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U.S. v. COWARD

April 10, 2001

UNITED STATES OF AMERICA,
v.
ALFONZO COWARD.



The opinion of the court was delivered by: Dalzell, District Judge.

MEMORANDUM

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

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 § 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. § 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 ...


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