U.S. v. Sherman

Full title: UNITED STATES OF AMERICA v. MICHAEL SHERMAN

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Jan 17, 2001

No. 4:00-CR-269-E(1) (N.D. Tex. Jan. 17, 2001)

Opinion

No. 4:00-CR-269-E(1)

January 17, 2001

ORDER

ELDON B. MAHON, United States District Judge

Now before the Court is a "Motion to Dismiss the Indictment as it is Based on an Unconstitutional Statute and for Failure to State a Federal Offense, for Lack of Federal Jurisdiction, Because of the Violation of the Defendant's Right to a Grand Jury Finding on Each of the Elements, and for a Grand Jury Transcript" (hereinafter "Motion to Dismiss") filed by Defendant Michael Sherman ("Sherman") in the above styled and numbered cause. The United States of America ("the Government") has responded in opposition to the Motion to Dismiss. After considering the submissions of the parties, the record in this matter, and the applicable law, the Court determines that the Motion to Dismiss should be DENIED.

On November 15, 2000, Sherman was indicted for

being a person who had been convicted in a court of a crime punishable by imprisonment for a term exceeding one year, did knowingly and unlawfully possess in and affecting interstate commerce a firearm, to wit: a .45 caliber Remington pistol, model 1911-A1, bearing serial number 1599931.

A violation of Title 18, United States Code, Section 922(g)(1) and 924(a)(2).

See November 15, 2000 Indictment.

In the Motion to Dismiss, Sherman relies largely on United States v. Lopez, 514 U.S. 549 (1995), and asserts that: (1) 18 U.S.C. § 922 (g) (1) is unconstitutional, or (2) if 18 U.S.C. § 922 (g)(1) is constitutional, it is unconstitutional as applied because Sherman's indictment fails to allege a "substantial effect" on interstate commerce, and the grand jury did not find probable cause that there was a substantial effect on interstate commerce. See Motion to Dismiss at 1-2. A review of Fifth Circuit precedent in this matter reveals that assertions identical to Sherman's have been presented and dismissed inUnited States v. Gresham, 118 F.3d 258 (5th Cir. 1997), cert. denied, 522 U.S. 1052 (1998). In fact, in Gresham the Fifth Circuit upheld a decision by the Honorable John McBryde, of the Fort Worth Division for the Northern District of Texas, denying a motion to dismiss a § 922(g)(1) indictment using language almost identical to the indictment in the current case. The Court finds itself at a loss to explain why neither Sherman nor the Government was able to discover this strong Fifth Circuit precedent.

In Gresham, the Fifth Circuit specifically held that

[t]he constitutionality of § 922(g)(1) is not open to question. In United States v. Rawls, 85 F.3d 240 (5th Cir. 1996), we held that neither the holding in Lopez nor the reasons given theref or constitutionally invalidate § 922(g)(1). Id. at 242. Accordingly, [the defendant's] constitutional challenge is foreclosed by circuit precedent.

Gresham, 118 F.3d at 263, citing, United States v. Dickey, 102 F.3d 157 163 (5th Cir. 1996); United States v. Kuban, 94 F.3d 971, 973 (5th Cir. 1996), cert denied, 519 U.S. 1070; accord U.S. v. De Leon, 170 F.3d 494, 498 (5th Cir. 1999) ("This Court has repeatedly emphasized that the constitutionality of § 922(g)(1) is not open to question.") (emphasis added). The Court therefore finds that Sherman's argument that § 922(g)(1) is unconstitutional is foreclosed by Fifth Circuit precedent. See De Leon, 170 F.3d at 499.

The Gresham decision also defeats Sherman's second argument, which challenges § 922(g)(1) as applied to his indictment. Just like Sherman, the defendant in Gresham moved to dismiss his § 922(g)(1) indictment, arguing that Lopez permits the United States to regulate activities only if they "substantially affect interstate commerce." See Gresham, 118 F.3d at 264; Motion to Dismiss at 2-6. Further, the defendant in Gresham claimed, like Sherman, that his indictment was defective because it charged the defendant with possessing a firearm "in or affecting interstate commerce," and omitted the constitutional requirement of "substantial effect." See Gresham, 188 F.3d at 264; Motion to Dismiss at 6-9. Like the defendant in Gresham, Sherman mistakenly concludes that his indictment does not charge "every element" of a § 922(g)(1) offense and should be dismissed. See Gresham, 118 F.2d at 264; Motion to Dismiss at 7.

A reading of Gresham by Sherman's attorney would have revealed that the arguments presented urging the dismissal of Sherman's indictment have previously been rejected. In Gresham, the Fifth Circuit stated that:

[i]n Rawls, we recognized that the in or affecting commerce element of § 922(g)(1) may be satisfied if the firearm possessed by a convicted felon had traveled in interstate commerce. See Rawls, 85 F.3d at 242-43. Citing Scarborough v. United States, 431 U.S. 563 (1977), we further concluded that the statute required only a "minimal nexus" between the firearm and interstate commerce. Id. at 243-44 (Garwood, J., specifically concurring). Consequently, the court held that the jurisdictional nexus was satisfied in Rawls because the firearm had traveled previously in interstate commerce. Likewise, in the instant case the government offered evidence to demonstrate that the firearm had traveled in interstate commerce, thereby satisfying the jurisdictional nexus.

Therefore, given that the "in or affecting commerce" element of § 922(g)(1) requires only a minimal nexus between the firearm and interstate commerce, the indictment in the instant case was not defective for omitting the "substantial effect" requirement endorsed in Lopez. [Defendant] is entitled to no relief on this claim.

Gresham, 118 F.3d at 264-265. Based on Gresham, the Court finds that Sherman's challenge to the indictment for failing to allege a substantial effect on interstate commerce, or that the grand jury did not find probable cause that there was a substantial effect on interstate commerce, should be denied.¹

1 Because of the strong precedent in this matter, the Court sees no need to address Sherman's request for a Grand Jury transcript in this matter.

In conclusion, the identical arguments put forth by Sherman in his Motion to Dismiss have been previously considered and rejected by the Fifth Circuit in a case involving a similar indictment under 18 U.S.C. § 922g(1) from the Fort Worth Division in the Northern District of Texas. In the future, the parties are strongly encouraged to conduct more thorough legal research into Fifth Circuit precedent.

Accordingly, it is ORDERED that Sherman's Motion to Dismiss is DENIED.

IT IS SO ORDERED.