                    UNITED STATES COURT OF APPEALS

                             FIFTH CIRCUIT


                             No. 94-50472



                  UNITED STATES OF AMERICA,
                                      Plaintiff-Appellee,

                  versus

                  WILLIAM J. KIRK,
                                        Defendant-Appellant.



          Appeal from the United States District Court
                for the Western District of Texas

                           November 7, 1995

Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.

ROBERT M. PARKER:

     The appellant, William J. Kirk, entered a conditional guilty

plea in the district court to one count of unlawful possession of

a machinegun under 18 U.S.C. § 922(o).1      On appeal, Kirk challenges

the indictment and the district court's sentence calculation.

Finding no error, we affirm.



                               I.    FACTS

     On September 1, 1988, Kirk offered to sell a machinegun to

Donald Mueller.    From September 1988 through January 4, 1989, Kirk

attempted to sell various unregistered machineguns to Mueller.      On



      1. "Machinegun" is defined in 26 U.S.C. § 5845(b) as "any
weapon which shoots, is designed to shoot, or can be readily
restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger."
January 4, 1989, Kirk agreed to sell Mueller an M-16 machinegun for

$1,200.00.      Mueller then went with Kirk to a rifle range in

Dripping Springs, Texas where they obtained certain parts necessary

for a machinegun conversion.        Kirk used the parts to convert a

semi-automatic EA Company Rifle, .223 caliber, model J-15, to a

machinegun.    Kirk and Mueller test-fired the converted machinegun

with blank ammunition, and the transaction was completed.

     On February 12, 1989, Kirk made arrangements with Mueller to

sell him an UZI machinegun for $1,100.00 in cash plus a $900.00

commercial welder.      On February 21, 1989, at the same rifle range,

the cash and welder were exchanged for an Action Arms Limited UZI

carbine, Model A, 9 millimeter bearing serial number SA32084, which

had been converted to a machinegun by the addition of an UZI

machine bolt.       Mueller test-fired the UZI in the fully automatic

mode.   John M. Clark accompanied Mueller on February 21 and

witnessed     the    transaction.       Apparently,    through   Mueller's

cooperation, a number of the meetings and conversations between

Kirk and Mueller were monitored by the Bureau of Alcohol, Tobacco

and Firearms.

     Kirk was arrested November 28, 1989.             He was charged with

firearms violations in eight counts of a ten-count superseding

indictment.     On the day trial was scheduled, Kirk pled guilty to

one count, charging unlawful possession of an unregistered firearm

in violation of 26 U.S.C. § 5861(d). Kirk appealed his conviction,

arguing that section 5861 had been implicitly repealed by the

passage of 18 U.S.C. § 922(o).           Based on authority from other


                                    2
circuits supporting Kirk's argument, the parties jointly moved to

remand   the   case   to   the    district   court    for    dismissal   of   the

conviction under Rule 48(a) of the Federal Rules of Criminal

Procedure.2

     After the first conviction was set aside, Kirk was charged on

December 21, 1993 in a four-count indictment with violations of 18

U.S.C. § 922(o): unlawful possession of a machinegun on January 4,

1989 (Count One); unlawful transfer of a machinegun on January 4,

1989 (Count Two); unlawful possession of a machinegun on February

21, 1989 (Count Three); and unlawful transfer of a machinegun on

February 21, 1989 (Count Four).        Kirk filed a motion to dismiss the

indictment,    arguing     that    section   922(o)    was    unconstitutional

because it exceeded the power of the federal government under the

Commerce Clause and because the indictment failed to allege a

connection with interstate commerce.            Kirk also challenged his

prosecution on the basis of the plea agreement entered in the first

prosecution and on the basis of double jeopardy.                  The district

court overruled these contentions.            Kirk entered a conditional

guilty plea to count one of the indictment, preserving the right to

appeal the district court's rulings.

     Kirk was sentenced on June 24, 1994.             In calculating Kirk's

sentencing range under the sentencing guidelines, the district

court increased the defendant's offense level for obstruction of



     2. FED. R. CRIM. P. 48(a) provides, in relevant part, "The
Attorney General or the United States attorney may by leave of
court file a dismissal of an indictment, information or complaint
and the prosecution shall thereupon terminate."

                                       3
justice.        The   district     court       sentenced   Kirk   to    a       term   of

imprisonment of twelve months and one day, a term of supervised

release    of   three    years,     a   fine     of   $3,000.00   and       a   special

assessment.      The defendant timely filed this appeal.



                                  II.   DISCUSSION

                                         A.

     Kirk first contends that the district court erred in denying

his motion for specific performance of his prior plea agreement.

Kirk claims that as part of the first plea agreement in 1991, the

government promised that if Kirk were successful on appeal, it

would not bring a subsequent prosecution based on the same conduct.

Thus, Kirk argues, the subsequent prosecution was barred by that

prior agreement.

     If a plea agreement exists, and a plea of guilty has been in

some way induced by a promise, it is essential to the fairness of

the proceeding that the promise be fulfilled.                 Santobello v. New

York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971).                    This circuit

requires the government to strictly comply with the agreements it

makes with defendants.        United States v. Chagra, 957 F.2d 192, 194

(5th Cir. 1992).        A court's inquiry regarding whether a particular

promise induced a guilty plea does not necessarily end with a

reading    of   the     written    agreement.         Evidence    of    discussions

surrounding the negotiations of the written agreement may establish

the existence of a promise.             United States v. Williams, 809 F.2d

1072, 1079 (5th Cir. 1987), cert. denied, 484 U.S. 896 (1987).                         We


                                           4
will reverse a district court's findings in this regard only if

clearly erroneous.   Id.

     At a hearing in the district court, Kirk testified that at the

time he was deciding to plead guilty in 1991, the assistant U.S.

attorney told him that he could appeal his conviction based on the

constitutionality of the statute, and that if he was successful the

government would not bother him any more.      However, the AUSA,

Gerald Carruth, testified that there was no agreement not to pursue

other charges if the conviction did not stand up.   In fact, Carruth

testified that at no time did the government agree to "give up" if

Kirk's appeal was successful.

     The written plea agreement presented in January 1991 contained

only the agreement to dismiss the other charges at sentencing and

the standard language regarding the government's right to proceed

with prosecution should the defendant withdraw his guilty plea

prior to sentencing.   The written agreement contained no promise

not to re-prosecute in the event Kirk's appeal was successful.   The

record on appeal also reveals that at the plea hearing held January

23, 1991, after the plea agreement was presented to the district

court, the court inquired "Has anyone made any promise to you other

than the plea agreement that induced you to plead guilty?"       The

defendant responded "No, sir."

     The district court found, based on the evidence presented,

that the defendant entered into the first plea agreement because of

the strength of the evidence against him, including recorded

conversations, and not because of any promise not to prosecute in


                                 5
case of a successful appeal. In addition, the district court found

that the defendant had not established by a preponderance of the

evidence that AUSA Carruth made the alleged promise.   This finding

was based on the testimony of the defendant and the attorneys

involved and necessarily depended on an evaluation of credibility

by the district court.

     "It is not this Court's function to pass on a district court's

determination regarding the credibility of witnesses."      United

States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994), cert.

denied, 115 S. Ct. 1412 (1995).        Given the testimony of the

parties, there were two permissible views of the evidence.       The

district court chose one view based on its ability to weigh the

evidence and evaluate the credibility of the witnesses.      Under

these circumstances, we cannot hold that the district court's

findings are clearly erroneous.

                                  B.

     The appellant next argues that his prosecution under section

922(o) violated his rights under the Double Jeopardy Clause of the

Fifth Amendment because he had been placed in jeopardy for the same

conduct in the previous prosecution under 26 U.S.C. § 5861(d).    As

noted above, the instant prosecution under section 922(o) was not

commenced until after the prosecution under 26 U.S.C. § 5861(d) was

dismissed because of a perceived infirmity.3


     3. The government decided the initial prosecution should be
dismissed based on the Tenth Circuit's holding in United States v.
Dalton, 960 F.2d 121 (10th Cir. 1992) that the enactment of 18
U.S.C. § 922(o) implicitly repealed 26 U.S.C. § 5861(d).      This
Court subsequently disagreed with the Tenth Circuit on this

                                  6
     The Double Jeopardy Clause provides that no person shall "be

twice put in jeopardy of life or limb" for the "same offence."

U.S. CONST. amend. V.

     It has long been settled, however, that the Double
     Jeopardy Clause's general prohibition against successive
     prosecutions does not prevent the government from
     retrying a defendant who succeeds in getting his first
     conviction set aside, through direct appeal or collateral
     attack, because of some error in the proceedings leading
     to the conviction.

Lockhart v. Nelson, 488 U.S. 33, 38, 109 S. Ct. 285, 102 L. Ed. 2d

265 (1988).   The exception to this rule, not applicable in this

case, is that if the defendant succeeds in having his first

conviction set aside on the ground that the evidence presented was

insufficient, a re-prosecution is barred because the defendant was

entitled to an acquittal at the first trial.   Lockhart, 488 U.S. at

39, 109 S. Ct. at 290; Burks v. United States, 437 U.S. 1, 98 S.

Ct. 2141, 57 L. Ed. 2d 1 (1978).

      The first prosecution in the present case was set aside not

by a court's determination that there was error, but by agreement

of the parties that, according to persuasive authority, the statute

under which Kirk was convicted had been implicitly repealed.     This

is the type of trial error to which the general rule of Lockhart

applies.   It makes no difference that this Court's review of the

first conviction was preempted by motion of the government under

Rule 48 of the Federal Rules of Criminal Procedure.       Thus, the

prosecution of Kirk under 18 U.S.C. § 922(o), after a prosecution



question in United States v. Ardoin, 19 F.3d 177 (5th Cir.), cert.
denied, 115 S. Ct. 327 (1994).

                                   7
dismissed for a perceived "defect in the charging instrument," does

not offend the Double Jeopardy Clause.   See Montana v. Hall, 481

U.S. 400, 403, 107 S. Ct. 1825, 1827, 95 L. Ed. 2d 354 (1987).4

                                C.

     Kirk also challenges his conviction on the ground that 18

U.S.C. § 922(o) is unconstitutional.   Section 922(o) provides, in

relevant part,

     (o)(1) Except as provided in paragraph (2), it shall be
     unlawful for any person to transfer or possess a
     machinegun.

     (2) This subsection does not apply with respect to --
     * * *
     (B) any lawful transfer or lawful possession of a
     machinegun that was lawfully possessed before the date
     this subsection takes effect.

The effective date of this provision was May 19, 1986.         Kirk

contends that this section is unconstitutional because it is beyond

the authority granted to Congress under the Commerce Clause.      We

must analyze this contention in light of the Supreme Court's recent

pronouncement in United States v. Lopez, 115 S. Ct. 1624, 131 L.

Ed. 2d 626 (1995).5

     In Lopez, the Supreme Court addressed the constitutionality of

the Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q).   Section

922(q) made it unlawful "for any individual knowingly to possess a



      4. On this point, we agree with the Tenth Circuit. See
United States v. Dalton, 990 F.2d 1166 (10th Cir.), cert. denied,
114 S. Ct. 253 (1993).

      5.   In addition, to the extent not inconsistent with the
Supreme Court's pronouncement, we are bound by our opinion in Lopez
as the law of the circuit. United States v. Lopez, 2 F.3d 1342
(5th Cir. 1993).

                                8
firearm at a place that the individual knows, or has reasonable

cause to believe, is a school zone."                    The Supreme Court affirmed

this Court's ruling that section 922(q) was beyond the scope of the

Commerce power, and thus was unconstitutional.

       In evaluating section 922(q)'s constitutionality, the Supreme

Court described three categories of activity which Congress could

regulate under the Commerce Clause:6 (1) the use of the channels of

interstate     commerce;      (2)       "the    instrumentalities       of    interstate

commerce, or persons or things in interstate commerce, even though

the threat may come only from intrastate activities"; and (3)

activities      which    have      "a    substantial       relation     to    interstate

commerce . . . i.e., those activities that substantially affect

interstate commerce."           Lopez, 115 S. Ct. at 1629-30.                 The Court

held   that    section    922(q)        did     not    fall   within    the   first   two

categories      because       it    did        not    regulate    the    channels     or

instrumentalities        of     interstate           commerce.     Thus,      the   Court

evaluated section 922(q) under the third category to determine

whether it was a regulation of an activity that substantially

affected interstate commerce.

       The Supreme Court held that section 922(q) "by its terms has

nothing to do with `commerce' or any sort of economic enterprise,

however broadly one might define those terms."                    Id., 115 S. Ct. at

1630-31.      The Court also held that "possession of a gun in a local

school zone is in no sense an economic activity that might, through


     6. "The Constitution delegates to Congress the power `[t]o
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.'" Lopez, 115 S. Ct. at 1626.

                                               9
repetition elsewhere, substantially affect any sort of interstate

commerce."       Id., 115 S. Ct. at 1634.      Thus, the Court found section

922(q) unconstitutional under the Commerce Clause.

     Although Lopez is instructive regarding the proper Commerce

Clause analysis, it does not control the result in our analysis of

section 922(o).        We are not the first court to address section

922(o) in light of Lopez.         In this regard, we have the benefit of

the Tenth Circuit's opinion in United States v. Wilks, 58 F.3d 1518

(10th Cir. 1995).       The Wilks court held that "unlike § 922(q), §

922(o) embodies a proper exercise of Congress' power to regulate

`things in interstate commerce' -- i.e., machineguns."                       Id. at

1521.   "The interstate flow of machineguns," the court said, "`not

only has     a    substantial    effect   on   interstate        commerce;   it   is

interstate commerce.'"          Id. (quoting United States v. Hunter, 843

F.Supp. 235, 249 (E.D. Mich. 1994).             We agree.

     It is particularly important to our determination that section

922(o) prohibits the private possession or transfer of machineguns

only if they were not lawfully possessed prior to May 19, 1986.                   18

U.S.C. § 922(o).       Thus, transfer or possession of a machinegun is

unlawful   under     this   section    only    if   it     was   manufactured     or

illegally transferred after May 19, 1986.                It is clear, therefore,

that the activity Congress intended to prohibit by application of

section 922(o) was the introduction into the stream of commerce

machineguns       manufactured,     imported,       or     otherwise    illegally

obtained, after the effective date of the act.                    When read as a

whole, it is plain that the activities prohibited by section 922(o)


                                       10
constitute commerce.7   We recognized the difference between this

regulation and the Gun Free School Zones Act in our opinion in

United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993):

     Section 922(o) is restricted to a narrow class of highly
     destructive, sophisticated weapons that have been either
     manufactured or imported after enactment of the Firearms
     Owners Protection Act, which is more suggestive of a
     nexus to or affect on interstate or foreign commerce than
     possession of any firearms whatever, no matter when or
     where originated, within one thousand feet of the grounds
     of any school.

2 F.3d at 1356 (emphasis in original; footnote omitted).

     Defendant Kirk attempts to avoid section 922(o)'s relation to

interstate commerce by characterizing the alleged "crime" in this




     7. The dissent contends that we have misconstrued the plain
language of the statute in coming to this conclusion. Rather than
considering the scope of the prohibition in section 922(o), the
dissent prefers to discuss mere possession in a vacuum.         The
dissent attempts to justify its narrow perspective by noting that
the offense of conviction implicated only unlawful possession, an
offense distinct from unlawful transfer thanks to a disjunctive
connector. The true indicator of the statute's scope, however, is
found not in subsection (1), but in subsection (2) which excludes
certain transfers and possessions from the prohibitions found in
subsection (1).
          Following the dissent's approach, viewing similar
prohibitions against mere possession in isolation, we would be
required to strike down other federal criminal statutes that thus
far have been upheld.      See, for example, 21 U.S.C. §844(a)
(prohibiting simple possession of controlled substances in context
of broader prohibitions against manufacture or distribution of same
in the Drug Abuse Prevention and Control Act); 21 U.S.C. §843(a)(5)
(prohibiting possession of equipment designed to mark or label
counterfeit drugs in context of prohibition against making or
distributing same); 18 U.S.C. § 2342(a) (prohibiting possession of
contraband cigarettes in context of broader prohibition against
commercial transfer of same).        See also 18 U.S.C. §842(j)
(prohibiting "mere" storage of any explosive material in a manner
not conforming to federal regulations in context of federal
restrictions on manufacture, import, purchase, and distribution of
same).

                                11
case as "mere possession" of a machinegun.8                         At the same time,

however, Kirk challenges the constitutionality of section 922(o) on

its    face.       In    evaluating      this     type     of    challenge,      we   must

necessarily consider the scope of section 922(o).                     As noted above,

the    "possession"       prohibited      by     section    922(o)     is   limited    to

possession     of   machineguns         not    lawfully         possessed   before    the

effective date of the act.              To put it simply, there could be no

unlawful    possession          under   section        922(o)    without    an   unlawful

transfer.      In this context, the limited ban on possession of

machineguns must be seen as a necessary and proper measure meant to

allow law enforcement to detect illegal transfers where the banned

commodity has come to rest: in the receiver's possession.                               In

effect, the ban on such possession is an attempt to control the

interstate market for machineguns by creating criminal liability

for those who would constitute the demand-side of the market, i.e.,

those who would facilitate illegal transfer out of the desire to

acquire mere possession.

       Thus, section 922(o) falls into the first category identified

by the Supreme Court in Lopez: a regulation of the use of the

channels of interstate commerce. In other words, section 922(o) is

a     regulation        which    attempts        "to     prohibit     the    interstate

transportation of a commodity through the channels of commerce."

115 S. Ct. at 1630.         This type of regulation is within the commerce



       8.   The offense to which Kirk pled guilty was unlawful
"possession" of a machinegun in violation of 18 U.S.C. § 922(o).
The counts charging Kirk with unlawful "transfer" were dismissed
pursuant to Kirk's plea bargain.

                                            12
power even though, admittedly, some of the activity made unlawful

is purely intrastate.   As with federal regulation of controlled

substances, see 21 U.S.C. § 801, et seq., there is a rational basis

to conclude that federal regulation of intrastate incidents of

transfer and possession is essential to effective control of the

interstate incidents of such traffic.   Therefore, we hold that the

prohibition of transfer or possession of post-1986 machineguns in

18 U.S.C. § 922(o) is a rational exercise of the authority granted

Congress under the Commerce Clause.9

                                D.

     Finally, with regard to his sentence, Kirk argues that the

district court erred in applying the enhancement for obstruction of

justice under section 3C1.1 of the federal sentencing guidelines.

That section provides

     If the defendant willfully obstructed or impeded, or
     attempted to obstruct or impede, the administration of
     justice during the investigation, prosecution, or
     sentencing of the instant offense, increase the offense
     level by 2 levels.

United States Sentencing Commission, Guidelines Manual, § 3C1.1

(Nov. 1994).10   Kirk contends that the conduct for which the two


    9. Kirk also argues that his conviction cannot be valid under
the Commerce Clause because section 922(o) does not require a
showing that a particular unlawful possession substantially affects
interstate commerce. However, where, as here, Congress has the
power to regulate a particular class of activity because of its
relation to interstate commerce, there is no requirement that a
substantial effect be shown in each particular case. See United
States v. Nelson, 458 F.2d 556 (5th Cir. 1972). Because of our
holding above we need not address this argument further.

      10.   Because of the dates of Kirk's offense conduct, and
because of ex post facto considerations, the 1988 edition of the
Guidelines Manual was used in this case.    However, the text of

                                13
level increase was imposed was not related to the "instant offense"

as required by this Guideline.

     According    to   the    Presentence     Investigation   Report,   Kirk

contacted John M. Clark after a search warrant was executed at

Kirk's place of business but before he was indicted or arrested.

Clark was present on February 21, 1989, when Kirk converted an UZI

carbine from semi-automatic to fully automatic and test-fired the

weapon at the rifle range.      Kirk instructed Clark not to cooperate

with authorities concerning his knowledge of these events.               The

offense   to   which   Kirk   pled   guilty    involved   possession    of   a

machinegun on January 4, 1989.        Kirk argues that because Clark's

knowledge of Kirk's activities did not relate specifically to this

event, his attempted obstruction did not relate to the offense of

conviction, and therefore did not relate to the "instant offense"

as required by section 3C1.1.

     Kirk cites three decisions from other circuits that support

his position.    See United States v. Bagwell, 30 F.3d 1454 (11th

Cir. 1994); United States v. Woods, 24 F.3d 514 (3d Cir. 1994);

United States v. Perdomo, 927 F.2d 111 (2d Cir. 1991).            However,

after a careful reading of section 3C1.1, we must respectfully

disagree with these decisions.        Instead, we find the reasoning of

the Sixth Circuit persuasive.

     In United States v. Crousore, 1 F.3d 382 (6th Cir. 1993), the

court addressed the same argument Kirk presents in the present



section 3C1.1 as currently written does not differ in any material
respect from the version applied in this case.

                                     14
case.     In rejecting the defendant's argument, the court said

     This guideline [§ 3C1.1] applies to conduct during the
     investigation, prosecution, and sentencing of the instant
     offense, i.e., the offense for which the defendant is
     being sentenced under the Guidelines.
     * * *
     Whether [the defendant's] lie was about his guilt on the
     specific charges to which he pleaded guilty is not an
     issue under § 3C1.1.
     * * *
     Therefore, the test is not whether the false statement
     [obstruction] was about the actual crime charged, but
     whether   it   was   made  during   the   investigation,
     prosecution, or sentencing of the "instant offense."

1 F.3d at 385.       The court also noted that an attempt to conceal

trivial or immaterial information would not warrant the obstruction

enhancement.       "Material      information       is     information    that,   if

believed,    would    tend   to   influence    or     affect      the   issue   under

determination."       Id.

     We    agree   with     the   Sixth    Circuit.         The   enhancement     for

obstruction of justice under section 3C1.1 is proper anytime the

defendant    has     concealed    or   attempted      to    conceal     information

material to the investigation, prosecution, or sentencing of the

instant offense.       Although this Guideline clearly contemplates a

relationship between the information concealed and the offense

conduct, it does not require that it be related directly to a

particular offense to which the defendant pleads guilty.                    To hold

otherwise would make the sentencing court's ability to consider

obstructive behavior dependent on the offense in a multiple-count

indictment the parties choose to make the subject of a plea

bargain.

     It is clear in the present case that at the time Kirk


                                          15
solicited Clark's aid in impeding the government's investigation,

Clark's personal knowledge of the events on February 21, 1989 were

material to the investigation and prosecution of the firearms

offenses on which Kirk was ultimately indicted.                   The "instant

offense" was one of those offenses.             Thus, the district court's

application of the 3C1.1 enhancement was not error.



                               III. CONCLUSION

      For the foregoing reasons, the appellant's conviction and

sentence are AFFIRMED.



EDITH H. JONES, Circuit Judge, dissenting.

            The United States Supreme Court returned federalism to

constitutional doctrine in recently deciding, in United States v.

Lopez, ___ U.S. ___, 115 S.Ct. 1624 (1995), that Congress exceeded

its power under the Commerce Clause when it banned the possession

of firearms near a school.          18 U.S.C. § 922(q)(1)(A) (1988 ed.,

Supp II).       This case poses remarkably similar constitutional

questions arising from 15 U.S.C. § 922(o), a companion provision to

Section 922(q). Appellant Kirk contends that the Court's reasoning

in Lopez also renders unconstitutional Congress's attempt, in

Section 922(o), to ban11 possession of any "machine gun"12 that was


      11
             One commentator, writing shortly after Section 922(o) was passed as
part of the Firearms Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449
(1986), declined to characterize this Section as a "ban" on machine gun possession,
noting that possession of machine guns was still permitted "under the authority" of
the United States or any lesser political subdivision or as a result of the
grandfather clause for weapons "lawfully" possessed before 1986. Hardy, David T.,
The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17
Cumberland L. Rev. 585, 668-670 (1987).      Hardy, however, advocated a narrower

                                        16
not "lawfully" possessed before the provision passed in 1986.

Acknowledging that Lopez does not control this case, I nevertheless

see no meaningful distinction between Section 922(q) and Section

922(o) as the latter applies to possession, not transfer, of

machine guns.     I also believe that Section 922(o) cannot be upheld

as a more direct exercise of Congressional commerce power.                       I

therefore respectfully dissent.

            The      majority    have      accurately     described       Lopez's

recapitulation of the jurisprudence of the Commerce Clause.                 Thus,

it is settled that the Congressional power over interstate commerce

extends to     (1)    regulating    the    use   of   channels   of   interstate

commerce; (2) regulating and protecting the instrumentalities of

interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities;

and (3) regulating intrastate activities that have a substantial

effect on interstate commerce.            115 S. Ct. at 1629-30.

            But while Lopez evaluated the ban of firearms near a

school under the "affecting commerce" strand of jurisprudence, the

majority here have concluded that the ban on possession of machine

guns constitutes either a regulation of the "channels of interstate



construction of the statute than has been utilized by the government here; the
government construes Section 922(o) to ban private possession of machine guns
produced or unlawfully transferred after 1986.
      12
             The term "machine gun" is defined for federal regulatory purposes in
26 U.S.C. § 5845(b).    As this court's en banc opinion found, however, not all
machine guns so defined are Uzis or AK-47's. They include conventional firearms
that have been modified or altered by wear and tear to commence "firing when the
trigger is depressed and continue[] "firing until it is released, or the weapon's
supply of ammunition is exhausted." United States v. Anderson, 885 F.2d 1248, 1249,
n.3 (5th Cir. 1989).

                                        17
commerce or      of    things   moving   in   interstate     commerce."      This

analysis, in my view, misinterprets those two broad categories of

Commerce Clause power and ultimately conflates them with the third.

Moreover, the affecting commerce category, relied upon by the

federal government's brief to this court, cannot sustain Section

922(o) under the logic of Lopez.

            The fundamental mistake by the majority lies in their

misconstruction of the plain language of the statute. Although the

majority deem the ban on possession of "machine guns" to regulate

the   channels    of    interstate   commerce       or   things   in   interstate

commerce,   neither      Section   922(o)     nor   its   legislative     history

supports that position.         The statute is not limited to possession

in or even affecting interstate commerce or to possession of a

firearm that has traveled in interstate commerce.                      Rather, it

criminalizes the mere private possession of a machine gun.

            The majority infer from the fact that Section 922(o)

prohibits "transfer" as well as "possession" that channels or

things in interstate commerce were intended to be regulated.                 This

inference seems unwarranted for two reasons.                First, transfer as

well as possession of a thing can be of a wholly intrastate

character. Second, when the government criminalizes conduct in the

disjunctive, it may prosecute separately each type of conduct

disjunctively named.        Thus, as in this case, possession alone is

criminalized independent of any transfer of a machine gun. We need

not and ought not consider here the constitutionality of the

Section 922(o) restriction on transfers of machine guns.


                                         18
            The majority also seek advantage from the nature of the

weapons banned and the statute's prospective scope, citing a

passage from this court's decision in Lopez:

            Section 922(o) is restricted to a narrow class
            of highly destructive, sophisticated weapons
            that have been either manufactured or imported
            after enactment of the Firearms Owners
            Protection Act, which is more suggestive of a
            nexus to or effect on interstate or foreign
            commerce than possession of any firearms
            whatever, no matter when or where originated,
            within 1,000 feet of the grounds of any
            school.

2 F.3d at 1556 (emphasis in original, footnote omitted).                 Neither

of these features of the law, however, renders it more closely or

more   necessarily     connected     to     the   regulation     of    interstate

commerce.    Congress's power to regulate interstate commerce does

not depend on the value or dangerousness of the item regulated, but

upon its connection with interstate commerce.             Obviously, eggs as

well   as   toxic   chemicals    can   be    regulated    if    they    have   the

appropriate nexus to interstate commerce. Further, the grandfather

clause of the ban, making it effective only after 1986, fails to

enhance its relation to interstate commerce.13                 After 1986, both

interstate and wholly intrastate private possessions are banned,

and there are no Congressional findings that this most drastic

impact upon intrastate activity, otherwise subject to local police

power, was required by the ineffectiveness of prior federal machine



      13
             The effect of the grandfather clause does, paradoxically, assure a
nexus between interstate commerce and criminal possession of pre-1986 unlawfully
possessed machine guns, because, as this court's Lopez opinion noted, pre-1986
regulatory laws expressly embodied a jurisdictional nexus to commerce. See Lopez,
2 F.3d at 1356, n.29.

                                       19
gun regulation.       Section 922(o), in sum, does not expressly or by

necessary implication appertain to the channels of interstate

commerce or to regulation of things in interstate commerce.

           Because Section 922(o) reaches wholly intrastate, non-

commercial   possession,      the     provision     poses    the   constitutional

question avoided by the Supreme Court when it interpreted a federal

statute criminalizing a felon's possession of a firearm. 18 U.S.C.

§ 1202(a); United States v. Bass, 404 U.S. 336, 92 S.Ct. 515

(1971).      The      government      prosecuted     appellant     Bass     without

demonstrating any connection between his possession and interstate

commerce, because the statute did not clearly require a nexus.

Noting the ambiguity of the both the statute and legislative

history concerning whether interstate commerce was jurisdictionally

invoked, the Court declined to accept broad construction of the

statute and "render[] traditionally local criminal conduct a matter

for federal enforcement and . . . [promote] a substantial extension

of federal police resources."           404 U.S. at 351, 92 S.Ct. at 524.

By inferring a requirement that the possession be "in commerce or

affecting commerce," the Court avoided a significant intrusion on

the traditional federal-state balance.              404 U.S. at 350, 92 S.Ct.

at 523.   A more far-reaching intrusion on state police power is

carried   out    by    Section     922(o),   but    unlike     Bass,   no   saving

construction is available.

           The     majority      do   not    rely    on     legislative     history

concerning Section 922(o), for there is virtually none, and it says

nothing about interstate commerce.            There appears to be only one


                                        20
recorded statement       by   its   legislative    sponsor,   Representative

Hughes, in the Congressional Record:

            I do not know why anyone would object to the
            banning of machine guns.

132 Cong. Rec. H1750 (April 10, 1986) (statement of Rep. Hughes).

Section 922(o) was incorporated as Section 102(9) of the Firearms

Owners' Protection Act, 100 Stat. 452-53, but no other reference to

it appears in the committee reports or elsewhere in legislative

history, with the exception of a brief Senate colloquy concerning

the scope of the exemption for government-authorized machine guns.14

            Despite the absence of textual or legislative historical

support    for   their   interpretation,     the   majority    conclude    that

Section 922(o) "is an attempt to control the interstate market for

machine guns by creating criminal liability for those who would

constitute the demand-side of the market . . .".            Accordingly, the

majority first upholds the possession ban as a regulation of the

use of channels of interstate commerce.            I respectfully disagree.

Even accepting the majority's cause-and-effect rationale, mere

intrastate possession of a machine gun is not a use of the channels

of interstate commerce any more than mere intrastate possession of

a basketball.     Compare Heart of Atlanta Motel, Inc. v. U.S., 379

U.S. 241, 257, 85 S. Ct. 348, 357-58 (1964).

            The majority also rely upon a recent Tenth Circuit case

that upheld Section 922(o) as a regulation of things in commerce,

i.e. interstate traffic in machine guns.            U.S. v. Wilks, 58 F.3d

      14
            See discussion of legislative history in Hardy, supra n.1, at 671-74
and n.461, 462, 463.

                                      21
1518 (10th Cir. 1995).        Decided after the Supreme Court's decision

in Lopez, Wilks considered the Section 922(o) ban on machine gun

possession functionally indistinguishable from previous laws, such

as the 1968 Gun Control Act, which had extended federal control

over interstate and foreign commerce by regulating all persons

engaged in the business of importing, manufacturing, or dealing in

firearms.      Wilks,    58   F.3d   at    1521-22.      The   court    used   the

statements of Congressional findings and purposes in the previous

laws to defend Congress's further step of banning private machine

gun possession in Section 922(o) as if it were a part of the

seamless web of regulation of the firearms business.15               For several

reasons, I must disagree with Wilks.                First, none of those laws

purported to ban possession of firearms unrelated to interstate

commerce.      Compare     United    States    v.   Bass,   supra.      As   Judge

Garwood's opinion in Lopez painstakingly demonstrates, all previous

federal gun control laws have been expressly tied to the conduct of

the firearms business, a business whose inter- and intra-state

activities are not only commingled but clearly "commercial".                   See

Lopez, 2 F.3d 1348-57.

            Second, the overall structure and history of the Firearms

Owners' Protection Act (FOPA), in which Section 922(o) originated,



     15
             Wilks abandoned, as it had to, the erroneous references to legislative
history on which pre-Lopez opinions of the Eighth and Ninth Circuits relied in
upholding Section 922(o). See United States v. Hale, 978 F.2d 1016, 1015 (8th Cir.
1992), cert. denied, ____ U.S. ____, 113 S. Ct. 1614 (1993); United States v. Evans,
928 F.2d 858 (9th Cir. 1991). These cases drew a connection between Section 922(o)
and interstate commerce based upon legislative history from earlier, unpassed
legislation. This court criticized such reliance in United States v. Lopez, 2 F.3d
at 1356-57; the Supreme Court's decision in Lopez undermined other aspects of those
courts' reasoning; and Wilks appropriately discards the discredited reasoning.

                                          22
suggests no general Congressional determination that possession of

machine guns necessarily implicates interstate commerce.                     Judge

Garwood's   opinion     in    Lopez   explains     that   the   Act   focused   on

regulating transfers of firearms, including express Congressional

findings that transfer by non-federal-licensees to "disqualified

persons"    must   be   controlled      to   prevent      evasion     of   license

regulations.     Lopez, 2 F.3d 1354-55.       Other amendments effected by

that statute dealt with provisions which already expressed an

interstate commerce nexus without diluting those requirements. Id.

The preamble of the legislation expressed Congress's desire not to

"place any undue or unnecessary Federal restrictions or burdens on

law-abiding citizens with respect to the . . . possession or use of

firearms appropriate to . . . any lawful activity. . . ."                  P.L. 99-

308 § 100 stat. 449.         Section 922(o) stands isolated from the rest

of the FOPA because it conspicuously lacks either a nexus to

commerce or the support of findings that banning mere intrastate

possession of machine guns is essential to effectuate federal

regulation.

            Third, banning the possession of machine guns represents

a logical extreme of federal regulation but also the negation of

the pre-existing regulatory structure as to those firearms. Wilks,

however, imports the same Congressional findings that regulated

transfers of firearms in interstate commerce to justify banning

mere possession without any link to interstate commerce. The Wilks

decision leaps to fill in the logical gap between regulating

activity    in   interstate      commerce    and    banning     a   wholly   local


                                       23
intrastate action.     Surely Congress ought to have decided that its

earlier attempts at regulation were ineffectual before taking this

intrusive step into the police power of the states.                It is not for

the courts to do so.           Compare Bass, supra, where the Court

expressed    concern   that   Congress      simply    did    not   consider   the

federalism     implications    of    banning    mere        intrastate   firearm

possession.

            Although Wilks's point is debatable, I am persuaded that

prior federal firearms statutes and Congressional findings do not

speak to the subject matter of Section 922(o) or its relation to

interstate commerce.     To paraphrase Lopez, by banning the wholly

intrastate possession of machine guns, Section 922(o) plows new

ground and breaks with the longstanding pattern of federal firearms

legislation.     115 S.Ct. at 1632, citing U.S. v. Lopez, 2 F.3d at

1366.

            Eliminating the "channels of commerce" and "things in

commerce" bases of Commerce Clause jurisdiction espoused by the

majority, Section 922(o) may only be justified as a measure that

substantially affects interstate commerce. But the analogy between

Lopez and this case is compelling, so much so that the majority

here, like the court in Wilks, did not attempt to dispute it.

            Like the provision found wanting by the Supreme Court,

Section 922(o) is also a "criminal statute that by its terms has

nothing to do with 'commerce' or any sort of economic enterprise."

Lopez, 115 S.Ct. at 1630-31.           Further, Section 922(o) has no

jurisdictional    element     to   ensure   that     the    prohibited   firearm


                                      24
possession affects interstate commerce.             Id. at 1631.16      Indeed,

Section 922(o) seems to suffer the same infirmities as the broad

reading of the former Section 1202 rejected by the Court in United

States v. Bass, 404 U.S. 336, 92 S.Ct. 515 (1971).             See Lopez, 115

S.Ct. at 1631; Lopez, 2 F.3d at 1347 ("Were Section 1202 read to

punish mere possession without a commerce nexus, the Court argued,

it would intrude upon an area of traditional state authority and

would push Congress' commerce power to its limit, if not beyond.").

            As in Lopez, the possession of a machine gun covered by

Section 922(o), without more, is no more an economic activity that

may substantially affect commerce than was the possession of a

firearm in a school zone prohibited by Section 922(q).               115 S.Ct.

at 1634.   Section 922(o) would punish a local resident for the mere

possession    of   a   machine    gun    acquired    after    1986   "with    no

requirement that his possession of the firearm have any concrete

tie to interstate commerce."        Id. at 1634.    Indeed, it would appear

that the arguments proffered in defense of Section 922(o) would

unalterably convert the commerce power into a reserved "general

police power" in direct contravention of the Court's dictates. Id.

at 1632-33; see also Id. at 1638. As Justice Kennedy's concurrence

in Lopez states:       "Were the Federal Government to take over the

regulation of entire areas of traditional state concern, areas

having nothing to do with the regulation of commercial activities,

      16
            The government's brief relies on the legislative history of other
firearms statutes that was rejected as a guide to interpreting Section 922(q) in
Lopez. Lopez, 115 S. Ct. at 1632. Based on the Fifth Circuit's reading of the
legislative history behind firearms regulation and Section 922(o), in accordance
with the discussion above, I would reject the use of legislative history of prior
firearms legislation in this case.

                                        25
the boundaries between the spheres of federal and state authority

would blur and political responsibility would become illusory." 115

S. Ct. at 1638.

            Regardless of one's view of the wisdom or unwisdom of

banning the private, intrastate possession of machine guns, the

question     before     this     court    is    whether    Congress     had     the

constitutional authority to do so by virtue of its power to

regulate    interstate     and    foreign      commerce.    Lopez     reminds    us

forcefully that Congress's enumerated power over commerce must have

some limits in order to maintain our federal system of government

and preserve the states' traditional exercise of the police power.

Section 922(o) is a purely criminal law, without any nexus to

commercial activity,17 and its enforcement would intrude the federal

police power into every village and remote enclave of this vast and

diverse nation.       Even after Lopez, Congress need not do much to

satisfy the Commerce Clause.             Here, however, it did practically

nothing.      I respectfully dissent from the majority's decision

upholding the constitutionality of Section 922(o).




      17
             This case is obviously different from Wickard v. Filburn, 317 U.S. 111,
63 S.Ct. 82 (1942), in which the farmer's use of his privately grown wheat was found
to affect the market and "commerce" in that community.

                                         26
