United States v. Bramble,
894 F.Supp. 1384 (D. Hawai'i 1995)
Pages 1394-1397.

     A.   UNITED STATES V. LOPEZ

     In Lopez, the Court affirmed the reversal of a conviction obtained under the Gun-Free School Zones Act 18 U.S.C. § 922(q)(1)(A).  That statute prohibited possession of a firearm in or within 1,000 feet of a school.  The Court narrowly held that the Gun-Free School Zones Act was invalid because the possession of a gun in a local school zone does not substantially affect interstate commerce. Id. at ---, 115 S.Ct. at 1634.

     The Court based its decision on the lack of a nexus to interstate commerce and on federalism concerns.  First, it found that the enactment of the Gun-Free School Zones Act exceeded Congress' commerce power because it regulated conduct that "has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms."  Id. at --- - ---, 115 S.Ct. at 1630-31.  The Court noted the scant findings made by Congress, and found that the activities regulated under The Gun-Free School Zones Act had but a remote connection to interstate commerce.  Id. at ---, 115 S.Ct. at 1632.

     Finally, the Court held that the Gun-Free School Zones Act infringed on The States' traditional power to regulate education, which is a "traditional concern of the States."  Id. at ---, 115 S.Ct. at 1640 (Kennedy, J., concurring).  The Act thus threatened federalism.  Id.

     Bramble asks this court to read Lopez broadly and invalidate 16 U.S.C. §§ 1372(a)(4), 1375(b), 668(d), 703, 707(a); 18 U.S.C. §§ 922(g)(1), 922(g)(3); and 21 U.S.C. §§ 841(a)(1), and 844(a).¹⁰  Bramble argues that those statutes, like The Gun-Free School Zones Act, "have nothing no do with 'commerce' or any soft of economic enterprise that substantially affects interstate commerce."  Defendant's Memorandum in Support of Motion at 2.  Bramble argues that all of the statutes contained in the indictment against him should be held unconstitutional and invalid as beyond Congress' powers under the Commerce Clause."  Id.

     B.   21 U.S.C. §§ 841(a)(1), 844(a)

     [22]  Turning to 21 U.S.C. §§ 841(a)(l) and 844(a), the court finds that there is, in fact, a direct connection between this statute and commerce.  Simply put, Title 21 of The United States Code regulates commerce in drugs; Title 21 makes it illegal to manufacture, distribute, or dispense, or to possess with intent to manufacture, distribute, or dispense, a controlled substance or to simply possess a controlled substance unless the substance was obtained legally.  See 21 U.S.C. §§ 841(a)(1) and 844.

     Moreover, the Supreme Court has upheld Congress' power to regulate illegal drugs.  See Reina v. United States, 364 U.S. 507, 511, 81 S.Ct. 260, 263, 5 L.Ed.2d 249 (1960) (referring to Congress' "undoubted power to enact the narcotics laws"); Minor v. United States, 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 289 n. 13, 24 L.Ed.2d 283 (1969) ("[A] flat ban on certain [drug] sales ... is sustainable under the powers granted Congress" by the Commerce Clause).

     In contrast to Lopez Congress has made specific findings in the instant context that illegal drugs affect interstate commerce.  See 21 U.S.C. §§ 801(3), 801(4), and 801(6).  Congress specifically stated that even local distribution and possession of illegal drugs may "contribute to the swelling of interstate traffic in such substances."  21 U.S.C. § 801(4).

     [23]  Congress has the power to regulate wholly intrastate activities which have a substantial effect upon interstate commerce.  See e.g., Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942) (Congress has power to regulate wheat); United States v. Darby, 312 U.S. 100, 119-121, 61 S.Ct. 451, 459-461, 85 L.Ed. 609 (1941) (Congress may regulate wage and hour laws).  Furthermore, there is ample judicial recognition that there is an interstate market for illegal drugs.  See e.g., United States v. Montes-Zarate, 552 F.2d 1330, 1331 (9th Cir. 1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1532, 55 L.Ed.2d 545(1978) ("Congress has already determined, and the courts have accepted as rational, that drug trafficking affects interstate commerce."); see also United States v. Visman, 919 F.2d 1390, 1393 (9th Cir. l990), cert. denied, 502 U.S. 969, 112 S.Ct. 442, 116 L.Ed.2d 460 (1991) (same).

     Accordingly, the court finds that the factors present in Lopez are absent here.  The court therefore DENIES the motion to dismiss the indictments as to charges brought under 21 U.S.C. §§ 842(a)(l) and 844.¹¹

     C.     16 U.S.C. §§ 668(a), 703, 707(a)¹²

     [24]  As part of the Migratory Bird Treaty Act, section 703 makes illegal the taking, killing, or possessing of migratory birds, or any part thereto.  16 U.S.C. § 703.  Section 707(a) provides the penalty for violation of this act.  See 16 U.S.C. § 707(a).  Section 668(a) makes it illegal to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import" any bald eagle or golden eagle or any part thereof.  16 U.S.C. § 688(a).

     The Supreme Court found that section 703 meets the requirements of regulation under the Commerce Clause, in State of Missouri v. Holland.  252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920).  The Court reasoned that migratory birds are only temporarily within the boundaries of any one state, and therefore the welfare of these birds could only be protected by a "national action."  Id. at 434, 40 S.Ct. at 383-84.

     Holland clearly defeats Defendant's argument that section 703 violates the commerce clause.  Inasmuch as section 707(a) provides the remedy for violation of section 703, it too is valid under the commerce clause.  Although the holding in Holland did not apply to section 668(a), the same reasoning applies to this section. Bald and golden eagles do not confine themselves to fly only within the borders of one state.  As the Court stated in Holland, they too may be "birds that yesterday had not arrived, and tomorrow may be in another state."  Holland, 252 U.S. at 434, 40 S.Ct. at 384.  Therefore this court extends the reasoning in Holland to 16 U.S.C. § 668(a) and finds that this section may also be regulated by Congress under the Commerce Clause.  Accordingly, Defendant's Motion is DENIED with respect to this section.

     D.   18 U.S.C. §§ 922(g)(1) and 922(g)(3)

     [25]  Section 922(g) provides, in pertinent part;

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;

     (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); 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. § 922(g).  By its very terms, Section 922(g) contains a jurisdictional element requiring that the possession affects or has a link with interstate commerce.

     [26]  The "affecting commerce" element can be satisfied if the firearm possessed by a convicted felon had previously traveled in interstate commerce.  United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 5~24, 30 L.Ed.2d 488 (1971).  It is not necessary for the government to prove that the felon crossed state lines with the firearm.  Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct 1963, 1969, 52 L.Ed.2d 582 (1977) (holding that Congress did not intend to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce).  "It is the movement of the firearm which has the affect upon interstate commerce, and not the activity of the person in whose possession it is later found."  United States v. Bumphus, 508 F.2d 1405, 1407 (10th Cir. 1975).  The relationship between possession of a firearm and interstate commerce can also be proven if the gun was manufactured in another state.  United States v. Johnson, 722 F.2d 407, 410 (8th Cir. 1983) (quoting United States v. Perkins, 633 F.2d 856, 859 (8th Cir. 1981)).

     The Ninth Circuit has already rejected a Lopez-based Commerce Clause challenge to a prosecution under 922(g)(1).  See United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995).  The Ninth Circuit noted that prior to Lopez, § 922(g) had been upheld because the statute explicitly requires a nexus to interstate or foreign commerce.  Id. at 146l-62.  The court held that Lopez could not change the conclusion that "Section 922(g)'s requirement that the firearm have been, at some time, in interstate commerce is sufficient to establish its constitutionality under the Commerce Clause."  Id. 922(g) contains a single jurisdictional provision that is applicable to both 922(g)(l) and 922(g)(3).  18 U.S.C. § 922.

     It is clear that Bramble's firearm must, at some time, have been transported in interstate commerce in order for that firearm to have been found in Hawaii. Because 18 U.S.C. § 922(g) specifically requires a jurisdictional nexus between possession of a firearm and commerce, this court finds that Congress' regulation of felons in possession of firearms under Section 922(g) is a valid exercise of power under the Commerce Clause.  Accordingly, the court finds the arguments raised by the defendant are without merit and this court DENIES Defendant's Motion with respect to these sections.

10.  As the charges under 16 U.S.C. §§ 1372 and 1379, the Marine Mammal Protection Act, have been dismissed, the court will not address this statute.

11.  The court notes that in United States v. Gomez, CR. 95-00161-01 ACK (D. Haw. 1995), Chief Judge Kay denied Mr. Aluli's identical motion to dismiss indictment on the basis of this statute.

12.  Bramble has miscited the statute under which he was indicted. Bramble cites to § 668(d), a non-existant section, when in fact, the correct cite is § 668(a).

United States v. Bramble,
894 F.Supp. 1384 (D. Hawai'i 1995)
Pages 1394-1397.