In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3965

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHAEL E. THOMPSON,

Defendant-Appellant.

____________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 02 CR 35—Sarah Evans Barker, Judge.

____________

ARGUED NOVEMBER 7, 2003—DECIDED FEBRUARY 23, 2004

____________

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. Michael Thompson was indicted on

one count of possession of ammunition by a felon, a violation of 18 U.S.C. § 922(g)(1). During his jury trial, the district

court permitted the prosecution to cross-examine a defense

witness about Mr. Thompson’s past acts of physical violence

and threats. Mr. Thompson was convicted and now appeals

this conviction. He submits that the district court’s evidentiary ruling was error and that 18 U.S.C. § 922(g)(1) is

unconstitutional. For the reasons set forth in the following

opinion, we affirm the judgment of the district court.

I
2 No. 02-3965

1 Although the details of the warrant are not entirely clear, on

cross-examination at trial Shinnamon testified that the warrant

was issued because Mr. Thompson pointed a firearm at her. The

Government further explained at oral argument that this altercation occurred on October 24, 2001. 

BACKGROUND

A. Facts

About a week prior to his arrest, Mr. Thompson rented

a Dodge Neon automobile from C.J. Auto Sales. Mr. Thompson and Kimberly Shinnamon, with whom Mr. Thompson

had a romantic relationship, then drove the rental car

throughout southern Indiana. During their travels, both Mr.

Thompson and Shinnamon kept shoes, underwear, jackets

and other clothing in the car. This trip concluded for

Shinnamon on November 20, 2001, when, after an argument

between the two, Mr. Thompson drove away in the rental

car and left Shinnamon behind. At the time they went their

separate ways, their clothing and other belongings remained

intermingled within the automobile.

The following day, Mr. Thompson was arrested in

Indianapolis pursuant to a warrant charging him with an

offense against Shinnamon,1

 which had occurred about a

month before. Subsequent to his arrest, Mr. Thompson,

while sitting in the back of an ambulance, asked Detective

Ronald Gray for a drink of water and a jacket. Mr.

Thompson indicated to Detective Gray that the jacket was

in the Dodge Neon which Mr. Thompson had been driving.

Detective Gray testified that, when he went to retrieve the

jacket from the car, he saw only one jacket, a jacket the

officer described as a light-green jacket that would fit a person with a medium to large physique. Prior to handing the
No. 02-3965 3

2 Inexplicably, after the bullets were seized the jacket was placed

back into the Neon, and it was not included in Detective Floyd’s

inventory search. Consequently, the jacket was not available as

evidence at trial because the Indianapolis Police Department had

chosen not to seize the jacket. See R.53 at 59. At trial, neither

Detective Gray nor Detective Floyd knew what had happened to

this jacket, nor could they provide relevant details about the

jacket. Compounding this apparent error, as will be discussed

more fully later, Mr. Thompson’s companion, Shinnamon,

changed her version of the events from initially telling police that

the jacket belonged to Mr. Thompson, to testifying that she was

the owner of the jacket and the bullets. The missing jacket became

even more significant in light of this testimony, and the officers

could not provide any detail about the jacket that would have

assisted the fact finder in determining the actual ownership of the

jacket. 

jacket over to Mr. Thompson, the detective checked the

pockets of the light-green jacket and found twelve live

rounds of ammunition. 

Detective Michelle Floyd was assigned to this arrest,

and she took custody of the bullets at the scene. However,

the light-green jacket was not seized, photographed or

inspected for fingerprints.2

 Detective Floyd performed an

inventory search on the car and found numerous articles of

clothing in the back seat and trunk. The car was then towed

to C.J. Auto Sales.

Shortly after Mr. Thompson’s arrest, Shinnamon told the

police that the light-green jacket and the bullets belonged to

Mr. Thompson. Shinnamon also permitted Detective Floyd

to copy two answering machine messages she had received

from Mr. Thompson after his arrest. One message included

a request by Mr. Thompson that asked Shinnamon to “[g]o

down there and get my clothes for me and my boots and my

three jackets.” Gov’t Ex.8. About a week after Mr. Thomp-
4 No. 02-3965

3 Shinnamon testified that she picked up three or four jackets

that she claims belonged to her and a couple that belonged to Mr.

Thompson. R.53 at 93-94.

son’s arrest, the police released the car that Mr. Thompson

had rented, and Shinnamon went to C.J. Auto Sales where

she picked up the clothes, shoes and jackets from the car.3

II

DISCUSSION

A. Evidentiary Ruling

Prior to trial, Mr. Thompson filed a motion in limine

in which he sought to exclude, among other subjects, any

testimony or questioning about certain prior convictions of

Mr. Thompson or about his status as a suspect in any

uncharged crimes. The Government did not object, and the

district court granted the motion. 

At trial, Shinnamon testified about the events described

earlier, including her romantic relationship with Mr.

Thompson and their travels together. Shinnamon admitted

on direct examination that she initially had told police that

the jacket and bullets belonged to Mr. Thompson. However,

during her trial testimony, Shinnamon claimed that the

bullets and light-green jacket were hers. R.53 at 97-98.

Shinnamon testified on direct examination that she initially

had not told the police the truth because she was angry with

Mr. Thompson. Defense counsel further inquired: 

Q Did you think he would get into trouble?

A I knew he would.

Q Why, because of his prior criminal record?
No. 02-3965 5

4 The defense counsel also asked Shinnamon at the beginning

of her direct examination whether she was “aware Michael

Thompson has a criminal record?” to which Shinnamon responded in the affirmative. R.53 at 86-87. 

5 Specifically, the Government sought relief from paragraph five

of the Motion in Limine, R.53 at 99, a provision restricting the

Government from discussing the “Defendant’s purported status

as a suspect in any other uncharged crimes,” R.23, ¶ 5. 

A Yes.4

Id. at 98. Shinnamon further testified that she had not told

Mr. Thompson before his arrest that she had purchased a

gun or had bullets in her jacket. 

After this testimony, but prior to Shinnamon’s crossexamination, the Government requested that, despite the

earlier ruling prohibiting mention of certain convictions and

past conduct of Mr. Thompson, the Government now be

permitted to raise evidence of past threats and past charges

Shinnamon brought against Mr. Thompson. 5

The Government asserted that it had evidence that Mr.

Thompson threatened Shinnamon and that her direct testimony regarding the light-green jacket and bullets may

have been the product of Mr. Thompson’s threats and intimidation. The district court ruled that the proposed crossexamination was “admissible to [Shinnamon’s] credibility

because if she is testifying under fear, coercion, or intimidation so that it calls into question what she says, the jury is

entitled to make that assessment.” Id. at 101.

On cross-examination, Shinnamon testified about Mr.

Thompson’s guilty plea to domestic battery against her.

Specifically, she testified that Mr. Thompson previously had

been convicted of domestic battery against her; she had suffered a black eye, and Mr. Thompson also had pointed a
6 No. 02-3965

weapon at her. She further testified that she had provided

police with other weapons that she claimed Mr. Thompson

also had pointed at her. The prosecution also elicited

testimony from Shinnamon that she had permitted the

police to record answering machine messages left by Mr.

Thompson after his arrest. The prosecution stated that, “In

fact, he was threatening you, wasn’t he?”, to which

Shinnamon responded, “Yes.” Id. at 104. However, when

asked by the Government whether “there could be repercussions for you if you don’t sing his line,” in her current

testimony, Shinnamon denied any such fear. Id. Shinnamon

nevertheless testified that, within the last six weeks, friends

of Mr. Thompson’s had come to her house at 3:00 a.m.,

prompting her to call the police.

After Mr. Thompson was convicted, he moved for a new

trial. In Mr. Thompson’s motion for a new trial, he argued

that the Government improperly had elicited testimony

from Shinnamon about his past conviction and conduct. The

district court denied the motion for a new trial.

The district court held that testimony of the threats that

Mr. Thompson allegedly had made against Shinnamon and

testimony about prior charges that she brought against

him did not violate Federal Rule of Evidence 403. The court

reasoned that the evidence offered was admissible as to

Shinnamon’s credibility and could be used to examine

Shinnamon’s possible reason for changing her account of

the events between Mr. Thompson’s arrest and the trial. Id.

at 10. The district court concluded that Shinnamon’s testimony regarding Mr. Thompson’s domestic battery conviction and other threats was relevant and highly probative of

her bias and credibility. The district court further noted that

the Government confined its cross-examination to only the

subjects raised on direct examination. The past threats were

relevant to explain Shinnamon’s possible fear. Furthermore,
No. 02-3965 7

ruled the district court, the evidence of past violence only

was offered after the defense attorney “opened the door to

such testimony.” R.38 at 8. Therefore, continued the court,

the evidence did not produce a risk of prejudice sufficient to

outweigh substantially the testimony’s probative value. 

Mr. Thompson now renews his contention that the district

court erred when it allowed the Government, asserting its

intention to impeach the witness by demonstrating her bias,

to cross-examine Shinnamon about Mr. Thompson’s past

acts of physical violence or threats. He relies on our decision

in United States v. Thomas, 86 F.3d 647 (7th Cir. 1996). We

review the district court’s evidentiary rulings under an

abuse of discretion standard. See United States v. Bonner, 302

F.3d 776, 780 (7th Cir. 2002).

The Supreme Court has noted that 

[b]ias is a term used in the “common law of evidence”

to describe the relationship between a party and a

witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or

against a party. Bias may be induced by a witness’ like,

dislike, or fear of a party, or by the witness’ self-interest.

Proof of bias is almost always relevant because the jury,

as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might

bear on the accuracy and truth of a witness’ testimony.

United States v. Abel, 469 U.S. 45, 52 (1984). “The admissibility of evidence regarding a witness’s bias . . . in his

testimony is not specifically addressed by the Rules and

thus admissibility is limited only by the relevance standard

of Rule 402.” United States v. Lindemann, 85 F.3d 1232, 1243

(7th Cir. 1996) (citing 27 Charles Allen Wright & Victor

James Gold, Federal Practice and Procedure § 6092 (1990)). 
8 No. 02-3965

6 Mr. Thompson asserts: “Thomas holds that, in all circumstances,

the prejudicial nature of non-specific threat evidence outweighs

its probative value for purposes of Rule 403 and, thus, is inadmissible.” Appellant’s Br. at 19. 

Relevant evidence is, of course, generally admissible, see

Fed. R. Evid. 402, but even relevant evidence will be “excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury,” Fed. R. Evid. 403. With respect to the

admission of the evidence in question here, Mr. Thompson

takes the view that, under Rule 403, the danger of unfair

prejudice outweighs any probative value that the evidence

might have. He submits that our decision in Thomas requires

“evidence of threats to be directly and specifically linked to,

and made because of, the witness’ testimony and not” because of a “general fear of the defendant.” Appellant’s Br.

at 17. Mr. Thompson emphasizes that, prior to admitting

the evidence, the district court failed to make a finding that

the witness was intimidated or threatened. He reasons that,

if a witness does not appear intimidated, or the threat is not

connected directly to the testimony of the witness, “there is

too great a danger that the jury would use that evidence in

a manner prohibited by” Federal Rule of Evidence 404.

Appellant’s Br. at 18. Without a direct connection between

a threat and the witness’ testimony, the prejudicial effect of

the threat evidence will outweigh substantially the probative value of the evidence. Simply stated, Mr. Thompson

contends that our holding in Thomas requires a “direct

connection between the violence” and Shinnamon’s testimony; otherwise, the threat evidence cannot pass the Rule

403 balancing test.6

 Appellant’s Br. at 14. 

We cannot agree that there is a general requirement that

the threat of a party must be related specifically to a witness’ courtroom testimony before such evidence and the
No. 02-3965 9

7 Notably, the cases cited within Thomas also concern the use of

threats to “boost” or “enhance” the testimony of the witness. See

Dudley v. Duckworth, 854 F.2d 967, 970-71 (7th Cir. 1988) (discussing direct testimony offered by a prosecution witness and finding

that threats made by the defendant were likely placed before

the jury under a pretext because there was no indication in the

record that the prosecution’s witness was nervous, and, therefore,

there was no need to introduce the evidence on direct examination other than to prejudice the defendant); Gomez v. Ahitow, 29

F.3d 1128, 1139 (7th Cir. 1994) (distinguishing the decision in

Dudley, the court held that the prosecution was permitted to

bring forth testimony of threats on direct examination to explain

the witness’ delay in providing information to the police because

of her fear of the consequences); United States v. DeLillo, 620 F.2d

939, 945-46 (2d Cir. 1980) (discussing the government’s ability to

introduce evidence of threats to explain contradictory or inconsistent testimony by their witnesses).

suggestion of resulting bias can be introduced on crossexamination. Such a proposition, if accepted, would result

in a significantly higher standard for admitting bias evidence under Rule 403 than is now employed by the courts.

We do not believe that our decision in Thomas supports

Mr. Thompson’s position. In Thomas, the prosecution introduced evidence of a threat toward its own witness in order

to “enhance[] the overall believability of the witnesses by

showing that they testified against the defendants in the

face of threats.” Thomas, 86 F.3d at 654. We held that the

probative value of the threat evidence was “extremely limited at best” because we could not ascertain “any need for

the introduction of threat evidence to ‘boost’ the testimony

of the witnesses.” Id.7

 Therefore, we did not permit the

evidence of threats to “boost” the witness’ testimony because there was no behavior relevant to credibility that the

Government needed to explain. The threat evidence in

that case was not probative because it was only “admitted

to permit the jury to evaluate fully the general ‘credibility’
10 No. 02-3965

8 Cf. United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980)

(“[T]he balance between probativeness and prejudice will differ

according to the purposes for which a piece of evidence is to be

admitted.”).

and ‘bias’ ” of the witness. Id. (emphasis added). When a

party wishes to elicit on direct examination testimony about

threats, there must be some specific purpose for introducing

such evidence such as a witness’ “courtroom demeanor

indicating intimidation” or a witness’ delay in testifying. Id.

Absent some finding or demonstration that a threat would

explain some “specific behavior of a witness that,

if unexplained, could damage a party’s case,” the evidence

does little, if anything, to demonstrate bias or to inform the

jury’s credibility determination. Id. Evidence of threats toward a witness offered on direct examination to “boost” or

enhance the witness’ credibility therefore should be linked

specifically to a credibility problem; without the link to a

specific credibility issue, the evidence has “extremely limited probative value.” Id.

Evidence of threats on direct examination, admitted even

though the witness shows no indication of intimidation,

is not only of extremely weak probative value, but it also

could constitute a prejudicial attack on the opposing party.

See Dudley v. Duckworth, 854 F.2d 967, 971 (7th Cir. 1988)

(suggesting that the prosecutor introduced the threat to

prejudice the defendants rather than to explain away credibility problems of the witness). Such evidence can be highly

prejudicial. 

The situation is very different when the purpose of introducing evidence of a threat is to demonstrate bias on the

cross-examination of a witness. In such a context, the

probative value of such evidence is far more evident.8

 For

instance, evidence of bias, including evidence of a threat, to
No. 02-3965 11

9 Cf. DeLillo, 620 F.2d at 946. Similarly, a “death threat may be of

very strong probativeness when it is directed against a witness

and what is sought to be proved is that the witness’ testimony

was affected by it; and the prejudice is likely to be small because

the jury will be instructed not to consider the threat on the

question of the defendant’s overall guilt.” Id.

10

Q Ms. Shinnamon, you have been the victim of some criminal

conduct by the defendant to which he pled guilty, is that

right?

A Yes.

Q Why don’t you tell us what that was.

THE COURT: Well, establish when it was first. Lay the

foundation.

By MR. MORRISON:

Q Yes. That’s sometime in, I think it was January of this year,

of 2002?

A It was 2001 I believe.

(continued...)

challenge the credibility of a witness who has made an

inconsistent statement simply does not raise the same

concerns as evidence of a threat offered, in the absence of a

testimonial inconsistency, simply to “boost” a witness’ testimony. Indeed, Thomas, although noting that the probative

value of the threats was extremely low when there was no

credibility problem to explain on direct examination, also

remarked that, by contrast, threat evidence “can be relevant

to explain a witness’ inconsistent statements.” Thomas, 86

F.3d at 654.9

In the present case, Shinnamon testified on cross-examination that Mr. Thompson had pleaded guilty to domestic battery against her. 10 Specifically, she stated that he
12 No. 02-3965

(...continued)

Q That he pled guilty to domestic batter against you?

A Oh, that may have been when the court was, yes. It happened a year before that.

Q And it happened the year before, but he plead guilty just this

January?

A Yes.

Q What did that involve, what conduct did that involve?

A We had a fight.

Q But I mean he was physical with you. What did he do? What

is the conduct that he did for which he was convicted?

A He was physical.

Q And by physical, how?

A I had a black eye.

Q And haven’t you made previous records to the police about

him threatening you with weapons? Yes?

A Yes.

Q In fact, the warrant that we have been discussing today

which was served on him on November 21st was as a result

of him pointing a weapon at you; is that correct?

A Yes.

. . . 

Q How many times have you told the police that he’s threatened you with a weapon?

A Twice.

Q In fact, you permitted the detective to copy your answering

machine messages, didn’t you, on your answering machine

of him calling you?

A Yes.

(continued...)
No. 02-3965 13

(...continued)

Q And some of the things he was saying to you wasn’t very

pretty, was it?

A No. 

Q In fact, he was threatening you, wasn’t he?

A Yes.

Q. And today you are sitting here, knowing that there could be

repercussions for you if you don’t sing his line, isn’t that

true?

A No.

R.53 at 102-05.

11 See United States v. Falco, 727 F.2d 659, 665 (7th Cir. 1984);

United States v. Frankenthal, 582 F.2d 1102, 1107 (7th Cir. 1978). 

had threatened her at gunpoint at least twice in the past and

that she had made previous calls to the police about his

behavior. The Government also was permitted to elicit

testimony that Shinnamon allowed a detective to copy answering machine messages that Mr. Thompson left shortly

after he was arrested. Shinnamon admitted that these messages were threatening. 

In ruling on the admission of evidence, the district

court has broad discretion in weighing the probative value

against any potential prejudice. Accordingly, we give that

determination great deference.11 Because the trial court is in

a better position to evaluate both the probative and the

prejudicial impact of evidence, “a reviewing court will not

lightly overturn the trial court’s assessment.” United States

v. Peters, 791 F.2d 1270, 1295 (7th Cir. 1986), superseded by

statute on other grounds as stated in United States v. Guerrero,

894 F.2d 261, 267 (7th Cir. 1990). 
14 No. 02-3965

12 The court in United States v. Manske, 186 F.3d 770 (7th Cir.

1999), explained that there is no special foundational requirement

for bias evidence and the party attempting to demonstrate bias

should be able to prove any fact logically relevant to bias. See id.

at 779 (quoting Edward J. Imwinkelreid, Evidentiary Foundations,

164 (4th ed. 1998)). “Thus, the only necessary questions the

defendant need ask are the who, what, why, where and when of

the specific incidents he claims give rise to bias.” Id. (internal

citations omitted). The court determined that the defendant did

not need to ask explicitly whether the witness was “presently

afraid” or whether the witness felt “pressured to testify a certain

way.” Id.

13 As the Supreme Court has explained, bias may be induced by

the witness’ like, dislike or fear of a party, and these feelings

toward a party may lead a witness to consciously or unconsciously slant their testimony. United States v. Abel, 469 U.S. 45, 52

(1984) (noting that bias describes “the relationship between a

party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against

a party”). By this proposition alone, it is evident that bias can

spring from the general fear of a witness or the witness’ “re-

(continued...)

Despite Mr. Thompson’s assertions demanding a “specific

link” between the threat and the witness’ testimony, our

precedent instructs that “evidence of threats is subject to the

same Rule 403 balancing test as other relevant evidence.”

Thomas, 86 F.3d at 653 (quoting United States v. Qamar, 671

F.2d 732, 736 (2d Cir. 1982)).12 The Government attempted

to demonstrate that Shinnamon’s fear of the defendant was

a motivating force in her accepting responsibility for the

bullets, testimony that differed from her initial account. In

contrast to Thomas, the Government presented this evidence

of Shinnamon’s possible fear of Mr. Thompson in order to

address specifically Shinnamon’s inconsistent statements.13
No. 02-3965 15

(...continued)

lationship” to the party, and the demonstration of bias does not

require automatically the cross-examiner to produce a specific

threat against the witness’ testimony before demonstrating bias

that is caused by fear. 

Furthermore, Shinnamon’s testimony regarding the ownership of the jacket was crucial. The defense theory rested on

Shinnamon’s testimony asserting her sole ownership of the

bullets and Mr. Thompson’s assertion that he had no

knowledge of the bullets. The question of whether the jury

believed Shinnamon’s initial report to the police or her

subsequent trial testimony was central to the jury’s determination of whether Mr. Thompson possessed the bullets for

which he was charged. See Qamar, 671 F.2d at 736 (noting

credibility was “central to the jury’s determination” when

holding that admission of threat evidence was permissible

over a Rule 403 objection). The members of the jury had to

decide whether they believed the prior statement or

Shinnamon’s in-court testimony. It is also significant that

the prosecution connected the previous violence and threats

to what Shinnamon conceded was a “threatening” message

left by Mr. Thompson after he was arrested on the current §

922(g) charge. R.53 at 104. “[A]s finder of fact and weigher

of credibility, [a jury] has historically been entitled to assess

all evidence which might bear on the accuracy and truth of a

witness’ testimony.” Abel, 469 U.S. at 52. Questioning a witness’ motives for testifying is precisely the type of inquiry

permissible on cross-examination. See United States v.

Manske, 186 F.3d 770, 777 (7th Cir. 1999) (concluding that

attacking a witness’ credibility with evidence of bias “is the

‘quintessentially appropriate topic for cross-examination’ ”

(quoting Bachenski v. Malnati, 11 F.3d 1371, 1375 (7th Cir.

1993))). The district court did not abuse its broad discretion
16 No. 02-3965

14 See, e.g., United States v. Adames, 56 F.3d 737, 742 (7th Cir. 1995).

15 See supra note 4 and accompanying text.

in concluding that the evidence of threats and recent violence were probative of Shinnamon’s credibility and bias.

When admitted on cross-examination, this evidence of

recent threats and violence was relevant and probative to

demonstrate that Shinnamon, a witness who changed her

pretrial testimony, was biased and therefore likely to slant

or even fabricate her testimony in the defendant’s favor.

Rule 403 also requires the district court to determine

whether any danger of unfair prejudice substantially outweighs the probative value of the evidence at issue. It is not

sufficient to find that the evidence is simply prejudicial

because, as we have remarked in the past, all probative

evidence is prejudicial to the party against whom it is offered.14 Rather, the relevant inquiry is whether there was

unfair prejudice from the introduction of Mr. Thompson’s

past violence toward Shinnamon. “Evidence is ‘unfairly

prejudicial if it appeals to the jury’s sympathies, arouses its

sense of horror, provokes its instinct to punish, or otherwise

may cause a jury to base its decision on something other

than the established propositions in the case.’ ” Peters, 791

F.2d at 1294 (quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d

Cir. 1980) (internal citations omitted)); see also Adames, 56

F.3d 737, 742 (7th Cir. 1995) (upholding the trial court’s

admission of evidence because the evidence was not

“shocking or repulsive, such as to elicit an emotional response from the jury”).

The defense first called Shinnamon as a witness; the

defense also first referred to the defendant’s prior criminal

history, asking Shinnamon twice whether she was aware

that Mr. Thompson had a criminal record.15 The defense

found it advantageous to use Shinnamon’s knowledge of
No. 02-3965 17

that past criminal record to explain her motivation to lie

initially to the police. The prosecution then attempted to

demonstrate why Shinnamon’s first statement was the more

credible of the two. In order to establish that Shinnamon

had reason to fear the defendant, the prosecution crossexamined her about the threats and about the nature of her

relationship with Mr. Thompson. We note that the prosecution was careful to limit its cross-examination to questions

about the defendant’s violence toward Shinnamon. Notably,

the Government did not ask Shinnamon other questions

concerning Mr. Thompson’s extensive criminal record. 

Because the questions on cross-examination regarding

past violence were probative of the witness’ bias and motives to testify, it was not an abuse of discretion for the

district court to determine that the danger of unfair prejudice from that evidence did not substantially outweigh its

probative value.

B. Constitutionality of § 922(g)

Before trial, Mr. Thompson moved to dismiss the indictment on the ground that 18 U.S.C. § 922(g) exceeded

Congress’ power under the Constitution. The district court,

relying on this court’s decision in United States v. Wesela, 223

F.3d 656, 659-60 (7th Cir. 2000), denied Mr. Thompson’s motion. In Mr. Thompson’s motion for acquittal, he again

argued that “the government failed to establish the ‘in or

affecting commerce’ element of 18 U.S.C. § 922(g).” R.34,

¶ 2. The district court rejected this argument and further
18 No. 02-3965

16 During the trial, the Government called Patrick Donovan, an

A.T.F. firearms crime analyst, to testify. Mr. Donovan stated that

six of the rounds found in the pocket of the light-green jacket

were from a manufacturer in Minnesota, and six of the rounds

were from a manufacturer in Idaho. R.53 at 69, 71-72. Therefore,

Mr. Donovan concluded that the ammunition must have moved

in interstate commerce by virtue of their presence in Indiana.

concluded that the Government’s evidence at trial16 was

sufficient to support the jury’s verdict. R.38 at 1 n.1.

Mr. Thompson now contends that his possession of the

twelve rounds of ammunition did not affect interstate commerce and therefore 18 U.S.C. § 922(g)(1) exceeds Congress’

power and is unconstitutional. Mr. Thompson concedes that

“this issue has been decided against him.” Appellant’s Br.

at 23 (citing Scarborough v. United States, 431 U.S. 563 (1977),

and United States v. Harris, 325 F.3d 865, 873-74 (7th Cir.

2003)). He finally asserts that the Supreme Court in United

States v. Lopez, 514 U.S. 549 (1995), employed language that

indicates that his possession of the ammunition was not

economic activity that affects interstate commerce. Mr.

Thompson, however, continues to “raise[] this issue so he

may preserve his rights if the Supreme Court decides to

revisit” its earlier decision. Appellant’s Br. at 23. 

We agree with Mr. Thompson that the issue of whether

18 U.S.C. § 922(g)(1) exceeds Congress’ power to regulate

interstate commerce has been decided against him. Indeed,

we have considered and rejected the issue of whether the

Supreme Court’s holding in Lopez renders the statute unconstitutional. See, e.g., United States v. Fleischli, 305 F.3d 643,

653 (7th Cir. 2002) (rejecting a similar commerce clause

argument based on Jones v. United States, 529 U.S. 898

(2000)); United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir.

2002) (rejecting similar argument based on Lopez); United
No. 02-3965 19

17 In the present case, the ammunition was manufactured in

Minnesota and Idaho. Mr. Thompson possessed it in Indiana.

Prior movement across state lines is sufficient to satisfy the interstate commerce clause requirement. See United States v. Lemons,

302 F.3d 769, 772 (7th Cir. 2002).

USCA-02-C-0072—2-23-04

States v. Mitchell, 299 F.3d 632, 633-35 (7th Cir. 2002) (rejecting commerce clause argument based on Lopez, Morrison v.

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

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

States v. Williams, 128 F.3d 1128, 1133-34 (7th Cir. 1997)

(rejecting commerce clause challenge based on Lopez).17

Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit