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." 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. On2

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 cas h 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 machinegu n 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 implicitl y repealed by the

passage of 18 U.S.C. § 922(o). Based on authority from other2. F E D

. R. C RIM

. 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 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 C riminal

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

sente ncing range under the sentencing guidelines, the district

court increased t he defendant's offense level for obstruction of4

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 p erformance 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 prosecu tion 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. S antobello 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. U nited 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 promis e. United States v. Williams , 809 F.2d

1072, 1079 (5th Cir. 1987), cert. denied

, 484 U.S. 896 (1987). We5

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 hi s 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 p resented,

that the defendant entered into the first plea agreement because of

the strength of the evidence agai nst him, including recorded

conversations, and not because of any promise not to prosecute in3. 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 th e 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 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 cre dibility of witnesses." U nited

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 ba sed 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. 3question in United States v. Ardoin

, 19 F.3d 177 (5th Cir.), cert.

denied , 115 S. Ct. 327 (1994).

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

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

U.S. C ONST . 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. L ockhart

, 488 U.S. at

39, 109 S. Ct . at 290; B urks 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 t he general rule of L ockhart

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

first conviction was preempted by motion of t he government under

Rule 48 of the Federal Rules of Criminal Pr ocedure. Thus, the

prosecution of Kirk under 18 U.S.C. § 922(o), after a prosecution4. On this point, we agree with the Tenth Circuit. S ee

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. U nited States v. L opez , 2 F.3d 1342

(5th Cir. 1993).

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

not offend the Double Jeopard y Clause. S ee 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 posses s a machinegun.

(2) This subsection does not apply with respect to --

* * *

(B) any lawful t ransfer or lawful possession of a

machinegun that was lawfully possessed before the d ate

this subsection takes effect.

The effective date of this provis ion 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 U nited 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 a6. "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 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 thre at may come only from intrastate activities"; and (3)

activities which have "a substantial rel ation to interstate

commerce

. . . i.e., those activ ities that substantially affect

inters tate commerce." L opez

, 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 regul ate the channels or

instrumentalities of interstate commerce. Thus, the Court

e valuated 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." I d.

, 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, through10

repetition elsewhere, substantially affect any sort of interstate

commerce." I d.

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

922(q) unconstitutional under the Commerce Clause.

Although Lopez is instructive regarding the prop er 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 W i lks court held that "unlike § 922(q), §

9 22(o) embodies a proper exercise of Congress' power to regul ate

`things in interstate commerce'

-- i.e., machineguns." I d. 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)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 p rohibition 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 t hanks 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 possess ions from the prohibitions found in

subsection (1).

Following the dissent's approach, viewing similar

pro hibitions 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 o r 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 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 this8. 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 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 o f machineguns not lawfully possessed before the

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

unlawful poss ession 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 ma rket 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 int erstate

transportation of a commodity through the cha nnels of commerce."

115 S. Ct. at 1630. This type of regulation is within the commerce9. Kirk also argues that his conviction cannot be valid under

the Commer ce 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. S ee 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 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 th e defendant willfully obstructed or impeded, or

attempted to obstru ct or impede, the administration of

justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense

level by 2 levels.

Un ited States Sentencing Commission, Guidelines Manual, § 3C1.1

( Nov. 1994). 1 0 Kirk contends that the conduct for which the twosection 3C1.1 as currently written does not differ in any material

respect from the version applied in this case.

14 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 th ese events. The

offense to which Kirk ple d 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 cite s three decisions from other circuits that support

his position. S ee United St ates v. Bagwell , 30 F.3d 1454 (11th

Ci r. 1994); U

nited States v. Woods

, 24 F.3d 514 (3d Cir. 1994);

U nited 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 present15

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

This guideline [§ 3C1.1] applie s to conduct during the

investigation, prosecution, and sentencing of the instant

offense, i.e., the offense fo r 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

[obst ruction] 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 C ircuit. The enhancement for

obstruction of justice under section 3C1.1 is pro per 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 be tween the information concealed and the offense

conduct, it does not require tha t 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 Kirk11 One commentator, writi ng 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 resul t 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, 668-67 0 (1987). Hardy, however, advocated a narrower

16 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 a l so renders unconstitutional Congress's attempt, in

Section 922(o), to ban 11 possession of any "machine gun" 12 that wasconstruction 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 g un" is defined for federal regulatory purposes in

26 U.S.C. § 5845(b). As this court's e n 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." U nited States v. Anderson

, 885 F.2d 1248, 1249,

n.3 (5th Cir. 1989).

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

Acknowledging that Lopez does not control this case, I nevertheless

s ee no meaningful distinction between Section 922(q) and Section

922(o) as the latter applies to p ossession, 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

comme rce; (2) regulating and protecting the instrumentalities of

interstate commerce, or persons or things in interstate commerce,

even though t he threat may come only from intrastate activities;

and (3) regulating intrastate activities that hav e 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 interstate18

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 g overnment's brief to this court, cannot sustain Section

922(o) under the logic of Lopez

.

The fundamenta l 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, nei ther 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 co mmerce. Rather, it

criminalizes the mere private possession of a machine gun.

T he 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

i nference seems unwarranted for two reasons. First, transfer as

w ell as possession of a thing can be of a wholly intras tate

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 t he constitutionality of the

Section 922(o) restriction on transfers of machine guns.13 The effect of the grandfather clause does, paradoxically, assure a

nexus between interstate co mmerce and criminal possession of pre-1986 u nlawfully

possessed machine guns, because, as this court's Lopez opinion no ted, pre-1986

regulatory laws expressly embodied a jurisdictional nexus to commerce. S ee Lopez

, 2 F.3d at 1356, n.29.

19

The majority also seek advantage from the nature of the

weapons banne d 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 high ly 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,

w ithin 1,000 feet of the grounds o f 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 possession s 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 machine20

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

n e cessary implication appertain to the channels of interstate

commerce or to regulation of things in interstate commerce.

Because Section 922(o) reaches wholly intrastate, noncommercial 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); Un ited 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 legi slative

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 B ass

, no sav ing

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 one14 See discussion of legislative history in Hardy, supra n.1, at 671-74

and n.461, 462, 463.

21 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 commi ttee 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

sup port 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 wh o 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. C ompare 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

, 5 8 F.3d1 5 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). S ee 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 earl ier, unpassed

legislation. This court criticized such reliance in U nited 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 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 r egulating all persons

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

firearms. W ilks

, 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 Wi lks . First, none of those laws

purpor ted to ban possession of firearms unrelated to interstate

commerce. C ompare 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

t he 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,23

suggests no general Congressional determination that possession of

machine guns necessarily implicates inte rstate 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. L opez

, 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. I d

.

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 suppo rt 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. W ilks

,

however, imports the sam e Congressional findings that regulated

transfers of firearms in interstate commerce to justify banning

mere possession without any link to interstate commerce. The W ilks

decision leaps to fill in the log ical gap between regulating

a ctivity in interstate commerce and banning a wholly local24

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 c o urts to do so. Compare B ass

, supra

, where the Court

expressed concern that Congres s 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 L opez

, 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 t he "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 thi s 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

jurisdictiona l element to ensure that the prohibited firearm16 The government's brief relies on the legislative history of other

firearms statutes that was rejected as a guide to interpreting Sect ion 922(q) in

Lopez

. L opez

, 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 possession affects interstate commerce. I d

. 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). S ee Lopez

, 115

S.Ct. at 1631; L opez

, 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 ha ve any concrete

tie to interstate commerce." I d

. at 1634. Indeed, it would appear

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

un alterably convert the commerce power into a reserved "general

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

.

at 1632-33; see also Id

. at 1638. As Justice Kennedy's concurrence

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

regul ation of entire areas of traditional state concern, areas

having nothing to do with the regulation of commercial activities,1 7 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 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, intr astate possession of machine guns, the

q uestion before this court is whether Congress had th e

constitutional authority to do so by virtue of its power to

regulate interstate and foreign commerce. L opez 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 L opez

, 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).