No. 95-3185 ____________________________________________________________ ____________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________________ UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAYMOND RYBAR, JR., Defendant-Appellant ___________________ ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ___________________ SUPPLEMENTAL BRIEF FOR THE APPELLANT ___________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 Of Counsel: VINCENT C. MUROVICH, JR. Murovich & Stump 100 Smithfield Street, Suites 104-106 Pittsburgh, PA 15222 Telephone: (412) 281-7222 ____________________________________________________________ ____________________________________________________________ TABLE OF CONTENTS Page Table of Contents ................................... i Introduction ........................................ 1 Summary of Argument ................................. 2 Argument: This Court's decision in Bishop and Stokes does not determine or affect the disposition of this appeal ..... 3 The differing nature of the offenses ...... 3 The contrast in legislative "commerce" findings .................. 4 The existence vel non of interstate commerce aspects .......... 6 The non-existent legislative history of section 922(o) .................. 9 "Regulation" by abolition ................. 13 Developments since Lopez ............................ 13 Conclusion .......................................... 20 Certificate of Service .............................. 21 CITATIONS Cases: Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed.2d 772 (1937) ..................... 15 Sonzinsky v. United States, 86 F.2d 486 (7th Cir. 1936) ............... 16 United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994) ........................... 4 United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ....... 14-15 United States v. Bishop and Stokes, 1995 WL 52791 (3d Cir. 9/7/95) ............ passim United States v. Bownds, 860 F.Supp 336 (S.D. Miss. 1994) ..................... 20 United States v. Edwards, 115 S.Ct. 1819, 131 L.Ed.2d 741 (1995) .............. 16, 20 United States v. Edwards, 13 F.3d 291 (9th Cir. 1993)............................ 16 United States v. Edwards, 55 F.3d 428 (9th Cir. 1995) ........................... 16, 17 United States v. Evans, 928 F.2d 858 (9th Cir. 1991) ........................... 17, 18 United States v. Evans, 712 F.Supp. 1435 (Mont. 1990) ......................... 18 United States v. Hale, 978 F.2d 1016 (8th Cir. 1992) ........................... 19 United States v. Hunter, 843 F.Supp. 235 (E.D. Mich. 1994) ............. 19, 20 United States v. Lopez, 115 S.Ct. 1624 (1995) ................................... passim United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993) ........................... 10 United States v. Pappadopoulos, 64 USLW 2136, 1995, U.S. App LEXIS 24121 (No. 93-10577) ............ 17 United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995) .......................... 18 Statutes: Title 18, United States Code: Sec. 844(i) ............................... 17 Gun Control Act of 1968 ................... 8, 9, 18 Firearm Owners' Protection Act of 1986 .... 5 Sec. 102(9) ............................. 9 Gun-Free School Zones Act of 1990 ......... 7 Sec. 922(g) ............................... 14 Sec. 922(o) ............................... passim Sec. 922(q) ............................... passim Sec. 924(c)(1) ............................ 5 Sec. 930................................... 8 Anti-Car Theft Act of 1992 ................ 4 Sec. 2119 ................................. passim Appendix, section 1202(a) ....................... 14 Internal Revenue Code of 1986 (26 U.S.C.): National Firearms Act of 1934 ............. passim Miscellaneous: United States Constitution: Article I, section 8, cl. 1 ..................... passim Amendment II .............................. 12, 16 Amendment X ............................... passim Senate Report No. 97-476, Federal Firearms Owners Protection Act: Report of the Committee on the Judiciary to Accompany S. 1030 (97th Cong., 2d Sess.; June 18, 1982) ..... 10 Senate Report No. 98-583, Federal Firearms Owners Protection Act: Report of the Committee on the Judiciary to Accompany S. 914 (98th Cong., 2d Sess.; August 8, 1984) ..... 10 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-3185 ___________________ UNITED STATES OF AMERICA, Plaintiff-Appellee v. RAYMOND RYBAR, JR., Defendant-Appellant ___________________ ON APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ___________________ SUPPLEMENTAL BRIEF FOR THE APPELLANT ___________________ INTRODUCTION At oral argument of this matter on September 13, 1995, the Court requested the parties to submit supplemental briefs addressing the effect, if any, on this case of the decision by a different panel of the Court just a few days earlier in United States v. Bishop and Stokes, F.3d , 1995 WL 52791 (Nos. 94-5321 and 94-5387; filed 9/7/95). In those cases, consolidated for appeal, the Court (Circuit Judges Lewis and Garth) upheld the constitutionality of the federal "carjacking" statute, 18 U.S.C. section 2119, in the aftermath of the Supreme Court's recent decision in United States v. Lopez, 115 S.Ct. 1624 (1995). Circuit Judge Becker dissented in Bishop, contending that the carjacking statute suffered the same Tenth Amendment infirmities found by the Lopez Court to afflict the federal Gun-Free School Zones Act. SUMMARY OF ARGUMENT The Bishop case does not govern, or affect, the disposition of this case. By the majority's analysis, automobiles are both instrumentalities of commerce and substantially affect commerce. The Commerce Clause validity of the carjacking statute is also evidenced by the specific case-by-case jurisdictional element requiring that any hijacked automobile have moved in interstate or foreign commerce before federal jurisdiction vests. None of these elements is present in the mere possession of machineguns, proscribed by the statute here. Even if section 922(o) contained a case-by-case jurisdictional element, that would not supplant the requirement for congressional findings, or, lacking those, a judicially ascertainable effect on commerce by the mere possession of a machinegun. It also would not preserve this indictment nor be provable against this defendant. Section 922(o) is a greater distance from the purview of Commerce Clause authority than was the statute in United States v. Lopez and is therefore even more clearly barred by the Tenth Amendment. ARGUMENT This Court's decision in Bishop and Stokes does not determine or affect the disposition of this appeal. After close analysis of this Court's recent decision in Bishop and Stokes, the inescapable conclusion is that the decision bears little relation to the issue in this case and does not determine this case's outcome. The two statutes are legally, conceptually and structurally different in a number of important respects. Any similarities between the two statutes would appear to be immaterial to the decision of this case. The differing nature of the offenses. Carjacking is inherently criminal -- malum in se -- combining as it usually does the elements of several common crimes: assault, larceny, robbery, battery, brandishing a weapon, and sometimes impersonation, false pretense, false arrest, kidnapping, rape, maiming or murder. Possession of a firearm, on the other hand, is not normally or intrinsically criminal, nor inherently wrong or "bad." The illegal possession of any firearm is purely a malum prohibitum offense, criminalizing some aspect of what is otherwise a peaceful, traditional, everyday occurrence by a wide array of law-abiding citizens all over the country (including law enforcement officers, security personnel, the military, hunters, target shooters, store owners, and Joe Sixpack). See Circuit Judge Weiner's dissenting opinion in United States v. Ardoin, 19 F.3d 177 at 186, n.25 (5th Cir. 1994). Emphasizing the difference in these two offenses is the fact that a stolen automobile is contraband. It is both the instrumentality and fruit of a crime and title cannot be perfected by the hijacker or anyone to whom he conveys. Conversely, a machinegun is a legally neutral object and not contraband per se, the government's feigned horror to the contrary notwithstanding.[FN1] Its mere possession, absent legislative fiat, is equally neutral. There was no machinegun or firearms counterpart at common law of the subsumed crimes in car hijacking. And there is also no provision of the Bill of Rights protecting the right to hijack. The contrast in legislative "commerce" findings. The Anti-Car Theft Act of 1992, of which the carjacking statute is a part, was the subject of in-depth and detailed congressional analysis of the economic, financial and commercial implications of car theft. Bishop, slip opinion at 16-20. The possession of machineguns has received no such scrutiny since 1934 (when both the Congress and the Attorney General of the United States correctly acknowledged that there was no federal authority to ban the mere possession of such implements). See Appellant's opening brief at 20-21. There is, moreover, no congressional, public or empirical record of any effect on interstate or foreign commerce by the possession of machineguns. One can search the entire and extensive legislative history of the Firearms Owners' Protection Act of 1986 and find but a few fleeting references to "machineguns." These sparse references universally relate to either the possession of unregistered guns in violation of the National Firearms Act, or to the manufacture and sale of machineguns in the context of the regulated business of firearms dealing, or to the enhanced penalty for committing a violent crime with a machinegun which was added by to the Gun Control Act by FOPA. The United States in this case has been consistently unable to point to any factual record or findings to support its bald claim that possession of machineguns is some kind of economic/financial/commerial activity susceptible of federal regulation under the Commerce Clause. The lonely example proffered at oral argument was to a single sentence in a single congressional report conclusorily linking machineguns to drug trafficking. And that single and unsupported sentence comes from a report accompanying a bill which not only did not become law but was opposed to the act which did! See Appellant's reply brief at 2. Moreover, it should be remembered that FOPA did add a sentencing enhancement for narcotics crimes and crimes of violence committed with a machinegun. See 18 U.S.C. section 924(c)(1). The existence vel non of interstate commerce aspects. Regardless of one's preference for the majority or the dissenting view in Bishop, it is significant that carjacking involves, directly or indirectly, all three founts of Commerce Clause power: channels of commerce; instrumentalities of commerce; and matters "substantially affecting" commerce. The automobile itself is inextricably linked to all three founts of Commerce Clause authority. Cars are principal users of and reasons for major channels of commerce: the highway system, bridges, tunnels, ferries, etc. They move to the market through international and interstate maritime shipping, air transport, railroads, and trucking. They consume large quantities of raw materials and fuel which are the subject of world-wide exploration, mining, drilling, construction, fabrication, import, export, sales, advertising, marketing, and financing, all directly involving the channels of interstate and foreign commerce. Indeed, automobiles are the subject of an ongoing and intense international trade war as this is written. Just as clearly, the mere possession of a firearm (even a machinegun) does not involve any of the three founts. We know this because the Lopez decision tells us so. There can be no credible argument that the result in Lopez would have been different had Lopez's firearm been a machinegun rather than a revolver. There is no suggestion that the result would have been different had the Gun-Free School Zones Act been, instead, the Machinegun-Free School Zones Act. Simple possession of any non-contraband object is neither "commercial" nor "a transaction." It is just a fact devoid of any juridical content. Firearms are not heroin or counterfeit bills or fraudulent documents or crack cocaine. It is true that section 922(o) also proscribes the transfer of a machinegun. But the indictment here does not charge a transfer; it charges possession. Moreover, although the word "transfer" can have commercial implications, it has many non-commercial connotations as well -- as when this brief is "transferred" from the Clerk of the Court to the members of the panel. None of these facts exist with respect to the bare possession of machineguns. Certainly none is true of the two machineguns here, built in Pennsylvania by a Pennsylvania citizen, possessed by him only in Pennsylvania, and sold by him in Pennsylvania to a Pennsylvania collector. For all that is known, the iron ore in the two guns was mined in Pennsylvania, converted into steel in a Pittsburgh mill using Pennsylvania coke, and processed in Pennsylvania with machine tools constructed solely in Pennsylvania. The only interstate aspect to this case is that defense counsel and possibly one member of the panel reside outside Pennsylvania! Automobiles, in addition to heavily implicating the channels of commerce, are themselves instrumentalities of commerce, at least according to the majority in Bishop. They move freely and frequently in interstate commerce and transport goods and persons in interstate commerce. There is no such aspect to the bare possession of a machinegun. A principal dispute between the majority and the dissent in Bishop revolves around the issue of whether the "jurisdictional element" of the carjacking statute[FN2] is sufficient to bring it within Congress' Commerce Clause power under the third rubric of "substantially affecting commerce." That issue is simply not present in this case because section 922(o) contains no jurisdictional element that the firearm (or the possessor) have moved interstate, or otherwise have affected commerce. It bears emphasizing that almost all the scores of offenses proscribed by the Gun Control Act of 1968, 18 U.S.C. sections 921-930, are either explicitly tied to the licensing and record-keeping (i.e., regulatory) provisions of the act, or contain an explicit interstate element. The three conspicuous exceptions are sections 922(o), 922(q) and 930. Section 930 is an exercise of Congress' constitutional (and unchallenged) authority to control federal property. Section 922(q) is unconstitutional because it is based solely on an incorrect assertion of Commerce Clause power. Section 922(o) purports to be based on the same authority. Thus neither of the criteria posited by the majority in Bishop to support the constitutionality of section 2119 is present here. Rather, both criteria are conspicuously absent. Needless to say, if the logic of the Bishop dissent is used, any vestige of Commerce Clause validity of section 922(o) disappears entirely. The non-existent legislative history of section 922(o). Section 922(o) is a "sport" or aberration, a last-minute amendment by an opponent of FOPA, with no committee or staff consideration, no findings to support it, and no reasoned evaluation through the normal legislative process. We know this both because of an eyewitness account of its birth (Appellant's opening brief at 10), and because the two committee reports on the bill which did become law contain some revealing comments by Senator Dole. One of the initial drafts of FOPA contemplated amendments to the National Firearms Act involving, among other things, a proposed new amnesty period for registration of illegally possessed machineguns. Senator Dole noted that the Gun Control Act of 1968, to which FOPA was to be an amendment, had amended the 1934 NFA and reenacted it as Title II of the GCA, after consultation in 1968 between the Senate Judiciary Committee and Finance Committee. This was necessary because the NFA is a tax statute under the jurisdiction of the Finance Committee: "The 1968 amendments to the National Act were processed with the concurrence of the Committee on Finance, which, of course, has jurisdiction over the Internal Revenue Code." Senate Report No. 97-476, Federal Firearms Owners Protection Act: Report of the Committee on the Judiciary to Accompany S. 1030 at 48 (97th Cong., 2d Sess.; June 18, 1982). The same remarks were repeated two years later in Senate Report No. 98-583, Federal Firearms Owners Protection Act: Report of the Committee on the Judiciary to Accompany S. 914 at 36 (98th Cong., 2d Sess.; August 8, 1984). When Representative Hughes pulled his "bait and switch" maneuver in offering section 922(o) at the last second on the floor of the House of Representatives in May 1986, he (probably unintentionally) caused the nullification or repeal by implication of a federal tax statute -- obviously without consultation with or consideration by the Senate Finance Committee or the House Ways and Means Committee, the two committees with jurisdiction over federal tax legislation. This is not offered by way of belittling the statute or its author, but of demonstrating the means whereby an unconstitutional statute gets enacted in the first place. Courts properly indulge a presumption of constitutionality in reviewing the legislative product of a coordinate branch of the government. That presumption may not be so strong or so warranted -- and certainly should not be -- where a statute is the product of a manifestly shoddy or ill-conceived legislative short-cut. The special characteristics of machineguns. The Court of Appeals for the Fifth Circuit in its Lopez opinion raised in a dictum the possibility that the dangerousness of machineguns might be a differentiating factor between section 922(q) and section 922(o), noting that otherwise section 922(o) suffered from the same constitutional flaws it found to be fatal to section 922(q). See United States v. Lopez, 2 F.3d 1342 at 1356 (5th Cir. 1993). A member of the panel raised the same question at oral argument in this case. The question appears to have been answered by the majority in Bishop: "The dangerousness of the object is not the source of Congressional power; the connection to interstate commerce is. See generally Lopez, passim." Slip opinion at 35, n.28. That would seem to be a sensible distinction since there is no "high-hazard" exception found in or engrafted onto the Tenth Amendment and an item or event having no discernible effect on commerce would not appear to acquire one by virtue of being or becoming dangerous. Indeed, the most egregious and violent crimes (and therefore the most "dangerous") are commonly those reserved to the police power of the state and not commonly understood to be the subject of federal legislation.[FN3] The Court's request for supplemental briefs here in light of Bishop and its differing views of the effect of Lopez on Commerce Clause jurisprudence suggests that this case might fall somewhere between those two cases. We respectfully suggest that this case does not fall anywhere between Bishop and Lopez. Spatially, this case is located somewhere in the Bill of Rights between the Second and Tenth Amendments, and well aft of clause 3 of section 8 of Article I of the Constitution. This case is easier to bring within the ambit of the Tenth Amendment than was Lopez. It is almost an a fortiori proposition. Schools and education affect every facet of life, commercial, financial, economic, and otherwise. The record of this truism in Lopez was complete and unequivocal. But it was not enough to preserve section 922(q). By contrast, the record is silent here, and before Congress, as to any financial, economic or commercial effects of the mere possession of a machinegun. And common sense suggests there are none. Two million members of the armed forces possess machineguns all day, everyday, without any visible effect on commerce. The same is true of probably another two million law enforcement officers and another half million museum keepers and arms collectors.[FN4] The geometric relationship between Lopez, Bishop and this case, and their relative positions between the tensions of the Commerce Clause and the Tenth Amendment, can be graphically illustrated as follows: Commerce Clause Power | 10th Amendment Reservation | Channels |Instrumen| Substant.| |-talities| effect | _________|_________|__________|_____________________________ ^ | ^ ^ Bishop | Lopez Rybar If Rybar had possessed his firearms in a school yard -- in Pennsylvania or elsewhere -- he would not now be chargeable under section 922(q). It defies logic and common sense that his possession of them at a Pennsylvania gun show somehow has greater commercial, financial or economic implications than possessing them in a school yard. In short, section 922(o) is farther removed from the ambit of the Commerce Clause, and more clearly within the limitations of the Tenth Amendment, than the unconstitutional section 922(q). "Regulation" by abolition. The government made the stunning assertion at oral argument that Congress can ban anything it can permissibly regulate under the Commerce Clause, including, as an extreme example, eggs. This contention is not only contrary to logic and common sense, but is contradicted by a number of the Supreme Court's decisions. Manifestly Congress can regulate firearms, including the one possessed by Alphonso Lopez. But, it could not ban possession in a Texas school yard. This same theme is found in other cases. In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), the Court was forced to reject the government's expansive reading of a firearms statute[FN5] in order to avoid reaching the constitutionality of the act under the Commerce Clause. The question the Court ducked is the very one presented in this case: In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the "mere possession" of firearms; thus we need not consider the relevance, in that connection, of our recent decision in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Bass, 404 U.S. at 339, n.4. The Court went on in Bass to discuss its constitutional concerns at greater length: There is a second principle supporting today's result: unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. This congressional policy is rooted in the same concepts of American federalism that have provided the basis for judge-made doctrines. See, e.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). As this Court emphasized only last term in Rewis v. United States, supra [401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971)], we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the Travel Act. To do so, we said then, "would alter sensitive federal-state relationships [and] could overextend limited federal police resources." While we noted there that "[i]t is not for us to weigh the merits of these factors," we went on to conclude that "the fact that they are not even discussed in the legislative history ... strongly suggests that Congress did not intend that [the statute have the broad reach]." 401 U.S., at 812, 91 S.Ct., at 1059. In the instant case, the broad construction urged by the Government renders traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources. Absent proof of some interstate commerce nexus in each case, section 1202(a) dramatically intrudes upon traditional state criminal jurisdiction. As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal-state balance in the way now claimed by the Government. Absent 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. 404 U.S. at 349-350 (footnotes omitted). The Bass position is consistent with the Court's earlier decision in Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed.2d 772 (1937), a National Firearms Act prosecution in which the defendant raised a Tenth Amendment defense against the NFA as a prohibition in the guise of a tax. The Court found a valid tax purpose in the NFA and upheld the statute. But necessarily implicit in the decision is the proposition that Congress cannot ban the mere possession of firearms. The same logic inheres in the Court of Appeals decision in Sonzinsky. See 86 F.2d 486 (7th Cir. 1936). If this Court believes that Congress can "regulate" by prohibition, then it will have to directly meet and deal with the plain language of the Second Amendment. DEVELOPMENTS SINCE LOPEZ Since the Supreme Court's decision in Lopez, on April 26, 1995, several significant events have occurred which could affect the Court's treatment of this case. First, the United States Court of Appeals for the Ninth Circuit has ruled in United States v. Edwards, 55 F.3d 428 (9th Cir. 1995), that Lopez not only rendered 18 U.S.C. section 922(q) unconstitutional, but also section 922(o). Edwards was a school-zone conviction which had earlier upheld the constitutionality of section 922(q). 13 F.3d 291 (9th Cir. 1993). Certiorari was granted during the pendency of Lopez and the case was held in abeyance. After the Lopez decision, the Supreme Court vacated Edwards and remanded for further consideration in light of Lopez. 115 S.Ct. 1819, 131 L.Ed.2d 741 (1995). The Court of Appeals could have simply reversed Edwards and dismissed it in light of the decision of Lopez, which was squarely controlling. Instead, the Court of Appeals noted that it had upheld Edwards based upon the law of the circuit enunciated in United States v. Evans, 928 F.2d 858 (9th Cir. 1991), a section 922(o) machinegun case. The Circuit therefore correctly concluded that Lopez had abrogated section 922(o) as well as section 922(q) and reversed the conviction on that ground. 55 F.3d 428 (9th Cir. 1995). This was consistent with the Supreme Court majority's rejection of the Ninth Circuit's reasoning in Evans in a dictum in Lopez. Lopez majority opinion, slip opinion at 15-16. An additional development in the Ninth Circuit involves the reversal, on August 25, 1995, of an arson conviction in United States v. Pappadopoulos, F.3d , 64 USLW 2136, 1995 U.S. App LEXIS 24121 (No. 93-10577). The defendant was convicted of violating 18 U.S.C. section 844(i) by torching his own private residence. That statute provides: Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned.... The sole proof of the interstate commerce jurisdictional element was proof that the residence received natural gas from Pacific Gas & Electric, which in turn received the gas from out-of-state sources. Relying on the Supreme Court's decision in Lopez, the court held than the conviction could not pass muster under the Commerce Clause. Second, the United States Court of Appeals for the Tenth Circuit has now upheld the constitutionality of section 922(o) despite Lopez. United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995). The July 7 decision in Wilks is flawed in several respects. It first acknowledges that section 922(o) has no legislative history, then "borrows" one from the earlier statutory scheme (the 1968 Gun Control Act) into which section 922(o) (and the unconstitutional section 922(q)) were inserted many years later. In misapplying this "borrowed" (i.e., manufactured) legislative history to machineguns, the court failed to understand that pre-1968 Congressional findings concerning any havoc wreaked by firearms in general had -- thanks to the National Firearms Act of 1934 -- absolutely no applicability to machineguns.[FN6] An additional fallacy in the Wilks decision is the Court's failure to discern the difference between regulation and prohibition. Most importantly, the Wilks decision also relies on now-discredited and rejected jurisprudence. It rests its decision on three other cases, all of which suffer terminal deficiencies in the light of Lopez. First, the court quotes with approval from the district court decision in Evans (712 F.Supp. 1435), even though noting in footnote 5 of its opinion that the Supreme Court had expressly rejected the Ninth Circuit's affirmance of Evans and that "[t]herefore we do not consider it." Secondly, it quotes with approval from United States v. Hunter, 843 F.Supp. 235 (E.D. Mich. 1994) (two cases), even though, as demonstrated below, that decision has now been implicitly repudiated by both the government and the court which rendered it. And the court of appeals relies on United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), a pre-Lopez decision which itself relied on the legislative history of a bill which did not become law (the same report the government has relied on here as its sole example of a congressional "finding" to support a valid exercise of Commerce Clause authority in enacting section 922(o)). The third significant event following the decision in Lopez is the government's dismissal on June 27, 1995, of two related cases in Detroit, United States v. Hunter, et al., Criminal No. 92-80769 (USDC E.D. Mich.) (conspiracy to violate section 922(o), substantive violation of section 922(o), and false statement), and United States v. Hunter, et al., Criminal No. 92-80770 (USDC E.D. Mich.) (same charges plus licensing violations). The government's motion filed in Detroit conceded that the Detroit cases should be dismissed because "the government believes that due to certain developments within the case [sic] and with recent court decisions, it is in the best interests of justice to move for a dismissal of the above captioned matter [sic]."[FN7] The reference to "recent court decisions" is a reference to the Lopez decision. Both cases in Detroit involved charges under section 922(o), and there were no "developments," recent or otherwise, in one of the two cases dismissed. The government and the district court in Detroit have tacitly acknowledged what the Mississippi District Court in United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994), appeal pending, and the Ninth Circuit in Edwards have ruled explicitly, and what we ask this Court to find: Lopez is dispositive of the unconstitutionality of section 922(o). CONCLUSION For the reasons discussed above, the decision of the district court of January 9, 1995, refusing to dismiss counts one and three of the indictment, and the judgment of conviction entered thereon on March 31, 1995, were erroneous and should be reversed and the indictment ordered dismissed. Respectfully submitted, ______________________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 Of Counsel: VINCENT C. MUROVICH, JR. Murovich & Stump 100 Smithfield Street, Suites 104-106 Pittsburgh, PA 15222 Telephone: (412) 281-7222 CERTIFICATE OF SERVICE It is hereby certified that service of this supplemental brief has been made upon counsel for the appellee by mailing, Post Office Express prepaid, two true copies thereof on October 2, 1995, to Mary Beth Buchanan, Esquire, Assistant United States Attorney, 633 United States Post Office & Courthouse, 7th Avenue and Grant Street, Pittsburgh, Pennsylvania 15219. ______________________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 Counsel for Appellant FOOTNOTES [FN1]. "Feigned," because the United States government is the single biggest owner, consumer and user of machineguns in the world. At various times it has also been the world's largest manufacturer. [FN2]. "Whoever ... takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce...." 18 U.S.C. section 2119. [FN3]. Congress in its occasional zeal to be perceived as fighting crime by federalizing purely local offenses often forgets that the entire Federal Bureau of Investigation is less than one-third the size of the New York City Police Department and that the entire federal judiciary could not even begin to man (or woman) the courts of Los Angeles County. [FN4]. What these persons occasionally do while possessing machineguns or other firearms can have a dramatic effect on commerce, but it is their presence and their acts and not their equipage which affect commerce. The armed forces, for example, keep open and protect the channels of foreign commerce. Customs and immigration officials control the borders. The Coast Guard polices national and international waterways. But they all did these things before the advent of fully automatic firearms, the possession of which has no more relation to commerce than the clothing they wear. [FN5]. 18 U.S.C., Appendix, section 1202(a), prohibiting receipt, possession or transport of firearms "in commerce or affecting commerce" by five categories of individuals. The statute was subsequently repealed and its prohibitions incorporated into Section 922(g) of Title 18. [FN6]. The government has consistently been unable to point to any crimes of violence committed with registered NFA firearms, a regulatory statute which worked exactly as originally intended. And there is no legislative history or finding of any illegal machinegun market. [FN7]. Undersigned counsel was also counsel in the Detroit cases.