United States v. Thompson

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 02-5916/5917 ELECTRONIC CITATION: 2004 FED App. 0079P (6th Cir.) Thompson, et al. File Name: 04a0079p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ON BRIEF: Dwight E. Scott, Nashville, Tennessee, T. _________________ Clifton Harviel, Jr., HARVIEL LAW OFFICE, Memphis, Tennessee, for Appellants. Van S. Vincent, ASSISTANT UNITED STATES OF AMERICA , X UNITED STATES ATTORNEY, Nashville, Tennessee, for Plaintiff-Appellee, - Appellee. - - Nos. 02-5916/5917 _________________ v. - > OPINION , _________________ RUFUS A. THOMPSON III - (02-5916); GREGORY POTTER - SUTTON, Circuit Judge. After firebombing two houses (02-5917), - with Molotov cocktails, Rufus A. Thompson III and Gregory Defendants-Appellants. - Potter were charged, then convicted, of violating several N federal laws, including 26 U.S.C. § 5861(d), which prohibits Appeal from the United States District Court the possession of an unregistered firearm. Separately, and as for the Middle District of Tennessee at Nashville. a result of the same incident, the jury also convicted No. 01-00116—Robert L. Echols, Chief District Judge. Thompson of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The defendants challenge their Submitted: December 11, 2003 convictions under § 5861(d), first as violating due process, then as exceeding Congress’s taxing power. Thompson Decided and Filed: March 17, 2004 independently argues that his § 922(g)(1) conviction exceeds Congress’s Commerce Clause powers. We reject each Before: BATCHELDER and SUTTON, Circuit Judges; argument and affirm. BELL, Chief District Judge.* I. Rufus Thompson was a crack dealer in Nashville, Tennessee. Two of his customers were Gregory Potter and William Hunnicutt, who “earned” their drugs by handling various odd jobs for Thompson. One job involved the burning of two houses, whose occupants had complained to * the police about Thompson’s drug trafficking. Thompson The Honorable Robert Holmes Bell, Chief United States District suggested that Potter and Hunnicutt use Molotov Judge for the Western District of Michigan, sitting by designation.

1 Nos. 02-5916/5917 United States v. 3 4 United States v. Nos. 02-5916/5917 Thompson, et al. Thompson, et al.

cocktails—home-manufactured explosives made from glass transfer and manufacture of firearms covered by the Act. See bottles, gasoline and cloth fuses—to carry out the task. id. §§ 5811, 5821. To register covered firearms (and pay Consistent with this plan, Potter and Hunnicutt firebombed applicable taxes), an individual must apply to the Secretary of both houses with homemade Molotov cocktails on April 28 the Treasury. See id. §§ 5812, 5822. Under the Act, and 30, 2001. however, “[a]pplications shall be denied if the transfer, receipt, or possession of the firearm would place the A federal grand jury indicted Thompson and Potter on a transferee in violation of law.” Id. § 5812. litany of statutory violations for the firebombings, only two of which have any bearing on this appeal. First, the grand Thompson and Potter contend that the registration jury indicted both individuals for failing to register their provision makes no sense with respect to Molotov cocktails. “firearms” (the Molotov cocktails) in the National Firearms Had they applied to the Secretary of the Treasury to register Registration and Transfer Record in violation of 26 U.S.C. their Molotov cocktails, they note, the Secretary assuredly § 5861(d). Second, the grand jury indicted Thompson for would have denied their applications because possession of being a felon in possession of a firearm in violation of 18 the explosives placed them “in violation of law.” As they U.S.C. § 922(g)(1). observe, Tennessee law outlaws the knowing possession of “an explosive or an explosive weapon,” Tenn. Code Ann. Thompson and Potter filed motions to dismiss both charges. § 39-17-1302(a), language that one Tennessee court in an As to the charges under § 5861(d), Potter argued that his unpublished decision has interpreted to encompass Molotov indictment violated due process while Thompson argued that cocktails. See State v. Jackson, No. E1999-02013-CCA-R3- his indictment exceeded Congress’s taxing authority. In CD, 2001 WL 740707, at *5 (Tenn. Crim. App. June 29, support of each argument, the defendants claimed that it was 2001). Relying on these legal and factual predicates, Potter “legally impossible” to comply with the registration argues that the provision violates due process and Thompson requirements of the statute. As to the charge under argues that it exceeds Congress’s taxing power. § 922(g)(1), Thompson argued that the indictment exceeded Congress’s power under the Commerce Clause. The district A. court denied each motion, and the jury convicted both men on their respective charges. In considering their appeals, we give Because Tennessee bans the possession of Molotov de novo review to the district court’s constitutional rulings. cocktails and because the Secretary accordingly would have United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000). denied an application to register these explosives, Potter argues that it was legally impossible for him to comply with II. the registration provision, 26 U.S.C. § 5861(d). Invoking United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), which Among many other commands, the National Firearms Act, granted relief on a comparable claim, Potter contends that it codified at 26 U.S.C. § 5801 et seq., prohibits individuals would be “fundamentally unfair” and a violation of due from receiving or possessing a firearm that is not registered process to convict him for failing to comply with a statute in the National Firearms Registration and Transfer Record. with which it was not possible to comply. Potter Br. at 14. See 26 U.S.C. § 5861(d). The registration provision works hand-in-glove with taxes that the statute imposes on the Nos. 02-5916/5917 United States v. 5 6 United States v. Nos. 02-5916/5917 Thompson, et al. Thompson, et al.

Even granting for a moment the assumption that the Thompson contends that his conviction constitutes an Secretary would have denied an application to register a unconstitutional exercise of Congress’s taxing power, also Molotov cocktail, Potter errs in arguing that he could not citing United States v. Dalton, 960 F.2d 121, 124–25 (10th comply with 26 U.S.C. § 5861(d). In a case involving Cir. 1992). He contends that the National Firearms Act analogous facts, we rejected a comparable argument. See permits convictions that bear no “relation, rational or United States v. Bournes, 339 F.3d 396 (6th Cir. 2003). otherwise,” to revenue collection, because he would not have There, the defendant challenged a conviction under § 5861(d) been permitted to register the Molotov cocktails and thus for failing to register a weapon (a machine gun), possession could not have paid the tax even if he had tried to do so. of which is outlawed by 18 U.S.C. § 922(o). And there, Thompson Br. at 13. Absent any true connection to tax following the cue of United States v. Jones, 976 F.2d 176, collection, he argues, the convictions under § 5861(d) 182–83 (4th Cir. 1992), and rejecting the analysis of Dalton, necessarily exceed congressional authority. we reasoned that “compliance with the relevant provisions [of the two statutes] is easily achieved: Bournes could have To the extent Thompson means to raise a facial challenge complied simply by electing not to possess the machine guns to § 5861(d), the claim has little to recommend it and much at issue.” Bournes, 339 F.3d at 399; accord United States v. to overcome. As the United States Supreme Court has made Grier, 354 F.3d 210, 214 (3d Cir. 2003). Potter had a similar clear, the registration provision is “obviously supportable as remedy. He too could have complied with § 5861(d) and in aid of a revenue purpose.” Sonzinsky v. United States, 300 Tennessee law by opting not to make, then possess, the U.S. 506, 513 (1937). The registration requirement of Molotov cocktails in the first instance. § 5861(d) is “‘part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having Nor has Potter presented us with any reason why it makes required payment of a transfer tax and having required a difference in this case that his legal-impossibility registration as an aid in collection of that tax, Congress under conundrum arises from a combination of state and federal the taxing power may reasonably impose a penalty on law, as opposed to two federal statutes. In both settings, a possession of unregistered weapons . . . [to] discourage[] the comparable answer to impossibility exists: decline to possess transferor . . . from transferring the firearm without paying the the illegal weapon. See United States v. Djelaj, 842 F. Supp. tax.’” United States v. Birmley, 529 F.2d 103, 106–07 (6th 278, 281 (E.D. Mich. 1994) (sustaining a conviction under Cir. 1976) (quoting United States v. Ross, 458 F.2d 1144, § 5861(d) for failing to register a Molotov cocktail, 1145 (5th Cir. 1972)). possession of which is forbidden by Michigan law, in the face of a legal impossibility challenge). In the end, Circuit Thompson does little better in arguing that the registration precedent (Bournes) controls and forecloses Potter’s due requirement, as applied to him, exceeds the national taxing process argument. power. Aside from the Tenth Circuit in Dalton, every Circuit to consider this type of claim has rejected it. See Grier, 354 B. F.3d at 215; United States v. Rogers, 270 F.3d 1076, 1079–80 (7th Cir. 2001); Hunter v. United States, 73 F.3d 260, 262 Thompson raises a similar argument. Based on the alleged (9th Cir. 1996); United States v. Dodge, 61 F.3d 142, 146 (2d impossibility of registering the Molotov cocktails in the Cir. 1995); United States v. Ardoin, 19 F.3d 177, 179–80 (5th National Firearms Registration and Transfer Record, Cir. 1994); Jones, 976 F.2d at 182–83. So now do we. Nos. 02-5916/5917 United States v. 7 8 United States v. Nos. 02-5916/5917 Thompson, et al. Thompson, et al.

Echoing his co-defendant’s claim, Thompson argues that No doubt, it may seem odd to require an application to §§ 5812 and 5822 prevented him from registering and paying register Molotov cocktails—whether before or after manufacture or transfer taxes on the Molotov cocktails. As a manufacture. And, no doubt, it may seem odd to require an result, he claims, criminalizing his failure to register his application that perhaps would have been denied by the firearms is not rationally related to the collection of taxes. Secretary. Yet it would be odder still if we were to defer to Thompson’s interpretation of the interplay between the federal This argument might well have force if Thompson in fact and state statutes at issue—and specifically the meaning of had sought to register the firearms, but had been denied Tennessee law—and his conclusion that the Secretary would permission to do so by the Secretary. In that setting, it would not permit him to register and pay the tax. If Thompson be difficult to perceive the rationality of the statute. But, wishes to complain that the scheme is utterly devoid of a here, Thompson has offered no explanation why he should be taxing purpose because it was impossible for him to register permitted to hypothesize what the Secretary would do with his weapons, then he must demonstrate that it was truly, and his application, then premise his claim that the statute has no not merely hypothetically, impossible to obtain the rational connection to taxation on that speculation. The registration. relevant statute says that “it shall be unlawful for any person . . . to . . . possess a[n] [unregistered] firearm.” 26 U.S.C. III. § 5861(d). At the time of his arrest, Thompson’s firearms were unregistered—not because he was denied permission to Thompson separately argues that his felon-in-possession- register them but because he never tried to register them. It of-a-firearm conviction should be reversed because 18 U.S.C. does not offend the modest requirements of rationality to § 922(g)(1) exceeds the National Legislature’s power to require the individual first to seek the Secretary’s views on regulate interstate commerce under the Commerce Clause. such a matter and to show that he was actually prevented from We disagree. registering his firearms. Because neither Thompson nor his co-conspirators attempted to register the Molotov cocktails, Section 922(g)(1) makes it unlawful for a person “who has no one can say with certainty what the Secretary of the been convicted in any court of[] a crime punishable by Treasury would have done with his application. See United imprisonment for a term exceeding one year . . . to ship or States v. Mise, 240 F.3d 527, 530 (6th Cir. 2001) (noting that transport in interstate or foreign commerce, or possess in or Mise had not presented evidence that he applied to register his affecting commerce, any firearm or ammunition; or to receive pipe bomb); United States v. Aiken, 974 F.2d 446, 449 (4th any firearm or ammunition which has been shipped or Cir. 1992) (in the absence of evidence to the contrary, court transported in interstate or foreign commerce.” Thompson is must assume that registration of short-barreled shotgun would not the first criminal defendant to challenge the validity of the be allowed). And that is particularly significant in view of the provision in the aftermath of United States v. Lopez, 514 U.S. undisputed fact that the Secretary has authority to register and 549 (1995). After Lopez, we rejected a facial challenge to tax illegal weapons. Grier, 354 F.3d at 215; Ardoin, 19 F.3d § 922(g)(1) under the Commerce Clause. See United States at 180; see also Dep’t of Revenue v. Kurth Ranch, 511 U.S. v. Chesney, 86 F.3d 564, 568–69 (6th Cir. 1996). So, too, has 767, 778 (1994) (unlawful activity may be taxed); Marchetti every other court of appeals. See United States v. Williams, v. United States, 390 U.S. 39, 44 (1968) (same); see also, e.g., 128 F.3d 1128, 1133–34 (7th Cir. 1997) (citing cases). 26 U.S.C. § 4401 (taxing legal and illegal bets). Nos. 02-5916/5917 United States v. 9 10 United States v. Nos. 02-5916/5917 Thompson, et al. Thompson, et al.

In rejecting this argument, our Circuit has relied in large § 922(g)(1) applies to felons while § 922(g)(8) applies to part on the presence of a jurisdictional element in the persons subject to domestic violence restraining orders. That statute—the requirement that the firearm must be “in or distinction, however, does not offer a tenable basis for affecting commerce”—to distinguish § 922(g) from the Guns differential treatment, and Thompson himself has offered no Free School Zone Act, which Lopez invalidated. This explanation for drawing such a distinction. In all material jurisdictional element, we have held, “ensures [that] only ways, Napier controls. those activities affecting interstate commerce fall within [§ 922(g)’s] scope.” United States v. Baker, 197 F.3d 211, Because Napier supplies the governing legal precedent and 218 (6th Cir. 1999). because the Government presented evidence at trial that the constituent parts used to make these Molotov cocktails—the In challenging this line of reasoning, Thompson argues that beer bottles and gasoline—had moved in interstate commerce, the presence of a jurisdictional element does not by itself we reject Thompson’s constitutional challenge. Thompson ensure that the statute falls within Congress’s commerce has not argued, and does not argue, that the firearms power. Recent decisions by the Supreme Court in United themselves (the Molotov cocktails), as opposed to their States v. Morrison, 529 U.S. 598 (2000), and Jones v. United constituent parts (the beer bottles and gasoline), must satisfy States, 529 U.S. 848 (2000), he adds, cast doubt on this the jurisdictional element of § 922(g)(1). We accordingly Court’s holdings that the jurisdictional element of § 922(g) need not consider that distinct question, compare United satisfies Commerce Clause constraints. States v. Stewart, 348 F.3d 1132, 1138 (9th Cir. 2003) (holding that link between defendant’s homemade Still more-recent precedent from this Circuit, however, manufacture of machine gun and interstate commerce was forecloses Thompson’s argument. In United States v. Napier, “too tenuous to justify federal regulation”), with United States 233 F.3d 394 (6th Cir. 2000), we took a second look at the v. Gresham, 118 F.3d 258, 265–66 (5th Cir. 1997) (rejecting constitutionality of § 922(g) in view of Morrison and Jones. argument that movement of component parts of pipe bomb in While Morrison and Jones in their own way each reinforced interstate commerce was insufficient to sustain § 922(g)(1) the central lessons of Lopez—that Congress’s power to conviction), which Napier does not directly address. regulate commerce is not boundless and that the courts have a responsibility to police the outer limits of that IV. power—Napier concluded that § 922(g) satisfies the modest demands of these precedents because it requires a “‘minimal For the foregoing reasons, we affirm. nexus that the firearm have been, at some time, in interstate commerce.’” Napier, 233 F.3d at 401 (quoting Scarborough v. United States, 431 U.S. 563, 575 (1977)). Nor may Napier be distinguished on the ground that it involved a conviction under § 922(g)(8) rather than under § 922(g)(1). Both provisions criminalize possession of a firearm, and the same jurisdictional element governs both provisions. The only difference between them is that