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 ___________________ APPELLANT'S PETITION FOR REHEARING WITH SUGGESTION OF REHEARING IN BANC ___________________ STATEMENT OF COUNSEL Undersigned counsel expresses the belief, based on a reasoned and studied professional judgment, that the panel decision in this case is contrary to the decision of the United States Supreme Court in United States v. Lopez, 514 U.S. , 115 S.Ct. 1624 (1995), and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this Court. Counsel is further of the judgment that the appeal involves a question of exceptional importance, that is, the limitations, if any, of the Commerce Clause authority granted to the Congress under the Constitution of the United States. ISSUE Whether Congress has the power under the Commerce Clause of the Constitution to criminalize the bare possession of machineguns. PETITION FOR REHEARING Appellant Raymond Rybar was convicted, upon his conditional plea of guilty, of possessing two machineguns at a gun show in Monroeville, Pennsylvania, on April 4 and 5, 1992, in violation of 18 U.S.C.  922(o). There was no allegation in the indictment (or otherwise), and no evidence, that the machineguns ever travelled in interstate commerce, or in any other factual or specific way "affected" commerce. Nor did the indictment charge an illegal transfer of the machineguns under the alternative provision of  922(o). Thus the only surviving charges against Rybar (and before this Court) are ones of mere possession of a prohibited firearm. At the time of the offense Rybar was a federally-licensed firearms dealer authorized by law to possess and deal in firearms. He was also a "Special Occupational Taxpayer" under the National Firearms Act of 1934 (26 U.S.C.  5801-5872), legally authorized to not only possess legally registered machineguns, but to manufacture and sell them. The machineguns here were not registered with the United States under 26 U.S.C.  5841, because, following the enactment of 18 U.S.C.  922(o), the Bureau of Alcohol, Tobacco and Firearms has refused to accept such registrations. See Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990), rehearing and rehearing en banc denied, 914 F.2d 1498 (11th Cir. 1990) (Table); United States v. Ardoin, 19 F.3d 177 (5th Cir. 1994); United States v. Tepper, 793 F.Supp. 270 (Colo. 1992). The majority opinion of the panel in this appeal (Exhibit 2, infra) has incorrectly borrowed a legislative history from much earlier firearms legislation to support the alleged interstate commerce basis for 18 U.S.C.  922(o) -- "findings of fact" which were, in fact, never found by Congress, "findings" which would not give a constitutionally adequate support for the statute here, and "findings" which are empirically non-existent. The result is that the majority opinion has sustained the constitutionality of a statute which flies directly in the face of the principles enunciated in United States v. Lopez, 514 U.S. , 115 S.Ct. 1624 (1995). To bolster its decision the panel majority also invokes questionable precedents of six sister circuits and reaches outside the record to infer supporting "facts" which, had the question been raised by either of the parties or the court below, would have been contrary to the Court's inference and favorable to the appellant. The majority opinion has strained mightily to create a legislative history for  922(o), which would evidence a congressional finding of machinegun impact on interstate commerce (one which the government itself did not even attempt to offer in its submissions). The Court sets forth three contemporaneous but fleeting remarks in the legislative record (slip op. 15) which are neither factual nor "findings." If offered in evidence in a judicial proceeding they would be summarily rejected as conclusory, and as foundationless opinion. Tacitly acknowledging this shortcoming, the Court then seeks support in the legislative histories of firearms statutes enacted two and five decades earlier than  922(o). (Slip op. 11-13). The flaws in this approach by the majority are that (1) the earlier statutes are clearly (and extremely) non-contemporaneous, (2) regulatory or tax statutes (3) which directly address interstate commerce in firearms generally (or the registration and taxation of machineguns), (4) do not purport to be "regulation" by outright prohibition, and (5) do not contain any congressional findings pertaining specifically to machineguns which would legitimize their radically different Commerce Clause treatment from other firearms. The majority here positively stretches to reach the result the Supreme Court specifically refused to countenance in United States v. Bass, 404 U.S. 336 (1971): ... the legislative history provides scanty basis for concluding that Congress faced these serious questions [of state sovereignty and federalism] 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  1202(a) to reach the "mere possession" of firearms. Id. at 349-350. Almost a quarter of a century later the Supreme Court, speaking of the Gun Free School Zones Act in Lopez (a statute which is almost a conceptual mirror image of  922(o) in terms of Commerce Clause analysis) reiterated its Bass position: Second,  922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. For example, in United States v. Bass, 404 U.S. 336 (1971), the Court interpreted former 18 U.S.C.  1202(a), which made it a crime for a felon to "receiv[e], posses[s], or transpor[t] in commerce or affecting commerce ... any firearm." *** The Court interpreted the possession component of  1202(a) to require an additional nexus to interstate commerce both because the statute was ambiguous and because "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." *** The Bass Court set aside the conviction because although the Government had demonstrated that Bass had possessed a firearm, it had failed "to show the requisite nexus with interstate commerce." *** The Court thus interpreted the statute to reserve the constitutional question whether Congress could regulate, without more, the "mere possession" of firearms. *** Unlike the statute in Bass,  922(q) has 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. Lopez, 115 S.Ct. at (citations omitted). See also Bailey v. United States, 133 L.Ed.2d 472 (1995) where the Court interpreted a firearms statute to require something more than "mere possession" to constitute an actionable "use" of the firearm. As the Court of Appeals for the Sixth Circuit noted in United States v. Wall, 92 F.3d 1444 at para. 14 (1996) (speaking of and quoting from Lopez) "Section 922(q) represented a 'sharp break' with prior firearm regulation. The 'importation of previous [legislative] findings ... [would therefore be] especially inappropriate.' Lopez, 115 S.Ct. at 1632." Also quoted with approval in United States v. McKinney, 98 F.3d 974, 978 (7th Cir. 1996) ("Lopez instructs that the courts may not construct attenuated justifications for expanding further the authority of Congress under the Commerce Clause." Ibid.). Section 922(o) represents an equally sharp break with earlier firearms legislation, both conceptually and temporally, and it was especially inappropriate for the majority in this case to import previous legislative findings. The majority has also failed to parse the disjunctive "or" between the two discrete and separate offenses described by  922(o): "possess or transfer." Rather the majority reaches for irrelevant facts showing that Rybar sold the machineguns in question, received money for them, and "transferred" them to the purchaser. None of this was charged conduct and, we respectfully submit, none of it can properly be relied upon to convict him under a constitutionally defective prong of a statute creating two separate offenses. Whether Rybar could have been convicted under the transfer prong of  922(o) is problematic. The government, which had the sole authority to formulate charges, chose to charge the transfers under a different statute which the district court (and other courts) have declared unconstitutional. It rolled the dice and lost. To now attempt to sustain Rybar's conviction under an unconstitutional provision of a statute because he might have been convicted under another prong of the same statute is intellectually impermissible. Put another way, the fact that some offenses created by a statute are constitutionally within Congress' power will not save a prosecution under a constitutionally defective provision of that statute -- even where the conduct could also have been charged under the constitutional provision. Highlighting its logical error, the majority opinion states (slip op. 18) "... it is evident from  922(o) that possession and transfer of a machine gun is an economic activity...." With respect, the statutory offense is not "possession and transfer" (or even "transfer and possession"); it is "transfer or possess." One action may be economic activity; the other -- the one with which this defendant was charged in this case -- is manifestly not economic activity. Only by improperly conjoining two separate acts does the majority create an economic aspect to Rybar's mere possession of the firearms. The unfairness of this "logic" as applied to this case is further illustrated by the statement (slip op. 18) that "... we may infer, at least in most situations, that such possession follows an unlawful transfer...." As noted below, Rybar was a licensed manufacturer of machineguns. If any inference is available to the Court on this record, it is the inference that Rybar built the guns involved.[FN1] The panel majority also cites decisions by six other circuits which uphold the constitutionality of  922(o): United States v. Beuckelaere, 91 F.3d 781 (6th Cir. 1996); United States v. Kenney, 91 F.3d 884 (7th Cir. 1996); United States v. Rambo, 74 F.3d 948 (9th Cir. 1996), cert. denied, 117 S.Ct. 72 (1996); United States v. Kirk, 70 F.3d 791 (5th Cir. 1995); United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995); and United States v. Pearson, 8 F.3d 631 (8th Cir. 1993), cert. denied, 114 S.Ct. 2132 (1994). Superficially, this would seem to be an impressive array of precedent. Individually, however, the cases do not withstand close scrutiny, and, indeed, reveal what is, in fact, significant judicial disarray over the reach of Lopez and the Commerce Clause power of Congress. Pearson was decided well before Lopez and therefore adds nothing to the discussion here. Moreover, it relies on the Ninth Circuit decision in United States v. Evans, 928 F.2d 858 (1991), since repudiated by both the Supreme Court and the Ninth Circuit as discussed below. Kirk was not only the subject of a vigorous and insightful dissent, but has been granted rehearing en banc. United States v. Kirk, 78 F.3d 160 (5th Cir. 1996).[FN2] Appellate practitioners generally are prudent not to read substantive legal meaning into procedural rulings. However, it must be noted that a majority vote of the active judges of a circuit to rehear a panel decision en banc which upheld the constitutionality of a statute has somewhat more significance than would attach to an en banc decision to rehear a panel decision which overturned a statute. It must also be pointed out that the Fifth Circuit is the court of appeals which (correctly) invalidated the firearms statute in Lopez and which has more recently invalidated the Brady Handgun Violence Protection Act for Commerce Clause insufficiency. Koog v. United States, 79 F.3d 452 (1996) (two cases).[FN3] The Ninth Circuit's Rambo decision is a carelessly written and poorly reasoned decision which strongly suggests that the panel which decided it was mistaken when it found the case "suitable for decision without oral argument." 74 F.3d 948, fn. The reader can search the case (unsuccessfully) from front to rear to find what sort of machinegun was involved, the only reference to a firearm being to a "pistol" -- an item not normally known to be fully-automatic. One must also comb the case with a fine-toothed comb to eventually comprehend that Rambo was the victim of the burglary and not the burglar himself, and that (apparently) the prohibited weapon had been burglarized from his home. Substantively, the Rambo decision rests on a syllogism so flawed it would embarrass a first-year philosophy student. Not only is the major premise false; so is the minor premise. The Court states (74 F.3d at 952): "... there can be 'no unlawful possession under section 922(o) without an unlawful transfer'" (major premise) and "[r]egulating this category of possession, therefore, regulates commerce" (minor premise). Ergo, says the Court, regulating mere possession of a firearm regulates interstate commerce. One false premise invalidates a syllogism; two in a row raise disrespectful questions about the intellectual competence of the author. The major premise in Rambo (as well as in Kirk and Beuckelaere) is manifestly false, as the dissent here notes, because there are a number of situations whereby an illegal transfer does not precede and therefore "commercialize" bare possession of a machinegun. The minor premise is false because there are a number of ways a machinegun could be possessed following an illegal transfer which could have no conceivable effect on commerce -- as with the collector Thomas Baublitz here who simply hung the Rybar guns on the wall of his Pennsylvania home, before he ran afoul of the Bureau of Alcohol, Tobacco and Firearms and became its informant.[FN4] What is most startling about Rambo, however, is its failure to note that the issue before it, and the Commerce Clause analysis used to decide that issue, had been expressly repudiated by a previous panel of the same circuit. See United States v. Edwards, 55 F.3d 428 (9th Cir. 1995), reversing 13 F.3d 291 (9th Cir. 1993), after remand from the Supreme Court, 115 S.Ct. 1819, 131 L.Ed.2d 741 (1995), and repudiating United States v. Evans, 928 F.2d 858 (9th Cir. 1991), a pre-Lopez case which upheld the constitutionality of  922(o). Edwards was a 1993 Gun Free School Zones Act case in which the Ninth Circuit incorrectly upheld the constitutionality of the act. Its erroneous rationale relied upon the Commerce Clause reasoning contained in the Ninth Circuit's earlier affirmance of the constitutionality of  922(o) in Evans in 1991. Edwards became a "pipeline case" while Lopez was before the Supreme Court and was vacated and remanded to the circuit after the Lopez decision for reconsideration in light of Lopez. In Lopez, the Supreme Court explicitly cited and rejected the economic reasoning of the Ninth Circuit in Evans, a  922(o) machinegun case. Lopez, 115 S.Ct. at (slip op. 15-16). On remand, the Ninth Circuit could have logically reversed Edwards, a School Zones Act conviction, simply on the basis of the invalidation of that act by Lopez. It did not do so, however. It chose instead to publish an order (55 F.3d 428) in which it stated: In a published opinion, United States v. Edwards, 13 F.3d 291 (9th Cir. 1993), this court affirmed, in reliance upon the law of the circuit as set forth in United States v. Evans, 928 F.2d 858 (9th Cir. 1991). It then ordered the judgment of the district court reversed. Ibid. (9th Cir. 1995). The court in Edwards on remand could not have repudiated Edwards I without implicitly repudiating Evans. It chose, however, to explicitly repudiate Evans, a detail which seems to have eluded the Rambo panel and which was unremarked by this panel in its reliance on Rambo. While the evolution described above is somewhat complicated, stripped of its twists and turns, it clearly stands for the proposition that the United States Supreme Court explicitly rejected in Lopez the economic/financial/ commercial gymnastics used by the Ninth Circuit in Evans (and by the panel majority here) to erroneously underpin the Commerce Clause validity of  922(o). It does not seem too bold to assert that the United States Supreme Court has therefore already rejected, albeit in a dictum, the panel's precise economic analysis of  922(o) here.[FN5] Indeed, a panel of this Court has previously held that "[d]rug trafficking is an inherently commercial activity; the mere possession of a firearm is not." United States v. Orozco, 98 F.3d 105, 107 (3d Cir. 1996).[FN6] Moreover, as was pointed out to the panel here, to the extent that  922(o) has been held to nullify the machinegun provisions of the NFA, it is positively destructive of an economic regulatory (tax) scheme. See United States v. Dalton, 960 F.2d 121 (10th Cir. 1992); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991). See also the district court's ruling in this case. (Slip. op. 3). Lopez has created a groundswell of uncertainty among the lower courts and the commentators, an uncertainty perfectly evidenced by the opinions and votes of the two Circuit Judges who heard this case. Is Lopez an anomaly which has no analytical reach beyond a .38 caliber revolver possessed in a Texas schoolyard, and therefore to be relegated to the shelf of constitutional oddities? Or was the Supreme Court marking a meaningful high water mark on decades of Commerce Clause erosion? See, generally, United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995) (holding that residential receipt of out-of-state natural gas was insufficient to confer federal jurisdiction under the arson statute); United States v. Denalli, 73 F.3d 328 (11th Cir. 1996) (same); United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996) (insufficient evidence of effect on interstate commerce to sustain conviction under the "chop-shop" statute); United States v. Mussari, 894 F.Supp. 1360 (Ariz. 1995) (ruling unconstitutional the Child Support Recovery Act); United States v. Bailey, 902 F.Supp. 727 (W.D. Tex. 1995) (same); United States v. Parker, 911 F.Supp. 830 (E.D. Pa. 1995) (same); Hoffman v. Hunt, 923 F.Supp. 791 (W.D.N.C. 1996) (declaring the Freedom of Access to Clinic Entrances Act beyond congressional Commerce Clause authority); United States v. Olin Corp., 927 F.Supp. 1502 (S.D. Ala. 1996) (holding Lopez prohibits the application of CERCLA liability); and the dissenting opinions in United States v. Wall, 92 F.3d 1444 (6th Cir. 1996); United States v. Chesney, 86 F.3d 564 (6th Cir. 1996); and United States v. Wilson, 73 F.3d 675 (7th Cir. 1995). See also, Richard A. Epstein, "Constitutional Faith and the Commerce Clause," 71 Notre Dame L.Rev. 167 (1996); and Deborah Jones Merritt, "Commerce!" 94 Mich.L.Rev. 674 (December 1995). This judicial uncertainty is further evidenced by the vigorous dissents in Beuckelaere and Kirk, supra, and by the grant of rehearing en banc by the Fifth Circuit in Kirk. This conflict is also reflected among the Judges of this Circuit as demonstrated by the dissent here; the dissent of Circuit Judge Becker in United States v. Bishop, 66 F.3d 569, 590 (3d Cir. 1995) (two cases), cert. denied, 116 S.Ct. 681 (1995); and the votes of Circuit Judges Becker, Nygaard and Roth for rehearing of Bishop sub nom. United States v. Stokes, 73 F.3d 23 (3d Cir. 1995).[FN7] CONCLUSION For the reasons discussed above, the Court should rehear this case in banc. Respectfully submitted, ______________________________ JAMES H. JEFFRIES, III 3019 Lake Forest Drive Greensboro, NC 27408 Telephone: (910) 282-6024 Counsel for Appellant EXHIBITS (in compliance with LARs 32.3(b) and 35.2) 1. Judgment dated December 30, 1996. 2. Opinion of the Court filed December 30, 1996. CERTIFICATE OF SERVICE I hereby certify that service of this petition has been made upon counsel for the appellee by mailing, U.S. postage prepaid, two true copies thereof on January 11, 1997, 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]. Every unregistered machinegun is obviously manufactured (and therefore possessed) by someone: persons whose mere possession is, therefore, never preceded by an illegal transfer. To proceed from this undeniable premise to the conclusion of regulatable interstate commerce is a stretch that exceeds the bounds of reason. [FN2]. The appeal in United States v. Bownds, 860 F.Supp. 336 (S.D. Miss. 1994), which held  922(o) unconstitutional based upon the court of appeals decision in Lopez, is awaiting decision by the full court in Kirk, according to the Fifth Circuit Clerk's office. [FN3]. The correctness vel non of Koog will be determined by the Supreme Court's forthcoming decision in Printz v. United States and Mack v. United States, Nos. 95-1478 and 95-1503 (argued December 3, 1996). [FN4]. If the majority opinion is entitled to go outside the record to incorrectly speculate (slip op. 18) that Rybar -- a federally licensed manufacturer of machineguns -- was the recipient of an illegal predicate transfer of the guns, we believe we have the right to go outside the record to state the true facts concerning Baublitz, a firearms collector who was a resident and citizen of Pennsylvania. [FN5]. The principal dissenter in Lopez agreed that the decision raised serious specific doubts about the validity of  922 (o). Dissenting opinion of Justice Breyer, slip op. at 17. [FN6]. It should also be pointed out that Lopez itself involved a clearly commercial transaction which was insufficient to bring it inside the Commerce Clause: "... Lopez stated that 'Gilbert' had given him the gun so that he (Lopez) could deliver it after school to 'Jason,' who planned to use it in a 'gang war.' Lopez was to receive $40 dollars for his services." United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993). [FN7]. Even the history of this appeal suggests some uncertainty, involving as it did a request for supplemental briefs and a 15-month delay between argument and decision.