The opinion of the court was delivered by: Dalzell, District Judge.
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. § 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, 146 L.Ed.2d 658 (2000) and Jones
v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902
(2000). These two decisions are sequelae to United States v.
Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (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. § 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. § 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.*fn1
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 § 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.
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
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. § 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 ...