FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30186

Plaintiff-Appellee, D.C. No.

v. CR-06-00117-001-

JCC CEDRICK BERNARD ALDERMAN,  Western District of Defendant-Appellant. Washington,

Seattle

ORDER 

Filed February 3, 2010

Before: Betty B. Fletcher, M. Margaret McKeown and

Richard A. Paez, Circuit Judges.

Order;

Dissent by Judge O’Scannlain

ORDER

Judges McKeown and B. Fletcher vote to deny the petition

for panel rehearing. Judge Paez votes to grant the petition for

panel rehearing. Judge McKeown votes to deny the petition

for rehearing en banc and Judge B. Fletcher so recommends.

Judge Paez votes to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en

banc. After a request for a vote by an active judge, a vote was

taken, and a majority of the active judges of the court failed

to vote for a rehearing en banc. Fed. R. App. P. 35(f).

1983
The petition for panel rehearing and rehearing en banc is

DENIED.

O’SCANNLAIN, Circuit Judge, dissenting from the order

denying rehearing en banc, joined by PAEZ, BYBEE, and

BEA, Circuit Judges:

The Supreme Court has told us with increasing fervor that

there are limits to the power of Congress to federalize regulation of personal conduct. The Court told us in United States

v. Lopez, 514 U.S. 549, 559 (1995), that Congress has no

power to make a federal crime of possession of a hand gun

within 1,000 feet of a school, even if the gun traveled in interstate commerce. The Court told us in United States v. Morrison, 529 U.S. 598, 610-12 (2000), that Congress has no power

to fashion a federal remedy for claims of violence against

women. The Court told us in Jones v. United States, 529 U.S.

848 (2000), that Congress has no power to make a federal

crime of arson, even if the affected building is subject to a

mortgage held by a bank in another state. 

For the reasons articulated by our colleague, Judge Paez, in

his eloquent dissent,1 Congress has no power to make a federal crime of possession of body armor by a felon. Because

the panel majority disagrees and fails to recognize the limits

imposed on Congress by Lopez, Morrison, and Jones, because

its opinion erroneously allows the federal government to legislate in a domain traditionally regulated by the states, and

because its opinion now creates a split with seven other circuits, we should have reheard this case en banc.

1United States v. Alderman, 565 F.3d 641, 648-58 (9th Cir. 2009) (Paez,

J., dissenting). 

1984 UNITED STATES v. ALDERMAN
I

The mischief this case creates is exceptionally troublesome.2

The majority opinion allows Congress to punish possession

offenses, as long as the enacting statute includes a mere

recital purporting to limit its reach to goods sold or offered for

sale in interstate commerce. The majority’s opinion makes

Lopez superfluous. Insert a jurisdictional recital, the majority

in effect says, and Congress need not worry about whether the

prohibited conduct has a “substantial relation to interstate

commerce.” Lopez, 514 U.S. at 559. Seven circuits have

expressly rejected this view of jurisdictional provisions.

United States v. Maxwell, 446 F.3d 1210, 1218 (11th Cir.

2006); United States v. Patton, 451 F.3d 615, 632 (10th Cir.

2006); United States v. Holston, 343 F.3d 83, 88 (2d Cir.

2003); United States v. McCoy, 323 F.3d 1114, 1118 (9th Cir.

2003); United States v. Corp, 236 F.3d 325, 331 (6th Cir.

2001); United States v. Angle, 234 F.3d 326, 337 (7th Cir.

2000); United States v. Rodia, 194 F.3d 465, 472-73 (3rd Cir.

1999).

II

But the impact of the majority’s opinion does not stop

there. The majority’s rationale, quite literally, “makes a federal case” out of numerous crimes previously punished only

by the states. Cambridge Idioms Dictionary (2d ed. 2006); see

2

I will not repeat the well-reasoned analysis in Judge Paez’s dissent nor

the earlier decision by the Tenth Circuit as to why this statute does not survive the tests enunciated in Lopez, Morrison, Jones, and Gonzales v.

Raich, 545 U.S. 1, 17-18 (2005). See Alderman, 565 F.3d at 648 (Paez, J.,

dissenting); United States v. Patton, 451 F.3d 615, 632 (10th Cir. 2006)

(concluding that 18 U.S.C. § 931(a) fails Morrison). While it is true the

Tenth Circuit in Patton ultimately upheld the statute, that was largely

because of prior Tenth Circuit precedent interpreting Scarborough v.

United States, 431 U.S. 563 (1977), see Patton, 451 F.3d at 634, which

the Tenth Circuit strongly suggested was inconsistent with Lopez and

Morrison. Id. at 636. 

UNITED STATES v. ALDERMAN 1985
Andrew St. Laurent, Reconstituting United States v. Lopez:

Another Look at Federal Criminal Law, 31 Colum. J.L. &

Soc. Probs. 61, 113 (1998) (“A purely nominal jurisdictional

requirement, that some entity or object involved in the crime

be drawn from interstate commerce, does nothing to prevent

the shifting of the [federal/state] balance in favor of the federal government [because] virtually all criminal actions in the

United States involve the use of some object that has passed

through interstate commerce.”). 

Such a view greatly empowers Congress to displace state

legislatures with the full weight of the federal government, a

result as undesirable as it is unconstitutional in the circumstances of this case. A federal statute may conflict with a

state’s policy judgment regarding the harshness of federal

criminal punishments, Jones, 529 U.S. at 859 (Stevens, J.,

concurring) (noting improper displacement of state choices

with severe federal punishments), or discourage experimentation with different state policy approaches, see Lopez, 514

U.S. at 583 (Kennedy, J., concurring) (suggesting that the gun

statute improperly “foreclose[d] the States from experimenting”), or even intrude upon a traditional area of state concern,

Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 615-17. Such

displacement has occurred here. At least thirty-one states regulated body armor, with a variety of approaches, until Congress overrode their choices. Patton, 451 F.3d at 631 & n.7

(collecting state laws).

III

The majority opinion here failed to perceive the constitutional limits on Congress’s power recognized by the Court in

Lopez, Morrison, Jones, and Raich. In so doing, it “convert[s]

congressional authority under the Commerce Clause to a general police power of the sort retained by the States,” Lopez,

514 U.S. at 567, contrary to Supreme Court doctrine. It is

unfortunate that an en banc court will not have the opportu1986 UNITED STATES v. ALDERMAN
nity to correct the error in this case. For these reasons, I must

respectfully dissent from the order denying rehearing en banc.

UNITED STATES v. ALDERMAN 1987