Case: 17-15319 Date Filed: 04/24/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15319 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00266-SDM-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH BISHOP, a.k.a. Joseph Dean Bishop,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 24, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Joseph Bishop appeals following his conviction for one count of being a
felon in possession of firearms and ammunition in and affecting interstate and
foreign commerce, 18 U.S.C. §§ 922(g), 924(a)(2). On appeal, Bishop argues -- Case: 17-15319 Date Filed: 04/24/2018 Page: 2 of 7
for the first time on appeal -- that: (1) his conviction under 18 U.S.C. § 922(g)
should be vacated because the statute is facially unconstitutional as it exceeds
Congress’s Commerce Clause authority and is also unconstitutional as applied
against him; and (2) we should reverse his conviction by adopting a new rule that a
police officer’s testimony regarding a traffic stop should be construed against party
interest when relevant video or audio evidence -- here, the audio to accompany his
patrol car’s video -- is unavailable due to the officer’s failure to properly maintain
the equipment. After thorough review, we affirm.
When arguments about the constitutionality of a statute or the denial of a
motion to suppress are raised for the first time on appeal, we review for plain error.
United States v. Johnson, 777 F.3d 1270, 1273 (11th Cir. 2015); United States v.
Wright, 607 F.3d 708, 715 (11th Cir. 2010). To establish plain error, a defendant
must show (1) an error, (2) that is plain, and (3) that affected his substantial rights.
United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If he satisfies these
conditions, we may exercise our discretion to recognize the error only if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Id. A plain error is a deviation from a legal rule that is clear or obvious. Puckett v.
United States, 556 U.S. 129, 135 (2009). An error affects substantial rights when
there is a reasonable probability of a different result absent the error. United States
v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015).
2 Case: 17-15319 Date Filed: 04/24/2018 Page: 3 of 7
First, we are unpersuaded by Bishop’s claim that § 922(g) is
unconstitutional. The Commerce Clause provides to Congress the power “[t]o
regulate Commerce with foreign Nations, and among the several States, and with
the Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3. Under § 922(g), it is unlawful
for a convicted felon “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)(1).
In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court held that
Congress could regulate commerce if the regulated activities, in the aggregate,
“substantially affect” interstate commerce. Id. at 558–59 (striking down the
challenged gun control statute as an invalid exercise of Congress’s Commerce
Clause power); see also United States v. Morrison, 529 U.S. 598 (2000) (striking
down as exceeding Congress’s Commerce Clause authority a statute allowing civil
actions by victims of gender-motivated violence). The Supreme Court emphasized
that the statute being struck down failed because it “contain[ed] no jurisdictional
element which would ensure, through case-by-case inquiry, that the firearm
possession in question affect[ed] interstate commerce.” Lopez, 514 U.S. at 561–62
(giving as an example of a jurisdictional element, a statute which “made it a crime
for a felon to ‘receiv[e], posses[s], or transpor[t] in commerce or affecting
3 Case: 17-15319 Date Filed: 04/24/2018 Page: 4 of 7
commerce . . . any firearm’”); see also Morrison, 529 U.S. at 612 (“[A]
jurisdictional element may establish that the enactment is in pursuance of
Congress’ regulation of interstate commerce.”).
We have has repeatedly held, following Lopez and Morrison, that § 922(g)
is a facially constitutional exercise of Congress’s Commerce Clause power. E.g.,
United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011) (repeating the
holding that § 922(g) is neither facially unconstitutional, nor unconstitutional as
applied to “a defendant who possessed a firearm only intrastate” when the
government demonstrated that the firearm moved in interstate commerce); United
States v. Dupree, 258 F.3d 1258, 1259-60 (11th Cir. 2001) (rejecting the argument
that § 922(g) is unconstitutional, both facially and as applied, and that Congress
exceeded its authority under the Commerce Clause in passing the statute); United
States v. Scott, 263 F.3d 1270, 1273–74 (11th Cir. 2001) (“[T]he jurisdictional
element of the statute, i.e., the requirement that the felon ‘possess in or affecting
commerce, any firearm or ammunition,’ immunizes § 922(g)(1) from [a] facial
constitutional attack.”).
As applied to an individual defendant, we have held that § 922(g)(1) is
constitutional as long as the weapon has some “minimal nexus to interstate
commerce.” Dupree, 258 F.3d at 1260; Scott, 263 F.3d at 1273–74. In any
individual case, the firearm must have at some point traveled in interstate
4 Case: 17-15319 Date Filed: 04/24/2018 Page: 5 of 7
commerce to be captured by § 922(g)(1)’s jurisdictional element with a “minimal
nexus” to interstate commerce and, if that is proven, a conviction is constitutional.
Scott, 263 F.3d at 1274. A firearm possessed solely intrastate has necessarily
traveled in interstate commerce and satisfies the minimal nexus requirement once
the government establishes that a firearm was manufactured outside of the state in
which the possession took place. United States v. Wright, 607 F.3d 708, 716 (11th
Cir. 2010).
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Case: 17-15319 Date Filed: 04/24/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15319 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cr-00266-SDM-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH BISHOP, a.k.a. Joseph Dean Bishop,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(April 24, 2018)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Joseph Bishop appeals following his conviction for one count of being a
felon in possession of firearms and ammunition in and affecting interstate and
foreign commerce, 18 U.S.C. §§ 922(g), 924(a)(2). On appeal, Bishop argues -- Case: 17-15319 Date Filed: 04/24/2018 Page: 2 of 7
for the first time on appeal -- that: (1) his conviction under 18 U.S.C. § 922(g)
should be vacated because the statute is facially unconstitutional as it exceeds
Congress’s Commerce Clause authority and is also unconstitutional as applied
against him; and (2) we should reverse his conviction by adopting a new rule that a
police officer’s testimony regarding a traffic stop should be construed against party
interest when relevant video or audio evidence -- here, the audio to accompany his
patrol car’s video -- is unavailable due to the officer’s failure to properly maintain
the equipment. After thorough review, we affirm.
When arguments about the constitutionality of a statute or the denial of a
motion to suppress are raised for the first time on appeal, we review for plain error.
United States v. Johnson, 777 F.3d 1270, 1273 (11th Cir. 2015); United States v.
Wright, 607 F.3d 708, 715 (11th Cir. 2010). To establish plain error, a defendant
must show (1) an error, (2) that is plain, and (3) that affected his substantial rights.
United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If he satisfies these
conditions, we may exercise our discretion to recognize the error only if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Id. A plain error is a deviation from a legal rule that is clear or obvious. Puckett v.
United States, 556 U.S. 129, 135 (2009). An error affects substantial rights when
there is a reasonable probability of a different result absent the error. United States
v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015).
2 Case: 17-15319 Date Filed: 04/24/2018 Page: 3 of 7
First, we are unpersuaded by Bishop’s claim that § 922(g) is
unconstitutional. The Commerce Clause provides to Congress the power “[t]o
regulate Commerce with foreign Nations, and among the several States, and with
the Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3. Under § 922(g), it is unlawful
for a convicted felon “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)(1).
In United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court held that
Congress could regulate commerce if the regulated activities, in the aggregate,
“substantially affect” interstate commerce. Id. at 558–59 (striking down the
challenged gun control statute as an invalid exercise of Congress’s Commerce
Clause power); see also United States v. Morrison, 529 U.S. 598 (2000) (striking
down as exceeding Congress’s Commerce Clause authority a statute allowing civil
actions by victims of gender-motivated violence). The Supreme Court emphasized
that the statute being struck down failed because it “contain[ed] no jurisdictional
element which would ensure, through case-by-case inquiry, that the firearm
possession in question affect[ed] interstate commerce.” Lopez, 514 U.S. at 561–62
(giving as an example of a jurisdictional element, a statute which “made it a crime
for a felon to ‘receiv[e], posses[s], or transpor[t] in commerce or affecting
3 Case: 17-15319 Date Filed: 04/24/2018 Page: 4 of 7
commerce . . . any firearm’”); see also Morrison, 529 U.S. at 612 (“[A]
jurisdictional element may establish that the enactment is in pursuance of
Congress’ regulation of interstate commerce.”).
We have has repeatedly held, following Lopez and Morrison, that § 922(g)
is a facially constitutional exercise of Congress’s Commerce Clause power. E.g.,
United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011) (repeating the
holding that § 922(g) is neither facially unconstitutional, nor unconstitutional as
applied to “a defendant who possessed a firearm only intrastate” when the
government demonstrated that the firearm moved in interstate commerce); United
States v. Dupree, 258 F.3d 1258, 1259-60 (11th Cir. 2001) (rejecting the argument
that § 922(g) is unconstitutional, both facially and as applied, and that Congress
exceeded its authority under the Commerce Clause in passing the statute); United
States v. Scott, 263 F.3d 1270, 1273–74 (11th Cir. 2001) (“[T]he jurisdictional
element of the statute, i.e., the requirement that the felon ‘possess in or affecting
commerce, any firearm or ammunition,’ immunizes § 922(g)(1) from [a] facial
constitutional attack.”).
As applied to an individual defendant, we have held that § 922(g)(1) is
constitutional as long as the weapon has some “minimal nexus to interstate
commerce.” Dupree, 258 F.3d at 1260; Scott, 263 F.3d at 1273–74. In any
individual case, the firearm must have at some point traveled in interstate
4 Case: 17-15319 Date Filed: 04/24/2018 Page: 5 of 7
commerce to be captured by § 922(g)(1)’s jurisdictional element with a “minimal
nexus” to interstate commerce and, if that is proven, a conviction is constitutional.
Scott, 263 F.3d at 1274. A firearm possessed solely intrastate has necessarily
traveled in interstate commerce and satisfies the minimal nexus requirement once
the government establishes that a firearm was manufactured outside of the state in
which the possession took place. United States v. Wright, 607 F.3d 708, 716 (11th
Cir. 2010).
Here, as Bishop acknowledges, binding circuit precedent clearly precludes
his argument that § 922(g) is a facially unconstitutional exercise of Congress’s
power under the Commerce Clause. E.g., Scott, 263 F.3d at 1272. His argument
that § 922(g) is unconstitutional as applied against him to purely intrastate
possession is also plainly foreclosed by our binding precedent. E.g., Dupree, 258
F.3d at 1260. The “minimal nexus to interstate commerce’” is satisfied against
Bishop since the parties stipulated to the fact that the firearms and ammunition
Bishop possessed in Florida were not manufactured in Florida and traveled in
interstate and foreign commerce. See, e.g., id.; Wright, 607 F.3d at 716. These
constitutional rules are clear and the district court did not err, much less plainly err,
by applying them properly. See Puckett, 556 U.S. at 135.
We also find no merit in Bishop’s claim that the police officer’s testimony in
his case should have been construed against the government. The Fourth
5 Case: 17-15319 Date Filed: 04/24/2018 Page: 6 of 7
Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S.
CONST. amend. IV. The Fourth Amendment's protections extend to “brief
investigatory stops of persons or vehicles.” United States v. Arvizu, 534 U.S. 266,
273 (2002). A search of a vehicle is reasonable under the Fourth Amendment
when law enforcement receives a person’s voluntary consent to search.
Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 (1973). Whether a defendant
voluntarily consented to a search is determined by the totality of the circumstances.
United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001). Because the
voluntariness of consent is a question of fact, we will not disturb on appeal a
district court’s finding on that issue absent clear error. Id.
As a general matter, the “exclusionary rule” provides that any evidence
obtained by unconstitutional searches and seizures is inadmissible in court. Mapp
v. Ohio, 367 U.S. 643, 654-55 (1961). The Supreme Court has noted that the
suppression of evidence is a “last resort,” and has held that the exclusionary rule is
applicable “only where its remedial objectives are thought most efficaciously
served -- that is, where its deterrence benefits outweigh its substantial social costs.”
Hudson v. Michigan, 547 U.S. 586, 591 (2006) (quotations and citations omitted).
Here, plain error applies because Bishop argues for the first time on appeal
that the district court should have applied an adverse presumption due to missing
6 Case: 17-15319 Date Filed: 04/24/2018 Page: 7 of 7
audio when it found that Bishop had voluntarily consented to the officer’s search
of his vehicle. Under this kind of rule, Bishop argues that it would be clear error
for the district court to credit the officer’s testimony regarding his consent over his
own testimony. However, as Bishop concedes, the district court did not err, or
even plainly err, in failing to apply an adverse presumption, since current
precedent does not mandate it. Because the new rule Bishop advocates is not
currently a rule, let alone a clearly established one, the district court did not
commit plain error by not applying Bishop’s proposed new rule to his motion to
suppress. See Puckett, 556 U.S. at 135.
AFFIRMED.