Entries categorized "Federal Powers"

Cases Affected by Raich

Since United States v. Morrison, there have been many federalism defeats, and only four federalism victories.  Should the Court reverse the Ninth Circuit's decision in Raich, McCoy (CA9), Stewart (CA9), and Maxwell (CA11) will certainly be reversed.  Indeed, as Marty Lederman notes here, the government has already petitioned for cert. in Stewart.

Anyhow, a summary of federalism victories is set forth below.

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel wrote:

[This child pornography law is] unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

In McCoy a mother was convicted under federal child pornography laws for taking pictures of herself and her daughter with their genital areas exposed. The government could not prove that mom took these pictures for commercial gain; and the pictures never crossed state lines.

In United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.), a 2-1 panel held that Congress lacked authority under the Commerce Clause to criminalize possession of a home-made machine gun. In Stewart the defendant rigged his semi-automatic gun to fire automatically. The Ninth Circuit reversed his conviction, even though some of the parts used to modify his gun moved through interstate commerce. Wrote Judge Kozinski:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government. Id. at 1135 (quotation marks omitted)

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalizes the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce. Id. at 1229-30.

Finally, we have United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004) - digested here - where a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state of Florida. Thus, the law was unconstitutional as applied to him.


Federalism Wins in the Circuits

Apropos my recent post on United States v. Maxwell; here's a helpful reminder of federalism wins in the circuits:

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel wrote:

[This child pornography law is] unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.

In McCoy a mother was convicted under federal child pornography laws for taking pictures of herself and her daughter with their genital areas exposed. The government could not prove that mom took these pictures for commercial gain; and the pictures never crossed state lines.

In United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.), a 2-1 panel held that Congress lacked authority under the Commerce Clause to criminalize possession of a home-made machine gun. In Stewart the defendant rigged his semi-automatic gun to fire automatically. The Ninth Circuit reversed his conviction, even though some of the parts used to modify his gun moved through interstate commerce. Wrote Judge Kozinski:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government. Id. at 1135 (quotation marks omitted)

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalizes the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce. Id. at 1229-30.

Finally, we have United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004) - digested here - where a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state - Florida. Thus, the law was unconstitutional as applied to him.


Eleventh Circuit Tells Congress it can't Outlaw In-State Child Pornography

Yesterday a unanimous three-judge panel of the Eleventh Circuit held that Congress could not make it a federal crime to possess child pornography that never traveled across state lines.  United States v. Maxwell, No. 03-14326, (11th Cir., Oct. 1, 2004).

After Alberta Wallace became suspicious that he roommate, James Maxwell, was using her computer to look at child pornography, she called the police.  She then allowed FBI agents to search her Florida apartment. 

During the search, the FBI made a copy of Wallace's hard drive and seized several disks. One of those disks contained hundreds of pornographic images of children.  After the search, Wallace found another disk in her apartment: It contained 15 images of child pornography.

A grand jury indicted James Maxwell on two counts of possessing child pornography, in violation of 18 U.S.C. §2252A(a)(5)(B).

Although special agents knew that one young boy featured in a picture was from Texas, the agents could not determine where the picture was taken.  Indeed, there was no evidence that any of the pictures were taken outside of Florida.

However, the trial court agreed with the prosecution that since the disks traveled to Florida from another state, Maxwell could stand trial. Maxwell was convicted on both counts.  A unanimous three-judge panel of the Eleventh Circuit Court of Appeals reversed.

The prosecutor's evidence established that "[a]part from the origin of the disks (before they had been committed to nefarious purposes), Maxwell’s case involved no apparent connection to activity beyond Florida."  Id. at *24.

The panel found that Maxwell's conduct did not fall within any of the three areas the Supreme Court has found that Congress has jurisdiction.

In United States v. Lopez, 514 U.S. 549, 558-559 (1995) the Court found that the Commerce Clause confers upon Congress power to regulate “three broad categories of activity," namely:

·    “the use of the channels of interstate commerce”;
·    “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and
·    “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.”   

In United States v. Morrison, 529 U.S. 598, 610-12 (2000), the Court clarified the substantial relationship element, finding that to determine whether wholly intrastate activity substantially affects interstate commerce, four factors are relevant:

·    whether the statute in question regulates commerce “or any sort of economic enterprise”;
·    whether the statute contains any “express jurisdictional element which might limit its reach to a discrete set” of cases;
·    whether the statute or its legislative history contains “express congressional findings” that the regulated activity affects interstate commerce;
·    whether the link between the regulated activity and a substantial effect on interstate commerce is “attenuated.”

The panel wrote that: "Stated bluntly, wholly intrastate activities that have a only minimal or insubstantial effect on interstate commerce are not proper subjects for federal regulation, at least not through the power bestowed by the Commerce Clause."  Slip op. at 26-27.  Further:

In this case, the challenged statute does not govern the channels of interstate commerce, and the Government did not establish that the proscribed images were things in interstate commerce. Rather the Government has prosecuted Maxwell for intrastate possession of child pornography and relies entirely for its convictions on the fact that the disks on which the pornography was copied traveled in interstate commerce before they contained the images.

Id. at *27.

The statute would have been constitutional in its application to Maxwell if “a rational basis existed for concluding that” the intrastate possession of child pornography produced with materials that traveled in interstate commerce “sufficiently affected interstate commerce.”  Id. at *29 (citing Lopez, 514 U.S. at 557).  But, the panel held, because Maxwell's conduct involved non-economic activity, aggregation was not proper. Id. at *37.  (""We believe this aggregate approach cannot be applied to intrastate criminal activity of a noneconomic nature.")

Distinguishing Maxwell's conduct from Farmer Wickard's, the panel wrote: "The regulation at issue in Maxwell’s case, by contrast, has no clear economic purpose. It makes no effort to control national trade by regulating intrastate activity. Instead, it attempts to regulate primary conduct directly, even within state borders. Unlike wheat, pornography is a nonrival good."  Id. at *31.  " In any event, Congress is clearly not concerned with the supply of child pornography for the purpose of avoiding surpluses and shortages or for the purpose of stimulating its trade at increased prices."  Id. at *31. 

Thus, mere possession could not substantially affect interest commerce and therefore was beyond the reach of Congress.


Motion to Dismiss in Hobbs Act Case

I just found this wonderfully written motion to dismiss in a Hobbs Act case that covers the major themes relating to the federalization of crime.  It's very well-written and researched.  It begins:

Mr. Defendant stands charged of various offences, the most significant of them brought before this Court under the Hobbs Act.1 Counts one and two of the Indictment refer to the death of Mr. during a robbery at his home, in Ponce, Puerto Rico, in which approximately $500.00 were stolen and which allegedly were the proceeds from a gasoline station in Peñuelas, Puerto Rico.

The “jurisdictional hook” to prosecute this events in the Federal forum is an allegation that the robbery of that money affected the interstate commerce and thus violated the Hobbs Act, 18 U.S.C. 1951.

If the money was indeed stolen is uncertain from the evidence produced in discovery so far by the United States. On the police report of the officer responding to the emergency, dated July 9, 1997, it is stated that no property was stolen. Cooperating co-defendant , has stated that no money was stolen from the house of Mr Blank.  On the other hand, two years after the facts, on October 14, 1999, and after being interviewed by the FBI, the son of the victim alleged that some money (approximately $500) had “disappeared”. Notwithstanding this discrepancy, which ultimately is an issue for the Jury, this Motion approaches the subject assuming that the $500.00 were indeed stolen.

As will be discussed below, defendant contends that this Court lacks jurisdiction over Counts One and Two of the Indictment, since the Hobbs Act was not violated. The central issue will be if under United States v. Lopez, and its progeny, Section 1951(a) applies to robbery directed against private individual in their homes.


Understanding the Court's Commerce Clause Jurisprudence

The only way to understand the Court's Commerce Clause jurisprudence is by turning to chaos theory.  Chaos theory tells us that if a butterfly flaps its wings in Hong Kong, it may cause a hurricane in Texas.  "Fundamental to chaos theory is the phenomenon of sensitive dependence on initial conditions, commonly referred to as the Butterfly Effect."  Leonardo Electronics Almanac.

If I sneeze in California, it may cause an earthquake in Missouri. Hence, Congress has the power to criminalize my intrastate sneezing because it may substantially affect interstate commerce.  (After all, an earthquake can cause billions of dollars in damage.  Everyone has heard of the million dollar man.  But had you heard of the billion dollar sneeze?

Even one dollar spent in Utah will have a substantial affect on interstate commerce since this dollar will travel across the country many times.  This website explains why.

Hence, the Commerce Clause confers upon Congress to regulate any activity it likes, so long as it does not offend the Court in so doing.


"Justices Asked to Douse Arson Statute"

An article from law.com begins:

One of the burning issues at the Supreme Court next term could be the scope and constitutionality of federal arson law, which derives its authority from the commerce clause of the Constitution.

The issue is raised in Laton v. United States, No. 03-1266, a case that could have significant ramifications for both arson law and the commerce clause in the Court's ongoing debate over federalism.

At issue in Laton is whether the burning of a municipal fire station can be criminalized pursuant to Congress' commerce power.

The Court dealt with the constitutionality of the federal arson statute as applied to the burning of a private residence in Jones v. United States.  There the Court wrote:

It is a federal crime under 18 U.S.C. § 844(i) (1994 ed., Supp. IV) to damage or destroy, “by means of fire or an explosive, any … property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” This case presents the question whether arson of an owner-occupied private residence falls within §844(i)’s compass. Construing the statute’s text, we hold that an owner-occupied residence not used for any commercial purpose does not qualify as property “used in” commerce or commerce-affecting activity; arson of such a dwelling, therefore, is not subject to federal prosecution under §844(i). Our construction of §844(i) is reinforced by the Court’s opinion in United States v. Lopez, 514 U.S. 549 (1995), and the interpretive rule that constitutionally doubtful constructions should be avoided where possible, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).

The lower court opinion is available here.


Medical Marijuana Law in the Ninth Circuit

In the Petitioner's Reply Brief, the government summarizes the effect of Raich v. Ashcroft on drug enforcement in the Ninth Circuit. 

The court of appeals' decision merits this Court's review because it partially invalidates an Act of Congress on constitutional grounds and "the decision raises significant questions as to the ability of the United States to enforce the Nation's drug laws." United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 489 (2001). The legal and practical impact on the Ninth Circuit's decision is extraordinary. Since the filing of the government's petition, not only has the significant litigation set forth in the petition continued unabated (Pet. 22- 24), but the court of appeals' decision has spawned new impediments to the federal government's ability to enforce the CSA. For instance, on April 21, 2004, a district court held that, in light of Raich, a cooperative of 250 members was entitled to a preliminary injunction that bars the federal government from enforcing the CSA against the cooperative's marijuana manufacturing and distribution operations. Country of Santa Cruz v. Ashcroft, No. C 03-01802 JF, 2004 WL 868197 (N.D Cal.). The court reached that result despite the cooperative's distribution of marijuana to many persons and its collection of financial contributions from its members and others to support its operations. The court found its holding compelled by the Ninth Circuit's decision in this case "[a]bsent intervention by the Supreme Court." 2004 WL 868197, at *7.

Similarly, the Ninth Circuit recently relied on Raich to order the release from prison of an individual who is currently appealing two marijuana convictions arising out of his manufacture of more than 1500 marijuana plants for purported medicinal use. The Ninth Circuit found that bail pending the defendant's appeal was warranted because its decision in Raich "changed the legal landscape on the issue of the permissible reach of the Controlled Substances Act in circumstances where it is asserted that the drug involved is marijuana, the use is for medicinal purposes, and the use is strictly local." United States v. Alden, No. 02-10673 & 10674, at 2 (Mar. 30, 2004). Moreover, the magistrate judge who imposed the conditions of bail release also declined to order otherwise mandatory drug testing of the defendant, explaining that, after the decision below, courts must "tread very lightly" on marijuana activities for purported medical use. Marijuana Convict Won't Face Drug Testing, Tri-Valley Herald, Apr. 27, 2004, at 6.

In short, the Ninth Circuit's decision not only held the CSA unconstitutional as applied to individuals such as respondents who allege that they locally use, manufacture, and distribute marijuana, but the decision also has prevented the government from applying the CSA to entities and individuals engaged in widespread marijuana manufacturing and distribution.

The Ninth Circuit's partial invalidation of the CSA also threatens a substantial increase in the level of prohibited drug activity in States within the Ninth Circuit. Respondents rely on the fact that only a small percentage of the population in those States reportedly use marijuana for asserted medical purposes. Br. in Opp. 16-17. Those static figures, however, do not account for the dynamic effect of the decision below. Respondents' figures represent only individuals who admit they engaged in marijuana-related activity despite a blanket federal prohibition against any such activity (outside the narrow scope of use authorized by the CSA). The Ninth Circuit's decision has now removed that federal prohibition.

I must admit that reading the government's Supreme Court briefs are a real pleasure.  However, they scare me because their quality surpasses almost every brief written by private litigants.