No. 02 CR 086 Page 3

with any substantive rights, U.S. v. Mitchell, 778 F.2d 1271, 1276 (7 Cir. 1985), he asserts
that the principle behind the policy is undermined by this prosecution. Defendant asks us
to find that the state interest in controlling local criminal activity, combined with the federal
government’s policy to avoid prosecution when its interests have already been vindicated,
while not enough to invalidate this indictment on their own, breaks the arguably tenuous
connection that the federal felon-in-possession statute has to interstate commerce.

Defendant, in a thoughtful and creative presentation, brings up salient points
regarding the effectiveness of a federal prosecution brought after a conviction for an
analogous state crime. But even in the aggregate these points do not render the prosecution
unconstitutional under the Seventh Circuit’s reading of the Commerce Clause. We are
similarly not persuaded by defendant’s argument to dismiss the indictment on statutory
constraction grounds. Defendant will have a chance to argue that the government has failed
to prove the commerce element required under the statute if this case goes to trial.

For the above reasons, defendant’s motion to dismiss the indictment is denied.

JAMES B. MORAN
r Judge, U. S. District Court

Howl, AC . 2003.


Minute Ordeg Form (06/97)

United States District Court, Northern District of Illinois

¥)

Name of Assigned Judge James B. Moran Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 CR 1086 DATE 3/26/2003
CASE United States of America vs. Brian Keller
TITLE

of the motion being presented.]

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

indictment is denied. Status hearing set for April 9, 2003 at 9:15am.

(ll) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

umber of notices

MOTION:
Memorandum Opinion and Order
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer briefto motion due___—. Reply to answer briefdue_
(4) o Ruling/Hearingon___—_ssetfor_—at
(5) im Status hearing[held/continued to] [set for/re-set for]on__setfor__at.
(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor_ at
(7) Oo Trial[set for/re-set for]on_—sat__.
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) OLocal Rule 41.1 CIFRCP41(a)\(1) C1 FRCP41(a)(2).
qo) of [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion to dismiss the

Notices mailed by judge’s staff.

MAR 27 2083

Notified counsel by telephone. date docketed

J | Docketing to mail notices.

Mail AO 450 form. LUNOD LOMESIO Sh hn
ay 1
Copy to judge/magistrate judge. mag
BHI? UG OF wie pe -
couroom Th? Hd 92 yy eg deemed nsen
WAH deputy’s a
initials Pt cme
ES Datefitne Weeived in
central Clerk's Office anling deputy nits



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
vs. No. 02 CR 1086

BRIAN KELLER,

weve

Defendant.

MEMORANDUM OPINION AND ORDER

Brian Keller (Keller) moves to dismiss the indictment against him. For the following
reasons, his motion is denied.

On July 4, 2002, Keller was arrested in a park in Chicago. On August 21, 2002, he
pled guilty to the state charge of being a felon in possession of a firearm. He was sentenced
pursuant to a plea agreement to three years in custody and was subsequently incarcerated in
a state facility. On Nov. 12, 2002, a federal grand jury indicted Keller based on the same facts
that underlay the state charges. He is now charged with being a felon in possession of a
firearm in violation of 18 U.S.C. 922(g)(1), which provides that it shall be unlawful for a felon
to “possess, in or affecting any commerce, any firearm or ammunition.”

Defendant challenges this indictment as an unconstitutional extension of the
government’s Commerce Clause power. He recognizes that the Seventh Circuit has already
found that the statute on which the indictment is based is a constitutional regulation of
commerce. U.S. v. Bell, 70 F.3d 495, 497-498 (7" Cir. 1995). But he asserts that the statute
lies on the outer fringe of Congress’ power and the unique facts of this case take it outside of

the contemplated scope. As background for his argument, defendant highlights Supreme

aL


No. 02 CR 086 Page 2

Court cases which have limited the enactment or application of federal statutes created under
the Commerce Clause. Each of these cases addresses the issue of whether the conduct
regulated in a federal statute has a sufficient nexus with interstate commerce to bring it
within the scope of the Commerce Clause. United States v. Lopez, 514 U.S. 549 (1995)
(possession of a firearm in a school zone did not substantially affect interstate commerce);

United States v. Morrision, 529 U.S. 598 (2000) (gender-motivated violence does not

substantially affect interstate commerce); Jones v. United States, 529 U.S. 848 (2000) (federal
arson statute, when used to prosecute for damage to private residences, not within the scope
of the commerce clause power). These cases, defendant argues, show that the federal felon-in-
Possession statute lies at the edge of the government’s Commerce Clause reach.
Defendant continues that because he has already been tried and convicted in state
court for the same offense, this prosecution is an unconstitutional application of § 922(g)(1).’
Defendant recognizes that the Seventh Circuit would likely reject any arguments that
federalism would bar the government’s power to enact or prosecute under the statute, U.S.
y. Wilson, 73 F.3d 675, 684 (7" Cir. 1995)(confirming the “well-established principle that
Congress may regulate conduct even though that conduct already violates state law”), but
argues that nevertheless the federal government’s choice to charge him after his conviction
disturbs the existing federal/state balance. Similarly, while he recognizes that the Department
of Justice Petite policy, which presumes that a prior resolution ofa case arising from the same

act or transaction vindicates relevant federal interests in the offense, does not provide him

‘The parties agree that under existing precedent he government’s prosecution of defendant, based on
the same offense that precipitated his state court conviction, does not constitute double jeopardy. See U.S. v.
Tirrell, 120 F.3d 670, 676-677 (7" Cir. 1997).