UNITED STATES, Appellee 

v. 

Walter D. DISNEY, Hospital Corpsman First Class 

U.S. Navy, Appellant 

No. 05-0068 

Crim. App. No. 200100932 

United States Court of Appeals for the Armed Forces 

Argued May 4, 2005 

Decided September 27, 2005 

BAKER, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ. joined. 

Counsel 

For Appellant: Lieutenant Jason S. Grover, JAGC, USN (argued). 

For Appellee: Lieutenant Guillermo J. Rojas, JAGC, USNR 

(argued); Commander C. N. Purnell, JAGC, USN (on brief); Colonel 

William K. Lietzau, USMC. 

Military Judge: Peter L. Fagan 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Disney, No. 05-0068 

 2 

Judge BAKER delivered the opinion of the Court. 

Appellant was tried by a military judge alone at a general 

court-martial. He was charged with one specification of larceny 

of military property and one specification of storing stolen 

explosives in violation of 18 U.S.C. § 842(h)(2000), violations 

of Articles 121 and 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. §§ 921, 934 (2000), respectively. Appellant 

entered a guilty plea to the Article 134 offense and to a part 

of the specification in the Article 121 offense.1 After a 

contested hearing, he was convicted of both offenses as charged. 

The adjudged and approved sentence included a bad-conduct 

discharge, confinement for sixteen months, forfeiture of all pay 

and allowances, and reduction to the lowest enlisted grade, E-1. 

The United States Navy-Marine Corps Court of Criminal Appeals 

affirmed Appellant’s conviction and sentence. This Court 

subsequently granted review on the following issue: 

WHETHER THE OFFENSE TO WHICH APPELLANT PLEADED GUILTY IN 

THE SPECIFICATION OF CHARGE II (STORE STOLEN EXPLOSIVE 

MATERIALS IN VIOLATION OF 18 U.S.C. § 842(h)) EXCEEDED 

CONGRESS’S AUTHORITY UNDER THE COMMERCE CLAUSE OF THE 

CONSTITUTION IN LIGHT OF UNITED STATES v. LOPEZ, 514 U.S. 

549 (1995)? 

We conclude that 18 U.S.C. § 842 (h) is a constitutional 

 

1

 Appellant reserved an evidentiary issue with regards to his guilty plea to 

the Article 134 offense. This assignment of error was considered and 

rejected by the lower court, and was not granted as an issue before this 

Court. 
United States v. Disney, No. 05-0068 

 3 

exercise of Congress’s authority under the Commerce Clause and 

is constitutional as applied to Appellant’s conduct. 

Consequently, we affirm the decision of the Court of Criminal 

Appeals. 

FACTUAL BACKGROUND 

Appellant was a single Navy Seal with thirteen years of 

service at the time of his trial. Appellant shared his rental 

residence with a married couple, who intended to assume 

Appellant’s lease upon his pending separation from the Navy. 

While cleaning out the residence’s garage, the wife discovered 

U.S. Government ordnance Appellant had stolen from various 

military training events. She contacted a senior 

noncommissioned officer who notified Appellant’s chain of 

command, which subsequently recovered the ordnance from 

Appellant’s off-base garage. According to the incident report 

completed upon conclusion of this recovery operation, the 

ordnance included signal flares, grenade simulators, smoke 

grenades, blasting caps, detonating cord, fuse igniters, and 

over 13,000 rounds of various caliber small arms ammunition. 

During the hearing into the providence of Appellant’s guilty 

plea to the offense of storing stolen explosives, the following 

colloquy took place between the military judge and Appellant: 
United States v. Disney, No. 05-0068 

 4 

MJ: And do you admit that those [explosive] items were 

either moving as, or were part of, or had been shipped 

or transported in interstate or foreign commerce? 

ACC: Yes, sir. I believe they had all been made and 

shipped prior to and in interstate commerce. 

MJ: Okay. And why do you believe that? 

ACC: Sir, the list that I was provided through Mr. 

Bash [the ordnance inventory manager for Naval Special 

Warfare Group One] states that these different items 

and lists the items specifically and shows that they 

were all made in states other than California, 

therefore, they were all shipped through interstate 

commerce. 

MJ: Okay. So sometime prior to their being stolen 

materials, they were shipped in interstate commerce? 

ACC: That’s my understanding, yes, sir. 

MJ: And by that, it’s your understanding that they 

were made in one state and then shipped eventually 

into California? 

ACC: Yes, sir. 

MJ: Did you transport them or know personally that 

they were shipped between states after they were 

stolen? 

ACC: [No response.] 

MJ: Let me break that up. Did you transport them 

between two different states? 

ACC: No, sir. 

MJ: Okay. But you believe that between their 

manufacture and the time that they were stolen, they 

were shipped in interstate commerce? 

ACC: Yes, sir. 

MJ: And that’s based on the place of their 

manufacture? 
United States v. Disney, No. 05-0068 

 5 

ACC: Yes, sir. 

DISCUSSION 

 The granted issue tests the constitutionality of an act of 

Congress. Such questions are reviewed de novo. United States 

v. Wright, 53 M.J. 476, 478 (C.A.A.F. 2000); Benning v. Georgia, 

391 F.3d 1299, 1303 (11th Cir. 2004). 

18 U.S.C. § 842(h) provides that: 

It shall be unlawful for any person to receive, possess, 

transport, ship, conceal, store, barter, sell, dispose of, 

or pledge or accept as security for a loan, any stolen 

explosive materials which are moving as, which are part of, 

which constitute, or which have been shipped or transported 

in, interstate or foreign commerce, either before or after 

such materials were stolen, knowing or having reasonable 

cause to believe that the explosive materials were stolen. 

Emphasis added. Appellant argues that the statute is 

unconstitutional as applied to his offense because his conduct 

lacked a substantial nexus to interstate commerce.2 In answer, 

the Government initially argues that Appellant lacks standing to 

assert a commerce power limitation on Congress’s authority 

 

2

 We resolve this case without deciding whether Appellant waived his right to 

make an as-applied challenge to the statute when he entered an unconditional 

guilty plea to the Article 134 offense. See, e.g., United States v. Dwyer, 

245 F.3d 1168, 1170 (10th Cir. 2001) (“Although [Appellant] has styled this 

issue as a jurisdictional challenge, he is in fact attempting to resurrect 

the issue of whether his weapon possession affected interstate commerce. 

[Appellant] waived this issue when he entered his guilty plea. By admitting 

in his plea agreement that ‘such possession was in or affecting interstate or 

foreign commerce,’ he admitted the interstate nexus element was satisfied.”) 

(internal citation omitted). Waiver was not addressed by either party before 

the lower court. Subsequent to oral argument before this Court, Appellant 

filed a motion to submit a supplemental brief on the issue of waiver. The 

Government opposed the motion, and the Court denied it. 
United States v. Disney, No. 05-0068 

 6 

because he is a servicemember directly subject to Congress’s 

plenary Article I authority to regulate the military. In the 

alternative, the Government contends that the unlawful storage 

of explosives substantially affects interstate commerce and that 

Appellant’s conduct created the precise risks that Congress 

adopted 18 U.S.C. § 842(h) to regulate. 

Standing

Section 842(h)’s jurisdictional element relies on 

Congress’s Article I, Section 8, Clause 3 power to regulate 

interstate commerce. The Government contends that Appellant 

lacks standing to assert a constitutional challenge to this 

jurisdictional element because Congress has plenary power to 

regulate him as a member of the United States military via its 

enumerated authority “[t]o make Rules for the Government and 

Regulation of the land and naval Forces.” U.S. Const. art. 1, § 

8, cl. 14. Thus, Congress need not rely on its Commerce Clause 

authority to reach this Appellant’s conduct. 

According to this logic, the offense applies in Appellant’s 

case regardless of the constitutionality of the statute as 

applied to a civilian accused subject only to Congress’s 

interstate commerce power. The broader legal implication of the 

Government’s argument is that servicemembers would effectively 

be precluded from making any future jurisdictional challenge to 

an Article 134, UCMJ, Clause 3 (crimes and offenses not capital) 
United States v. Disney, No. 05-0068 

 7 

offense. 

The Government’s argument, however, is inconsistent with 

Article 134’s text as well as Congressional intent. The plain 

language of Article 134, Clause 3 proscribes “crimes and 

offenses not capital, of which persons subject to this chapter 

may be guilty . . . .” As the Manual for Courts-Martial

explains, if conduct is charged as a violation of Article 134, 

Clause 3, “the proof must establish every element of the crime 

or offense as required by the applicable law.” Manual for 

Courts-Martial, United States (2000 ed.)(MCM), pt. IV, ¶ 60.b. 

Section 842(h) contains a statutory jurisdictional element that 

invokes Congress’s Commerce Clause authority. Were we to 

conclude that element is unconstitutional as applied to 

Appellant’s conduct, the statute would no longer constitute a 

crime or offense of which he could be found guilty. Thus, the 

language of the specified offense itself requires that we 

address Appellant’s claim. 

Congress could have enacted legislation specifically 

proscribing Appellant’s conduct on the basis of his status as a 

servicemember. Moreover, Appellant’s storage of stolen 

explosives could have been charged as a criminal violation under 

Article 134, UCMJ, Clauses 1 and/or 2. But in the case now 

before the Court, there is no indication that Congress or the 

charging authorities intended to except Appellant from the 
United States v. Disney, No. 05-0068 

 8 

jurisdictional standard or element generally applicable in 18 

U.S.C. § 842(h) prosecutions. We would anticipate an express 

legislative statement were Congress to deprive servicemembers of 

the procedural right to challenge the constitutionality of 

statutes under which they were convicted pursuant to Article 

134, Clause 3, a right heretofore recognized in military law and 

practice. See, e.g., United States v. O’Connor, 58 M.J. 450 

(C.A.A.F. 2003) (reversing Article 134, Clause 3 conviction for 

violation of federal child pornography statute on First 

Amendment grounds). Absent such indication, we conclude that 

Appellant has standing to challenge the constitutionality of the 

statute on Commerce Clause grounds. 

Merits

While Appellant has standing to make his claim, we conclude 

that his attack on the statute’s constitutionality, as applied 

to his conduct, fails. Congress may regulate three broad 

categories of conduct pursuant to its commerce power: the 

channels of interstate commerce, such as highways and rail 

lines; the instrumentalities of interstate commerce, or persons 

or things in interstate commerce, such as vehicles and goods; 

and those activities that substantially affect interstate 

commerce, such as intrastate coal mining or hotels catering to 

interstate guests. United States v. Lopez, 514 U.S. 549, 558 

(1995). “[E]ven if appellee’s activity be local and though it 
United States v. Disney, No. 05-0068 

 9 

may not be regarded as commerce, it may still, whatever its 

nature, be reached by Congress if it exerts a substantial 

economic effect on interstate commerce.” Gonzales v. Raich, 125 

S. Ct. 2195, 2205 (2005). 

Through the middle decades of the twentieth century, U.S. 

courts commonly sustained Congressional authority pursuant to 

this power. See, e.g., Hodel v. Va. Surface Mining & 

Reclamation Ass’n, 452 U.S. 264 (1981); Heart of Atlanta Motel, 

Inc. v. United States, 379 U.S. 241 (1964); Wickard v. Filburn, 

317 U.S. 111 (1942). In the 1995 Lopez case, however, the 

Supreme Court ruled that a federal criminal statute prohibiting 

possession of firearms on private, public, and parochial school 

campuses had an inadequate nexus to interstate or foreign 

commerce to warrant the exercise of Congressional authority, and 

consequently intruded on regulatory domain reserved to the 

various states’ general police power through the Tenth 

Amendment: 

These are not precise formulations, and in the nature of 

things they cannot be. But . . . [t]he possession of a gun 

in a local school zone is in no sense an economic activity. 

. . Respondent was a local student at a local school; there 

is no indication that he had recently moved in interstate 

commerce, and there is no requirement that his possession 

of the firearm have any concrete tie to interstate 

commerce. 

514 U.S. at 567. Similarly, in United States v. Morrison, 529 

U.S. 598 (2000), the Court concluded that a federal civil cause 
United States v. Disney, No. 05-0068 

 10 

of action for victims of violent crime against women exceeded 

the scope of Congress’s commerce authority: 

The Constitution requires a distinction between what is 

truly national and what is truly local . . . . The 

regulation and punishment of intrastate violence that is 

not directed at the instrumentalities, channels, or goods 

involved in interstate commerce has always been the 

province of the States. 

Id. at 617-18. 

In these decisions, the Court identified four 

considerations informing its analysis of whether a regulated 

activity substantially affects interstate commerce: (1) whether 

the statute regulates economic or non-economic activity; (2) 

whether the statute contains an express jurisdictional element; 

(3) whether Congress made findings regarding the connection to 

interstate commerce; and (4) whether the link between the 

prohibited activity and the effect on interstate commerce is 

attenuated. Id. at 609-12. 

In the present case, Appellant seeks to draw on the 

federalism concerns articulated in Lopez and Morrison to 

challenge the jurisdictional basis of his conviction for storing 

stolen explosives.3

 In particular, he maintains, that his 

intrastate storage of stolen explosives in his garage was an 

 

3

 The Court decided Gonzalez subsequent to the final submission of briefs and 

oral argument in this case. The Court rejected an as-applied challenge to 

Congress’s power to regulate the intrastate production of medicinal 

marijuana. Although the outcome differs from the results in Lopez and 

Morrison, the analytic framework, in our view, is consistent with that used 

in Lopez and Morrison. 
United States v. Disney, No. 05-0068 

 11 

inherently local activity which did not substantially affect 

interstate commerce. 

We disagree. As a threshold matter we conclude that 18 

U.S.C. § 842(h) is a constitutional exercise of the 

Congressional Commerce power. United States v. Mikels, No. 96-

10204, 1997 U.S. App. LEXIS 5967, at *6, 1997 WL 143965, at *2 

(9th Cir. Mar 26, 1997) (unpublished); United States v. Folen, 

84 F.3d 1103 (8th Cir. 1996). As elaborated further in our asapplied analysis below, the disposition of stolen explosives 

“which are moving as, which are part of, which constitute, or 

which have been shipped or transported in, interstate or foreign 

commerce” clearly falls within the scope of Congress’s 

enumerated Article I, Section 8 regulatory powers. 

Applying the analytic framework identified in Morrison, we 

are further satisfied that 18 U.S.C. § 842(h) is constitutional 

as applied to Appellant’s conduct. First, we conclude that the 

statute regulates economic activity, and that Appellant’s 

conduct fell within the scope of this regulated activity. In 

Lopez, the Court’s determination that the statute criminalizing 

possession of a handgun on school property did not regulate 

economic activity was strongly informed by the “stand alone” 

character of the crime. 514 U.S. at 561 (“[The statute] is a 

criminal statute that by its terms has nothing to do 

with ‘commerce’ or any sort of economic enterprise, however 
United States v. Disney, No. 05-0068 

 12 

broadly one might define those terms. [The statute] is 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.”). In contrast, § 842(h) 

was enacted as an essential part of a comprehensive federal 

legislative scheme to effectively regulate the sale, storage, 

transfer, or other disposition of explosives in interstate 

commerce. See 18 U.S.C. § 841. Moreover, as the Supreme Court 

recently reiterated: 

Our case law firmly establishes Congress’ power to regulate 

purely local activities that are part of an economic “class 

of activities” that have a substantial effect on interstate 

commerce. . . . [E]ven if appellee’s activity be local and 

though it may not be regarded as commerce, it may still, 

whatever its nature, be reached by Congress if it exerts a 

substantial economic effect on interstate commerce. We 

have never required Congress to legislate with scientific 

exactitude. When Congress decides that the ‘total 

incidence’ of a practice poses a threat to a national 

market, it may regulate the entire class. In this vein, we 

have reiterated that when a general regulatory statute 

bears a substantial relation to commerce, the de minimis 

character of individual instances arising under that 

statute is of no consequence. 

Gonzales, 125 S. Ct. at 2205-06 (internal citations omitted). 

Second, the statute includes an express jurisdictional 

element, adopted subsequent to the Court’s Lopez decision. 

Further, Appellant conceded this element at trial when he stated 

that the contraband had moved in interstate or foreign commerce 

because it had been produced outside of California (the locus of 

the crime). 
United States v. Disney, No. 05-0068 

 13 

Third, the stated purpose of § 842(h) and the statute’s 

associated legislative history demonstrate that Congress found 

the illegal use and unsafe storage of contraband explosives to 

be a substantial hazard to interstate commerce. Pub. L. No. 91-

452, § 1102, 84 Stat. 922 (1970); H.R. Rep. No. 91-1549 (1970), 

reprinted in 1970 U.S.C.C.A.N. 4007, 4013 (“Bombings and the 

threat of bombings have become an ugly, recurrent incident of 

life in cities and on campuses throughout our Nation.”). Thus, 

Congress enacted the statute as part of a regulatory scheme 

intended to: 

protect interstate and foreign commerce against 

interference and interruption by reducing the hazard to 

persons and property arising from misuse and unsafe or 

insecure storage of explosive materials. 

1970 U.S.C.A.A.N. at 4013. In Morrison, the Court looked beyond 

Congress’s stated finding that gender motivated violence 

substantially affected interstate commerce, concluding that the 

substantial affects test “ultimately presents a judicial rather 

than a legislative question . . . .” Morrison, 529 U.S. at 614. 

However, Appellant’s argument fails to even address the 

differences between the majority and the dissent in Morrison

over the degree of judicial deference properly afforded to 

Congressional findings because it is patently obvious that the 

misuse and unsafe or insecure storage of explosive materials 

substantially affect interstate commerce. This is a conclusion 
United States v. Disney, No. 05-0068 

 14 

easily reached before September 11th, 2001, and it is easily 

reached after that catastrophic day. 

Fourth, we are satisfied that there is a rational basis for 

concluding that Appellant’s storage of stolen explosives has 

substantial direct implications for commerce. Gonzales, 125 S. 

Ct. at 2197 (“The Court need not determine whether respondents’ 

activities, taken in the aggregate, substantially affect 

interstate commerce in fact, but only whether a ‘rational basis’ 

exists for so concluding.”). Regardless of the actual impact of 

Appellant’s particular conduct, his storage of stolen explosives 

fell within a class of commercial activity within Congress’s 

power to regulate. Id. (“[W]here the class of activities is 

regulated and that class is within the reach of federal power, 

the courts have no power to excise, as trivial, individual 

instances of the class.”) (internal citations omitted). 

Appellant’s actions diverted explosives out of the legal 

interstate market where they could be monitored and regulated 

and diverted them to his garage where federal regulations no 

longer applied regarding their storage or possible reentry into 

the marketplace. 

Finally, we note that our conclusion is in accord with the 

decision of every court that has considered this issue in 

regards to 18 U.S.C. § 842(h) post-Lopez. See Mikels, U.S. App. 

LEXIS 5967, 1997 WL 143965; Folen, 84 F.3d 1103; see also United 
United States v. Disney, No. 05-0068 

 15 

States v. Kirk, 1997 U.S. App. LEXIS 12670 (5th Cir. 1997) 

(citing analysis in United States v. Dawson, 467 F.2d 668 (8th 

Cir. 1972), to reject Lopez challenge to federal criminal 

statute regulating possession of machine guns). 

Accordingly, we affirm the decision of the United States 

Navy-Marine Corps Court of Criminal Appeals.