United States Court of Appeals,

Eleventh Circuit.

No. 94-8979.

UNITED STATES of America, Plaintiff-Appellee,

v.

Eugene Kenny McALLISTER, Defendant-Appellant.

March 8, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-CR-260), Richard C. Freeman, Judge.

Before KRAVITCH and HATCHETT, Circuit Judges, and HILL, Senior

Circuit Judge.

KRAVITCH, Circuit Judge:

The constitutionality of 18 U.S.C. § 922(g)(1), which

prohibits a felon from possessing a firearm, is the main issue

presented in this appeal. We reject appellant's argument that in

light of the recent Supreme Court decision in United States v.

Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995),

Congress exceeded its Commerce Clause power by regulating the mere

possession of a gun. In addition, appellant claims that improper

comments by the prosecutor and improper use of evidence at his

trial constituted reversible error. We reject these claims also

and affirm McAllister's conviction.

I.

Eugene McAllister was convicted by a jury of possession of a

firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On

April 9, 1991, McAllister went to The Gunshop in Decatur, Georgia
 1

A local ordinance required a 15-day waiting period before a

purchaser could receive a gun. 

to pick up a gun he had paid for at least 15 days earlier.1 Before

taking the gun, he filled out Bureau of Alcohol, Tobacco and

Firearms Form 4473. On the form, McAllister denied ever having

been convicted of a crime punishable by imprisonment for a term

exceeding one year. In fact, he had a prior felony conviction.

At McAllister's trial, the government demonstrated that the

gun was manufactured in California and was shipped to South

Carolina in 1982. The gun shop clerk testified that on April 9 he

had handed the gun to McAllister, who carried it from the shop.

McAllister's wife, Denise Flemister, however, testified that she

had accompanied McAllister to the store and that it was she who had

taken the gun home. Flemister further testified that she, and not

McAllister, remained in possession of the gun until it was

allegedly stolen within 7-10 days of purchase. During

cross-examination, Flemister admitted that prior to trial she did

not contact either the Bureau of Alcohol Tobacco and Firearms

("A.T.F.") or the U.S. Attorney's office to inform either office

that McAllister had never possessed the gun.

II.

 Because McAllister raises the constitutional challenge for

the first time on appeal, we must determine whether he has waived

his claim. As a general rule, this court will not address an issue

not decided by the district court. Application of this rule,

however, is at the discretion of the appellate court. See

Lattimore v. Oman Constr., 868 F.2d 437 (11th Cir.1989) (discretion
 2

In his brief, McAllister claims only to be raising a

challenge to the statute "as applied." However, in his argument

he attacks the statute both on its face and as applied. We will

address both arguments. 

 3We are not alone in our conclusion that this statute is

constitutional. See United States v. Sorrentino, 72 F.3d 294,

296-97 (2d.Cir.1995); United States v. Bell, 70 F.3d 495, 498

(7th Cir.1995); United States v. Rankin, 64 F.3d 338, 339 (8th

Cir.) (same), cert. denied, --- U.S. ----, 116 S.Ct. 577, 133

L.Ed.2d 500 (1995); United States v. Mosby, 60 F.3d 454, 456

(8th Cir.1995); United States v. Hanna, 55 F.3d 1456, 1462 n. 2

(9th Cir.1995) (same). 

to review pure question of law or to avoid miscarriage of justice).

At the time of McAllister's trial, the Supreme Court had not

yet decided Lopez. In light of the Supreme Court's prior decision,

Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963,

1969, 52 L.Ed.2d 582 (1977) (holding, in the context of the

predecessor statute to § 922(g), that the interstate commerce

element is met by demonstrating a "minimal nexus"), and of this

court's decision in United States v. Standridge, 810 F.2d 1034,

1040 (11th Cir.) (same), cert. denied, 481 U.S. 1072, 107 S.Ct.

2468, 95 L.Ed.2d 877 (1987), a constitutional challenge to §

922(g)(1) would have been futile at that time. See United States

v. Bell, 70 F.3d 495, 497 (7th Cir.1995) (stating that Scarborough

rendered a pre-Lopez challenge to § 922(g)(1) "futile, even

frivolous"). It would be manifestly unjust to refuse to allow

McAllister's claim because he failed to raise it in the district

court when doing so would have served no purpose. See Lattimore,

868 F.2d 437.

 Reaching the merits of McAllister's constitutional

challenge,2

 we hold that 18 U.S.C. § 922(g)(1) is constitutional.3

Eighteen U.S.C. § 922(g), in pertinent part, provides:
 4

The Court in Lopez contrasted that statute with 18 U.S.C. §

1202(a), the predecessor statute to § 922(g). The Court wrote:

Section 922(q) contains no jurisdictional element which

would ensure, through case-by-case inquiry, that the

firearm possession in question affects interstate

commerce.... Unlike the statute in Bass, [18 U.S.C. §

1202(a) ], § 922(q) has no express jurisdictional

element which might limit its reach to a discrete set

of firearm possessions that additionally have an

explicit connection with or effect on interstate

commerce.

--- U.S. at ----, 115 S.Ct. at 1631. 

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of a crime

punishable by imprisonment for a term exceeding one year ...

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammunition;

or to receive any firearm or ammunition which has been shipped

or transported in interstate or foreign commerce.

McAllister argues that like the statute in Lopez, § 922(g)(1) does

not substantially affect interstate commerce and thus exceeds

Congress's authority to regulate. In Lopez, the Supreme Court

struck down the Gun-Free School Zones Act, 18 U.S.C. § 922(q),

which prohibited a person from possessing a gun while in a "school

zone." The Court relied on the fact that the statute "by its terms

has nothing to do with "commerce' or any sort of economic

enterprise, however broadly one might define those terms." ---

U.S. at ----, 115 S.Ct. at 1631. In contrast, § 922(g) makes it

unlawful for a felon to "possess in or affecting commerce, any

firearm or ammunition." 18 U.S.C. § 922(g) (emphasis added). This

jurisdictional element defeats McAllister's facial challenge to the

constitutionality of § 922(g)(1).4

McAllister further claims that even if the statute is facially
valid, it is unconstitutional as applied to him because the

government did not demonstrate how his purely intrastate possession

affected interstate commerce. He argues that Lopez marks a

significant change, rendering suspect the "minimal nexus"

requirement established by the Supreme Court in Scarborough. In

that case the Court held that the interstate nexus requirement for

the predecessor statute to § 922(g) was met once the government

demonstrated that the gun had previously travelled in interstate

commerce, Scarborough, 431 U.S. at 575, 97 S.Ct. at 1969; see also

Standridge, 810 F.2d at 1040.

 McAllister misunderstands the scope of Lopez. The statute at

issue in that case prohibited possession of a firearm within a

school zone. The Court held that in passing § 922(q) Congress

exceeded its Commerce Clause power because that statute was

not an essential part of a larger regulation of economic

activity, in which the regulatory scheme could be undercut

unless the intrastate activity were regulated. It cannot,

therefore, be sustained under our cases upholding regulations

of activities that arise out of or are connected with a

commercial transaction, which viewed in the aggregate,

substantially affects interstate commerce.

Lopez at ----, 115 S.Ct. at 1631. In contrast to § 922(q), §

922(g) is an attempt to regulate guns that have a connection to

interstate commerce; the statute explicitly requires such a

connection. When viewed in the aggregate, a law prohibiting the

possession of a gun by a felon stems the flow of guns in interstate

commerce to criminals. Nothing in Lopez suggests that the "minimal

nexus" test should be changed. Because the government demonstrated

that the firearm possessed by McAllister previously had travelled

in interstate commerce, the statute is not unconstitutional as
applied to him. See United States v. Bell, 70 F.3d 495; United

States v. Shelton, 66 F.3d 991 (8th Cir.1995); United States v.

Hanna, 55 F.3d 1456 (9th Cir.1995).

III.

 McAllister next contends that the prosecutor made both

improper comments and improper use of evidence during his closing

argument. To justify a new trial, the prosecutor's statement must

be improper and must prejudice a substantial right of the

defendant. United States v. Eyster, 948 F.2d 1196 (11th Cir.1991).

 The first allegedly improper comment occurred when the

prosecutor told the jury that it was not until McAllister's trial

that Flemister told A.T.F. and the U.S. Attorney that it was she,

not her husband, who had possessed the gun. McAllister argues that

this comment created several impermissible implications. First, he

argues that by implying that the case would have been dismissed had

Flemister come forward earlier, the government shifted the burden

to McAllister to prove he was not guilty when he was first

indicted. We agree with the government, however, that the

prosecutor's comments are a permissible attempt to challenge the

witness's credibility. See, e.g., United States v. Garate-Vergara,

942 F.2d 1543, 1551 (11th Cir.1991), cert. denied, 502 U.S. 1110,

112 S.Ct. 1212, 117 L.Ed.2d 451; and cert. denied, 506 U.S. 1007,

113 S.Ct. 622, 121 L.Ed.2d 555 (1992), and cert. denied, --- U.S.

----, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993).

 McAllister also claims that this comment went beyond the

evidence by suggesting that Flemister had been aware of

McAllister's indictment despite the fact that there was no evidence
 5

McAllister also argues that the prosecutor's comment was

analogous to a comment on a defendant's post-Miranda silence. We

see no merit to this claim. 

as to what Flemister knew prior to trial. Although a prosecutor

may not suggest personal knowledge of evidence not admitted at

trial, Eyster, 948 F.2d 1196 (11th Cir.1991), this is not what

happened here. The prosecutor apparently attempted to impeach

Flemister's credibility by reiterating the very testimony Flemister

had given on cross-examination. Had McAllister wanted to show that

Flemister was unaware of the indictment, he could have attempted to

do so through redirect examination of the witness.5

 The second allegedly improper argument occurred when the

prosecutor stated in closing that a person who would lie on Form

4473 regarding his status as a convicted felon "might ask his wife

to fabricate a little story to get out of a felony." McAllister

contends that this argument was an improper use of the Form 4473

evidence because it impermissibly impugned his character in order

to win the conviction, without the defendant having put character

in issue. Although "the government may not rely on the defendant's

bad character to win a conviction unless the defense puts character

in issue," United States v. Blakey, 14 F.3d 1557 (11th Cir.1994),

we do not decide whether this occurred here. Rather, because we

find upon review of the entire record that the alleged error, if

any, was harmless, we conclude that McAllister's rights were not

substantially prejudiced. United States v. McRae, 593 F.2d 700,

706 (5th Cir.) (a determination of prejudicial effect of a

prosecutor's improper comments is contextual and requires

examination of the record), cert. denied, 444 U.S. 862, 100 S.Ct.
128, 62 L.Ed.2d 83 (1979).

IV.

We hold that § 922(g)(1) is not an unconstitutional exercise

of Congress's power under the Commerce Clause, nor is its

application unconstitutional in this case. We also hold that

comments made by the prosecutor during his closing argument were

either proper or did not substantially prejudice McAllister's

rights. Accordingly, McAllister's conviction is AFFIRMED.