Opinion
00 Cr. 842 (MBM).
December 18, 2000.
Mary Jo White, Esq., United States Attorney, Katherine Polk Failla, Esq., Assistant United States Attorney, New York, NY, for the Southern District of New York.
Cecillia D. Wang, Esq., The Legal Aid Society, Federal Defender Division, New York, NY, for Defendant.
OPINION ORDER
Defendant David Quintana moves to dismiss the indictment charging him with possession of firearms in violation of 18 U.S.C. § 922(g)(1) and 922(k) (1994), on the ground that these statutory provisions are unconstitutional as applied to him. For the reasons set forth below, Quintana's motion is denied.
I.
Quintana was arrested on July 13, 2000 in the Southern District of New York for violating 18 U.S.C. § 922(g)(1) and 922(k). (Compl. ¶ 2) Section 922(g)(1) criminalizes possession of a firearm "in or affecting commerce" by a person with a prior conviction of a crime punishable by a term of imprisonment of more than one year. Section 922(k) criminalizes possession of a firearm "which had the importer's or manufacturer's serial number removed, obliterated or altered and has, at any time, been shipped or transported in interstate or foreign commerce."
At the time of his arrest, Quintana allegedly was in possession of three firearms: a Titan .25 caliber semi-automatic pistol, a Raven .25 caliber semi-automatic pistol, and a Lorcin 9mm semi-automatic pistol. (Id.) Each of these firearms was manufactured outside the state of New York. (Id. ¶ 4) The indictment charges that the serial number of the Raven .25 caliber pistol had been "obliterated." (Indict.) Moreover, before his arrest, Quintana had been convicted in New York State Supreme Court of possession of a weapon in the third degree, a class D felony which is punishable by imprisonment for more than one year. (Compl. ¶ 3).
II.
Quintana argues that Congress exceeded its authority under the Commerce Clause when it passed 18 U.S.C. § 922(g)(1) and 922(k). According to Quintana, the government's allegation that the firearms he possessed were manufactured outside the state of New York is insufficient to establish, as required by the Commerce Clause, that his possession had a "substantial effect" on interstate commerce. (Def. Mem. at 2) As discussed below, controlling authority requires that I disagree with Quintana's reading of what the Commerce Clause requires.
The Supreme Court recently had occasion to treat the subject of Congress' powers under the Commerce Clause. In United States v. Lopez, 514 U.S. 549 (1995), the Court reviewed the constitutionality of 18 U.S.C. § 922(q), which criminalized the possession of a firearm within 1,000 feet of a school. The Court identified three categories of activities that Congress may regulate under its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities having a "substantial effect" on interstate commerce. Id. at 559. The Court concluded that § 922(q) could be sustained, if at all, only as a regulation in the third category — i.e., only if the regulated activity had a "substantial effect" on interstate commerce.
After determining that § 922(q) was properly viewed as a third category regulation, the Court held that a person's possession of a firearm within 1,000 feet of a school did not have a substantial effect on interstate commerce and that, therefore, § 922(q) exceeded Congress' power under the Commerce Clause. The Court focused on several features of § 922(q). First, the Court reasoned that possession of a firearm within 1,000 feet of a school was a non-economic activity and, as such, its effect on interstate commerce could not be aggregated to satisfy the "substantial effects" requirement. Id. at 561. Second, the Court noted Congress' failure to include in § 922(q) a "jurisdictional element which would ensure, through a case-bycase inquiry, that the firearm possession in question affects interstate commerce." Id. Third, the Court cited the absence of legislative findings regarding the effect on interstate commerce of the activities regulated by § 922(q).
With these principles in mind, I turn to the defendant's motion. Quintana argues that § 922(g)(1), which criminalizes possession of a firearm "in or affecting commerce" by a person with a prior conviction of a crime punishable by a term of imprisonment of more than one year, and § 922(k), which criminalizes possession of a firearm "which had the importer's or manufacturers s serial number removed, obliterated or altered and has, at any time, been shipped or transported in interstate or foreign commerce," are unconstitutional as applied to him. Although these provisions arguably may be seen as regulating the "instrumentalities of" or "things in" interstate commerce under Lopez's second category, see e.g., United States v. Pappadopdulos, 64 F.3d 522, 527 (9th Cir. 1995) (holding that § 922(g) may be considered a second category regulation), the Second Circuit consistently has analyzed these provisions under Lopez's third category — whether the regulated activity "substantially affects" interstate commerce. See United States v. Hernandez, 85 F.3d 1023 (2d Cir. 1996) (reviewing §§ 922(g) and 922(k) under third category); United States v. Sorrentino, 72 F.3d 294 (2d Cir. 1995) (reviewing § 922(g) under third category). Accordingly, like § 922(q) in Lopez, §§ 922(g)(1) and 922(k) may be sustained, if at all, only as regulations of activities that "substantially affect" interstate commerce.
Quintana does not appear to dispute the applicability of Lopez's third category to the statutory provisions in question. Rather, Quintana argues that, under the third category, these provisions cannot be sustained. I disagree. First, with respect to § 922(k)'s wholesale ban on possession of firearms whose serial numbers have been removed, Quintana's argument that this provision is not aimed at protecting commercial activity is unpersuasive. (See Def. Mem. at 6-7) Unlike § 922(q) inLopez, § 922(k) can be read as part of a larger federal scheme to regulate trafficking in firearms — an economic regulation with strong interstate effects. See United States v. Franklyn, 157 F.3d 90, 94 (2d Cir. 1998) (holding that 18 U.S.C. § 922(o), prohibiting the possession of machine guns, regulated an "economic activity"). Section 922(k) is not aimed solely at conduct that occurs after a weapon is transported in interstate commerce, but focuses more broadly on ending the international and interstate commerce in firearms whose serial numbers have been removed. Accordingly, § 922(k) may be sustained as a regulation of an economic activity which, viewed in the aggregate, substantially affects interstate commerce. Lopez, 514 U.S. at 561.
Even if § 922(k) is not considered a regulation of an economic activity, there are independent grounds for sustaining that section and § 922(g)(1) under Lopez's third category. Unlike § 922(q) inLopez, both sections contain jurisdictional elements which require the government to prove that the firearms in question at some point traveled in interstate commerce. Notwithstanding the existence of these jurisdictional elements, however, Quintana maintains that §§ 922(g)(1) and 922(k) are unconstitutional as applied to him. According to Quintana, the existence of a jurisdictional element requiring only a minimal nexus to interstate commerce (i.e., that the firearm travel at some point across state lines) cannot satisfy the substantial nexus requirement of Lopez's third category.
Quintana's argument is weakened significantly by recent Second Circuit authority. In Hernandez, for example, a case decided after the Supreme Court's decision in Lopez, the Second Circuit held that Congress acted within its constitutional authority when it enacted 18 U.S.C. § 922 (g)(1) and 922(k) — the very same provisions challenged here by Quintana. Hernandez, 85 E.3d at 1031. The court relied heavily on the distinction suggested by the Lopez Court's observation that § 922(q) contained "no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Lopez, 507 U.S. at 561. Because §§ 922(g)(1) and 922(k) — unlike § 922(q) — contain jurisdictional elements that require a "legitimate nexus with interstate commerce," the Second Circuit found these provisions to be within Congress' Commerce power. Id.; see also United States v. Sorrentino, 72 F.3d 294, 296 (2d Cir. 1995) (holding that the jurisdictional element of § 922(g)(1) cured any constitutional deficiency of that provision).
Quintana recognizes that the Second Circuit's post Lopez cases significantly undermine his argument. As Quintana concedes, "under . . .Sorrentino, the government's evidence may be sufficient to establish the requisite nexus to interstate commerce." (Def. Mem. at 4) Nevertheless, Quintana asks this Court to reconsider the Second Circuit's holdings inSorrentino and Hernandez in light of, inter alia, the Supreme Court's recent decision in United States v. Morrison, 120 S.Ct. 1740 (2000) (holding that civil remedy provision of Violence Against Women Act was non-economic regulation of an activity without a "substantial effect" on interstate commerce).
The other case on which Quintana principally relies, Jones v.United States, 120 S.Ct. 1904 (2000), is inapposite. In Jones, the Court held that the federal arson statute, 18 U.S.C. § 844(i) (1994), did not apply to conduct directed at an owner-occupied residence not used for any commercial activity. Id. at 1908. Quintana argues that the Court's holding, which was based in part on a desire to avoid the constitutional question that would arise by reading § 844(i)'s jurisdictional element too broadly, compels the conclusion that §§ 922(g)(1) and 922(k) are unconstitutional. I disagree. The Jones Court simply interpreted the scope of the federal arson statute; it did not squarely address the constitutionality of 18 U.S.C. § 844(i) under the Commerce Clause. Accordingly, the Court's decision to interpret the statute narrowly in view of possible constitutional doubts is not sufficient to warrant, by implication, a holding of unconstitutionality here.
Relying on Morrison, Quintana argues that the Second Circuit's decisions in Sorrentino and Hernandez "improperly limited" the Supreme Court's holding in Lopez. (Def. Mem. at 8) Essentially, Quintana argues that the Court in Morrison reaffirmed Lopez's requirement that the regulated activity "substantially affect" interstate commerce, and that the existence of a jurisdictional element requiring only a minimal nexus to interstate commerce (i.e., that the firearm travel at some point across state lines) is insufficient to demonstrate the substantial effect on interstate commerce required by Lopez and its progeny.
Quintana is right when he argues that the government's burden of proof under the jurisdictional elements of §§ 922(g)(1) and 922(k), which require only a de minimis showing that the firearm possessed by a defendant at some point had traveled in interstate commerce, falls short of showing that his possession had a substantial effect on interstate commerce. See, e.g., United States v. Palozie, 166 F.3d 502 (2d Cir. 1999) ("[T]o satisfy the interstate commerce element of § 922(g), the prosecution need only make the de minimis showing that the possessed firearm traveled in interstate commerce.") However, Quintana' s reading of Lopez's "substantial effect" requirement is too broad.
As discussed above, the Lopez Court struck down § 922(q) in part because this provision "contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm in questionaffects interstate commerce." Lopez, 514 U.S. at 561. (emphasis added). Notably, the Court did not require the jurisdictional element to ensure that the firearm in question "substantially" affects interstate commerce. Rather, the "substantially affects" language in Lopez applies broadly to the category of activity being regulated, not the specific act of possession being prosecuted. Accordingly, Lopez's third prong — requiring that the regulated activity "substantially affect" interstate commerce — may be satisfied if there is a jurisdictional element in place which would ensure that any given act of possession only "affects" interstate commerce. The jurisdictional elements contained in §§ 922(g)(1) and 922(k) meet this standard.
It is worth noting that the consideration of a non-economic activity's general effect on interstate commerce is not unlike the consideration of the "aggregate effect" of a commercial transaction on interstate commerce. However, there is nothing in Lopez that precludes the consideration of a non-economic activity's general effect on interstate commerce — provided that a jurisdictional element also is present. See Morrison, 120 S.Ct. at 1754 ("We accordingly reject the argument that Congress may regulate [non-economic], violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce.") (emphasis added).
To be sure, there is language in Morrison that could be read to support part of Quintana's argument. For example, the Morrison Court stated that the presence of "a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce." Morrison, 120 S.Ct. at 1751. (emphasis added) The use of "may" in this sentence means that the mere existence of a jurisdictional element is not necessarily sufficient to satisfy the requirements ofLopez's third prong. In other words, a court could find that the connection to interstate commerce required by a particular jurisdictional element is so attenuated that it fails to pass constitutional muster.
In this case, although I recognize that the jurisdictional elements contained in §§ 922(g)(1) and 922(k) are so broad as to make virtually any possession of a firearm that would otherwise violate these provisions a federal crime, I am compelled by Second Circuit authority to deny Quintana's motion. By upholding §§ 922(g)(1) and 922(k) in Hernandez and Sorrentino, the Second Circuit recognized that the connection to interstate commerce required by these provisions was sufficient to meet the demands of Lopez and the Commerce Clause. The language of Morrison is not explicit enough to cast doubt on this conclusion or to permit a different analysis. See e.g., United States v. Feliciano, 223 F.3d 102, 119 (2d Cir. 2000) (holding, post-Morrison, that racketeering statute containing de minimis jurisdictional element was constitutional).
* * *
For the reasons set forth above, defendant's motion to dismiss the indictment charging him with possession of firearms in violation of 18 U.S.C. § 922(g)(1) and 922(k) is denied.