Interesting district court case on commerce

Cite as U.S. v. Coward - F.Supp.2d - (E.D.Pa. 2001)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.

ALFONZO COWARD

CRIMINAL NO. 00-88

April 10, 2001

MEMORANDUM

Dalzell, J.

We here consider defendant Alfonzo Coward's motion for
judgment of acquittal which he has renewed, pursuant to Fed. R.
Crim. P. 29(c), after we discharged the jury that convicted him, a
previously-convicted felon, of possession of a firearm and
ammunition in violation of 18 U.S.C. section 922(g)(1). Coward's
motion raises very serious issues regarding the vitality of gun
possession federal jurisprudence that was established before the
Supreme Court decisions last year in United States v. Morrison, 529
U.S. 598, 120 S. Ct. 1740 (2000) and Jones v. United States, 529
U.S. 848, 120 S.Ct. 1904 (2000). These two decisions are sequelae
to United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995).

Given the seriousness of this question, we will consider it
here at some length.

The Charge and the Government's Proof

On February 22, 2000, a Grand Jury indicted Coward, a
previously-convicted felon, of possessing a semi-automatic,
operable firearm on September 23, 1998. Referencing 18 U.S.C.
section 922(g)(1), the Indictment charged that Coward "knowingly
possessed in and affecting interstate commerce, a loaded firearm .
. . loaded with eighteen rounds of ammunition."

The Government's proof at the March 7, 2001 trial was brief
and to the point. At about 9:00 p.m. on September 23, 1998,
then-Sergeant Michael Chitwood of the Philadelphia Police
Department and his erstwhile partner, Terence Sweeney, heard a
radio transmission to all cars patrolling in the 18th Police
District to stop a green Subaru with a Pennsylvania license plate
identification of BMS 9857. At the time the two officers heard
this transmission, their patrol car was at 43rd and Locust Streets,
two city streets in West Philadelphia. "Seconds later", they saw
a green Subaru pass by on 43rd Street, and, confirming that it had
the matching license plate, pulled the Subaru over near the
intersection of 43rd and Walnut Streets.

As they parked behind the Subaru, they saw that there was only
the driver in the car, who later turned out to be Coward. They saw
the driver reach toward the glove compartment and then duck down
out of sight for two or three seconds. The officers criss-crossed
as they left their patrol car, with Sergeant Chitwood going to the
passenger side of the Subaru and Officer Sweeney going to the
driver's side. According to the two officers, as Coward got out of
the car he said, "It's not mine." When Sergeant Chitwood opened
the door on the passenger side, he saw in plain view, only
partially under the passenger seat, what turned out to be an
operable 9 mm. Smith & Wesson semi-automatic handgun, loaded with
eighteen rounds of ammunition.

Coward was taken into custody on a charge of violating the
Uniform Firearms Act, and his case was later federalized with the
charge under 18 U.S.C. section 922(g)(1), as the firearm in
question was at some unknown time manufactured in Springfield,
Massachusetts (its bullets originated in Brazil).

Notable for our analytical purposes here, 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 noted, Coward was
alone in the car. There was, therefore, 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 (I-76 and I-676, respectively).

In view of the absence of any commercial or transactional
aspect of the case, or regarding any other present interstate
dimension to the evidence, Coward, after the Government rested,
moved for a judgment of acquittal on the bald possession charge.
Although recognizing the gravity of Coward's claim, after examining
the issues overnight, and discussing them at length at the charge
conference the next morning, we denied the defendant's motion
without prejudice to its renewal should the jury find Coward
guilty. As it turned out, late on the afternoon of March 8, 2001,
the jury did just that, and after we discharged the jury, Coward
renewed his motion pursuant to Fed. R. Crim. P. 29(c). We afforded
the parties the opportunity to submit detailed briefs on this
subject, which they have done. [footnote 1]

Analysis

In order to decide Coward's Rule 29 motion, we will first
briefly consider the language of the oddly phrased and punctuated
statute that has become such a commonplace in this district as a
result of the Government's highly-publicized Operation Ceasefire.
We then examine the jurisprudence under section 922(g)(1)'s
statutory predecessor, chiefly embodied in the Bass and Scarborough
cases, that has served as the legal predicate for applying the
legal fiction of using past interstate transport of a weapon to
federalize its present possession. We then outline the historical
use of legal fictions, and analyze post-Lopez Supreme Court cases
to determine the vitality of continued application of the
interstate transport legal fiction to possession cases like
Coward's. We conclude that the Supreme Court's recent decisions in
Morrison and Jones strongly suggest that this legal fiction no
longer deserves any vitality, awaiting only the right case for
terminal dispatch.

As will be seen, we believe Coward presents that case.

A. The Statute

The statute under which Coward was indicted and convicted
provides, in relevant part:

(g) It shall be unlawful for any person -

(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year;

* * *

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. section 922(g)(1). As noted earlier, the specific part
of this statute which proved to be the offense of conviction
charged that Coward on September 23, 1998 "knowingly possessed in
and affecting commerce" the Smith & Wesson semi-automatic weapon
and ammunition in it.

Reading the statute, it is apparent that it creates three
crimes for convicted felons: (1) "to ship or transport in
interstate or foreign commerce . . . any firearm or ammunition";
(2) "to . . . possess in or affecting commerce, any firearm or
ammunition"; and (3) "or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce."
It will be immediately observed that the crimes of (1) shipping or
transporting, and (3) receiving any firearm or ammunition "in
interstate or foreign commerce" is a crime. Oddly, Congress did
not use the locution "in interstate or foreign commerce", when it
came to criminalize possession, but merely referred to "in or
affecting commerce".

The ordinary dictionary definition of the verb possess is
"[t]o hold as property; to have belonging to one, as wealth or
material objects". XII The Oxford English Dictionary 171, def. 2.a
(2d ed. 1989). As the OED itself notes, the law uses this verb "as
distinct from ownership", id. at def. 2.b.

With respect to the word commerce, it would seem rather clear
that it is implied after "in" as it is explicitly used after
"affecting". This reading stems from the well-established
difference between "in commerce" and "affecting commerce".
The
term "in commerce" is limited to denote "only persons or activities
within the flow of interstate commerce -- the practical, economic
continuity in the generation of goods and services for interstate
markets and their transport and distribution to the consumer."
Gulf Oil Corp. v. Capp Paving Co., 419 U.S. 186, 195, 95 S.Ct. 392,
398 (1974) (construing Clayton Act section 7). As Jones v. United
States, supra, noted, there is a "recognized distinction between
legislation limited to activities 'in commerce' and legislation
invoking Congress' full power over activity substantially
'affecting . . . commerce.'" 120 S.Ct. at 1911. That is to say,
"affecting commerce" invokes Congress's power under the Commerce
Clause, "Commerce with foreign Nations, and among the several
States, and with the Indian Tribes", Art. I, section 8, cl. 3, and
thus the locution "affecting commerce" means that "Congress
intended to and did vest . . . the fullest jurisdictional breadth
constitutionally permissible under the Commerce Clause." NLRB v.
Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313
(1963)(citations omitted). See also Russell v. United States, 471
U.S. 858, 859, 105 S.Ct. 2455, 2456 (1985)("affecting interstate or
foreign commerce" in 18 U.S.C. section 844(i) "expresses an intent
by Congress to exercise its full power under the Commerce
Clause.").

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. 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.

Our task of parsing through this paradox within this statute
is not made any easier by reference to its punctuation. After the
disjunctive "or", the statute offers as a complete crime the words,
"possess in or affecting commerce, any firearm or ammunition". The
statute then closes those words not with a comma, but with a
semicolon. The use of the semicolon, rather than a comma, suggests
the end of a clause or a completed thought, rather than a pause in
an enumeration of related ideas. See, e.g., Wm. Strunk Jr. and
E.B. White, The Elements of Style 5-6 (3d ed. 1979)("clauses
grammatically complete" joined by semicolons, not commas); H.W.
Fowler, A Dictionary of Modern English Usage 587-89 (2d ed. 1965)
(contrasting commas and semicolons). But it is very difficult to
discern how this punctuation helps our understanding of "possess"
or of the differences among the three crimes section 922(g)(1)
imposes on convicted felons with differing word formulae.

B. Judicial Construction of Gun Possession Statutes

At the time the Supreme Court established what remains the
governing jurisprudence on federalization of gun possession, the
statute, then codified at 18 U.S.C. section 1202(a) [footnote 2],
was phrased differently. [footnote 3] As then-Chief Judge Sloviter
has noted, this "predecessor statute to section 922(g)(1)[] . . .
made any felon 'who receives, possesses, or transports in commerce
or affecting commerce . . . any firearm' guilty of a federal
offense." See United States v. Gateward, 84 F.3d 670, 671 (3d Cir.
1996). The use of commas implied an enumeration of related ideas,
all modified by the same words, "in commerce or affecting
commerce". And this is precisely how the Supreme Court construed
the three offenses when it interpreted this predecessor statute.

United States v. Bass, 404 U.S. 336, 92 S.Ct. 515 (1971)
construed the former 18 U.S.C. section 1202(a) against a Government
contention that the statute "banned all possessions and receipts of
firearms by convicted felons, and that no connection with
interstate commerce had to be demonstrated in individual cases."
Id. at 338, 92 S.Ct. at 517. In rejecting the Government's
expansive reading, the Court held that "the commerce requirement in
section 1202(a) must be read as part of the 'possesses' and
'receives' offenses" and that "[a]bsent a clearer statement of
intention from Congress than is present here, we do not interpret
section 1202(a) to reach the 'mere possession' of firearms" because
"[a]bsent proof of some interstate commerce nexus in each case,
section 1202(a) dramatically intrudes upon traditional state
criminal jurisdiction." Id. at 350, 92 S.Ct. at 524.

Six years later, the Court construed Bass in Scarborough v.
United States, 431 U.S. 563, 97 S.Ct. 1963 (1977). After reviewing
section 1202(a)'s legislative history, the Court, purely as a
matter of statutory construction, held that in order to convict a
felon under the statute, the Government only had to prove that "the
firearm possessed by the convicted felon traveled at some time in
interstate commerce." 431 U.S. at 568, 97 S.Ct. at 1966.

Scarborough may fairly be read to establish the legal fiction
that has prevailed in these cases since it was announced. This is
so even under the present section 922(g)(1). See Gateward, supra.
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. 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 Lopez's
foundation. Before considering the dimensions of this structure,
we briefly pause to review the traditional understanding of
fictions in our law. [footnote 4]

C. Legal Fictions in Anglo-American Experience

Though it is a large subject, there are, historically
speaking, a few noncontroversial aspects of legal fictions that are
pertinent to our current inquiry.

As Professor Lon Fuller long ago observed, "a fiction is
distinguished from a lie by the fact that it is not intended to
deceive." Lon L. Fuller, "Legal Fictions", 25 Ill. L. Rev. 323,
367 (1930). Professor Fuller summarized the meaning of a fiction
as "either, (1) a statement propounded with a complete or partial
consciousness of its falsity, or (2) a false statement recognized
as having utility." Id. at 369.

John Chipman Gray recorded that fictions go back as far as the
time of Roman law, and came to play an important part in the
administration of law in England. Interestingly, and rather to the
point of Coward's case, Gray characterized fictions in England as
having a "bolder" and "more brutal" aspect as compared with
their
Roman antecedents, in that "[i]n England the plaintiff alleged a
fact which was false, and the courts did not allow the defendant to
contradict it." John Chipman Gray, Nature and Sources of the Law
32 (2d ed. 1921). Gray later cited an example that is relevant to
the Scarborough fiction:

The most grotesque of these fictions was that by which,
for the purpose of giving a remedy in England for a wrong done
in the Mediterranean, it was alleged that the Island of
Minorca was at London, in the parish of St. Mary Le Bow in the
Ward of Cheap. . . .

Id. at 34.

From the time of Blackstone, however, the "brutality" that
Gray observed was leavened by the liberality of certain maxims. As
Blackstone observed,

[T]hese fictions of law, though at first they may startle
the student, he will find upon further consideration to be
highly beneficial and useful; especially as this maxim is ever
invariably observed, that no fiction shall extend to work an
injury; its proper operation being to prevent a mischief, or
remedy an inconvenience, that might result from the general
rule of law. . . . So true it is, that in fictione juris
semper subsistit aequitas.

III William Blackstone, Commentaries on the Laws of England *43,
reproduced in William Draper Lewis ed. at 1056 (1897). The Latin
maxim that Sir William Blackstone quotes means, "in the fiction of
law there is always equity; a legal fiction is always consistent
with equity." Black's Law Dictionary 778 (6th ed. 1990).

It is difficult to reconcile these maxims of lenity and equity
with the harshness imposed under the Scarborough fiction.
[footnote 5] Indeed, the fiction's post-Scarborough application
rather fits the cynical definition of a fiction that Fuller
disapprovingly quotes, "a device for attaining desired legal
consequences or avoiding undesired legal consequences." Fuller at
531 (1931) (quoting Mitchell, "The Fictions of Law", 7 Harv. L.
Rev. 249, 253 (1893)). Harsh though the Scarborough fiction may
be, especially as measured against these ancient maxims, justices
have unquestioned power to impose such "brutal" fictions, albeit
within their view of the Constitution's limits.

D. The Status of the Scarborough Fiction Today

We now come to Lopez. As had been widely rehearsed, Lopez
held that the Gun-Free School Zones Act of 1990, 18 U.S.C. section
922(q)(1)(A), which made it a federal crime knowingly to possess a
firearm in a school zone, exceeded Congress's authority under the
Commerce Clause. See 514 U.S. at 551. The Court stressed that
Article I, section 8 of the Constitution gave Congress enumerated,
and therefore limited, powers, particularly as against the
antecedent powers of the states, and that an expansive construction
of the Commerce Clause would effectively read out those
limitations. The Court noted that section 922(q) 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." Id. at 561.

The Court in Lopez also observed that the legislative history
of section 922(q) did not contain "express Congressional findings
regarding the effects upon interstate commerce of gun possession in
a school zone", id. at 562. It also noted that the statute
contained "no express jurisdictional element which might limit its
reach to a discrete set of firearm possessions that additionally
have an explicit connection with or effect on interstate commerce."
Id.

The initial response in the Courts of Appeals to Lopez was
divided, as rather well exemplified in our own Court of Appeals's
decision in United States v. Bishop, 66 F.3d 569 (3d Cir. 1995),
which considered the constitutionality of the federal carjacking
statute and which was announced less than five months after Lopez
was decided. The majority, in an opinion by then-Judge Lewis,
stated that "despite protestations to the contrary, the winds have
not shifted that much." Id. at 590. By contrast, Judge Becker,
concurring in part and dissenting in part, at length concluded that
"Lopez is not just another Supreme Court case, but a watershed."
Id. at 603 (concurring and dissenting opinion). Time has surely
shown that Judge Becker's view was the more prescient.

A year after Lopez, however, our Court of Appeals had occasion
to consider its significance to section 922(g). In United States
v. Gateward, supra, the panel, in an opinion by then-Chief Judge
Sloviter, stated 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." 84 F.3d at 671. Chief Judge Sloviter
went on to write that:

The Lopez Court invalidated section 922(q) because "by
its terms [it] has nothing to do with 'commerce' or any sort
of economic enterprise, however broadly one might define those
terms," and because "section 922(q) contains no jurisdictional
element which would ensure, through case-by-case inquiry, that
the firearm possession in question affects interstate
commerce."

Id. at 671-72 (citation omitted). The Gateward panel, noting that
the gun in question "had moved in interstate commerce", applied the
Scarborough fiction to affirm the conviction.

At the barest minimum, the Supreme Court's Commerce Clause
jurisprudence in criminal cases since Lopez calls for a
reexamination of Gateward's brief analysis. [footnote 6] For
example, we now know 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 is in commercial reality involved. This is the
holding in United States v. Morrison, supra, which invalidated 42
U.S.C. section 13981, a statute that federalized "a crime of
violence committed because of gender or on the basis of gender, and
due, at least in part, to an animus based on the victim's gender."
42 U.S.C. section 13981(d)(1). For our purposes, Morrison's
understanding of Lopez is what is of greatest interest.

Although acknowledging Lopez's statement that "we have upheld
a wide variety of congressional Acts regulating intrastate economic
activity where we have concluded that the activity substantially
affected interstate commerce", Lopez, 514 U.S. at 559 (citing,
e.g., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942)),
Morrison stressed that:

. . . a fair reading of Lopez shows that the non-economic
criminal nature of the conduct at issue was central to our
decision in that case.

120 S.Ct. at 1750. Morrison further explained that:

Lopez's review of Commerce Clause case law demonstrates
that in those cases where we have sustained federal regulation
of intrastate activity based upon the activity's substantial
effects on interstate commerce, the activity in question has
been some sort of economic endeavor.

Id. Morrison concluded that "thus far in our Nation's history our
cases have upheld Commerce Clause regulation of intrastate activity
only where that activity is economic in nature." Id. at 1751.
Morrison thus read out the "costs of crime" and economic "effects"
that Congress was at pains to canvass in the extensive legislative
history of the Violence Against Women Act of 1994:

Given these findings and petitioners' arguments, 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. See Lopez, supra, at 564. The reasoning that
petitioners advance seeks to follow the but-for causal chain
from the initial occurrence of violent crime (the suppression
of which has always been the prime object of the States'
police power) to every attenuated effect upon interstate
commerce. If accepted, petitioners' reasoning would allow
Congress to regulate any crime as long as the nationwide,
aggregated impact of that crime has substantial effects on
employment, production, transit, or consumption.

Id. at 1752-53.

Having withdrawn these economic effects as a Commerce Clause
prop [footnote 7], Morrison 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.
That reed, however, had only one more week of life.

On May 22, 2000, seven days after Morrison was announced, the
Supreme Court rendered its decision in Jones v. United States,
supra. Jones construed 18 U.S.C. section 844(i), which explicitly
has a jurisdictional element within it. Specifically, that statute
makes it a federal crime 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." [footnote 8]

Dewey Jones on February 23, 1998 "tossed a Molotov cocktail
through a window into a home in Ft. Wayne, Indiana, owned and
occupied by his cousin." 120 S.Ct. at 1908. Jones was indicted
and convicted of this federal arson charge, and the Seventh Circuit
affirmed his conviction, 178 F.3d 479 (7th Cir. 1999). The Supreme
Court granted certiorari, 528 U.S. 1002, 120 S.Ct. 454 (1999), and
framed as the question presented:

Whether, in light of United States v. Lopez, 514 U.S. 549
(1995), and the interpretive rule that constitutionally
doubtful constructions should be avoided, see Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U.S. 568, 575 (1988), 18 U.S.C. section
844(i) applies to the arson of a private residence; and if so,
whether its application to the private residence in the
present case is constitutional.

120 S.Ct. at 1908-09 (some internal citations omitted).

In the Supreme Court, the Government argued that the Ft. Wayne
residence was indeed "used" in at least three activities "affecting
commerce": (1) the house was "collateral to obtain and secure a
mortgage from an Oklahoma lender"; (2) the homeowner insured the
residence with "a casualty insurance policy from a Wisconsin
insurer"; and (3) the dwelling received "natural gas from sources
outside Indiana". Id. at 1910. [footnote 9] Justice Ginsburg
responded with the observation that "[w]ere we to adopt the
Government's expansive interpretation of section 844(i), hardly a
building in the land would fall outside the federal statute's
domain." Id. at 1911. Importantly for our present analysis, and
particularly striking when one recalls that Justice Ginsburg was a
Lopez dissenter, she wrote for the Court:

Given the concerns brought to the fore in Lopez, it is
appropriate to avoid the constitutional question that would
arise were we to read section 844(i) to render the
"traditionally local criminal conduct" in which petitioner
Jones engaged "a matter for federal enforcement."

Id. at 1912. Ironically, the language Justice Ginsburg chose to
quote came from Bass, 404 U.S. at 350. Three sentences later, she
again quoted Bass when she wrote for the Court, "We have cautioned,
as well, that 'unless Congress conveys its purpose clearly, it will
not be deemed to have significantly changed the federal-state
balance' in the prosecution of crimes." Id. (quoting Bass, 404
U.S. at 349).

Thus, to avoid Lopez concerns, as well as to maintain "the
federal-state balance" as a matter of statutory construction,
[footnote 10] the Supreme Court held that the statute "covers only
property currently used in commerce or in an activity affecting
commerce." Id. at 1912. In so holding, 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.

For precisely the same reasons Jones enunciated, 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. Such a statutory
reconstruction also avoids Lopez-Morrison implications if it
applies only to guns and ammunition "currently used in commerce or
in an activity affecting commerce". In short, abandoning the
Scarborough fiction allows the present to be "current",
unencumbered by the past.

We therefore apply section 922(g)(1) to a possession case in
a way that we believe is faithful to Lopez and Morrison and allows
Jones to inform the possessory prong of the three crimes section
922(g)(1) creates. We do no more than this. [footnote 11]

On this record, Coward's possession of the gun 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.

We are mindful, however, of the Supreme Court's admonition in
Rodriguez De Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 109 S.Ct. 1917 (1989), where the Court cautioned:

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.

490 U.S. at 44 (emphasis added). See also United States v. Bishop,
66 F.3d 569, 595 n.13 (3d Cir. 1995)(opinion of Becker, J.). As
applied here, we must respect not only Scarborough, but also
Gateward and Rodia. We therefore will deny Coward's motion, in the
expectation of a reversal.

FOOTNOTES

1. In his renewed Rule 29 motion after the jury's verdict
(though not in his counsel's written version of it), Coward again
proffers his motion to suppress the gun, which we denied on January
4, 2001 and reconsidered and reaffirmed on March 5, 2001. On this
aspect of the motion, we merely repeat what we held on January 4 in
our Order amending the order denying the motion to suppress.
There, we stated that although the question is very close, for us
the scale tips in favor of sustaining the car stop that was the
antecedent of the gun's seizure. We did so because of the
long-standing distinction the Supreme Court has made for searches
and seizures of automobiles. As the Supreme Court put it in
Chambers v. Maroney, 399 U.S. 42, 48 (1970), "In terms of the
circumstances justifying a warrantless search, the Court has long
distinguished between an automobile and a home or office." As the
Supreme Court noted in Chambers, this distinction goes back to
Carroll v. United States, 267 U.S. 132 (1925) which recognized "a
necessary difference between a search of a store, dwelling house,
or other structure" and "a search of a ship, motor boat, wagon, or
automobile for contraband goods". Id. at 153. See also Brinegar
v. United States, 338 U.S. 160 (1949); Dyke v. Taylor Implement
Mfg. Co., 391 U.S. 216, 221 (1968) ("[a]utomobiles, because of
their mobility, may be searched without a warrant upon facts not
justifying a warrantless search of a residence or office.").

The presence of a car in this nighttime stop remains, for us,
decisive. The ultimate question in any Fourth Amendment inquiry
is, after all, the reasonableness of the search or seizure. Here,
there was nothing at all unreasonable in then-Sergeant Chitwood's
stop of the green Subaru whose license plate exactly matched that
given over police radio only moments before Sergeant Chitwood saw
the Subaru. Given the Subaru's mobility under these exigent
circumstances, even Coward's former counsel agreed in colloquy with
us that it would have been unreasonable to require Sergeant
Chitwood effectively to cross-examine police radio as to the basis
for the requested stop.

The question then becomes who has the burden of showing that
there was no reasonable suspicion behind the police radio request.
It seems to us that the Government, having prima facie shown the
reasonableness of Sergeant Chitwood's behavior, should not have to
shoulder the added burden of looking behind the request from police
radio. Since the defendant has as much access to this proof as the
Government, it seems to us not excessive to place the burden of
such proof upon the party claiming that the radio dispatch was
illegitimate. As there was not a scintilla of evidence in this
record regarding such illegitimacy, we will not infer it
retrospectively absent some basis for doing so.

We therefore again hold that the stop of the Subaru was, under
all circumstances, reasonable for Fourth Amendment purposes. As it
is undisputed that defendant's behavior, as Sergeant Chitwood saw
it (and we credit his testimony on this and all points) gave him
ample reasonable suspicion to inspect the passenger compartment of
the car for his own, and his partner's, protection, the seizure of
the semi-automatic 9 millimeter weapon, in plain view, was thus
unexceptional under the Fourth Amendment.

2. This statute came into federal law on June 19, 1968, Pub. L.
90-351, Title VII, sections 1201-1203, 82 Stat. 236. As then-Chief
Judge Sloviter explained in her canvass of federal firearms
legislation, "the first major federal statute to deal with
firearms" was the National Firearms Act of 1934, Pub. L. 474, 48
Stat. 1236, which, interestingly enough, "was enacted under the
taxing power." United States v. Rybar, 103 F.3d 273, 279 (3d Cir.
1996), cert. denied 520 U.S. 807 (1997).

3. The statute was amended and recodified on May 19, 1986 as part
of the Firearms Owners' Protection Act, Pub. L. 99-308, section
102(6)(d), 100 Stat. 449. It is not clear how this amendment
furthered the Congressional findings stated in section 1(b) which,
after mentioning certain protections of the Second, Fourth, Fifth,
Ninth, and Tenth Amendments, stated that those rights "require
additional legislation to correct existing firearms statutes and
enforcement policies".

4. In its Memorandum of Law, the Government notably does not
contest that Scarborough creates a legal fiction, but merely argues
that it "met that burden in this case" by showing historical
interstate movement, a point that no one disputes. See Gov't Mem.
of Law at 8.

5. Coward could well be forgiven if he choked a bit on reading
Blackstone's maxims.

6. As will be seen, the Government's contention that this
post-Gateward jurisprudence does not "work[] any fundamental change
on the law controlling this case", Gov't Mem. of Law at 11, is
unconvincing in view of the breadth of Morrison's dispatch of the
economic effect idea that had been previously thought in cases like
Gateward and Rybar to suffice as a Commerce Clause prop.

7. After Gateward, but before Morrison, a panel of our Court of
Appeals decided United States v. Rodia, 194 F.3d 465 (3d Cir.
1999), cert. denied 120 S.Ct. 2008 (2000). Rodia held that 18
U.S.C. section 2252(a)(4)(B), which imposes criminal liability on
anyone possessing child pornography that has itself traveled in
interstate commerce, nevertheless passed Commerce Clause muster.
The panel did so because "Congress rationally could have believed
that intrastate possession of pornography has substantial effects
on interstate commerce." Id. at 468; see also discussion of
Wickard and its progeny at 475-77. See also Rybar, 103 F.3d at 283
(analyzing and applying Wickard). Oddly, a post-Morrison panel of
our Court of Appeals in United States v. Galo, 239 F.3d 572 (3d
Cir. 2001) approvingly considered and applied Rodia, see id., 239
F.3d at 575-76, without any citation of Morrison's holding that
giving such an "attenuated effect" Commerce Clause efficacy "would
allow Congress to regulate any crime as long as the nationwide,
aggravated impact of that crime has substantial effects on
employment, production, transit, or consumption." Morrison, 120
S.Ct. at 1752-53.

8. It is true, as the Government points out, that section 922(g)
does not employ the verb use before the locution "in or affecting
commerce." See Gov't Mem. of Law at 13. In view of our
assumption, noted above, that Congress intended to assert its
maximal Commerce Clause power when it chose the "affecting
commerce" language, see, e.g., NLRB v. Reliance Fuel Oil Corp.,
cited and quoted supra at 7, the presence or absence of use is of
no moment to the Wickard-free analysis required after Morrison.

9. It is worth noting that in Rodia, discussed supra note 7, the
sole evidence of interstate movement was Polaroid film, not
manufactured in New Jersey (where the defendant was) and therefore
necessarily transported "via interstate commerce." 194 F.3d at
469.

10. Pertinent to section 922(g)(1), there is pervasive state law
proscribing felon gun possession, and indeed regulating gun
possession in general. See, e.g., 18 Pa. Cons. Stat. Ann. section
6105(a) (2000) (criminalizing felon gun possession). See also
Stephen P. Halbrook, Firearms Law Deskbook (West 1999)(collecting
state firearms-related statutes).

11. Our holding is thus considerably narrower than recent decisions
of Courts of Appeals to the effect that, even after Morrison and
Jones, section 922(g) "is properly within Congress's authority
under the Commerce Clause." See, e.g., United States v. Santiago,
238 F.3d 213, 217 (2d Cir. 2001). Under our analysis, we readily
agree that federalizing shipping, transporting, and receipt of
firearms are all well within that authority, and that federalizing
possession often can be. There remain possession cases, however,
like Coward's, where the Jones avoidance of a Scarborough-type
fiction also avoids a serious constitutional issue. We therefore
do not accept the Government's breathless in terrorem that our
narrow holding "would open the floodgates for innumerable 2255
motions." Gov't Mem. of Law at 14-15.