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In a decision that calls into question a major initiative of the Philadelphia U.S. Attorney’s Office — the prosecution of convicted felons for possessing guns, dubbed “Operation Cease Fire” — a federal judge has ruled that one defendant’s conviction should be overturned because his gun “was neither ‘used in commerce’ nor did it have any present or imminent interstate aspect.” In his 24-page opinion in United States v. Coward, U.S. District Judge Stewart Dalzell found that two recent decisions from the U.S. Supreme Court have cast serious doubt on the validity of prior rulings by the high court and the 3rd U.S. Circuit Court of Appeals that approved of such cases. But despite concluding that Alfonso Coward had “committed no federal crime,” Dalzell said he was forced to uphold Coward’s conviction because it was not his place to overturn the precedents of higher courts. Nonetheless, criminal defense lawyers are hailing Dalzell’s ruling as a major victory because it marks the first time that any federal court has extended the U.S. Supreme Court’s recent Commerce Clause jurisprudence to throw out a felon-in-possession-of-a-gun case. The decision comes at a time when the 3rd U.S. Circuit Court of Appeals is poised to address the same issue in a trio of cases, and defense lawyers say they intend to attach Dalzell’s opinion to their appellate briefs. But defense lawyers said a real victory on the issue can only come from the U.S. Supreme Court, which alone has the power to overturn its 1977 decision in Scarborough v. United States, in which prosecutors only had to prove that “the firearm possessed by the convicted felon traveled at some time in interstate commerce.” Dalzell found that Scarborough was predicated on a “legal fiction” that today’s Supreme Court would never accept. “Simply phrased, Scarborough‘s legal fiction is that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession sufficient interstate aspect to fall within the ambit of the statute,” Dalzell wrote. “This fiction is indelible and lasts as long as the gun can shoot. Thus, a felon who has always kept his father’s World War II trophy Luger in his bedroom has the weapon ‘in’ commerce. The question now is whether this legal fiction can survive as a statutory construct in the shadow of the edifice the Supreme Court has built upon ( United States v.) Lopez‘s foundation.” Coward’s lawyer, Jules Epstein of Kairys Rudovsky Epstein Messing & Rau, said Dalzell’s decision “has great significance,” both for his own client and legions of other defendants indicted under Section 922(g). “It recognizes that the Supreme Court has remade Commerce Clause analysis, particularly as applied to non-commercial criminal activity,” Epstein said. Dalzell’s analysis, he said, “calls into question older decisions permitting federal prosecution of the typical gun possession case by a felon. The recognition is that the Supreme Court has placed severe restrictions on Congress’ capacity to make a traditional state law offense into one that can be prosecuted in federal court.” Epstein said that if Dalzell’s reasoning is adopted by higher courts, it promises to “restore a balance to an area of law where, regardless of when or how a gun once traveled in interstate commerce, it has been treated as being permanently in interstate commerce — a fiction of law that impermissibly reduces the government’s burden of proof.” Attorney David McColgin, who heads the appellate unit in the Federal Defenders Office, said Dalzell’s decision will add strength to his upcoming arguments before the 3rd Circuit on the same issue. “It’s a persuasive analysis of the issue. I think it’s going to make them [the appellate judges] sit up and take my argument more seriously,” McColgin said. But McColgin also said he understood why Dalzell decided not to overturn the conviction and instead to defer to the higher courts. Although Dalzell’s decision is firmly grounded on recent Supreme Court decisions, McColgin said, it also requires overturning both Scarborough and a more recent decision from the 3rd Circuit, United States v. Gateward. McColgin said he anticipates that Dalzell will be criticized for being an “activist,” but that he believes the criticism is unfair. “He’s certainly not being activist in the result — he upheld the conviction. It’s really the U.S. Supreme Court that’s being activist here,” McColgin said, referring to the high court’s recent line of Commerce Clause cases that have struck down numerous statutes and toppled more than a handful of convictions. TYPICAL CASE Coward’s prosecution began as a typical case under Section 922(g). He was stopped by police alone in his car on Sept. 23, 1998, and a gun was found under the passenger seat. As a convicted felon, his possession of the gun was considered illegal, and his case was soon adopted by the U.S. Attorney’s Office. To meet the interstate commerce requirement in the statute, the prosecution showed that the gun was manufactured in Springfield, Mass., and that its bullets originated in Brazil. But Dalzell found that the government “introduced no evidence at all regarding how the gun got into the Subaru. There was also no evidence regarding the origin or destination of Coward’s drive that night.” As a result, Dalzell said, there was “no evidence suggesting any commercial or transactional aspect to Coward’s possession of the gun that night, nor any evidence of his intention, say, to drive to an interstate highway such as the nearby Schuylkill or Vine Street expressways.” After the jury convicted, attorney Epstein moved for a judgment of acquittal on the grounds that the government had failed to meet the statute’s requirements of proof that the gun was somehow used in or affected interstate commerce. Dalzell asked for briefs on the issue and has now ruled that Epstein was right because, under recent Supreme Court decisions, the fact that the gun was manufactured in another state is not enough to meet the statute’s interstate commerce requirements. Focusing first on the wording of the statute, Dalzell found that Coward’s gun was “knowingly possessed in and affecting commerce.” Dalzell then asked himself a couple of questions and set out to answer them: “As a matter of understanding the English language, how can the act of merely holding property ever be ‘in’ or ‘affecting’ such ‘commerce’? It would be a fair use of the verb ‘possess’ in such a sense if the possession were part of some transactional or commercial use — for example, holding a gun while inspecting it during a contemplated purchase — and one could imagine such a use distinct from the shipping or transporting or receiving that the statute otherwise criminalizes,” Dalzell wrote. “But if a gun is held by one alone, say, in a dwelling or in a stopped car or under a bed, can it fairly be understood to involve any ‘commerce’ at all? Absent some transactional or commercial context, it seems paradoxical at best that the static condition of holding property can affect ‘commerce’ or be ‘in’ it.” Turning to the Supreme Court for guidance, Dalzell found that the high court in 1971′s United States v. Bass rejected the government’s argument that the predecessor statute to 922(g) banned all possessions and receipts of firearms by convicted felons, and that no connection with interstate commerce had to be demonstrated in individual cases. Instead, the court said that “absent proof of some interstate commerce nexus in each case,” the law “dramatically intrudes upon traditional state criminal jurisdiction.” But six years later, the high court handed down Scarborough, which held that the interstate commerce nexus could be met simply by showing that the gun had at any time traveled in interstate commerce. Dalzell found that Scarborough is premised on a “legal fiction” that has harsh results when applied. In 1995, the high court handed down its landmark decision in Lopez that struck down the Gun-Free School Zones Act of 1990, finding that it was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Dalzell found that the initial response to Lopez was divided, with some appellate judges saying that “the winds have not shifted that much,” while others, including now-Chief U.S. Circuit Judge Edward R. Becker, predicted that it was a “watershed.” “Time has surely shown that Judge Becker’s view was the more prescient,” Dalzell wrote. But just one year after Lopez, the 3rd Circuit rejected a challenge to 922(g), saying that it did “not understand Lopez to undercut the Bass/Scarborough proposition that the jurisdictional element ‘in or affecting commerce’ keeps the felon firearm law well inside the constitutional fringes.” But Dalzell found that “the Supreme Court’s Commerce Clause jurisprudence in criminal cases since Lopez calls for a re-examination of Gateward‘s brief analysis.” In United States v. Morrison, Dalzell said, the high court struck down the Violence Against Women Act and held that the “economic effect” aspect — and even congressional findings regarding such economic effects — will not serve under the Commerce Clause to save a criminal statute where no economic activity in commercial reality is involved. The Morrison court went on to say: “The concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded.” Dalzell found that by taking away economic effects as “a Commerce Clause prop,” the Morrison court “left a single reed to support the continued vitality of Gateward, i.e., the statutory jurisdictional element ‘in or affecting commerce’ that is the Scarborough fiction.” But “that reed,” Dalzell said, “had only one more week of life.” One week later came the high court’s decision in Jones v. United States, which overturned a conviction under the federal arson statute, which, similar to 922(g), federalizes the torching of any property “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” The Supreme Court held that the statute “covers only property currently used in commerce or in an activity affecting commerce.” As a result, the court tossed out the conviction because the building at issue was owner-occupied. Dalzell found that Jones strongly suggests that the high court would do the same in a 922(g) gun case because “although without explicitly saying so, the Supreme Court did not extend a Scarborough-like fiction to home ownership, as the government invited it to do.” Applying the logic of Jones to Coward’s case, Dalzell found that “Section 922(g)(1) should no longer be read with the Scarborough fiction. That is to say, the Supreme Court’s use in Jones of ‘currently used in commerce or in an activity affecting commerce’ negates a fiction that allows the past to become the present.” Coward’s possession of the gun, Dalzell said, “was neither ‘used in commerce’ nor did it have any present or imminent interstate aspect. It had no commercial or transactional context. His conviction therefore should not stand, as he committed no federal crime.” But Dalzell said he was also “mindful” of the Supreme Court’s admonition in Rodriguez De Quijas v. Shearson/American Express, Inc., where the justices cautioned that “if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this court the prerogative of overruling its own decisions.” As a result, Dalzell said he was constrained to uphold Coward’s conviction because “we must respect not only Scarborough, but also Gateward.”

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