2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-2-2001

USA v. Singletary

Precedential or Non-Precedential:

Docket 00-3850

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Recommended Citation

"USA v. Singletary" (2001). 2001 Decisions. Paper 225.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/225
Filed October 2, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 00-3850 

UNITED STATES OF AMERICA 

v. 

JAMAAL ADEEM ATIF SINGLETARY, 

a/k/a 

JAMAL SINGLETARY 

a/k/a 

CURTIS SINGLETARY 

 Jamaal Singletary, 

 Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 00-cr-00199) 

District Court Judge: The Honorable Charles R. Weiner 

Submitted Under Third Circuit L.A.R. 34.1(a) 

July 27, 2001 

Before: ROTH, BARRY, and FUENTES, Circuit Judges 

(Opinion Filed: October 2, 2001) 
 Maureen Kearney Rowley 

 Chief Federal Defender 

 David L. McColgin 

 Assistant Federal Defender 

 Federal Court Division 

 Defender Association of Philadelphia 

 Suite 540 West - The Curtis Center 

 Independence Square West 

 Philadelphia, PA 19106-2414 

 ATTORNEYS FOR APPELLANT 

 Michael L. Levy 

 United States Attorney 

 Robert A. Zauzmer 

 Assistant United States Attorney 

 Chief of Appeals 

 Lesley S. Bonney 

 Assistant United States Attorney 

 615 Chestnut Street, Suite 1250 

 Philadelphia, PA 19106 

 ATTORNEYS FOR APPELLEE 

OPINION OF THE COURT 

FUENTES, Circuit Judge: 

Following a jury trial, defendant, Jamaal Singletary, was 

convicted on one count of possession of a firearm by a 

convicted felon in violation of 18 U.S.C. S 922(g)(1). On 

appeal, Singletary contends that the felon-in-possession 

statute is unconstitutional because the conduct it 

proscribes -- the intrastate possession of a firearm -- does 

not have a substantial effect upon interstate commerce, 

and thus does not constitute a valid exercise of Congress' 

authority under the Commerce Clause. Specifically, 

Singletary contends that, although in United States v. 

Gateward, 84 F.3d 670 (3d Cir. 1996), we upheld the

constitutionality of S 922(g)(1) as a proper exercise of 

Congress' regulatory power under the Commerce Clause, 

that holding must be reconsidered in the wake of the 

Supreme Court's decisions in United States v. Morrison, 529 

 2 
U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 

(2000). Because we conclude that those decisions do not 

undermine our prior construction of the felon-in-possession 

statute, we will reaffirm our holding in Gateward and affirm 

the judgment of the District Court. 

I. 

The relevant facts are not in dispute. During the evening 

of December 8, 1999, Police Officer Thomas Liciardello was 

watching a suspected stolen car in the area of Cobbs Creek 

Parkway and Larchwood Avenue in Philadelphia, 

Pennsylvania. At about 7:30 p.m., while watching the car, 

Liciardello saw a blue pick-up truck drive across the 

sidewalk and into the park located there. He saw 

Singletary, the driver, get out of the truck, fire two shots 

into the air with a silver handgun, and then jump back into 

the truck and drive on through the park. Liciardello radioed 

information about the truck, and Officers John Spence and 

Maurice Haughton began chasing the truck as it left the 

park. During the chase, Spence saw a gun tossed out the 

passenger side window. The officers stopped the truck a 

short distance later, and Officer Liciardello located the gun 

on the street. 

On April 18, 2000, a grand jury in the Eastern District of 

Pennsylvania indicted Singletary on one count of unlawful 

possession of a firearm by a convicted felon in violation of 

18 U.S.C. S 922(g)(1). Specifically, he was charged with 

having "knowingly possessed in and affecting foreign and 

interstate commerce, a .38 caliber Taurus International 

revolver . . . loaded with four live rounds and two spent 

rounds of ammunition." On July 5, 2000, the District Court 

denied a defense motion to dismiss the indictment, 

rejecting Singletary's argument that the statute is

constitutionally infirm both facially and as applied because 

it does not require that the act of gun possession have a 

substantial effect on interstate commerce. 

At trial, the Government established through the 

undisputed expert testimony of Special Agent James J. 

Uvena of the Bureau of Alcohol, Tobacco & Firearms that 

the gun in question was manufactured in Brazil, imported 

 3 
into the United States through Atlanta, Georgia, and 

eventually sent to a firearms dealer in Texas in 1973. No 

further documentation on the gun was available, and thus, 

the Government presented no evidence regarding when the 

gun had come into Pennsylvania. Additionally, the 

Government presented no evidence concerning any effect 

the gun had on interstate commerce. As for the other 

elements of the crime, Singletary stipulated that he had a 

prior felony conviction, and the issue of possession, while 

hotly contested at trial, is not germane to the issues before 

us on appeal. 

At the close of the Government's case, defense counsel 

submitted a proposed jury instruction that would have 

required the Government to prove "[t]hat the possession of 

the firearm substantially [a]ffected interstate commerce." An 

additional proposed instruction would have given the jury 

the following definition of the phrase "in or affecting 

commerce": 

 This means that the government must prove beyond a 

 reasonable doubt that, the possession of the firearm in 

 question, had a substantial effect on interstate 

 commerce. In order to find that the possession of this 

 weapon had the requisite impact on interstate 

 commerce, you must find that the possession of the 

 gun in question had a substantial relation to interstate 

 commerce in and of itself. 

The court denied the requested instructions and also 

barred defense counsel from arguing to the jury that the 

Government had failed to prove that the possession of the 

firearm had a substantial relation to interstate commerce. 

For its charge, the court instructed the jury that:

 [t]o prove that the firearm was possessed in or affecting 

 interstate or foreign commerce, the Government must 

 prove that at some time prior to defendant's possession 

 of the firearm, the firearm had traveled in interstate or 

 foreign commerce . . . that at any time prior to the date 

 charged in the Indictment, the firearm crossed a state 

 line. 

The jury returned a guilty verdict. Defense counsel once 

again moved for a judgment of acquittal, which the court 

 4 
denied on November 6, 2000. The court subsequently 

sentenced Singletary to 27 months' imprisonment, three 

years' supervised release, a special assessment of $100, 

and a fine of $200. 

II. 

On appeal, Singletary contends that the Supreme 

Court's recent Commerce Clause jurisprudence renders 

18 U.S.C. S 922(g)(1), the felon-in-possession statute, 

unconstitutional, and therefore, his conviction invalid. In 

the alternative, he argues for a reversal because of 

insufficient evidence on the interstate commerce element, 

or for a new trial because of the District Court's erroneous 

jury instructions on that same element.1 

The District Court exercised jurisdiction over this case 

under 18 U.S.C. S 3231, and we have appellate jurisdiction 

under 28 U.S.C. S 1291. Because Singletary challenges the 

constitutionality of S 922(g)(1), we will exercise plenary 

review over the District Court's assertion of federal 

jurisdiction. See United States v. Rodia, 194 F.3d 465, 469 

(3d Cir. 1999) ("Our review of the statute's constitutionality 

is plenary, though we must respect Congress's ample

discretion to determine the appropriate exercise of its 

Commerce Clause authority."), cert. denied , 529 U.S. 1131 

(2000); accord United States v. One Toshiba Color Television, 

213 F.3d 147, 151 (3d Cir. 2000) (en banc) ("Our review 

over constitutional issues is plenary."). Moreover, "[b]ecause 

each of [Singletary's] challenges is based on the district 

court's construction of statutes and case law, we will 

exercise plenary review." United States v. Cross, 128 F.3d 

145, 147 (3d Cir. 1997). 

A. 

Under the Commerce Clause of the United States 

Constitution, Congress is empowered "[t]o regulate 

Commerce with foreign Nations, and among the several 

States, and with the Indian Tribes." U.S. Const., art. I, S 8, 

_________________________________________________________________ 

1. Singletary moved for an initial en banc consideration of his appeal by 

this Court, but we denied that request. 

 5 
cl. 3. Pursuant to this authority, Congress enacted the 

felon-in-possession statute, which provides, in relevant 

part: 

 (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. 

18 U.S.C. S 922(g)(1). The statute can be read to create 

three crimes for convicted felons: (1) "to ship or transport in 

interstate or foreign commerce . . . any firearm or

ammunition"; (2) "to . . . possess in or affecting commerce, 

any firearm or ammunition"; and (3) "to receive any firearm 

or ammunition which has been shipped or transported in 

interstate or foreign commerce." Plainly, (1) shipping or 

transporting and (3) receiving any firearm or ammunition 

"in interstate or foreign commerce" are both distinct crimes. 

Notably, however, Congress did not use the phrase"in 

interstate or foreign commerce" when it criminalized 

possession. Instead, Congress merely employed the phrase 

"in or affecting commerce." 

At the time the Supreme Court established what remains 

the governing jurisprudence on federalization of gun 

possession, the felon-in-possession statute, then codified at 

18 U.S.C. S 1202(a), was phrased differently. Specifically, 

the "predecessor statute to S 922(g)(1)[ ] made any felon 

`who receives, possesses, or transports in commerce or 

affecting commerce . . . any firearm' guilty of a federal 

offense." United States v. Gateward, 84 F.3d 670, 671 (3d 

Cir. 1996) (quoting 18 U.S.C. S 1202(a) (repealed 1986)). In 

two key decisions, the Supreme Court addressed the 

interstate commerce aspect of this predecessor statute to 

S 922(g)(1). 

First, in United States v. Bass, the Court construed 18 

U.S.C. S 1202(a) against the Government's contention that 

the statute "banned all possessions and receipts of firearms 

by convicted felons, and that no connection with interstate 

 6 
commerce had to be demonstrated in individual cases." 404 

U.S. 336, 338 (1971). In rejecting the Government's

expansive reading, the Court held that "the commerce 

requirement in S 1202(a) must be read as part of the 

`possesses' and `receives' offenses." Id. at 350. That is, the 

use of commas in the language of the statute implied an 

enumeration of related ideas, all modified by the phrase "in 

commerce or affecting commerce." The Court further opined 

that, "[a]bsent a clearer statement of intention from 

Congress than is present here, we do not interpretS 1202(a) 

to reach the `mere possession' of firearms" because

otherwise, without "proof of some interstate commerce 

nexus in each case, S 1202(a) dramatically intrudes upon 

traditional state criminal jurisdiction." Id. 

Nearly six years later, the Court in Scarborough v. United 

States had the opportunity to address squarely"whether 

proof that the possessed firearm previously traveled in 

interstate commerce is sufficient to satisfy the statutorily 

required nexus between the possession of a firearm by a 

convicted felon and commerce." 431 U.S. 563, 564 (1977). 

The Court accepted the Government's contention that it 

only need prove that "the firearm possessed by the 

convicted felon traveled at some time in interstate

commerce." Id. at 568. Thus, the Scarborough Court 

established the proposition that the transport of a weapon 

in interstate commerce, however remote in the distant past, 

gives its present intrastate possession a sufficient nexus to 

interstate commerce to fall within the ambit of the statute. 

Because S 1202(a) is the predecessor to the current felonin-possession statute, this statutory construction applies 

equally to S 922(g)(1). 

B. 

Distilled to its core, we construe the precise question 

raised by Singletary in this appeal to be whether the 

proposition established in Scarborough survives as a viable 

statutory construct in the wake of United States v. Lopez, 

514 U.S. 549 (1995), United States v. Morrison , 529 U.S. 

598 (2000), and Jones v. United States, 529 U.S. 848 

(2000). Specifically, Singletary contends that the felon-inpossession statute is facially unconstitutional because the 

 7 
conduct it proscribes -- the intrastate possession of a 

firearm -- does not have a substantial affect upon 

interstate commerce, and thus, does not constitute a valid 

exercise of Congress' authority under the Commerce 

Clause. Alternatively, as applied to his circumstances, 

Singletary maintains that the statute is unconstitutional 

because there was no evidence that his possession of the 

gun substantially affected interstate commerce, or indeed, 

that it had any effect whatsoever on commerce, interstate 

or intrastate. Consequently, Singletary argues that the 

District Court erred in failing to give the requested jury 

instructions regarding the Government's burden of proving 

that the possession of the gun substantially affected 

interstate commerce, and in barring defense counsel from 

arguing this point to the jury. 

In Lopez, the Supreme Court addressed the 

constitutionality of the Gun-Free School Zones Act of 1990, 

18 U.S.C. S 922(q)(1)(A), which made it a federal offense "for 

any individual knowingly to possess a firearm at a place 

that the individual knows, or has reasonable cause to 

believe, is a school zone." The Court concluded that 

Congress had exceeded its authority under the Commerce 

Clause in enacting this statute because the statute neither 

regulated a commercial activity (possession of a gun near a 

school) nor contained a requirement that the possession of 

a firearm in a school zone be connected in any way to 

interstate commerce. See 514 U.S. at 551, 567-68. 

The Lopez Court initially reviewed the history of its 

Commerce Clause jurisprudence, stressing that Article I, 

S 8 of the Constitution gave Congress enumerated (and 

therefore limited) powers, particularly as against the 

antecedent powers of the states, and that an expansive 

construction of the Commerce Clause would effectively read 

out those limitations. See id. at 552-58. Consistent with 

this jurisprudence, the Court identified three broad areas 

that Congress may regulate under the Commerce Clause: 

(1) "the use of the channels of interstate commerce"; (2) "the 

instrumentalities of interstate commerce, or persons and 

things in interstate commerce, even though the threat may 

only come from intrastate activities"; and (3)"those 

activities having a substantial relation to interstate 

 8 
commerce." Id. at 558-59. In Lopez , the Court determined 

that the plain language of the regulation at issue placed it 

in the third category. See id. at 559. But the Court also 

noted that S 922(q) was "a criminal statute that by its terms 

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

enterprise, however broadly one might define those terms." 

Id. at 561. 

Next, the Court observed that "S 922(q) contains no

jurisdictional element which would ensure, through caseby-case inquiry, that the firearm possession in question 

affects interstate commerce." Id. On this point, it

distinguished its prior holding in Bass, noting that there it 

had found the requisite nexus to interstate commerce when 

the criminal statute contained a clause limiting its reach to 

the receipt, possession, or transfer of firearms in commerce. 

See id. at 561-62. As we explained above, Bass involved a 

challenge to the former 18 U.S.C. S 1202(a), the predecessor 

to today's S 922(g)(1). Thus, while the Supreme Court has 

never addressed S 922(g)(1) in its current form, it presumed 

that the former S 1202(a) would survive constitutional 

scrutiny if the Government provided evidence to show that 

the firearm was possessed or transported in commerce. See 

Bass, 404 U.S. at 351. The Court, of course, established in 

Scarborough the proposition that proof of a firearm's prior 

travel in interstate commerce demonstrated a sufficient 

nexus to commerce to justify federal prohibition. Thus, the 

Court in Lopez concluded that, "[u]nlike the statute in 

Bass, S 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." 514 U.S. at 562. 

Finally, the Court examined the legislative history of the 

regulation, observing that the Government itself had 

conceded in its brief that " `[n]either the statute nor its 

legislative history contain[s] express congressional findings 

regarding the effects upon interstate commerce of gun 

possession in a school zone.' " Id. at 562 (quoting Gov't Br. 

at 5-6). In the end, the Court rejected the Government's 

contention "that possession of a firearm in a school zone 

may result in violent crime and that violent crime can be 

expected to affect the functioning of the national economy" 

 9 
because to accept it would require "pil[ing] inference upon 

inference in a manner that would bid fair to convert 

congressional authority under the Commerce Clause to a 

general police power of the sort retained by the States." Id. 

at 563, 567. 

A year after Lopez, we had the occasion to consider its 

implications for the felon-in-possession statute,S 922(g)(1). 

In United States v. Gateward, we stated that we did "not 

understand Lopez to undercut the Bass/Scarborough 

proposition that the jurisdictional element `in or affecting 

commerce' keeps the felon firearm law well inside the 

constitutional fringes of the Commerce Clause." 84 F.3d 

670, 671 (3d Cir. 1996). Rather, we explained as follows: 

 The Lopez Court invalidated S 922(q) because "by its 

 terms [it] has nothing to do with `commerce' or any sort 

 of economic enterprise, however broadly one might 

 define those terms," and because "S 922(q) contains no 

 jurisdictional element which would ensure, through 

 case-by-case inquiry, that the firearm possession in 

 question affects interstate commerce." 

Id. at 671-72 (quoting Lopez, 514 U.S. at 561). Thus, the 

Gateward Court, noting that the gun in question"had

moved in interstate commerce," straightforwardly applied 

Scarborough and affirmed the conviction. Id. at 672. As 

Singletary correctly points out, however, our respect for the 

uniformity of decisions within this Court yields when a 

prior panel's holding conflicts with a holding of the 

Supreme Court. Mennen Co. v. Atl. Mut. Ins. Co. , 147 F.3d 

287, 294 n.9 (3d Cir. 1998). Thus, the Supreme Court's 

Commerce Clause jurisprudence in criminal cases since 

Lopez necessitates a re-examination of our analysis in 

Gateward. 

C. 

In United States v. Morrison, the Supreme Court 

invalidated 42 U.S.C. S 13981, a statute that federalized "a 

crime of violence committed because of gender or on the 

basis of gender, and due, at least in part, to an animus 

based on the victim's gender." See 529 U.S. at 607-27. 

Although the Court acknowledged its statement in Lopez 

 10 
that " `we have upheld a wide variety of congressional Acts 

regulating intrastate economic activity where we have 

concluded that the activity substantially affected interstate 

commerce,' " it stressed that "a fair reading of Lopez shows 

that the noneconomic, criminal nature of the conduct at 

issue was central to our decision in that case." Id. at 610 

(quoting Lopez, 514 U.S. at 559). The Court further

explained that "Lopez's review of Commerce Clause case 

law demonstrates that in those cases where we have 

sustained federal regulation of intrastate activity based 

upon the activity's substantial effects on interstate 

commerce, the activity in question has been some sort of 

economic endeavor." Id. at 611; see also id. at 613

(observing that "thus far in our Nation's history our cases 

have upheld Commerce Clause regulation of intrastate 

activity only where that activity is economic in nature"). 

Analogizing to the statute at issue in Lopez, the Court 

recognized that "S 13981 contains no jurisdictional element 

establishing that the federal cause of action is in pursuance 

of Congress' power to regulate interstate commerce." Id. 

Indeed, the Court noted that "such a jurisdictional element 

would lend support to the argument that S 13981 is 

sufficiently tied to interstate commerce . . . ." Id. 

Consequently, the Court read out the "costs of crime" and 

"economic effects" that Congress had canvassed in the 

extensive legislative history of the statute: 

 Given these findings and petitioners' arguments, the 

 concern that we expressed in Lopez that Congress 

 might use the Commerce Clause to completely 

 obliterate the Constitution's distinction between 

 national and local authority seems well founded. The 

 reasoning that petitioners advance seeks to follow the 

 but-for causal chain from the initial occurrence of 

 violent crime (the suppression of which has always 

 been the prime object of the States' police power) to 

 every attenuated effect upon interstate commerce. If 

 accepted, petitioners' reasoning would allow Congress 

 to regulate any crime as long as the nationwide, 

 aggregated impact of that crime has substantial effects 

 on employment, production, transit, or consumption. 

Id. at 615 (citation omitted). 

 11 
Hence, after Morrison, the "economic effects" rationale 

and congressional findings regarding such effects alone will 

not serve to save a criminal statute under the Commerce 

Clause if no commercial activity is, in fact, involved. 

Notably, the Morrison Court (while not expressly addressing 

it) implicitly left intact the proposition set forth in 

Scarborough. Namely, to satisfy the statutorily required 

nexus between the possession of a firearm by a convicted 

felon and interstate commerce, the Government need only 

prove that the possessed firearm previously traveled in 

interstate commerce. See id. at 658 (Breyer, J., dissenting) 

(noting that the Court reaffirmed Congress' power"to enact 

laws that satisfy a commerce-related jurisdictional

prerequisite -- for example, that some item relevant to the 

federally regulated activity has at some time crossed a state 

line" and citing, among other decisions, Bass and 

Scarborough). 

Seven days after the Supreme Court announced Morrison, 

it rendered its decision in Jones v. United States,

construing a criminal statute drafted with an explicit 

interstate commerce jurisdictional element. Specifically, 

that statute, 18 U.S.C. S 844(i), makes it a federal crime to 

damage or destroy, "by means of fire or an explosive, any 

. . . property used in interstate or foreign commerce or in 

any activity affecting interstate or foreign commerce." Jones 

had "tossed a Molotov cocktail through a window into a 

home in Fort Wayne, Indiana, owned and occupied by his 

cousin." 529 U.S. at 851. He was thereafter indicted and 

convicted of this federal arson charge, and the Seventh 

Circuit affirmed his conviction. 

The Supreme Court granted certiorari, framing the 

question presented as: 

 Whether, in light of United States v. Lopez, and the 

 interpretive rule that constitutionally doubtful 

 constructions should be avoided, 18 U.S.C. S 844(i) 

 applies to the arson of a private residence; and if so, 

 whether its application to the private residence in the 

 present case is constitutional. 

Id. at 852 (internal citations omitted). In the Supreme 

Court, the Government argued that the Fort Wayne 

 12 
residence was indeed "used" in at least three activities 

"affecting commerce" because: (1) the house was "collateral 

to obtain and secure a mortgage from an Oklahoma lender"; 

(2) the homeowner insured the residence with "a casualty 

insurance policy from a Wisconsin insurer"; and (3) the 

dwelling received "natural gas from sources outside

Indiana." Id. at 855. However, the Court (in an opinion 

authored by Justice Ginsburg) rejected these arguments, 

reasoning that, "[w]ere we to adopt the Government's 

expansive interpretation of S 844(i), hardly a building in the 

land would fall outside the federal statute's domain." Id. at 

857. 

Importantly for our analysis (and particularly striking 

because Justice Ginsburg was a Lopez dissenter), the Court 

wrote: "Given the concerns brought to the fore in Lopez, it 

is appropriate to avoid the constitutional question that 

would arise were we to read S 844(i) to render the 

`traditionally local criminal conduct' in which petitioner 

Jones engaged `a matter for federal enforcement.' " Id. at 

858 (quoting Bass, 404 U.S. at 350). The language Justice 

Ginsburg quoted came from Bass, and two sentences later, 

she again quoted Bass when she wrote: "We have 

cautioned, as well, that `unless Congress conveys its 

purpose clearly, it will not be deemed to have significantly 

changed the federal-state balance' in the prosecution of 

crimes." Id. (quoting Bass, 404 U.S. at 349). Thus, to avoid 

Lopez concerns, as well as to maintain "the federal-state 

balance" as a matter of statutory construction, the Court 

held that the statute "covers only property currently used 

in commerce or in an activity affecting commerce." Id. at 

858, 859. Notably, in so holding (although without explicitly 

stating), the Supreme Court chose not to extend the

proposition established in Scarborough to home ownership, 

as the Government had invited it to do. That is, the Court 

did not expand Scarborough to mean that a piece of 

property, used in interstate commerce at some time in the 

past, gave its current intrastate use a sufficient nexus to 

interstate commerce to fall within the ambit of the arson 

statute. 

Despite the continued vitality of Scarborough , Singletary 

would have us construe S 922(g)(1) without its benefit. That 

 13 
is, he urges that we read the Supreme Court's use in Jones 

of the phrase "currently used in commerce or in an activity 

affecting commerce" as suggesting that the interstate 

quality of a firearm, at some time in the past, has no 

bearing on its present day status for purposes of fulfilling 

the interstate commerce element. According to Singletary, 

such a construction would also avoid Lopez and Morrison 

implications by restricting the scope of the statute to apply 

only to guns and ammunition that are currently in or 

affecting commerce. In short, abandoning Scarborough 

would permit us to conclude that Singletary's possession of 

the gun was neither "used in commerce" nor had any 

present or imminent interstate aspect. Moreover, we would 

be constrained to conclude that the possession of the gun 

did not occur in any commercial or transactional context. 

His conviction therefore could not stand because he

essentially would have committed no federal crime under 

S 922(g)(1). 

Missing from Singletary's analysis, however, is the

recognition that, while Lopez and Morrison were questions 

concerning the power of Congress to regulate activities 

substantially affecting interstate commerce, S 922(g)(1) 

regulates the possession of goods moved in interstate 

commerce. The jurisdictional element in S 922(g)(1)

distinguishes it from the statutes considered in Lopez and 

Morrison. Section 922(g)(1), by its very terms, only regulates 

those weapons affecting interstate commerce by being the 

subject of interstate trade. It addresses items sent in 

interstate commerce and the channels of commerce 

themselves, delineating that the latter be kept clear of 

firearms. Thus, an analysis of the kind utilized in Lopez or 

Morrison is neither appropriate nor needed. 

Jones provides no further insight for us. While the law 

challenged in Jones did have a jurisdictional element, the 

challenge there involved the alleged use of a residence in 

activities affecting interstate commerce. The rationale used 

by the Jones Court to hold that the federal arson statute 

only encompassed "property currently used in commerce or 

in an activity affecting commerce" has little impact on the 

assessment of whether firearms moved through interstate 

commerce are subject to congressional regulation. The 

 14 
analogy urged by Singletary is made even more 

incongruous because the Jones Court neither expressly 

overruled Scarborough nor rejected its directly applicable 

proposition relevant to interpreting the gun possession 

statutes. 

Accordingly, our prior decision in Gateward remains the 

law of this circuit, and we are bound to respect it, absent 

an en banc consideration. See 3d Cir. I.O.P. 9.1; Am. Civil 

Liberties Union of N.J. ex rel. Lander v. Schundler , 168 F.3d 

92, 98 n.6 (3d Cir. 1999). In that vein, as we noted earlier 

in the margin, we denied Singletary's request for an initial 

en banc consideration by this Court. Moreover, even if there 

were merit to Singletary's argument that the Supreme 

Court's trinity of Commerce Clause decisions have 

somehow weakened the precedential value of Scarborough, 

we may not precipitate its decline. The Supreme Court itself 

has admonished lower courts to follow its directly 

applicable precedent, even if that precedent appears 

weakened by pronouncements in its subsequent decisions, 

and to leave to the Court itself " `the prerogative of 

overruling its own decisions.' " Agostini v. Felton, 521 U.S. 

203, 237 (1997) (quoting Rodriguez de Quijas v. 

Shearson/American Express, Inc., 490 U.S. 477, 484 

(1989)). We have always sought to adhere strictly to that 

counsel. See United States v. Abuhouran, 161 F.3d 206, 

215 n.9 (3d Cir. 1998), cert. denied, 526 U.S. 1077 (1999); 

Maldonado v. Houstoun, 157 F.3d 179, 190 (3d Cir. 1998), 

cert. denied, 526 U.S. 1130 (1999); United States v. Bishop, 

66 F.3d 569, 588 n.28 (3d Cir. 1995); Swin Resource Sys., 

Inc. v. Lycoming County, 883 F.2d 245, 255 (3d Cir. 1989). 

We considered S 922(g)(1)'s post-Lopez constitutionality in 

Gateward and decided in favor of the Government. Morrison 

and Jones give no reason beyond what was already present 

in Lopez to conclude that S 922(g)(1) lies beyond Congress' 

Commerce Clause power. Indeed, our conclusion in 

Gateward was uniformly shared by eight other circuits at 

the time of that decision. See 84 F.3d at 672 (citing cases 

from the Second, Fourth, Sixth, Seventh, Eighth, Ninth, 

Tenth, and Eleventh Circuits). Our present reaffirmation of 

that holding joins those same eight circuits, all of which 

have readdressed this issue in the wake of Morrison and 

 15 
Jones. See United States v. Dupree, 258 F.3d 1258, 2001 

WL 835847, at *1 & n.1 (11th Cir. July 25, 2001); United 

States v. Stuckey, 255 F.3d 528, 529-30 (8th Cir. 2001); 

United States v. Gallimore, 247 F.3d 134, 137-38 (4th Cir. 

2001); United States v. Davis, 242 F.3d 1162, 1162-63 (9th 

Cir. 2001) (per curiam), petition for cert. filed, No. 00-10772 

(U.S. June 18, 2001); United States v. Santiago , 238 F.3d 

213, 216-17 (2d Cir. 2001) (per curiam), cert. denied, 121 S. 

Ct. 2016 (2001); United States v. Dorris, 236 F.3d 582, 584- 

86 (10th Cir. 2000), cert. denied, 121 S. Ct. 1635 (2001); 

United States v. Napier, 233 F.3d 394, 399-402 (6th Cir. 

2000); United States v. Wesela, 223 F.3d 656, 659-60 (7th 

Cir. 2000), cert. denied, 121 S. Ct. 1145 (2001). We are 

aware of no appellate court that has decided differently. 

III. 

Accordingly, we conclude that the proof in this case that 

the gun had traveled in interstate commerce, at some time 

in the past, was sufficient to satisfy the interstate 

commerce element, and therefore, we will affirm the

judgment of the District Court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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