## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MIKE MEIENBERG,

Defendant-Appellant. No. 00-1390

Appeal from the United States District Court for the District of Colorado (D.C. No. 97-CR-179-D)

Sean Connelly, Assistant United States Attorney, Di strict of Colorado, (Thomas L. Strickland, United States Attorney, District of Colorado; Craig Wallace, Assistant United States Attorney, District of Color ado; Tim Neff, Assistant United States Attorney, District of Colorado, with him on the brief), Denver, Colorado, for Plaintiff-Appellee. Paula M. Ray, Denver, Colorado, for Defendant-Appel lant.

Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2-



### I. INTRODUCTION Defendant Michael Meienberg appeals his convictions in the United States District Court for the District of Colorado for one count of sale of a firearm to an underage person, 18 U.S.C. § 922(b)(1), fourteen co unts of sale of a firearm in violation of state law, 18 U.S.C. § 922(b)(2), and one count of conspiracy to sell firearms in violation of state law, 18 U.S.C. § 371 . Jurisdiction to consider Defendant’s appeal arises under 28 U.S.C. § 1291. Defendant argues that all or some of his convictions should be overturned becaus e of (1) prosecutorial misconduct in closing arguments, (2) error by the d istrict court in allowing unauthenticated computer printouts into evidence, a nd (3) the facial unconstitutionality of 18 U.S.C. § 922(b)(2). Uponreview, this court affirms the convictions. 

### II. DISCUSSION
A. Prosecutorial Misconduct During closing arguments the following exchange occ urred: PROSECUTOR: Now, I told you in my opening we had th at burden [to prove the guilt of Defendant beyond a reasonabl e doubt], didn’t I. Of course we do. I acknowledge it. I acknowledge it freely. That’s how our system works. Well, I believe we’ve met th e burden. DEFENSE COUNSEL: Objection, Your Honor that’s impro per. PROSECUTOR: I believe the government has – THE COURT: Hold on. DEFENSE COUNSEL: Objection, Your Honor, improper to state what he believes.-3-

PROSECUTOR: All right. Let me restate. I believe the government has met its burdens. I’m not asking to believe me personally, I’m asking you to believe what the evidence shows. DEFENSE COUNSEL: Still improper, Your Honor. THE COURT: Sustained. The government concedes that misconduct occurred wh en the prosecutor expressed his personal belief as to the Defendant’s guilt. See United States v. Young , 470 U.S. 1, 7-8 (1985) (discussing the impropriety of prosecutors expressing their personal beliefs). Such comments can leave the impression that the prosecutor is basing his conclusion on evidence not presented to the jury and also may induce the jury to rely on the prosecutor’ s personal conclusion rather than an independent review of the evidence. See id. In some circumstances, prosecutorial misconduct maybe so severe that a new trial is required. See United States v. Gabaldon , 91 F.3d 91, 94 (1996). This court reviews the denial of a motion for mistrial f or an abuse of discretion. See id. Although Defendant quickly objected to the prose cutor’s conduct, Defendant did not request a mistrial or seek any further reli ef. “Where there has been no motion for a mistrial or new trial, the district co urt has not exercised its discretion, and therefor it is meaningless to look for an abuse of discretion.” Id. In such circumstances, the prosecutor’s improper statement to the jury is harm less unless there is reason to believe that it influenced the jury’s verdict. In assessing whether the misconduct had such an impact, we consi der the trial as a whole, including the curative acts of the distric t court, the extent of-4-

the misconduct, and the role of the misconduct with in the case . . . [T]o warrant reversal, the misconduct must have bee n flagrant enough to influence the jury to convict on grounds other than the evidence presented. Id. (quotation omitted). In this case, the prosecutor ’s conduct was not “flagrant enough to influence the jury to convict on grounds other than the evidence presented.” Id. (quotation omitted). The prosecutor eliminated mu ch of the prejudice to Defendant by explaining that “I’m not asking to believe me personally, I’m asking you to believe what the evid ence shows.” In addition, the district court instructed the jury that arguments o f counsel were not evidence. Thus, while this court confirms its disapproval of a prosecutor asserting his personal belief as to a defendant’s guilt, the impa ct of the prosecutor’s improper statements in this case were negligible. See id. at 95. B. Computer Documents 18 U.S.C. § 922(b)(2) makes it a federal crime to s ell a firearm in violation of state law. At the time of the events underlying this lawsuit, Colorado required gun dealers to perform certain tasks before selling a handgun. See Colo. Rev. Stat. § 12-26.5-103 (repealed 1999). Dealers were required to contact the Colorado Bureau of Investigation (the “Bureau”) forpurposes of conducting an instant background check on the potential purchaserand, if the purchaser was approved, dealers were required to record the appro val number for the transaction. See id. § 12-26.5-103(2)(d)(I)(A), (B) (repealed 1999).-5-

In order to demonstrate that Defendant had often ne glected to contact the Bureau for an instant background check and instead recorded phony approval numbers, the government introduced the printouts of computerized records reflecting the approval numbers issued by the Bureau to Defendant’s firearms business. Defendant objected to the printouts base d on a lack of authentication. The district court overruled the objection, allowin g the printouts into evidence. Defendant renews his authentication challenge on ap peal. “Evidentiary decisions, such as findings concerning the authenticity of a d ocument, rest within the sound discretion of the district court and are reviewed f or abuse of discretion.” United States v. Henry , 164 F.3d 1304, 1309 (10th Cir. 1999). There is a n abuse of discretion when the district court’s decision is “arbitrary, capricious, whimsical, or unreasonable.” Coletti v. Cudd Pressure Control , 165 F.3d 767, 777 (10th Cir. 1999) (quotation omitted). Before evidence is admissible it must be authenticated. See Fed. R. Evid. 901(a). This requirement is met by “evidence suffi cient to support a finding that the matter in question is what its proponent claims .” Id. “The rationale for the authentication requirement is that the evidence is viewed as irrelevant unless the proponent of the evidence can show that the evidenc e is what its proponent claims.” United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991).-6-

Defendant argues that, in order to authenticate, th e government was required to demonstrate the accuracy of the information contained in the printouts. Because the government’s witness could not verify the accuracy of the information, Defendant argues that the records were not authenticated. Defendant relies on Rule 901(b)(9) of the Federal Rules of Ev idence. Rule 901(b) provides numerous nonexhaustive examples of proper authentic ation. Rule 901(b)(9), one of these examples, states as follows: (9) Process or system. Evidence describing a process or system used to produce a result and showing that the proce ss or system produces an accurate result. Defendant’s argument is without merit. In order to authenticate the printouts, the government had only to present “evid ence sufficient to support a finding that the matter in question is what its pro ponent claims.” Fed. R. Evid. 901(a). The computer printouts reflected the Burea u’s record of approval numbers assigned to Defendant’s firearms business. The government’s witness testified to this fact, thus satisfying the minimal authentication requirement: “[The computer printouts are] a record of the trans action[] number[s] issued for [Defendant’s business], all the transactions during each separate exhibit is a month period of transactions issued [by the Bureau to Defendant’s business]. See Fed. R. Evid. 901(b)(7) (providing that a public re cord can be authenticated by evidence that the record “is from the public office where items of this nature are-7-

kept”); see also Fed. R. Evid. 901, Advisory Committee Notes , 1972 Proposed Rules, note to Subdivision (b), Example 7 (“Public records are regularly authenticated by proof of custody, without more. T he example extends the principle to include data stored in computers and s imilar methods . . . .” (citation omitted)). “Any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the c omputer program, as with inaccuracies in any other type of business records, would have affected only the weight of the printouts, not their admissibility.” United States v. Catabran , 836 F.2d 453, 458 (9th Cir. 1988). Defendant’s reliance on Rule 901(b)(9) is misplaced . The computer printouts were not the result of a “process or syst em used to produce a result”; they were merely printouts of preexisting records that happened to be stored on a computer. In any event, the government did offer c ircumstantial evidence that the computer printouts accurately depicted the approval numbers issued to Defendant’s business. Thus, the district court didnot abuse its discretion in allowing the printouts into evidence. C. Constitutionality of § 922(b)(2) Section 922(b)(2) provides: It shall be unlawful for any licensed importer, lic ensed manufacturer, licensed dealer, or licensed collecto r to sell or deliver—[] any firearm to any person in any State w here the purchase or possession by such person of such firearm would be in violation of-8-

any State law or any published ordinance applicable at the place of sale, delivery or other disposition, unless the lic ensee knows or has reasonable cause to believe that the purchase or po ssession would not be in violation of such State law or such publishedordinance[.] Defendant claims § 922(b)(2) is unconstitutional, a dvancing two arguments. First, Defendant claims that § 922(b)(2) exceeds Co ngress’ power to regulate interstate commerce. Second, Defendant maintains t hat § 922(b)(2) runs afoul of the federalism concerns expressed in Printz v. United States , 521 U.S. 898 (1997). It appears that no other court has addressed these questions. The Supreme Court has “identified three broad categ ories of activity that Congress may regulate under its commerce power.” United States v. Lopez , 514 U.S. 549, 558 (1995). First, Congress can regulate the use of the channels of interstate commerce. Second, Congress can regulate the instrumentalities of interstate commerce and persons or things in inters tate commerce. Finally, Congress can regulate those activities that substantially affect interstate

commerce. See id. at 558-59. Section 922(b)(2) regulates firearms transactions; such transactions are, by their nature, commercial in character. Compare id. at 551-68 (striking down 18 U.S.C. § 922(q), which criminalized mere possessionof a firearm within a place the individual reasonably knew was a school zone). To the extent the statute applies to transactions across state lines, the aff ect on interstate commerce is obvious. See United States v. Wilks , 58 F.3d 1518, 1521 (10th Cir. 1995) (“The-9-

interstate flow of machineguns not only has a subst antial effect on interstate commerce[,] it is interstate commerce.” (quotation omitted)). As explained below, even those firearms transactions which take place between a dealer and buyer within the same state substantially affect in terstate commerce. In Huddleston v. United States , the Supreme Court addressed 18 U.S.C. §§ 922(a)(6) and (d)(1). See 415 U.S. 814, 833 (1974). These statutes make it a crime for any person to lie to a licensed gun deale r in connection with the acquisition of a firearm and also make it a crime f or a gun dealer to knowingly sell a firearm to a person convicted of a crime pun ishable by imprisonment for more than one year. See id. at 815-17. The Supreme Court stated in Huddleston : “Congress intended, and properly so, that §§ 922(a) (6) and (d)(1) . . . were to reach transactions that are wholly intrastate, as t he Court of Appeals correctly reasoned, on the theory that such transactions affe ct interstate commerce.” Id. at 833 (citation and quotation omitted). Section 922(b)(2), like the statutes under consider ation in Huddleston , applies to wholly intrastate firearm transactions a s well as interstate firearms transactions. In considering Congress’ constitutio nal power to regulate intrastate transactions, the aggregate interstate affect of th e regulated intrastate transactions is considered. See Wickard v. Filburn , 317 U.S. 111, 127-28 (1942). Welldocumented congressional findings indicate that the market for firearms is a-10-

national market. See, e.g. , Huddleston , 415 U.S. at 833; Wilks , 58 F.3d at 1521. Under these circumstances, the aggregate of intrast ate firearms transactions has a substantial affect on interstate commerce. United States v. Cardoza , 129 F.3d 6, 13 (1st Cir. 1997) (“[T]he supply and demand for handguns in any given state will ‘substantially affect’ interstate commerce in handg uns by causing the weapons to move across state lines.”). Because firearms trans actions, even those which are purely intrastate, substantially affect interstate commerce in firearms, § 922(b)(2) is a valid exercise of Congress’ power to regulate interstate commerce. Defendant also claims that § 922(b)(2), by incorpor ating state law into the definition of a federal crime, runs afoul of the fe deralism principles expressed in
Printz . The Supreme Court’s decisions in Printzand New York v. United States stand for the principle that the federal governmentcannot “commandeer” the executive and legislative branches of state governm ents into service for the purpose of implementing federal law. See Printz , 521 U.S. at 933; New York v. United States , 505 U.S. 144, 166, 187 (1992). The federalism concerns expressed in Printzand New York do not apply to § 922(b)(2). By making a violation of state law a federal crime, the federal government has not commandeered the states into enf orcing federal policy. Quite to the contrary, § 922(b)(2) can be seen as a coope rative effort by the federal government to assist the states in enforcing state policies. There are both old and-11-

recent examples of such cooperative efforts between the federal government and the states. See 18 U.S.C. § 1955(b)(1)(i) (defining an “illegal gambling business” as one which is in violation of state law); Leonard D. White, The Federalists 401, 403 (1956) (cataloging historic examples of cooperation between the states and federal government). Because § 922(b)(2) does not involve an attempt to use the states as mechanisms to enforce federal regulation, the political accountability concerns expressed in both Printzand New York do not apply. See Printz , 521 U.S. at 929-30; New York, 505 U.S. at 168-69. Defendant notes that the purpose of § 922(b)(2) was to “encourage States to publish and circulate statewide and local firearms regulations.” H.R. Rep. No. 1577 (1968), reprinted in 1968 U.S.C.C.A.N. 4419-20. It is well established , however, that Congress can use its valid constituti onal powers to encourage particular behavior from the states. In New York, the Supreme Court stated:

This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way . . . . Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program con sistent with federal interests. 505 U.S. at 166. To the extent that § 922(b)(2) se eks to encourage states to pass firearms laws, it does so in a manner far short of coercion. Thus, it does not matter that the purpose of § 922(b)(2) might be to encourage particular behavior from the states. Defendant’s federalism arguments are rejected.-12-



### III. CONCLUSION For the reasons stated above, Defendant’s convictio ns are AFFIRMED

.