                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         AUG 19 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 02-7096
v.                                                 (D.C. No. 02-CR-7-P)
                                               (Eastern District of Oklahoma)
GARY WAYNE THOMAS,

             Defendant - Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    INTRODUCTION

      Appellant Gary Wayne Thomas was convicted by a jury of three counts of

intent to manufacture methamphetamine, four counts of being a felon in

possession of a firearm, three counts of possession of a firearm while in

commission of a drug trafficking offense, and one count of possession of

methamphetamine with intent to distribute. Thomas appeals his convictions,

asserting the search of his vehicle did not comply with the Fourth Amendment.

He also asserts the trial court committed reversible error by commenting to a

witness that she should save her life from drugs. Finally, Thomas contends that

the prosecution adduced insufficient evidence and the district court gave

inadequate instruction concerning the interstate commerce nexus necessary to

prove the felon in possession of a firearm counts.

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms,

concluding the search and seizure of Thomas’ vehicle was lawful as an inventory

search pursuant to a lawful impoundment, the trial court’s statements were not

reversible error, and the evidence and jury instructions satisfied the interstate

commerce requirement.

II.   BACKGROUND

      Thomas was convicted by a jury of charges arising from four separate

incidents spanning a two-year period. On August 31, 1999, police officers


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executed a search warrant on an unoccupied residence. Upon entry, police

discovered a shotgun and items associated with the manufacture of

methamphetamine. Receipts and other documents bearing Thomas’ name were

found in the residence.

      On November 5, 1999, the owner of the Westville, Oklahoma Dairy Bar

witnessed a vehicle bump into the front wall of the building. The owner asked an

employee to contact the police because the driver was slumped over the steering

wheel and there appeared to be a gun in the front seat. Upon arrival, the

responding police officer saw Thomas slumped over in the front seat of the

vehicle. After the officer roused him, Thomas stepped out of the vehicle. The

officer asked for identification and insurance and Thomas informed him that his

driver’s license was suspended. The police officer then conducted a pat down

search, which did not reveal any weapons, and returned to his patrol car to run a

check on information provided by Thomas. At that time, another officer arrived

on the scene.

      When the second officer approached the vehicle, Thomas took out a

revolver from the front seat. The officers drew their weapons and told Thomas to

drop the revolver. Thomas then shoved the weapon between the seats of the car.

The police removed Thomas from the vehicle, placed him under arrest,

handcuffed him, and sat him in the back of the patrol car.


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     Thereafter, the police removed the revolver from between the seats and

discovered a shotgun under a jacket in the front passenger side of the car. The

officers also discovered chemicals and other items related to manufacturing

methamphetamine behind the driver’s seat. The officers then cordoned off the

area and contacted the District Attorney’s Drug Task Force. The vehicle was

moved to the fire department where a search of the trunk uncovered more items

associated with manufacturing methamphetamine.

      On September 26, 2000, a police officer stopped a van that Thomas was

driving. Thomas was arrested for not having a driver’s license and for the

improper affixation of a license plate tag. While conducting a search of the van

and the passenger’s purse, the officer discovered three guns.

      Finally, on May 17, 2001, police responded to a report of a possible drug

laboratory in a mobile home. Before police returned with a search warrant,

Thomas exited the home and was placed under arrest. A search of the home

revealed two firearms and items and substances associated with a

methamphetamine laboratory.

      Thomas was indicted on three counts of attempt to manufacture

methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846(a)(1); four

counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §

922(g)(1); three counts of possession of a firearm while in the commission of a


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drug trafficking offense, in violation of 18 U.S.C. § 924(c); and one count of

possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C). Prior to trial, Thomas filed a motion to suppress

which challenged the search of the vehicle at the Dairy Bar (“Dairy Bar search”)

as “lack[ing] sufficient cause to satisfy the Fourth [A]mendment” and “not

justified as a constitutionally cognizable inventory search.” After a suppression

hearing, the district court denied the motion, concluding that the search was a

proper search incident to arrest and a proper search for purposes of officer safety

once one weapon had been retrieved from the vehicle. The district court further

concluded that the fact that the inventory search occurred prior to the actual

arrival of a tow truck was immaterial.

      At trial, the passenger of the van stopped on September 26, 2000, Felicia

Jones, testified as a government witness. She stated that Thomas improperly

placed the license plate tag on the van and had previously shown her one of the

weapons that was discovered during the search. She further testified that she had

been a methamphetamine user for the past four to five years and had used

methamphetamine two weeks prior to testifying. When Jones completed

testifying, the trial court addressed the witness, in the presence of the jury, as

follows:




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      THE COURT: Ms. Jones, how old are you, ma’am?

      THE WITNESS: 28 — no, 29.

     THE COURT: 29. You seem like an intelligent young woman. Do you
now appreciate what this stuff is doing to your life?

      THE WITNESS: I know it’s not doing much good. I’m trying to quit.

      THE COURT: Have you ever heard of Narcotics Anonymous? They do the
Lord’s work. Courageous people recovering from their own addictions. Why
don’t you go see those folks? They might save your life.
      Are these folks here in the courtroom with you? Do you have family here
with you?

      THE WITNESS: Yes, my mother.

      THE COURT: How blessed you are to have her. For your sake and [] for
her sake, do something to save your life, would you, please? Make an effort.

      During a bench conference, Thomas moved for a mistrial based on the

court’s comments to Jones in front of the jury. The court did not grant the motion

and continued with the trial.

      During trial, a government expert witness testified that the various firearms

were manufactured outside of Oklahoma and would have traveled in interstate

commerce to arrive in the state of Oklahoma. In addition, the jury was instructed

that the government could “meet its burden of proof on the question of being ‘in

or affecting commerce’ by proving . . . , beyond a reasonable doubt, that the

firearm(s) identified in the Indictment, at any time, had traveled across a state

boundary line.” Thomas objected to the instruction, claiming it was insufficient


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to meet the standard of substantial nexus as established in United States v. Lopez,

514 U.S. 549 (1995). The jury found Thomas guilty on all eleven counts. After

trial, Thomas filed a motion for judgment of acquittal, alleging that the evidence

was insufficient to establish an interstate commerce nexus. The district court

denied the motion.

       Thomas was sentenced on the various counts to terms ranging from sixty

months to life.

III.   DISCUSSION

       A.    Dairy Bar Search

       Thomas argues that the Dairy Bar search was improper and all evidence

seized incident to that search, except the weapon Thomas drew on the officers,

should have been suppressed. In reviewing the denial of a motion to suppress,

this court examines the district court’s factual findings for clear error with the

evidence viewed in the light most favorable to the government. United States v.

Haro-Salcedo, 107 F.3d 769, 771 (10th Cir. 1997). However, the reasonableness

of the search and seizure is a question of law reviewed de novo. Id.

       Thomas contends the district court erred in concluding the vehicle search

was a permissible inventory search pursuant to an impoundment. The Supreme

Court has held that police are entitled to conduct an administrative search of a

vehicle in order to secure and inventory its contents when the vehicle has been


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lawfully impounded or taken into police custody. South Dakota v. Opperman,

428 U.S. 364, 373 (1976). On appeal, Thomas only challenges the lawfulness of

the impoundment of his vehicle and not the propriety of the inventory search. 1 He

contends that, under Oklahoma law, the police could not have properly

impounded his car without permission of the owner of the Dairy Bar because the

vehicle was located on private property.

      Generally, police have the discretion to impound a vehicle if the decision is

based upon standard criteria and something other than the suspicion that there is

evidence of criminal activity. Colorado v. Bertine, 479 U.S. 367, 375 (1987).

Pursuant to Oklahoma case law, “a car on private property cannot be impounded

absent a request from the property owner or other specific authorization.”

McGaughey v. State, 37 P.3d 130, 143 (Okla. Crim. App. 2001). Thomas claims

that there was no evidence to suggest that the police had the owner’s request or

permission to tow the vehicle. This court disagrees.

      The owner of the Dairy Bar testified that Thomas had run his vehicle into

his building. After fifteen to twenty minutes, the owner checked on the vehicle

and discovered Thomas slumped over the steering wheel with what appeared to be

a gun in the front seat. The owner then told an employee to call the police. The


      1
        Moreover, Thomas does not challenge the district court’s conclusion that
“the fact that the inventory search occurred prior to the actual arrival of a tow
truck is immaterial.”

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record clearly supports the conclusion that the owner implicitly requested that the

vehicle be removed from the property because the vehicle was pressed against the

building, the owner noticed that the car possibly contained a dangerous weapon,

and the owner initiated contact with the police. Thus, the impoundment was in

accordance with Oklahoma law.

      In United States v. Haro-Salcedo, this court held that the impoundment of

the defendant’s vehicle was reasonable when the impoundment was permissible

under state law and in accordance with police department policy which required

impoundment upon arrest of the driver. 107 F.3d at 771-72. Similarly, the police

properly impounded Thomas’s car under Oklahoma law and, according to

testimony at the suppression hearing, followed police procedure that when a

defendant is arrested, his vehicle is inventoried and towed. Therefore, the

impoundment of Thomas’ vehicle was reasonable and proper.

      Because the impoundment was constitutionally permissible and Thomas

does not contest the inventory search, this court need not address whether the

police inventory was reasonable. Thus, the district court did not err in

determining that the inventory search pursuant to the impoundment was lawful. 2



      2
       Because this court’s conclusion that the inventory search pursuant to the
impoundment was reasonable disposes of the issue of whether the items
discovered in Thomas’ vehicle should have been suppressed, this court need not
address whether the search incident to arrest was proper.

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      B.     District Court’s Comments

      Thomas asserts that the district court’s remarks to Jones prejudiced his

right to a fair jury trial because the statements influenced the jury to convict him

in order to protect Jones and society from the harm caused by his alleged drug

activities. This court has recognized that “[a] trial judge must be a disinterested

and objective participant in the proceedings and must not create an appearance of

partiality by supporting one of the parties.” United States v. Deters, 184 F.3d

1253, 1256 (10th Cir. 1999) (quotation omitted). When a trial judge makes

comments alleged to have denied a defendant the right to a fair trial, this court

must consider “whether the judge’s behavior was so prejudicial that it denied [the

defendant] a fair, as opposed to perfect, trial.” Id. (quotation omitted).

Specifically, this court will examine the record to determine if the trial judge’s

alleged partiality impacted the jury to a level at which the comments became a

factor in their determination. Id.

      Although the trial judge’s comments in this instance were unnecessary, the

remarks were not so prejudicial as to deny Thomas the right to a fair trial. The

comments did not reference Thomas at all and there is no natural implication that

Thomas was responsible for threatening the witness’ life by supplying her the

drugs she used, especially since the witness admitted to being a drug user for two

to three years longer than she knew Thomas. Moreover, there were no other


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comments made by the district court during the four days of trial which suggested

any partiality. In addition, the jury was instructed that anything said by the judge

during the course of trial was not intended to influence the jury’s verdict. Thus,

the district court’s comments did not constitute reversible error.

      C.     Commerce Clause Nexus

      Thomas argues that the evidence supporting his felon in possession of a

firearm convictions under 18 U.S.C. § 922(g) and the jury instruction addressing

the requisite proof for an interstate commerce nexus is insufficient under United

States v. Lopez, 514 U.S. 549 (1995). The denial of a motion for judgment of

acquittal is reviewed de novo. United States v. Austin, 231 F.3d 1278, 1283 (10th

Cir. 2000). This court also reviews de novo the question of whether the jury was

properly instructed. United States v. Snow, 82 F.3d 935, 939 (10th Cir. 1996).

Additionally, whether § 922(g) is a constitutional exercise of Congress’

commerce power is reviewed de novo. United States v. Dorris, 236 F.3d 582, 584

(10th Cir. 2000).

      Thomas specifically alleges that, under Lopez and the Commerce Clause,

the government was required to prove that the firearm possession had a

substantial impact on commerce. As acknowledged by Thomas, this court has

previously rejected the argument that an individualized showing of a substantial

impact on interstate commerce is necessary under § 922(g). Dorris, 236 F.3d at


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585; see also United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir. 1996).

This panel is bound by the holding in Dorris absent en banc reconsideration or a

superseding decision by the Supreme Court. In re Smith, 10 F.3d 723, 724 (10th

Cir. 1993). Thus, this court must reject Thomas’ argument.

      In this circuit, the constitutionally permissible proof under § 922(g) is that

the firearm was, at some time, in interstate commerce. United States v. Bolton, 68

F.3d 396, 400 (10th Cir. 1995). Here, an expert testified that the firearms

Thomas possessed had all traveled in interstate commerce to arrive in Oklahoma.

Also, the jury was instructed that the government could meet its burden of proof

by showing that the firearms had, at any time, traveled across a state boundary

line. Therefore, there was sufficient evidence of interstate travel and the jury was

properly instructed on the interstate commerce nexus. Thus, in accordance with

Tenth Circuit precedent, Thomas’ challenge under the Commerce Clause and

Lopez fails.




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IV.   CONCLUSION

      Based upon the foregoing reasons, Thomas’ convictions and sentence are

AFFIRMED.

                                    ENTERED FOR THE COURT



                                    Michael R. Murphy
                                    Circuit Judge




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