PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4750

TRURIEL B. NATHAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-98-116)

Argued: October 28, 1999

Decided: January 19, 2000

Before NIEMEYER and WILLIAMS, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams and Senior Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Steven D. Benjamin, BENJAMIN & DESPORTES, P.C.,
Richmond, Virginia, for Appellant. John Staige Davis, V, Assistant
United States Attorney, Richmond, Virginia, for Appellee. ON
BRIEF: Betty Layne DesPortes, BENJAMIN & DESPORTES, P.C.,
Richmond, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________
OPINION

NIEMEYER, Circuit Judge:

Truriel B. Nathan was arrested in Richmond, Virginia, by Rich-
mond police officers for possession of a firearm and ammunition and
thereafter charged with firearm offenses under both state and federal
laws. His state charges were dismissed, however, and he was tried and
convicted in federal court for violating 18 U.S.C.§ 922(g)(1). On
appeal, he makes several challenges to his conviction, including a
federalism-based constitutional challenge to "Project Exile," a cooper-
ative federal-state venture under which firearm-related offenses are
prosecuted federally. We affirm.

I

On the night of February 24, 1998, two Richmond police officers
followed Nathan as he drove his car into a convenience store parking
lot because the car's headlights were not on. After Nathan parked his
car and began to walk toward the store, Officer Mills asked to speak
with him. The officer noticed a bulge on the upper left side of
Nathan's coat as Nathan walked toward him. Reaching out and pat-
ting the pocket, Officer Mills asked, "What is this?" When Nathan
responded that it was ammunition, Officer Mills asked Nathan if he
had a gun, and Nathan responded that he did. Officer Mills and Offi-
cer Robinson then handcuffed Nathan and recovered a loaded .380
caliber semiautomatic pistol, manufactured in Ohio, and a box of .380
caliber ammunition, manufactured in Arkansas.

Although Nathan was originally charged with a state crime, his
case was handled under "Project Exile," a federal-state law enforce-
ment program in Richmond under which many firearms offenses are
prosecuted in federal rather than state court by agreement of state and
federal law enforcement officials. Because Nathan had previously
been convicted of a felony, he was indicted for violating 18 U.S.C.
§ 922(g)(1), the federal felon-in-possession firearm statute. At the
preliminary hearing on Nathan's state charges, a nolle prosequi was
entered on the motion of the Commonwealth's Attorney, and
Nathan's state charges were dismissed.

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Project Exile is a federal-state law enforcement initiative jointly
run by the Virginia Commonwealth's Attorney for the City of Rich-
mond and the U.S. Attorney for the Eastern District of Virginia. The
project was implemented in Richmond in February 1997 with the goal
of reducing Richmond's high rates of violent crime by prosecuting
firearm-related crimes federally whenever possible. As part of the
project, local police officers are trained to identify state firearm
offenses that also constitute federal offenses. Local police officers are
encouraged to contact a federal agent using a 24-hour pager number
whenever they encounter a gun in performing their duties, and,
together with the federal agent, to determine whether federal law has
been violated. An assistant Commonwealth's Attorney assists the
U.S. Attorney with the federal prosecution of cases under Project
Exile. The project is publicized through advertising on television, on
billboards, on buses, and in other venues, all paid for by the "Project
Exile Citizens Support Foundation," a private group for which the
U.S. Attorney helps to solicit contributions from local merchants.

Before trial, Nathan filed a motion to dismiss his indictment on
several grounds, including a constitutional challenge to Project Exile.
He argued that he was denied due process of law in violation of the
Fifth Amendment because his federal prosecution was vindictive and
biased and that moving prosecutions from state to federal court vio-
lated principles of federalism in violation of the Tenth Amendment.
The district court denied the motion, and the case proceeded to trial.

At trial, the district court instructed the jury that the government
was required to prove that Nathan's possession of the firearm and
ammunition "was in or affecting interstate or foreign commerce
because the firearm or ammunition had traveled in interstate or for-
eign commerce at some point during its existence." The court
explained to the jury that "[t]he Government may meet its burden
with respect to this element by proving that the firearm or ammuni-
tion in question . . . previously traveled in interstate commerce."
Nathan objected to these instructions, arguing that, under 18 U.S.C.
§ 922(g), a jury must find that the possession of a firearm "substan-
tially affected" interstate commerce.

The jury convicted Nathan on one count of possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and the
court sentenced him to 180 months in prison. He now appeals.

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II

Nathan first challenges the constitutionality of Project Exile, claim-
ing that his federal prosecution under the project violates principles
of federalism embodied in the Tenth Amendment and contravenes the
rule of Younger v. Harris, 401 U.S. 37, 53 (1971), which confines
narrowly the availability of federal injunctive relief against state pros-
ecutions.

To make his argument, however, Nathan mischaracterizes Project
Exile by representing that the program suspends Virginia state law,
interferes with state criminal proceedings, and conscripts state
resources. To the contrary, Project Exile is a voluntary, cooperative
venture between the U.S. Attorney and the Virginia Commonwealth
Attorney for the City of Richmond. No part of the arrangement
involves federal compulsion of the Commonwealth or its law enforce-
ment officials. Rather, under the program, the federal government
enforces its valid laws with the voluntary assistance of Common-
wealth police officers and prosecutors, and the Commonwealth's
attorneys voluntarily choose to dismiss state charges in favor of fed-
eral prosecution. As Chief Judge Wilkinson recognized in his concur-
ring opinion in Brzonkala v. Virginia Polytechnic Inst. & State Univ.,
169 F.3d 820, 895 (4th Cir. 1999), cert. granted sub nom., United
States v. Morrison, 120 S. Ct. 11 (1999):"States remain free . . . after
[Printz v. United States, 521 U.S. 898 (1997)] voluntarily to cooperate
with federal law enforcement efforts."

Nor is Nathan correct in asserting that, under Project Exile, "the
enforcement of Virginia firearm laws and the protections of Virginia
criminal procedure have been suspended." Project Exile does not
compel the Commonwealth to dismiss state firearm charges. And no
law prevents the prosecution of state firearm offenses either before or
after a federal criminal prosecution. When a defendant violates both
state and federal laws, either the state or the United States or both
may prosecute him. See United States v. Smith , 30 F.3d 568, 572 (4th
Cir. 1994). We conclude that Nathan's federalism-based challenges to
Project Exile have no merit.

III

Nathan next asserts that the existence of the "Project Exile Citizens
Support Foundation" and efforts by the U.S. Attorney to solicit funds

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for the group somehow served to create a conflict of interest or an
infringement of Nathan's "right to an impartial prosecutor." The Citi-
zens Support Foundation promotes Project Exile and publicizes the
existence of stiff federal penalties for gun violations. The Supreme
Court has indicated that, although prosecutors are"traditionally
accorded wide discretion . . . in the enforcement process," neverthe-
less, "[a] scheme injecting a personal interest, financial or otherwise,
into the enforcement process may bring irrelevant or impermissible
factors into the prosecutorial decision and in some contexts raise seri-
ous constitutional questions." Marshall v. Jerrico, Inc., 446 U.S. 238,
248, 249-50 (1980) (citations omitted). Nathan fails, however, to
show or even to allege that the U.S. Attorney receives any personal
benefit from the activities of the Project Exile Citizens Support Foun-
dation. Nor does Nathan demonstrate how the existence of a group
seeking to inform the public about Project Exile in any way distorts
or corrupts the exercise of prosecutorial discretion by the office of the
U.S. Attorney. We therefore reject Nathan's argument that the exis-
tence of the Project Exile Citizens Support Group and the solicitation
of funds for that group by the U.S. Attorney somehow tainted
Nathan's prosecution.

IV

Finally, Nathan argues that the district court erred in instructing the
jury with respect to the possession "in or affecting commerce" ele-
ment of 18 U.S.C. § 922(g). He asserts that the Supreme Court's deci-
sion in United States v. Lopez, 514 U.S. 549 (1995), mandates that a
jury find a "substantial effect" on interstate commerce as an element
of any crime not involving channels or instrumentalities of commerce.
He fails to appreciate, however, that the holding in Lopez did not
address statutes containing a jurisdictional element that requires a
case-by-case inquiry into the connection with commerce. See 514
U.S. at 561-62. Indeed, we have previously held that the existence of
the jurisdictional element in 18 U.S.C. § 922(g), requiring that the
government show a nexus between the firearm and interstate com-
merce, distinguishes Lopez and satisfies the nexus required for the
Commerce Clause. See United States v. Wells, 98 F.3d 808, 810-11
(4th Cir. 1996). And we have further held that the fact that a gun is
manufactured in one state and used in another is sufficient to establish
the interstate commerce element of section 922(g). See United States

                     5
v. Crump, 120 F.3d 462, 466 & n.2 (4th Cir. 1997). Accordingly, the
district court properly instructed the jury.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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