con- the conclusion, expressly Supreme gress’s full its intent to exercise its Commerce question point which did authority, that the Court reserved indicates —a 1202(a) construed, escape and Court. believed that as Bass, clearly (citing at 1631 404 U.S. 922(g), thus within Con- was 4; at 518 n. gress’s power. conclusion that n. Devices, Gambling v. Five 346 U.S. 922(g) is buttressed is constitutional Bass, 441, 448, 98 L.Ed. Court’s decision (“The 1202(a) (1953) im- principle deeply is old and Court construed presages day upon return when state must have Congress's authority may regulate had it interstate commerce merce before authorify. meaningful category” limits. of Commerce Clause "third jurisprudence our that this Court bedded in a manner

will construe a statute

requires decision of serious constitutional statutory

questions only language if alternative”)).

leaves no reasonable am at majority opin-

a loss to understand how the rely upon

ion can the Court’s silence about 1202(a) constitutionality of hold that illogical

“it be think would indeed” to

§ 922(g)(1) is valid not a exercise Con-

gress’s power. See United States Mitchell, 9, 14, 271 U.S. 419- (1926) (“It

20, 70 L.Ed. 799 is not to be

thought question that a not raised counsel opinion court discussed merely

been because it existed in decided might have been

record and raised con-

sidered.”) compelled

But for the that I am fact Circuit,

follow the law of established Turner, supra,

handed down in I would not majority’s

concur conclusion that

§ 922(g)(1) is a valid exercise of I, therefore, authority.

Commerce Clause only

concur the result upheld Chesney’s

must convic-

tion must be sustained. BROOKS, Plaintiff-Appellant,

Edith COMPANY,

TOYOTOMI LTD. Toyotomi Inc., U.S.A.,

Defendants-Appellees.

No. 94-6093. Court Appeals,

Sixth Circuit.

Argued March 1996.

Decided June

Case Details

Case Name: United States v. Gary E. Chesney

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 14, 1996

Citation: 86 F.3d 564

Docket Number: 95-5203

Court Abbreviation: 6th Cir.