                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3399
                                    ___________

Peter Predka,                            *
                                         *
              Appellant,                 *
                                         * Appeal from the United States
         v.                              * District Court for the
                                         * Southern District of Iowa
State of Iowa,                           *
                                         *
              Appellee.                  *
                                    ___________

                              Submitted: March 9, 1999

                                   Filed: August 4, 1999
                                    ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      SACHS,1 District Judge.
                              ___________

McMILLIAN, Circuit Judge.

      Peter Predka appeals from a final order entered in the United States District
     2
Court for the Southern District of Iowa denying his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Predka v. Iowa, No. 4–97–CV–80196 (S.D. Iowa Aug.

         1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, sitting by designation.
         2
       The Honorable Charles R. Wolle, Chief Judge, United States District Court for
the Southern District of Iowa.
14, 1998) (order). For reversal, Predka argues that the district court erred in holding
the state drug tax stamp law, Iowa Code ch. 453B, did not violate the Commerce
Clause. U.S. Const. art. I, § 8, cl. 3. For the reasons discussed below, we disagree and
affirm the judgment of the district court.

                                   JURISDICTION

      The district court had subject matter jurisdiction over this habeas petition
pursuant to 28 U.S.C. §§ 1331, 1651, and 2254. This court has appellate jurisdiction
pursuant to 28 U.S.C. § 1291. Predka filed a timely notice of appeal on September 1,
1998, Fed. R. App. P. 4(a), and his application for a certificate of appealability was
granted pursuant to 28 U.S.C. § 2253(c) on September 9, 1998.

                              BACKGROUND FACTS

        Predka is a Utah resident. On July 16, 1994, he was driving through Des Moines
on Interstate 80. Deputy Craig Brooks of the Polk County Sheriff’s Office, stopped
Predka near Altoona, Iowa, for speeding and not wearing a seat belt. Brooks searched
the car and found and seized about 140 pounds of marijuana and $2,147.00 in cash.
Predka was arrested and charged with possession of marijuana with intent to deliver
and failure to have a drug tax stamp. The state also served Predka with notice of
forfeiture of his car and the cash. Predka filed a motion to suppress the evidence seized
and a motion to dismiss the drug tax stamp charge on Commerce Clause grounds. In
October 1994 the state trial court entered judgment forfeiting the car and the cash.
Predka then filed a motion to dismiss the criminal prosecution on double jeopardy
grounds. The state trial court denied all the motions. A jury found Predka guilty on
both counts, and the state trial court sentenced him to imprisonment for a period not
more than 10 years on the drug count and 5 years on the drug tax stamp count. The
state trial court later reconsidered the sentence and placed him on probation.


                                          -2-
       The state supreme court affirmed the conviction and sentence on direct appeal.
State v. Predka, 555 N.W.2d 202 (Iowa 1996).

       Predka filed a petition for habeas relief in federal district court, asserting that the
criminal prosecution following the forfeiture of his property violated the Double
Jeopardy Clause. The district court denied the petition. This court affirmed the denial
of habeas relief. Predka v. Polk County District Court, 100 F.3d 959 (8th Cir. 1996)
(table). Appellant then filed this habeas petition, asserting that the state drug tax stamp
law violated the Commerce Clause. The district court denied the petition, agreeing
with the analysis of the state supreme court that contraband, including marijuana, is not
protected by the Commerce Clause from taxes like that imposed by the state drug tax
stamp law. See slip op. at 3, citing State v. Predka, 555 N.W.2d at 213-14 (holding,
among other things, that marijuana was not a proper article of commerce subject to
protection under the Commerce Clause because it was contraband). This appeal
followed.

                                      DISCUSSION

       Predka argues that the district court erred in denying his petition for habeas relief
because the state drug tax stamp law interferes with an article in interstate commerce
in violation of the “dormant” Commerce Clause. He argues that because he was
traveling through Iowa en route to the East Coast, the marijuana was merely an item
of commerce in transit which cannot be taxed by the state, citing Bowman v. Chicago
& N.W. Ry., 125 U.S. 465 (1888). He argues that merely labeling an item of
commerce as contraband does not necessarily remove it from commerce, because the
Supreme Court has held that “[a]ll objects of interstate trade merit Commerce Clause
protection; none is excluded by definition at the outset.” City of Philadelphia v. New
Jersey, 437 U.S. 617, 623 (1978). He also argues that the state’s decision to impose
a tax on controlled substances in effect makes controlled substances a legal item of
commerce. Predka argues that the state cannot constitutionally impose the drug tax on

                                             -3-
property in transit and therefore cannot prosecute him for failing to comply with an
unconstitutional law. We disagree.

       “Despite the express grant to Congress of the power to ‘regulate
Commerce . . . among the several States,’ U.S. Const. art. I, § 8, cl. 3, [the Supreme
Court has] consistently held this language to contain a further, negative command,
known as the dormant Commerce Clause, prohibiting certain state taxation even when
Congress has failed to legislate on the subject.” Oklahoma Tax Comm’n v. Jefferson
Lines, Inc., 514 U.S. 175, 179 (1995). The dormant Commerce Clause prevents “a
State from retreating into economic isolation or jeopardizing the welfare of the Nation
as a whole, as it would do if it were free to place burdens on the flow of commerce
across its borders that commerce wholly within those borders would not bear.” Id. at
180.

       First, it is apparently true that, as Predka argues, at the time he was stopped, he
was merely traveling through Iowa. However, the state courts and the federal district
court made no finding that Predka and the marijuana were merely “in transit.” The
state courts and the federal district court assumed that fact for purposes of analysis.
There is no evidence in the record that Iowa was not the ultimate destination of the
marijuana. For this reason, we hold that Predka’s “in transit” argument fails for lack
of proof.

      Even assuming for purposes of analysis that the marijuana was in transit,
Predka’s Commerce Clause argument must fail because the marijuana was contraband,
that is, property that is unlawful to possess, and as such not an object of interstate trade
protected by the Commerce Clause. We agree with the state supreme court that
“property which is subject to seizure under the state’s police power cannot be regarded
as a proper article of commerce protected by the Commerce Clause.” Predka v. State,
555 N.W.2d at 213, citing Ziffrin, Inc. v. Reeves, 308 U.S. 132, 139 (1939) (rejecting
Commerce Clause challenge to state statute making it unlawful to possess intoxicants

                                            -4-
except under very limited circumstances and declaring unlawfully possessed intoxicants
contraband); see Crutcher v. Kentucky, 141 U.S. 47, 60 (1891) (noting that “things
which in their nature are so deleterious or injurious to the lives and health of the people
as to lose all benefit of protection as articles or things of commerce . . . are properly
subject to the police power of the state”). Under state law marijuana is a controlled
substance, Iowa Code § 124.401, which, if unlawfully possessed, is subject to seizure
and forfeiture. Id. § 124.506(1). State law makes it unlawful to possess with intent to
deliver a controlled substance. Id. § 124.401(1).

       Bowman v. Chicago & N.W. Ry. is distinguishable because it did not involve
contraband. See 125 U.S. at 498 (noting state statute which prohibited common carrier
from transporting alcohol into state without first receiving state certificate was “not a
law to regulate or restrict the sale of an article deemed to be injurious to the health and
morals”). Similarly, City of Philadelphia v. New Jersey did not involve contraband.
The “article of commerce” at issue in that case was out-of-state trash. Trash may be,
as the state court described it, “valueless.” See 437 U.S. at 622. However, even trash
is not necessarily “innately harmful,” at least not in the way that items infected with
disease or otherwise contaminated are, see id. (citing Bowman v. Chicago & N.W. Ry.,
125 U.S. at 189), and it is certainly not contraband.

       Finally, contrary to Predka’s argument, the state drug tax stamp law does not
treat marijuana as a legal, taxable item. The state drug tax stamp law imposes a tax on
unlawful drug trafficking. See




                                           -5-
Brady, 430 U.S. 274 (1977). In light of our holding that the marijuana is contraband
and thus not an object of interstate trade protected by the Commerce Clause, we need
not address this argument.

      Accordingly, we affirm the judgment of the district court.

      A true copy.

            Attest:

                  U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -6-
