                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-1996

USA v. Gateward
Precedential or Non-Precedential:

Docket 95-1839




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Recommended Citation
"USA v. Gateward" (1996). 1996 Decisions. Paper 184.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/184


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       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 95-1839


                     UNITED STATES OF AMERICA

                                  v.

            KENNETH GATEWARD, a/k/a KENNETH CARR,
                                      Appellant



        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                     (D.C. No. 94-cr-00154)


        Submitted Pursuant to Third Circuit LAR 34.1(a)
                          May 20, 1996

          Before:   SLOVITER, Chief Judge, SAROKIN and
                      ROSENN, Circuit Judges


                    (Opinion filed May 24, 1996)



John T. Drost, Esq.
Philadelphia, PA 19107

         Attorney for Appellant

Michael R. Stiles
  United States Attorney
Walter S. Batty, Jr.
  Assistant United States Attorney
Clement J. McGovern, III
  Special Assistant United States Attorney

         Attorneys for Appellee

                         OPINION OF THE COURT


SLOVITER, Chief Judge.

         Appellant Kenneth Gateward was convicted after a jury
trial for possession of a firearm by a convicted felon under 18
U.S.C.   922(g)(1). Gateward challenges the constitutionality of
that statute as beyond Congress' regulatory power under the
Commerce Clause.
                                 I.
         Gateward was indicted by a federal grand jury on a
single count of possession of a firearm by a convicted felon.
Such possession is prohibited under 18 U.S.C.    922(g), which, in
relevant part, makes it "unlawful for any person . . . who has
been convicted in any court of a crime punishable by imprisonment
for a term exceeding one year" to "possess in or affecting
commerce, any firearm or ammunition."
         At trial, the government presented testimony from
Officer Joseph A. Caruthers of the Philadelphia Police Firearms
Identification Unit. Officer Caruthers testified that the
firearm confiscated from Gateward, an Astro .380 semi-automatic
handgun, had been manufactured in Spain and imported by a
Virginia distributor. See App. at 31a. In addition, Gateward
stipulated that available testimony from an agent of the Bureau
of Alcohol, Tobacco and Firearms would establish that the firearm
had been shipped or transported in interstate commerce. See App.
at 39a-40a. Gateward also stipulated that he had before been
convicted of a felony. See App. at 40a.
         A jury found Gateward guilty, and the district court
sentenced him to 235 months imprisonment, 5 years supervised
release, and a $50 special assessment. Gateward now appeals from
his judgment of conviction, arguing that the felon firearm
statute on which it is based is unconstitutional.
                                II.
         Gateward's constitutional argument consists wholly of
reference to the Supreme Court's recent decision in United States
v. Lopez, 115 S. Ct. 1624 (1995). There the Court held invalid
the Gun-Free School Zones Act, 18 U.S.C.    922(q), which
prohibited firearm possession on school grounds or within 1000
feet thereof, as beyond Congress' commerce power, declaring that
"[t]he Act neither regulates a commercial activity nor contains a
requirement that the possession be connected in any way to
interstate commerce." 115 S. Ct. at 1626. Gateward would have
us view    922(g) as the Lopez Court did   922(q)--as essentially
noncommercial, without the requisite nexus with interstate
commerce, and accordingly unconstitutional.
         We note initially that Gateward's constitutional
challenge is raised for the first time on appeal, and would
therefore ordinarily be reviewable only for plain error. SeeUnited States
v. $184,505.01 in U.S. Currency, 72 F.3d 1160, 1165
n. 12 (3d Cir. 1995). However, the Lopez decision on which
Gateward's claim depends was issued only after he was found
guilty (though before judgment was entered). Under these
circumstances, we move directly to the substantive question
presented.
         The Supreme Court has twice addressed the interstate
commerce aspect of 18 U.S.C. App.    1202(a), predecessor statute
to   922(g)(1), which made any felon "who receives, possesses, or
transports in commerce or affecting commerce . . . any firearm"
guilty of a federal offense. 18 U.S.C. App.     1202(a) (repealed
1986).
         In United States v. Bass, 404 U.S. 336 (1971), the
defendant had been convicted under    1202(a) for possessing a
firearm, even though the government had made no attempt to show
that the gun had been possessed "in commerce or affecting
commerce." That was because the government read the statutory
phrase "in commerce or affecting commerce" as applying only to
"transports" and not to "receives" or "possesses."    The Supreme
Court disagreed, concluding that the phrase modified the words
"receives" and "possesses" as well.
         The Court found the statutory language ambiguous, but
settled on this narrower reading because "unless Congress conveys
its purpose clearly, it will not be deemed to have significantly
changed the federal-state balance." 404 U.S. at 349. By
applying the jurisdictional element to possessions and receipts,
as well as transports, the Court avoided the question of the
statute's constitutionality under the Commerce Clause. See id.at 351
("[C]onsistent with our regard for the sensitive relation
between federal and state criminal jurisdiction, our reading
preserves as an element of all the offenses a requirement suited
to federal criminal jurisdiction alone."); see also Lopez, 115 S.
Ct. at 1631.
         Six years later, in Scarborough v. United States, 431
U.S. 563 (1977), the Supreme Court established that proof that
the possessed firearm had previously traveled in interstate
commerce was sufficient to satisfy the statute's "in commerce or
affecting commerce" nexus requirement.
         We do not understand Lopez to undercut the
Bass/Scarborough proposition that the jurisdictional element "in
or affecting commerce" keeps the felon firearm law well inside
the constitutional fringes of the Commerce Clause. The LopezCourt
invalidated   922(q) because "by its terms [it] has nothing
to do with 'commerce' or any sort of economic enterprise, however
broadly one might define those terms," and because " 922(q)
contains no jurisdictional element which would ensure, through
case-by-case inquiry, that the firearm possession in question
affects interstate commerce." 115 S. Ct. at 1630-31.
         By contrast, Congress drafted    922(g) to include a
jurisdictional element, one which requires a defendant felon to
have possessed a firearm "in or affecting commerce." If
anything, the Court's opinion in Lopez highlights that crucial
difference, and buttresses the validity of the felon firearm
statute. See Lopez, 115 S. Ct. at 1631 (contrasting     922(q)'s
lack of a jurisdictional element with    1202(a)'s nexus in Bassbetween
firearm possession and commerce).
         In United States v. Bishop, 66 F.3d 569 (3d Cir.) cert.denied,
116 S. Ct. 681 (1995), this court upheld 18 U.S.C.
2119, the federal anti-carjacking statute, against a post-LopezCommerce
Clause challenge. Noting that "section 2119 is limited
to cars that have traveled in interstate or foreign commerce," we
observed that "the Supreme Court's decisions in Bass and
Scarborough compel the conclusion that the jurisdictional element
in section 2119 provides a nexus sufficient to protect the
statute from constitutional infirmity." Id. at 585.
         We therefore join eight courts of appeals in upholding
the constitutionality of   922(g)(1) as a valid exercise of the
commerce power. See United States v. Bradford, 78 F.3d 1216,
1222-23 (7th Cir. 1996); United States v. McAllister, 77 F.3d
387, 389-90 (11th Cir. 1996); United States v. Bates, 77 F.3d
1101, 1103-04 (8th Cir. 1996); United States v. Turner, 77 F.3d
887, 889 (6th Cir. 1996); United States v. Sorrentino, 72 F.3d
294, 296-97 (2d Cir. 1995); United States v. Hinton, No. 95-5095,
1995 WL 623876, at **2 (4th Cir. Oct. 25, 1995) (unpublished),
cert. denied, 116 S. Ct. 1026 (1996); United States v. Bolton, 68
F.3d 396, 400 (10th Cir.), cert. denied, 116 S. Ct. 966 (1995);
United States v. Collins, 61 F.3d 1379, 1383-84 (9th Cir.), cert.denied,
116 S. Ct. 543 (1995).
         Gateward also argues that the indictment charging him
with violation of   922(g) contained no reference to possession
of the firearm having been "in or affecting commerce." He is
mistaken. The two-sentence indictment charges him with having
"knowingly possessed in and affecting commerce, a firearm."
         Gateward last contends that "there was no attempt by
the Government to show that the firearm had been possessed in or
affecting commerce." Brief of Appellant at 13. Again, he is
incorrect. The prosecution produced testimony that the firearm
seized from Gateward had moved in interstate commerce, and
Gateward stipulated to additional testimony establishing that
fact. Gateward has failed to show that Bass and Scarborough are
inapplicable here. We are satisfied that the government has
shown the required link to commerce by both proof introduced at
trial and the stipulation, which may account for Gateward's
earlier failure to dispute it. See Trial Transcript, Mar. 15,
1995, at 197 (Closing Argument). Accordingly, we find no merit in
Gateward's arguments.
                               III.
         For the reasons set forth above, we will affirm the
district court's judgment of conviction.
