Crime & Federalism

Today the Second Circuit, applying Jones v. United States, held that a building is in interstate commerce under the federal arson statute if it is used as a rental property.  United States v. Logan, No. 03-1290, slip op. at 15-18. (2d Cir. Aug. 15, 2005).  The panel refused to narrow the federal arson statute in light of Lopez and Morrison.

For those of you obsessed with the constitutionality of the federal arson statute (you're okay, I'm okay, we're all okay, okay?), check out this post; and this post.

(Hat tip: Happy Fun Lawyer).

Two weeks ago, in an opinion reissued today, the Fifth Circuit reversed a conviction under 18 U.S.C. Sec. 513(a), which makes it a crime to offer forged checks to an "organization . . . which operates in or the activities of which affect interstate . . . commerce."  In reaching its conclusion, Judge Dennis wrote:

As a general rule, a church is not a commercial entity which operates in or conducts activities that affect interstate commerce. That is not to say that a church’s activities may never affect interstate commerce, but only that the operations and activities of a church are not intrinsically in or affecting interstate commerce.

United States v. Reasor, No. 03-50478, slip op. at 9 (5th Cir. July 21, 2005).  Under Reasor, then, the arson of a church would not properly be a federal offense, though most people who burn churches do so out of racial animus.  Moreover, given the Fifth Circuit's willingness to properly distinguish between commercial and non-commercial entities, one wonders whether the burning of other buildings would properly be a federal offense.  See, e.g., "Justices Asked to Douse Arson Statute."

(Lvlazerwolf)

If you page someone, but your page does not travel interstate, can you be convicted under the federal murder-for-hire statute?  Yes, according to a unanimous three-judge panel of the Second Circuit.  U.S. v. Perez, No. 03-1445 (2d Cir. July 11, 2005).  Using a pager, like using a cell phone, potentially subjects you to federal criminal liability.  Depressing, but unsurprising.

(Hat tip: AL&P)

Gonzales v. Raich will have an immediate effect on three lower-court opinions in which the government had petitioned for cert. in three recent cases, but had asked that the Court hold the cert. petitions pending the outcome of Raich.  I'll summarize the cases and then link to the cert. petitions.

United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals.  In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power.  Judge Tjoflat wrote for the panel that since Maxwell's possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.  Slip op. at 37 ("We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.")

In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).  Maxwell and Smith exasperated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child pornography.

Another important case testing the limits of Congress' commerce power is United States v. Stewart.  In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.

The Maxwell cert. petition is available here; the Smith cert. petition is available here; the Stewart cert. petition is available here.  The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.

Post-Raich, it's unlikely that Maxwell, Smith, or Stewart will stand.  All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography).  The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases.    But it's worth keeping an eye on them.

Professor Berman illustrates why compassionate people shouldn't misjudge federalism.

The Cato Institute submits amicus briefs in important individual rights cases before the Supreme Court.  I've read all of their briefs, which are available on this page, and they're excellent.  Their five "crime and federalism" briefs are especially good; and I think the Gluzman brief is the "best of the best."  Anyhow, here's a collection of links to my favorites:

* John Ashcroft v. Angel McClary Raich, et al.
Addressing the limits imposed by the Commerce Clause on the federal government’s power to regulate intrastate, medicinal use of marijuana.

* Basim O. Sabri v. United States
Addressing the scope of the Necessary and Proper Clause.

* Antonio J. Morrison v. United States of America
Addressing the Violence Against Women Act and the federal commerce power.

* Dewey J. Jones v. United States of America
Addressing a federal arson law and the federal commerce power.

* Rita Gluzman v. United States of America
Addressing whether or not the federal commerce clause extends to domestic abuse.

In California, if you steal $522, it's called grand theft.  But if you tick off the wrong person, it's called a violation of the Hobbs Act.  In a First Circuit Hobbs Act opinion, United States v. Brennick, No. 04-1419, Slip op. at 8-9 (1st Cir. Apr. 26, 2005) the court writes:

Brennick next contends that the evidence was insufficient to establish that the robbery affected interstate commerce. He argues that the $522.37 taken from a store with gross sales for the month of $8.5 million was insufficient to cause the kind of effect on commerce necessary to trigger the applicability of the Hobbs Act.

In United States v. Capozzi, considering the effect of United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), we reaffirmed that, to establish the requisite effect on interstate commerce for a Hobbs Act violation, the government need show only that the conduct created a “realistic probability” of a minimal effect on interstate commerce. Capozzi, 347 F.3d 327, 335 (1st Cir. 2003). The Concord Wal-Mart store manager testified at trial that if the stolen money had not been taken, it would have been reinvested in the purchase of goods manufactured outside the state. [fn2]  That evidence sufficed to show the necessary effect on commerce.

[fn2] The government’s brief, which consisted largely of conclusory assertions, was not as helpful as it might have been. In response to Brennick’s contention that the evidence failed to show a sufficient effect on interstate commerce, the brief neglects to tell us what evidence was introduced to show the effect on commerce. It asserts that “courts of appeals, including this one, have repeatedly and uniformly upheld Hobbs Act convictions where the victim of the robbery was a commercial establishment that regularly purchased goods or sent profits across state lines.” The brief, however, fails to cite to any cases in support of the proposition.

Its discussion of Brennick’s contention of misrepresentation of the evidence in the grand jury fails to discuss or even mention any of the instances of misrepresentation, although as noted above, they were not insignificant. The “Statement of the Facts” was copied almost verbatim from a pretrial district court order, including a footnote stating: “As an evidentiary hearing on this motion was not held, the recitation of facts is largely derived from the police report.” Needless to say, because in the intervening time since the district court’s order there had been a trial, the government had access to a better source of facts than either a police report or a pretrial order of the district court. We might, of course, have declined to consider contentions not adequately presented in a party’s brief. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In future cases, where the answer to the point in issue is less clear, we may well exercise our discretionary authority differently.

The government has petitioned for cert. in three recent cases, but has also asked that the Court hold the cert. petitions pending the outcome of Raich.  I'll summarize the cases and then link to the cert. petitions.

United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals.  In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power.  Judge Tjoflat wrote for the panel that since Maxwell's possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.  Slip op. at 37 ("We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.")

In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).  Maxwell and Smith exasperated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child pornography.

Another important case testing the limits of Congress' commerce power is United States v. Stewart.  In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.

The government has petitioned for certiorari in all three cases.  The Maxwell cert. petition is available here; the Smith cert. petition is available here; the Stewart cert. petition is available here.  The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.

If the Court sides against Raich, it's unlikely that Maxwell, Smith, or Stewart will stand.  All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography).  But it's worth keeping an eye on them.

Another link to another post at AL&P.  By the way, you should be reading AL&P daily.

I had nightmares last night.  Today was going to be the day the Court handed down Raich.  The Court was going to side with Raich.  But I was going to oversleep, and before I could cover the case, everyone else would have made all of my points.  Yes, I would be denied membership in the chattering class.  I'm taking this blogging thing much too seriously. 

Anyhow, today was a disappointing day, since none of the three cases I was watching were given to us.  To dispel some anxiety, I am going to write why I think the government will win in Raich.  That way I won't have to awaken at (or, more likely, stay up until) 6 a.m. on the next decision day.

Some background.  United States v. Lopez was decided in 1995, the days of the Contract With America and the Republican Revolution.  Limiting federal intrusion into state and local affairs was chic.  Even I'm old enough to remember watching Newt Gingrich demand that Washinging focus only on truly national problems.  That the Supreme Court, for the first time since 1937, decided Lopez during the Republican Revolution is hardly coincidental.

Yet the lower-courts refused to implement Lopez, and the Court denied cert. in several significant crime and federalism cases.  Not once did a lower-court strike down a criminal law under the Commerce Clause post-Lopez, pre-Morrison.

Then in 2000, the Court handed down two decisions within one week of each other.  In U.S. v. Morrison, the Court said, "We meant what we said in Lopez."  In Jones, the Court said, "Start interpreting federal statutes narrowly, because we meant what we said last week in Morrison, and what we said five years ago in Lopez."

How did the lower-courts respond?  As I illustrated in this comprehensive post, they mostly ignored Lopez/Morrison/Jones.

Recognizing that the only enumerated power people care about is limiting Article III, the Court seems to have distanced itself from its Revolution-era decisions.  Orin Kerr cites several recent federalism cases where the federal government won.

And last Term, the Court seemed to have given up.  Sabri v. United States was a major - and unanimous - crime and federalism defeat.  See, e.g.,

• George, D. Brown, Carte Blanche: Federal Prosecution of State and Local Officials After Sabri,
• George D. Brown, New Federalism's Unanswered Question: Who Should Prosecute State an Local Officials,
• Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law,
• Peter J. Henning, Federalism and the Federal Prosecution of State and Local Officials,
• Gary Lawson, Making a Federal Case out of It - Sabri v. United States.

I was so convinced that Sabri would extend Lopez and Morrison's reasoning that I wrote this mock dissenting opinion on behalf of Justice Kennedy (whom I pretended to be for my S.Ct. Seminar).  Yet even Justice Thomas did not side with Sabri.  Hint: If Thomas isn't willing to extend Lopez and Morrison, no one is.

Congress does not want its federal powers limited.  See L'Affaire Schiavo and this Federalist Society report.  Federal prosecutors do not care about federalism.  See Project Safe Neighborhoods and Project Exile.  And lower courts don't want to strike down criminal laws as exceeding Congress' commerce power.  See this post. ("Even though there are over 4,000 federal criminal laws, the circuits have only given 5 crime and federalism victories in ten years.")

So why in the hell would the Supreme Court rule against the government in Raich?  To ask the question is to answer it.