                           UNITED STATES, Appellee

                                          v.

         Walter D. DISNEY, Hospital Corpsman First Class
                       U.S. Navy, Appellant


                                    No. 05-0068
                          Crim. App. No. 200100932


       United States Court of Appeals for the Armed Forces

                              Argued May 4, 2005

                        Decided September 27, 2005

BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ. joined.

                                       Counsel

For Appellant: Lieutenant Jason S. Grover, JAGC, USN (argued).

For Appellee: Lieutenant Guillermo J. Rojas, JAGC, USNR
(argued); Commander C. N. Purnell, JAGC, USN (on brief); Colonel
William K. Lietzau, USMC.



Military Judge:      Peter L. Fagan




            THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Disney, No. 05-0068


    Judge BAKER delivered the opinion of the Court.

    Appellant was tried by a military judge alone at a general

court-martial.     He was charged with one specification of larceny

of military property and one specification of storing stolen

explosives in violation of 18 U.S.C. § 842(h)(2000), violations

of Articles 121 and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 921, 934 (2000), respectively.            Appellant

entered a guilty plea to the Article 134 offense and to a part

of the specification in the Article 121 offense.1            After a

contested hearing, he was convicted of both offenses as charged.

The adjudged and approved sentence included a bad-conduct

discharge, confinement for sixteen months, forfeiture of all pay

and allowances, and reduction to the lowest enlisted grade, E-1.

The United States Navy-Marine Corps Court of Criminal Appeals

affirmed Appellant’s conviction and sentence.           This Court

subsequently granted review on the following issue:

      WHETHER THE OFFENSE TO WHICH APPELLANT PLEADED GUILTY IN
      THE SPECIFICATION OF CHARGE II (STORE STOLEN EXPLOSIVE
      MATERIALS IN VIOLATION OF 18 U.S.C. § 842(h)) EXCEEDED
      CONGRESS’S AUTHORITY UNDER THE COMMERCE CLAUSE OF THE
      CONSTITUTION IN LIGHT OF UNITED STATES v. LOPEZ, 514 U.S.
      549 (1995)?

We conclude that 18 U.S.C. § 842 (h) is a constitutional




1
  Appellant reserved an evidentiary issue with regards to his guilty plea to
the Article 134 offense. This assignment of error was considered and
rejected by the lower court, and was not granted as an issue before this
Court.

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United States v. Disney, No. 05-0068


exercise of Congress’s authority under the Commerce Clause and

is constitutional as applied to Appellant’s conduct.

Consequently, we affirm the decision of the Court of Criminal

Appeals.

                       FACTUAL BACKGROUND

     Appellant was a single Navy Seal with thirteen years of

service at the time of his trial.   Appellant shared his rental

residence with a married couple, who intended to assume

Appellant’s lease upon his pending separation from the Navy.

While cleaning out the residence’s garage, the wife discovered

U.S. Government ordnance Appellant had stolen from various

military training events.   She contacted a senior

noncommissioned officer who notified Appellant’s chain of

command, which subsequently recovered the ordnance from

Appellant’s off-base garage.   According to the incident report

completed upon conclusion of this recovery operation, the

ordnance included signal flares, grenade simulators, smoke

grenades, blasting caps, detonating cord, fuse igniters, and

over 13,000 rounds of various caliber small arms ammunition.

During the hearing into the providence of Appellant’s guilty

plea to the offense of storing stolen explosives, the following

colloquy took place between the military judge and Appellant:




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United States v. Disney, No. 05-0068


          MJ: And do you admit that those [explosive] items were
          either moving as, or were part of, or had been shipped
          or transported in interstate or foreign commerce?

          ACC: Yes, sir. I believe they had all been made and
          shipped prior to and in interstate commerce.

          MJ: Okay.   And why do you believe that?

          ACC: Sir, the list that I was provided through Mr.
          Bash [the ordnance inventory manager for Naval Special
          Warfare Group One] states that these different items
          and lists the items specifically and shows that they
          were all made in states other than California,
          therefore, they were all shipped through interstate
          commerce.

          MJ: Okay. So sometime prior to their being stolen
          materials, they were shipped in interstate commerce?

          ACC: That’s my understanding, yes, sir.

          MJ: And by that, it’s your understanding that they
          were made in one state and then shipped eventually
          into California?

          ACC: Yes, sir.

          MJ: Did you transport them or know personally that
          they were shipped between states after they were
          stolen?

          ACC: [No response.]

          MJ: Let me break that up. Did you transport them
          between two different states?

          ACC: No, sir.

          MJ: Okay. But you believe that between their
          manufacture and the time that they were stolen, they
          were shipped in interstate commerce?

          ACC: Yes, sir.

          MJ: And that’s based on the place of their
          manufacture?

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United States v. Disney, No. 05-0068


            ACC: Yes, sir.

                                 DISCUSSION

      The granted issue tests the constitutionality of an act of

Congress.    Such questions are reviewed de novo.         United States

v. Wright, 53 M.J. 476, 478 (C.A.A.F. 2000); Benning v. Georgia,

391 F.3d 1299, 1303 (11th Cir. 2004).

      18 U.S.C. § 842(h) provides that:

      It shall be unlawful for any person to receive, possess,
      transport, ship, conceal, store, barter, sell, dispose of,
      or pledge or accept as security for a loan, any stolen
      explosive materials which are moving as, which are part of,
      which constitute, or which have been shipped or transported
      in, interstate or foreign commerce, either before or after
      such materials were stolen, knowing or having reasonable
      cause to believe that the explosive materials were stolen.


Emphasis added.     Appellant argues that the statute is

unconstitutional as applied to his offense because his conduct

lacked a substantial nexus to interstate commerce.2            In answer,

the Government initially argues that Appellant lacks standing to

assert a commerce power limitation on Congress’s authority



2
  We resolve this case without deciding whether Appellant waived his right to
make an as-applied challenge to the statute when he entered an unconditional
guilty plea to the Article 134 offense. See, e.g., United States v. Dwyer,
245 F.3d 1168, 1170 (10th Cir. 2001) (“Although [Appellant] has styled this
issue as a jurisdictional challenge, he is in fact attempting to resurrect
the issue of whether his weapon possession affected interstate commerce.
[Appellant] waived this issue when he entered his guilty plea. By admitting
in his plea agreement that ‘such possession was in or affecting interstate or
foreign commerce,’ he admitted the interstate nexus element was satisfied.”)
(internal citation omitted). Waiver was not addressed by either party before
the lower court. Subsequent to oral argument before this Court, Appellant
filed a motion to submit a supplemental brief on the issue of waiver. The
Government opposed the motion, and the Court denied it.

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United States v. Disney, No. 05-0068


because he is a servicemember directly subject to Congress’s

plenary Article I authority to regulate the military.    In the

alternative, the Government contends that the unlawful storage

of explosives substantially affects interstate commerce and that

Appellant’s conduct created the precise risks that Congress

adopted 18 U.S.C. § 842(h) to regulate.

Standing

     Section 842(h)’s jurisdictional element relies on

Congress’s Article I, Section 8, Clause 3 power to regulate

interstate commerce.   The Government contends that Appellant

lacks standing to assert a constitutional challenge to this

jurisdictional element because Congress has plenary power to

regulate him as a member of the United States military via its

enumerated authority “[t]o make Rules for the Government and

Regulation of the land and naval Forces.”   U.S. Const. art. 1, §

8, cl. 14.   Thus, Congress need not rely on its Commerce Clause

authority to reach this Appellant’s conduct.

     According to this logic, the offense applies in Appellant’s

case regardless of the constitutionality of the statute as

applied to a civilian accused subject only to Congress’s

interstate commerce power.   The broader legal implication of the

Government’s argument is that servicemembers would effectively

be precluded from making any future jurisdictional challenge to

an Article 134, UCMJ, Clause 3 (crimes and offenses not capital)

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United States v. Disney, No. 05-0068


offense.

     The Government’s argument, however, is inconsistent with

Article 134’s text as well as Congressional intent.   The plain

language of Article 134, Clause 3 proscribes “crimes and

offenses not capital, of which persons subject to this chapter

may be guilty . . . .”   As the Manual for Courts-Martial

explains, if conduct is charged as a violation of Article 134,

Clause 3, “the proof must establish every element of the crime

or offense as required by the applicable law.”   Manual for

Courts-Martial, United States (2000 ed.)(MCM), pt. IV, ¶ 60.b.

Section 842(h) contains a statutory jurisdictional element that

invokes Congress’s Commerce Clause authority.    Were we to

conclude that element is unconstitutional as applied to

Appellant’s conduct, the statute would no longer constitute a

crime or offense of which he could be found guilty.   Thus, the

language of the specified offense itself requires that we

address Appellant’s claim.

     Congress could have enacted legislation specifically

proscribing Appellant’s conduct on the basis of his status as a

servicemember.   Moreover, Appellant’s storage of stolen

explosives could have been charged as a criminal violation under

Article 134, UCMJ, Clauses 1 and/or 2.   But in the case now

before the Court, there is no indication that Congress or the

charging authorities intended to except Appellant from the

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United States v. Disney, No. 05-0068


jurisdictional standard or element generally applicable in 18

U.S.C. § 842(h) prosecutions.       We would anticipate an express

legislative statement were Congress to deprive servicemembers of

the procedural right to challenge the constitutionality of

statutes under which they were convicted pursuant to Article

134, Clause 3, a right heretofore recognized in military law and

practice.   See, e.g., United States v. O’Connor, 58 M.J. 450

(C.A.A.F. 2003) (reversing Article 134, Clause 3 conviction for

violation of federal child pornography statute on First

Amendment grounds).   Absent such indication, we conclude that

Appellant has standing to challenge the constitutionality of the

statute on Commerce Clause grounds.

Merits

     While Appellant has standing to make his claim, we conclude

that his attack on the statute’s constitutionality, as applied

to his conduct, fails.   Congress may regulate three broad

categories of conduct pursuant to its commerce power:      the

channels of interstate commerce, such as highways and rail

lines; the instrumentalities of interstate commerce, or persons

or things in interstate commerce, such as vehicles and goods;

and those activities that substantially affect interstate

commerce, such as intrastate coal mining or hotels catering to

interstate guests.    United States v. Lopez, 514 U.S. 549, 558

(1995).   “[E]ven if appellee’s activity be local and though it

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United States v. Disney, No. 05-0068


may not be regarded as commerce, it may still, whatever its

nature, be reached by Congress if it exerts a substantial

economic effect on interstate commerce.”   Gonzales v. Raich, 125

S. Ct.   2195, 2205 (2005).

     Through the middle decades of the twentieth century, U.S.

courts commonly sustained Congressional authority pursuant to

this power.   See, e.g., Hodel v. Va. Surface Mining &

Reclamation Ass’n, 452 U.S. 264 (1981); Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241 (1964); Wickard v. Filburn,

317 U.S. 111 (1942).   In the 1995 Lopez case, however, the

Supreme Court ruled that a federal criminal statute prohibiting

possession of firearms on private, public, and parochial school

campuses had an inadequate nexus to interstate or foreign

commerce to warrant the exercise of Congressional authority, and

consequently intruded on regulatory domain reserved to the

various states’ general police power through the Tenth

Amendment:

     These are not precise formulations, and in the nature of
     things they cannot be. But . . . [t]he possession of a gun
     in a local school zone is in no sense an economic activity.
     . . Respondent was a local student at a local school; there
     is no indication that he had recently moved in interstate
     commerce, and there is no requirement that his possession
     of the firearm have any concrete tie to interstate
     commerce.

514 U.S. at 567.   Similarly, in United States v. Morrison, 529

U.S. 598 (2000), the Court concluded that a federal civil cause


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United States v. Disney, No. 05-0068


of action for victims of violent crime against women exceeded

the scope of Congress’s commerce authority:

      The Constitution requires a distinction between what is
      truly national and what is truly local . . . . The
      regulation and punishment of intrastate violence that is
      not directed at the instrumentalities, channels, or goods
      involved in interstate commerce has always been the
      province of the States.

Id. at 617-18.

      In these decisions, the Court identified four

considerations informing its analysis of whether a regulated

activity substantially affects interstate commerce:            (1) whether

the statute regulates economic or non-economic activity; (2)

whether the statute contains an express jurisdictional element;

(3) whether Congress made findings regarding the connection to

interstate commerce; and (4) whether the link between the

prohibited activity and the effect on interstate commerce is

attenuated.    Id. at 609-12.

      In the present case, Appellant seeks to draw on the

federalism concerns articulated in Lopez and Morrison to

challenge the jurisdictional basis of his conviction for storing

stolen explosives.3     In particular, he maintains, that his

intrastate storage of stolen explosives in his garage was an


3
  The Court decided Gonzalez subsequent to the final submission of briefs and
oral argument in this case. The Court rejected an as-applied challenge to
Congress’s power to regulate the intrastate production of medicinal
marijuana. Although the outcome differs from the results in Lopez and
Morrison, the analytic framework, in our view, is consistent with that used
in Lopez and Morrison.

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United States v. Disney, No. 05-0068


inherently local activity which did not substantially affect

interstate commerce.

     We disagree.   As a threshold matter we conclude that 18

U.S.C. § 842(h) is a constitutional exercise of the

Congressional Commerce power.    United States v. Mikels, No. 96-

10204, 1997 U.S. App. LEXIS 5967, at *6, 1997 WL 143965, at *2

(9th Cir. Mar 26, 1997) (unpublished); United States v. Folen,

84 F.3d 1103 (8th Cir. 1996).    As elaborated further in our as-

applied analysis below, the disposition of stolen explosives

“which are moving as, which are part of, which constitute, or

which have been shipped or transported in, interstate or foreign

commerce” clearly falls within the scope of Congress’s

enumerated Article I, Section 8 regulatory powers.

     Applying the analytic framework identified in Morrison, we

are further satisfied that 18 U.S.C. § 842(h) is constitutional

as applied to Appellant’s conduct.   First, we conclude that the

statute regulates economic activity, and that Appellant’s

conduct fell within the scope of this regulated activity.   In

Lopez, the Court’s determination that the statute criminalizing

possession of a handgun on school property did not regulate

economic activity was strongly informed by the “stand alone”

character of the crime.   514 U.S. at 561 (“[The statute] is a

criminal statute that by its terms has nothing to do

with ‘commerce’ or any sort of economic enterprise, however

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United States v. Disney, No. 05-0068


broadly one might define those terms. [The statute] is not an

essential part of a larger regulation of economic activity, in

which the regulatory scheme could be undercut unless the

intrastate activity were regulated.”).   In contrast, § 842(h)

was enacted as an essential part of a comprehensive federal

legislative scheme to effectively regulate the sale, storage,

transfer, or other disposition of explosives in interstate

commerce.   See 18 U.S.C. § 841.   Moreover, as the Supreme Court

recently reiterated:

     Our case law firmly establishes Congress’ power to regulate
     purely local activities that are part of an economic “class
     of activities” that have a substantial effect on interstate
     commerce. . . . [E]ven if appellee’s activity be local and
     though it may not be regarded as commerce, it may still,
     whatever its nature, be reached by Congress if it exerts a
     substantial economic effect on interstate commerce. We
     have never required Congress to legislate with scientific
     exactitude. When Congress decides that the ‘total
     incidence’ of a practice poses a threat to a national
     market, it may regulate the entire class. In this vein, we
     have reiterated that when a general regulatory statute
     bears a substantial relation to commerce, the de minimis
     character of individual instances arising under that
     statute is of no consequence.

Gonzales, 125 S. Ct. at 2205-06 (internal citations omitted).

     Second, the statute includes an express jurisdictional

element, adopted subsequent to the Court’s Lopez decision.

Further, Appellant conceded this element at trial when he stated

that the contraband had moved in interstate or foreign commerce

because it had been produced outside of California (the locus of

the crime).

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United States v. Disney, No. 05-0068


     Third, the stated purpose of § 842(h) and the statute’s

associated legislative history demonstrate that Congress found

the illegal use and unsafe storage of contraband explosives to

be a substantial hazard to interstate commerce.   Pub. L. No. 91-

452, § 1102, 84 Stat. 922 (1970); H.R. Rep. No. 91-1549 (1970),

reprinted in 1970 U.S.C.C.A.N. 4007, 4013 (“Bombings and the

threat of bombings have become an ugly, recurrent incident of

life in cities and on campuses throughout our Nation.”).   Thus,

Congress enacted the statute as part of a regulatory scheme

intended to:

     protect interstate and foreign commerce against
     interference and interruption by reducing the hazard to
     persons and property arising from misuse and unsafe or
     insecure storage of explosive materials.

1970 U.S.C.A.A.N. at 4013.   In Morrison, the Court looked beyond

Congress’s stated finding that gender motivated violence

substantially affected interstate commerce, concluding that the

substantial affects test “ultimately presents a judicial rather

than a legislative question . . . .”   Morrison, 529 U.S. at 614.

However, Appellant’s argument fails to even address the

differences between the majority and the dissent in Morrison

over the degree of judicial deference properly afforded to

Congressional findings because it is patently obvious that the

misuse and unsafe or insecure storage of explosive materials

substantially affect interstate commerce.   This is a conclusion


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United States v. Disney, No. 05-0068


easily reached before September 11th, 2001, and it is easily

reached after that catastrophic day.

     Fourth, we are satisfied that there is a rational basis for

concluding that Appellant’s storage of stolen explosives has

substantial direct implications for commerce.   Gonzales, 125 S.

Ct. at 2197 (“The Court need not determine whether respondents’

activities, taken in the aggregate, substantially affect

interstate commerce in fact, but only whether a ‘rational basis’

exists for so concluding.”).   Regardless of the actual impact of

Appellant’s particular conduct, his storage of stolen explosives

fell within a class of commercial activity within Congress’s

power to regulate.   Id.   (“[W]here the class of activities is

regulated and that class is within the reach of federal power,

the courts have no power to excise, as trivial, individual

instances of the class.”) (internal citations omitted).

Appellant’s actions diverted explosives out of the legal

interstate market where they could be monitored and regulated

and diverted them to his garage where federal regulations no

longer applied regarding their storage or possible reentry into

the marketplace.

     Finally, we note that our conclusion is in accord with the

decision of every court that has considered this issue in

regards to 18 U.S.C. § 842(h) post-Lopez.    See Mikels, U.S. App.

LEXIS 5967, 1997 WL 143965; Folen, 84 F.3d 1103; see also United

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United States v. Disney, No. 05-0068


States v. Kirk, 1997 U.S. App. LEXIS 12670 (5th Cir. 1997)

(citing analysis in United States v. Dawson, 467 F.2d 668 (8th

Cir. 1972), to reject Lopez challenge to federal criminal

statute regulating possession of machine guns).

     Accordingly, we affirm the decision of the United States

Navy-Marine Corps Court of Criminal Appeals.




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