           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                    2    United States v.                    Nos. 02-5916/5917
        ELECTRONIC CITATION: 2004 FED App. 0079P (6th Cir.)                Thompson, et al.
                    File Name: 04a0079p.06
                                                                                         _________________
UNITED STATES COURT OF APPEALS                                                                COUNSEL
                  FOR THE SIXTH CIRCUIT                               ON BRIEF: Dwight E. Scott, Nashville, Tennessee, T.
                    _________________                                 Clifton Harviel, Jr., HARVIEL LAW OFFICE, Memphis,
                                                                      Tennessee, for Appellants. Van S. Vincent, ASSISTANT
 UNITED STATES OF AMERICA , X                                         UNITED STATES ATTORNEY, Nashville, Tennessee, for
              Plaintiff-Appellee, -                                   Appellee.
                                   -
                                   -   Nos. 02-5916/5917                                 _________________
             v.                    -
                                    >                                                        OPINION
                                   ,                                                     _________________
 RUFUS A. THOMPSON III             -
 (02-5916); GREGORY POTTER         -                                    SUTTON, Circuit Judge. After firebombing two houses
 (02-5917),                        -                                  with Molotov cocktails, Rufus A. Thompson III and Gregory
        Defendants-Appellants. -                                      Potter were charged, then convicted, of violating several
                                  N                                   federal laws, including 26 U.S.C. § 5861(d), which prohibits
       Appeal from the United States District Court                   the possession of an unregistered firearm. Separately, and as
     for the Middle District of Tennessee at Nashville.               a result of the same incident, the jury also convicted
  No. 01-00116—Robert L. Echols, Chief District Judge.                Thompson of being a felon in possession of a firearm under
                                                                      18 U.S.C. § 922(g)(1). The defendants challenge their
                 Submitted: December 11, 2003                         convictions under § 5861(d), first as violating due process,
                                                                      then as exceeding Congress’s taxing power. Thompson
              Decided and Filed: March 17, 2004                       independently argues that his § 922(g)(1) conviction exceeds
                                                                      Congress’s Commerce Clause powers. We reject each
  Before: BATCHELDER and SUTTON, Circuit Judges;                      argument and affirm.
             BELL, Chief District Judge.*
                                                                                                   I.
                                                                        Rufus Thompson was a crack dealer in Nashville,
                                                                      Tennessee. Two of his customers were Gregory Potter and
                                                                      William Hunnicutt, who “earned” their drugs by handling
                                                                      various odd jobs for Thompson. One job involved the
                                                                      burning of two houses, whose occupants had complained to
    *
                                                                      the police about Thompson’s drug trafficking. Thompson
     The Honorable Robert Holmes Bell, Chief United States District   suggested that Potter and Hunnicutt use Molotov
Judge for the Western District of Michigan, sitting by designation.

                                1
Nos. 02-5916/5917                       United States v.     3    4    United States v.                     Nos. 02-5916/5917
                                       Thompson, et al.                Thompson, et al.

cocktails—home-manufactured explosives made from glass            transfer and manufacture of firearms covered by the Act. See
bottles, gasoline and cloth fuses—to carry out the task.          id. §§ 5811, 5821. To register covered firearms (and pay
Consistent with this plan, Potter and Hunnicutt firebombed        applicable taxes), an individual must apply to the Secretary of
both houses with homemade Molotov cocktails on April 28           the Treasury. See id. §§ 5812, 5822. Under the Act,
and 30, 2001.                                                     however, “[a]pplications shall be denied if the transfer,
                                                                  receipt, or possession of the firearm would place the
   A federal grand jury indicted Thompson and Potter on a         transferee in violation of law.” Id. § 5812.
litany of statutory violations for the firebombings, only two
of which have any bearing on this appeal. First, the grand          Thompson and Potter contend that the registration
jury indicted both individuals for failing to register their      provision makes no sense with respect to Molotov cocktails.
“firearms” (the Molotov cocktails) in the National Firearms       Had they applied to the Secretary of the Treasury to register
Registration and Transfer Record in violation of 26 U.S.C.        their Molotov cocktails, they note, the Secretary assuredly
§ 5861(d). Second, the grand jury indicted Thompson for           would have denied their applications because possession of
being a felon in possession of a firearm in violation of 18       the explosives placed them “in violation of law.” As they
U.S.C. § 922(g)(1).                                               observe, Tennessee law outlaws the knowing possession of
                                                                  “an explosive or an explosive weapon,” Tenn. Code Ann.
  Thompson and Potter filed motions to dismiss both charges.      § 39-17-1302(a), language that one Tennessee court in an
As to the charges under § 5861(d), Potter argued that his         unpublished decision has interpreted to encompass Molotov
indictment violated due process while Thompson argued that        cocktails. See State v. Jackson, No. E1999-02013-CCA-R3-
his indictment exceeded Congress’s taxing authority. In           CD, 2001 WL 740707, at *5 (Tenn. Crim. App. June 29,
support of each argument, the defendants claimed that it was      2001). Relying on these legal and factual predicates, Potter
“legally impossible” to comply with the registration              argues that the provision violates due process and Thompson
requirements of the statute. As to the charge under               argues that it exceeds Congress’s taxing power.
§ 922(g)(1), Thompson argued that the indictment exceeded
Congress’s power under the Commerce Clause. The district                                        A.
court denied each motion, and the jury convicted both men on
their respective charges. In considering their appeals, we give     Because Tennessee bans the possession of Molotov
de novo review to the district court’s constitutional rulings.    cocktails and because the Secretary accordingly would have
United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000).       denied an application to register these explosives, Potter
                                                                  argues that it was legally impossible for him to comply with
                              II.                                 the registration provision, 26 U.S.C. § 5861(d). Invoking
                                                                  United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), which
  Among many other commands, the National Firearms Act,           granted relief on a comparable claim, Potter contends that it
codified at 26 U.S.C. § 5801 et seq., prohibits individuals       would be “fundamentally unfair” and a violation of due
from receiving or possessing a firearm that is not registered     process to convict him for failing to comply with a statute
in the National Firearms Registration and Transfer Record.        with which it was not possible to comply. Potter Br. at 14.
See 26 U.S.C. § 5861(d). The registration provision works
hand-in-glove with taxes that the statute imposes on the
Nos. 02-5916/5917                      United States v.    5    6     United States v.                      Nos. 02-5916/5917
                                      Thompson, et al.                Thompson, et al.

   Even granting for a moment the assumption that the           Thompson contends that his conviction constitutes an
Secretary would have denied an application to register a        unconstitutional exercise of Congress’s taxing power, also
Molotov cocktail, Potter errs in arguing that he could not      citing United States v. Dalton, 960 F.2d 121, 124–25 (10th
comply with 26 U.S.C. § 5861(d). In a case involving            Cir. 1992). He contends that the National Firearms Act
analogous facts, we rejected a comparable argument. See         permits convictions that bear no “relation, rational or
United States v. Bournes, 339 F.3d 396 (6th Cir. 2003).         otherwise,” to revenue collection, because he would not have
There, the defendant challenged a conviction under § 5861(d)    been permitted to register the Molotov cocktails and thus
for failing to register a weapon (a machine gun), possession    could not have paid the tax even if he had tried to do so.
of which is outlawed by 18 U.S.C. § 922(o). And there,          Thompson Br. at 13. Absent any true connection to tax
following the cue of United States v. Jones, 976 F.2d 176,      collection, he argues, the convictions under § 5861(d)
182–83 (4th Cir. 1992), and rejecting the analysis of Dalton,   necessarily exceed congressional authority.
we reasoned that “compliance with the relevant provisions [of
the two statutes] is easily achieved: Bournes could have           To the extent Thompson means to raise a facial challenge
complied simply by electing not to possess the machine guns     to § 5861(d), the claim has little to recommend it and much
at issue.” Bournes, 339 F.3d at 399; accord United States v.    to overcome. As the United States Supreme Court has made
Grier, 354 F.3d 210, 214 (3d Cir. 2003). Potter had a similar   clear, the registration provision is “obviously supportable as
remedy. He too could have complied with § 5861(d) and           in aid of a revenue purpose.” Sonzinsky v. United States, 300
Tennessee law by opting not to make, then possess, the          U.S. 506, 513 (1937). The registration requirement of
Molotov cocktails in the first instance.                        § 5861(d) is “‘part of the web of regulation aiding
                                                                enforcement of the transfer tax provision in § 5811. Having
  Nor has Potter presented us with any reason why it makes      required payment of a transfer tax and having required
a difference in this case that his legal-impossibility          registration as an aid in collection of that tax, Congress under
conundrum arises from a combination of state and federal        the taxing power may reasonably impose a penalty on
law, as opposed to two federal statutes. In both settings, a    possession of unregistered weapons . . . [to] discourage[] the
comparable answer to impossibility exists: decline to possess   transferor . . . from transferring the firearm without paying the
the illegal weapon. See United States v. Djelaj, 842 F. Supp.   tax.’” United States v. Birmley, 529 F.2d 103, 106–07 (6th
278, 281 (E.D. Mich. 1994) (sustaining a conviction under       Cir. 1976) (quoting United States v. Ross, 458 F.2d 1144,
§ 5861(d) for failing to register a Molotov cocktail,           1145 (5th Cir. 1972)).
possession of which is forbidden by Michigan law, in the face
of a legal impossibility challenge). In the end, Circuit          Thompson does little better in arguing that the registration
precedent (Bournes) controls and forecloses Potter’s due        requirement, as applied to him, exceeds the national taxing
process argument.                                               power. Aside from the Tenth Circuit in Dalton, every Circuit
                                                                to consider this type of claim has rejected it. See Grier, 354
                             B.                                 F.3d at 215; United States v. Rogers, 270 F.3d 1076, 1079–80
                                                                (7th Cir. 2001); Hunter v. United States, 73 F.3d 260, 262
  Thompson raises a similar argument. Based on the alleged      (9th Cir. 1996); United States v. Dodge, 61 F.3d 142, 146 (2d
impossibility of registering the Molotov cocktails in the       Cir. 1995); United States v. Ardoin, 19 F.3d 177, 179–80 (5th
National Firearms Registration and Transfer Record,             Cir. 1994); Jones, 976 F.2d at 182–83. So now do we.
Nos. 02-5916/5917                        United States v.     7    8     United States v.                     Nos. 02-5916/5917
                                        Thompson, et al.                 Thompson, et al.

   Echoing his co-defendant’s claim, Thompson argues that            No doubt, it may seem odd to require an application to
§§ 5812 and 5822 prevented him from registering and paying         register Molotov cocktails—whether before or after
manufacture or transfer taxes on the Molotov cocktails. As a       manufacture. And, no doubt, it may seem odd to require an
result, he claims, criminalizing his failure to register his       application that perhaps would have been denied by the
firearms is not rationally related to the collection of taxes.     Secretary. Yet it would be odder still if we were to defer to
                                                                   Thompson’s interpretation of the interplay between the federal
   This argument might well have force if Thompson in fact         and state statutes at issue—and specifically the meaning of
had sought to register the firearms, but had been denied           Tennessee law—and his conclusion that the Secretary would
permission to do so by the Secretary. In that setting, it would    not permit him to register and pay the tax. If Thompson
be difficult to perceive the rationality of the statute. But,      wishes to complain that the scheme is utterly devoid of a
here, Thompson has offered no explanation why he should be         taxing purpose because it was impossible for him to register
permitted to hypothesize what the Secretary would do with          his weapons, then he must demonstrate that it was truly, and
his application, then premise his claim that the statute has no    not merely hypothetically, impossible to obtain the
rational connection to taxation on that speculation. The           registration.
relevant statute says that “it shall be unlawful for any person
. . . to . . . possess a[n] [unregistered] firearm.” 26 U.S.C.                                   III.
§ 5861(d). At the time of his arrest, Thompson’s firearms
were unregistered—not because he was denied permission to            Thompson separately argues that his felon-in-possession-
register them but because he never tried to register them. It      of-a-firearm conviction should be reversed because 18 U.S.C.
does not offend the modest requirements of rationality to          § 922(g)(1) exceeds the National Legislature’s power to
require the individual first to seek the Secretary’s views on      regulate interstate commerce under the Commerce Clause.
such a matter and to show that he was actually prevented from      We disagree.
registering his firearms. Because neither Thompson nor his
co-conspirators attempted to register the Molotov cocktails,          Section 922(g)(1) makes it unlawful for a person “who has
no one can say with certainty what the Secretary of the            been convicted in any court of[] a crime punishable by
Treasury would have done with his application. See United          imprisonment for a term exceeding one year . . . to ship or
States v. Mise, 240 F.3d 527, 530 (6th Cir. 2001) (noting that     transport in interstate or foreign commerce, or possess in or
Mise had not presented evidence that he applied to register his    affecting commerce, any firearm or ammunition; or to receive
pipe bomb); United States v. Aiken, 974 F.2d 446, 449 (4th         any firearm or ammunition which has been shipped or
Cir. 1992) (in the absence of evidence to the contrary, court      transported in interstate or foreign commerce.” Thompson is
must assume that registration of short-barreled shotgun would      not the first criminal defendant to challenge the validity of the
be allowed). And that is particularly significant in view of the   provision in the aftermath of United States v. Lopez, 514 U.S.
undisputed fact that the Secretary has authority to register and   549 (1995). After Lopez, we rejected a facial challenge to
tax illegal weapons. Grier, 354 F.3d at 215; Ardoin, 19 F.3d       § 922(g)(1) under the Commerce Clause. See United States
at 180; see also Dep’t of Revenue v. Kurth Ranch, 511 U.S.         v. Chesney, 86 F.3d 564, 568–69 (6th Cir. 1996). So, too, has
767, 778 (1994) (unlawful activity may be taxed); Marchetti        every other court of appeals. See United States v. Williams,
v. United States, 390 U.S. 39, 44 (1968) (same); see also, e.g.,   128 F.3d 1128, 1133–34 (7th Cir. 1997) (citing cases).
26 U.S.C. § 4401 (taxing legal and illegal bets).
Nos. 02-5916/5917                      United States v.     9    10   United States v.                      Nos. 02-5916/5917
                                      Thompson, et al.                Thompson, et al.

   In rejecting this argument, our Circuit has relied in large   § 922(g)(1) applies to felons while § 922(g)(8) applies to
part on the presence of a jurisdictional element in the          persons subject to domestic violence restraining orders. That
statute—the requirement that the firearm must be “in or          distinction, however, does not offer a tenable basis for
affecting commerce”—to distinguish § 922(g) from the Guns        differential treatment, and Thompson himself has offered no
Free School Zone Act, which Lopez invalidated. This              explanation for drawing such a distinction. In all material
jurisdictional element, we have held, “ensures [that] only       ways, Napier controls.
those activities affecting interstate commerce fall within
[§ 922(g)’s] scope.” United States v. Baker, 197 F.3d 211,          Because Napier supplies the governing legal precedent and
218 (6th Cir. 1999).                                             because the Government presented evidence at trial that the
                                                                 constituent parts used to make these Molotov cocktails—the
  In challenging this line of reasoning, Thompson argues that    beer bottles and gasoline—had moved in interstate commerce,
the presence of a jurisdictional element does not by itself      we reject Thompson’s constitutional challenge. Thompson
ensure that the statute falls within Congress’s commerce         has not argued, and does not argue, that the firearms
power. Recent decisions by the Supreme Court in United           themselves (the Molotov cocktails), as opposed to their
States v. Morrison, 529 U.S. 598 (2000), and Jones v. United     constituent parts (the beer bottles and gasoline), must satisfy
States, 529 U.S. 848 (2000), he adds, cast doubt on this         the jurisdictional element of § 922(g)(1). We accordingly
Court’s holdings that the jurisdictional element of § 922(g)     need not consider that distinct question, compare United
satisfies Commerce Clause constraints.                           States v. Stewart, 348 F.3d 1132, 1138 (9th Cir. 2003)
                                                                 (holding that link between defendant’s homemade
   Still more-recent precedent from this Circuit, however,       manufacture of machine gun and interstate commerce was
forecloses Thompson’s argument. In United States v. Napier,      “too tenuous to justify federal regulation”), with United States
233 F.3d 394 (6th Cir. 2000), we took a second look at the       v. Gresham, 118 F.3d 258, 265–66 (5th Cir. 1997) (rejecting
constitutionality of § 922(g) in view of Morrison and Jones.     argument that movement of component parts of pipe bomb in
While Morrison and Jones in their own way each reinforced        interstate commerce was insufficient to sustain § 922(g)(1)
the central lessons of Lopez—that Congress’s power to            conviction), which Napier does not directly address.
regulate commerce is not boundless and that the courts have
a responsibility to police the outer limits of that                                            IV.
power—Napier concluded that § 922(g) satisfies the modest
demands of these precedents because it requires a “‘minimal        For the foregoing reasons, we affirm.
nexus that the firearm have been, at some time, in interstate
commerce.’” Napier, 233 F.3d at 401 (quoting Scarborough
v. United States, 431 U.S. 563, 575 (1977)).
   Nor may Napier be distinguished on the ground that it
involved a conviction under § 922(g)(8) rather than under
§ 922(g)(1). Both provisions criminalize possession of a
firearm, and the same jurisdictional element governs both
provisions. The only difference between them is that
