CRIMINAL LAW
by Charles P. Bubany"
I.
II.
FIREARMs
.
A. Brady Act
..
B. The Afte17TUlth of United States v. Bailey
FRAUD CRIMES
.
A. Gaudin Error
.
B. 18 U.S.c. § 1346 .
III.
INTERSTATE COMMERCE . .
A. The Interstate Commerce "Nexus" and Lopez.
B. The Interstate Commerce Element and the Jury
C. Proof of the •'Nexus" .
IV.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . .
449
449
451
454
454
460
461
461
464
465
466
The most significant work of the Fifth Circuit in the area of substantive
criminal law during the survey period was the court's fashioning of
appropriate responses to several recent interpretations of federal statutes by
the Supreme Court of the United States. Although the work of the court
continues to be largely routine, its decisions involving interesting questions
of statutory interpretation are a notable exception.
I. FIREARMS
A. Brady Act
The circuits are split over the issue of whether the Tenth Amendment
is violated by an interim provision of the Brady Handgun Violence
Protection Act (Brady Act) that requires local law enforcement officials to
perform background checks on handgun purchasers until a national
background check system is in place. I The issue should be resolved by the
.. George Hennan Mahon Professor of Law. Texas Tech University School of Law; B.A.. St.
Ambrose University, 1962; J.D., Washington University School of Law. 1965. The research assistance
of Susan Lynette Hammond (J.D. '96) is gratefully acknowledged.
1. Brady Handgun Violence Protection Act, 18 U.S.C. § 922(s) (1994). Compare Frank v.
United States, 78 F.3d 815, 827 (2d Cir. 1996) (holding that the Brady Act provision requiring law
enforcement officers to conduct background checks was consistent with the structural limits of the Tenth
Amendment),petiJion/orcen.filed, 64 U.S.L.W. 3856 (U.S. June 13,1996) (No. 95-2006) with Koog
v. United States. 79 F.3d 452, 458-59 (5th Cir. Mar. 1996) (holding that the Brady Act provision
requiring law enforcement officers to conduct background checks was unconstitutional under the Tenth
Amendment), petition/or cert. filed, 64 U.S.L.W. 3001 (U.S. June 19, 1996) (No. 95-2052), and
petition/or cert.filed, 65 U.S.L.W. 3017 (U.S. June 25,1996) (No. 95-2077).
449
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Supreme Court which has granted review and heard arguments in the Ninth
Circuit case of Mack v. United States. 2 Resolving the issue will require the
Supreme Court to examine the reach of its holding in New York v. United
States in which the Court struck down a provision of the 1985 Low-Level
Radioactive Waste Policy Amendments Act that ordered state governments
either to take full legal title to certain radioactive wastes created by private
entities, or to regulate the waste according to federal mandates. 3 The
Court determined that Congress had crossed the line between encouragement and coercion by directly compelling the enactment and enforcement
by the State of a federal regulatory program, thereby effectively commandeering the legislative processes of the States in violation of the Tenth
Amendment. 4 In Mack, the Ninth Circuit concluded that although the
Brady Act does indeed require reasonable efforts to assist in carrying out
a federal program, the activities are to be carried on only for a limited
time, they are not alien to the officers' usual line of work, and they are only
a minimal intrusion into state functions. s The court concluded that the
obligations under the Brady Act were no different than other federally
imposed duties such as to report missing children or traffic fatalities. 6 The
court acknowledged that at some point the burden on state employees could
become so onerous as to violate the Tenth Amendment, but the Brady Act
"does not approach that point."7
In contrast with Mack, the Fifth Circuit in Koog v. United States,
concluded that the duties imposed on local officials were not minimal. 8
The court reached this conclusion not only because of the significant
manpower and resources required to conduct the background checks of
"countless applicants," to "provide written explanations of denials," and
to "destroy the records of the local background checks," but because law
enforcement officials could be sued for supplying erroneous information
that led to a disqualification. 9 In effect, the Koog court rejected the Mack
minimal interference approach and took the position that any direct
compulsion against the states to administer a federal program or to enact
2. 66 F.3d 1025 (9th Cir. 1995), cen. granted sub nom. Printz v. United States, 116 S. Ct.
2521. For a summary of the argument before the Supreme Court, see 60 CRIM. L. REP. (BNA) 3105
(Dec. II, 1996).
3. 505 U.S. 144, 177 (1992); see 42 U.S.C. § 2021e (1994).
4. See New York, 505 U.S. at 175-76.
5. See Mack, 66 F.3d at 1031.
6. See id. at 1029-30; 42 U.S.C. § 5779(a) (1994) (requiring law enforcement officers to report
missing children to The National Crime Information Center of the Department of Justice); 23 U.S.C.
§ 402(a) (1994) (requiring reports of traffic-related deaths).
7. Mack, 66 F.3d at 1032.
8. 79 F.3d 452,461 (5th Cir. Mar. 1996), petitionfor een. filed, 65 U.S.L.W; 3001 (U.S. June
19, 1996) (No. 90-2052), andpetitionfor cen.filed, 65 U.S.L.W. 3017 (U.S. June 25, 1996)(No. 952077).
.
9.
See id.
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legislation would be improper. 1O Despite "a certain legislative legerdemain" by Congress that "artfully skirts" the prohibition against either
forced administration or forced legislation by directing local officials to
administer the program rather than state employees, the program nonetheless effectively amounted to forced legislation in violation of the Tenth
Amendment. II
The Brady Act cases will, in the words of one commentator, "test the
fortitude and commitment of the five conservatives [on the Supreme Court]
as to securing states' rights. "12 Vindication of Koog's states' rights
approach must await that test. 13
B. The Aftermath of United States v. Bailey
Prosecutors need to be careful as to a charge under 18 U.S.C. §
924(c)(1), which provides for a five-year enhancement of a drug offense if
the defendant "uses or carries a firearm" in relation to that offense. '4
The Supreme Court's holding in Bailey v. United States clarified, but did
not completely resolve, conflict in the reading of section 924(c)(1)"5 In
Bailey, the Court concluded that the terms "use" and "carry" mean
different things and that mere possession is not "use" under the statute. 16
In effect, Bailey overruled those cases, including Fifth Circuit precedent,
that held the enhancement provision of section 924(c) was satisfied by mere
availability of the weapon to aid the predicate offense. 17
During the survey period, the Fifth Circuit dealt with numerous cases
that required the application of Bailey. In United States v. Garcia, the
defendant had a revolver in his waistband while he was acting as a lookout
for a confederate who was loading cocaine into an automobile. 18 There
was evidence that during his arrest, the defendant "moved" his hand
toward the pistol but allowed the officer to take the gun without interference,, 9 The majority held that this was merely "carrying" and not "use"
10. See id. at 461-62.
11. [d. at 457.
12. Constitutional Law Conference Addresses Supreme Court's 1995-96 Term, 60 CRIM. L. REP.
(BNA) 1107,114 (Oct. 30,1996).
13. See Koog, 79 F.3d at 461-62.
14. 18 U.S.C. § 924(c)(1) (1994).
15. 116 S. Ct. 501, 506-09 (1995).
16. See id. at 509.
17. See United States v. Wilson. 77 F.3d 105, 110 (5th Cir. Feb. 1996); see also Charles P.
Bubany. Criminal Law, Fifth Circuit Survey. 27 TEx. TECH L. REv. 655.662-64 (1996) (analyzing
Fifth Circuit precedent under § 924(c)(I».
18. 86 F.3d 394, 398-99.403 (5th Cir. June 1996).
19. See id. at 403.
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of the weapon. 20 Because the defendant had been charged with "using"
the weapon, not "carrying" one, his conviction was reversed. 21
In her dissenting opinion, Judge Jones disagreed and stated that it was
within the province of the jury to determine whether the defendant had
"used" the firearm while standing guard and had reached for it at the same
time the officer did. 22 According to Judge Jones, Bailey did not eliminate
the overlap in meaning between "use" and "carry" but held only that the
former did not subsume the latter. 23
In United States v. Rivas, the Government fortuitously charged the
defendant with using or carrying a firearm during a drug-trafficking
offense. 24 As a result, the court on appeal needed to decide only whether
there was a factual basis for the "carrying" to uphold the defendant's guilty
plea to the charge. 2S Noting that the Supreme Court's opinion in Bailey
did not address that requirement, the court merely had to apply its prior
holding in United States v. Pineda-Ortuno. 26 In Pineda-Ortuno, the court
held that one driving a car has met the section 924(c) "carrying" requirement if he "knowingly possesses the firearm in the vehicle during and in
relation to a drug trafficking crime.' '27 In Rivas, the court held that
although the defendant was a passenger and not the driver of the vehicle
used in the delivery of cocaine, it was enough that he "stated that the pistol
he had in his possession was placed underneath the car seat" to admit to
knowingly possessing the weapon in the vehicle. 28
In United States v. Fike, the indictment charged the defendants with
both using and carrying a weapon. 29 The court decided that by placing a
gun within reach under the driver's seat of a vehicle and driving that
vehicle to another location, the defendant had "carried" the weapon
according to the ordinary dictionary definition of the term. 3O But, the
evidence was insufficient to support a jury finding of "use. "31 The
section 924(c) conviction was reversed due to the possibility that the guilty
20. See id.
21. See id.
22. See id. at 404 (Jones, J., dissenting).
23. See id. (Jones, J., dissenting).
24. 85 F.3d 193, 194-95 (5th Cir. May 1996), cert. denied, 117 S. Ct. 593 (1996).
25. See id. at 195.
26. See id. (citing United States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir. 1992».
27. Pineda-Ortuno, 952 F.2d at 104.
28. See Rivas, 85 F.3d at 196.
29. 82 F.3d 1315, 1328 (5th Cir. May 1996).
30. See id. (citing WEBSTER'S THIRD NEW INTERNATIONAL DIcnONARY 343 (1991»; see also
United States v. Riascos-Suarez, 73 F.3d 616, 623 (6th Cir. 1996) (holding that when a defendant
transports a firearm during a drug offense, and the firearm is within reach. the evidence is sufficient to
meet the § 924(c) "carrying" requirement).
31. See Fike, 82 F.3d at 1328.
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verdict was based on a finding of "use" under the liberal, pre-Bailey
instruction. 32
The Fifth Circuit also applied Bailey in United States v. Wilson and held
that although several firearms were seized from a residence owned by the
defendant where drug money was counted and stored, this was insufficient
to establish "use" of a firearm in relation to a drug trafficking crime. 33
The court noted there was no evidence that Wilson at any time carried or
used those weapons. 34
In United States v. Salazar, the court also held that a defendant may be,
liable for aiding and abetting another's violation of section 924(c)(1).3S
In this pre-Bailey case, Salazar's confederate had pointed a gun at a deputy
to prevent the deputy from chasing him and another when they left the jail
after carrying out an escape. 36 The court held that the jury had to find
that Salazar knew the gun was available to his co-conspirator and that he
took some action to assist in its use in order to convict him for aiding and
abetting his co-conspirator's use of a firearm. 37 Although Salazar was not
present during the actual escape, there was evidence that Salazar knew that
a weapon was available to the perpetrators and that he took action to assist
in its use because the gun was stored at his business and he had a locksmith
open his shop so the keys for the car containing the gun used in the escape
could be retrieved. 38 Therefore, there was sufficient evidence to allow the
jury to find that Salazar had aided and abetted his co-conspirator's use of
the firearm. 39
Although Salazar is a pre-Bailey case, there is no question that
Salazar's co-conspirator "used or carried" a firearm during a crime of
violence. 40 Although one of the co-conspirators testified that the gun was
unloaded (which, even if true, is irrelevant), pointing a gun at an officer
during an escape most certainly would be considered "use" as well as
"carrying. ,,41
The Bailey decision has raised issues that the Fifth Circuit will likely
have to address in the future, including whether charges that were dismissed
under a plea agreement may be reinstated after a section 924«:)(1)
conviction is vacated. One district court concluded that a defendant
32. See id.
33. 77 F.3d 105. 110 (5th Cir. Feb. 1996).
34. See id.
35. 66 F.3d 723. 729 (5th Cir. Sept. 1995).
36. See id. at 726.
37. See id. at 729 (citing United States v. Williams. 985 F.2d 749. 755 (5th Cir. 1993); United
States v. Martiarena. 955 F.2d 363. 366 (5th Cir. 1992».
38. See id.
39. See id.
40. See id. at 726. 729.
41. See id. at 726 (citing United States v. Contreras. 950 F.2d 232.241 (5th Cir. 1991».
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breached a plea agreement by seeking to overturn a conviction for Bailey
error. 42 That breach entitled the prosecution to have the indictment
reinstated. 43
Another district court, on the other hand, held that a defendant did not
breach a plea agreement by seeking to have her section 924(c)(1) conviction
overturned. 44 A significant factor in the court's decision, however, was
that the defendant had already served more than one-half of her sentence.45
Thus, the court concluded that reinstatement of the indictment would not
return the parties to the same position as before the agreement. 46 The
government would have received a benefit in the form of the defendant's
jail time that cannot be erased, while the defendant would get nothing in
return. 47 If confronted with this issue, the Fifth Circuit will likely conclude that a successful challenge to a bargained plea in this context will be
considered a tacit repudiation of the bargain, which will return the case to
the position it was in before the agreement was made.
II.
FRAUD
CRIMES
A. Gaudin Error
In United States v. Gaudin, the Supreme Court handed down a decision
that has impacted a number of fraud offense cases. 48 The Court held that
it was unconstitutional for the trial court to refuse to submit the question of
materiality under 18 U.S.C. § 1001 to the jury.49 Because materiality, as
a mixed question of law and fact, is an essential element of the offense of
making a false material statement, due process and the right to a jury trial
demand that materiality be determined by a jury to exist beyond a
reasonable doubt. so However, the Court's holding created a problem
because, except for the Ninth Circuit, every court of appeals that had
considered the question of materiality had held that the issue is one of law
for the judge to decide. 51 Thus, it had been the common practice for
federal judges to determine the issue of materiality without submitting it to
42. See United States v. Viera, 931 F. Supp. 1224. 1228 (M.D. Pa. 1996).
43. See id. at 1229.
44. United States v. Rodriguez, 933 F. Supp. 279, 281 (S.D.N.Y. 1996).
45. See id. at 282.
46. See id. at 283.
47. See id.
48. 115 S. Ct. 2310 (1995).
49; See id. at 2320; 18 U.S.C. § 1001 (1994) (stating that it is illegal to make a materially false
representation in a matter within the jurisdiction of a federal agency).
50. See Gaudin, 115 S. Ct. at 2313-14.
51. See id. at 2322 (Rehnquist, J., concurring) (citing United States v. Gaudin, 28 F.3d 943,
955 (9th Cir. 1993) (Kozinsky, J., dissenting), aff'd, 115 S. Ct. 2310 (1995».
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the jury. In this light, the sheaf of cases in the wake of Gaudin is not
surprising.
In United States v. McGuire, the defendant, a Mississippi attorney, was
convicted of violating two separate criminal statutes by filing a false IRS
form 8300. 52 On appeal, he claimed that the jury instructions were
deficient. 53 The Gaudin decision came down while McGuire's case was
pending on appeal. 54 Hence, the panel of the Fifth Circuit was required
to decide whether Gaudin rendered the jury instructions reversible error. 55
McGuire was convicted of violating 26 U.S.C. § 60501(t)(I)(B) relating
to reporting case receipts of $10,000 or more and 26 U.S.C. § 7206(1)
prohibiting the filing of false statements. 56 Section 60501(t)(1)(B) requires
proof "that a defendant (1) for the purpose of evading the [section] 60501
reporting requirement; (2) caused or attempted to cause a trade or business
to file a [section] 60501 return; (3) containing a material omission or
misstatement offact. "57 Section 7206(1) "requires proof that a defendant:
(1) willfully; (2) made and subscribed a return, statement or other
document; (3) containing or verified by a written declaration that it was
made under penalties of perjury; and (4) that the defendant did not believe
that document to be true and correct as to every material matter. "58
McGuire claimed on appeal that the language in the two instructions was
improper because it effectively removed the issue of materiality from the
jury's consideration. 59 He challenged the instruction which required the
jury to find that:
(1) McGuire knew that the law practice had a duty to report currency
transactions in excess of $10,000; (2) McGuire knowingly and willfully
caused or attempted to cause the filing of a form 8300 containing a
material omission or misstatement of fact; and that McGuire so acted (3)
for the purpose of evading the reporting requirement. 60
He also challenged the instruction relating to a separate section 7206(1)
violation for conduct unrelated to the sting operation that led to his
prosecution containing the statement: "If you find that the government has
proved these things, you need not consider whether the false statement was
52. 79 F.3d 1396. 1397 (5th Cir. Mar. 1996), rev'd en bane, 99 F.3d 671 (5th Cir. Oct. 1996),
petition for cerro filed (U.S. Jan. 29, 1997) (No. 96-1206).
53. See id.
54. See id. at 1397-98.
55. See id. at 1398.
56. See id. at 1399-400; 26 U.S.C. §§ 60501(f)(I)(l3), 7206(1) (1994).
57. McGuire. 79 F.3d at 1399.
58. [d. at 1399-400.
59. See id. at 1400.
60.
[d.
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a material false statement, even though that language is used in the
indictment. This is not a question for the jury to decide...61
In addressing McGuire's contentions, the Fifth Circuit panel noted that
at the time of the defendant's conviction, "the well-settled law in the
overwhelming majority of our federal circuits, including our own,
considered the materiality of false statements made the subject of criminal
prosecution to be a question of law for the court. "62 The court concluded,
however, that the Supreme Court's decision in Gaudin mandated that the
issue of materiality in any federal criminal statute be submitted to the
jury.63 The court ruled that there was error because the instructions in this
case reserved the issue of materiality for the district court. 64 Not surprisingly, McGuire did not object at trial to the district court's instruction,
because such an objection "would have required prescience on McGuire's
part and would have been futile in light of well-established precedent. "65
Because he did not object, his claim under Federal Rule of Criminal
Procedure 52(b) was only reviewed for plain error. 66 Rule 52(b) has been
understood to require proof of an error that was plain and without waiver
that subsequently affected the defendant's substantial rights. 67 The court
concluded that "the error in McGuire's case [met] even the lofty plain error
standard. "68
First, it was "clear and obvious" under the current law because
"plainness" is determined under the law existing when the appeal is
decided.69 This is consistent with "the well-settled principle that criminal
defendants are entitled to the benefit of changes in the law announced while
their cases are pending on direct review," and it comports with notions of
fairness. 7o Second, in its plain error analysis, the court addressed whether
the error affected McGuire's substantial rights. 7I While analyzing this
issue, the court detoured into a discussion of the indecisive rulings by the
Fifth Circuit "on the issue of whether failure to instruct on every essential
element of the offense is plain error, structural error or error amenable to
61.
62.
[d.
[d.
63.
64.
See id. at 1401 (citing United States v. Gaudin. 115 S. Ct. 2310, 2313 (1995».
See id.
65.
[d.
66.
67.
See id.
See id. (citing United States v. Olano, 507 U.S. 725, 730-31 (1993».
68.
[d.
69. See id. at 1402 (citing United States v. Calverley, 37 F.3d 160, 162-63 & n.18 (5th Cir.
1994) (en banc), cen. denied, 115 S. Ct. 1266 (1995); United States v. Olano, 507 U.S. 725, 732-34
(1993».
70. [d. (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987); United States v. Oreira, 29 F.3d
185, 188 (5th Cir. 1994».
71. See id. at 1403.
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harmless error analysis.'072 Because the government did not object to the
Ninth Circuit's finding of plain and structural error in Gaudin, that case
provided no help in resolving the dilemma. 73 Given the conflicting
opinions in the Fifth Circuit, the McGuire court concluded that it was
"inadvisable, and perhaps impermissible, to conclusively resolve in this
case the proper scope of appellate review when the district court fails to
instruct the jury on an essential element of a criminal offense.' '74
Nonetheless, the court observed that failure to instruct a jury on the
materiality issue was plain error affecting McGuire's substantial rights. 75
Finally, after establishing that the error was plain, the court concluded
that the otherwise forfeited error was within its remedial. discretion to
correct. 76 First, the statutes that McGuire violated expressly required that
the proscribed statements be material. TI Second, a "serious factual
question" regarding the materiality issue was presented by the record. 78
Third, the court perceived that if it declined to ameliorate the plain error,
not only would McGuire's Fifth and Sixth Amendment rights be denied, but
such inaction would indicate a departure from the established practice of
rendering a judgment on direct review" 'in light of our best understanding
of governing constitutional· principles.' , '79 The court then reversed the
conviction because the error "seriously affected the fairness and integrity
of [the] trial" and "potentially, the public reputation of judicial proceedings. "80
Judge Wiener concurred in the result but refused to join the majority's
application and analysis of plain error. 81 Instead, Judge Wiener preferred
the D.C. Circuit's supervening decision doctrine. 82 Under this doctrine,
a harmless error analysis' is applied as if there had been a contemporaneous
objection in cases in which a ruling was clearly unobjectionable at trial but
had become error because of a supervening change in the law. 83 This
72.
73.
74.
75.
76.
77.
Id. at 1403.
See id. at 1404 (citing United States v. Gaudin, 115 S. Ct. 2310, 2320-21 (1995)).
Id.
See id.
See id.
See id. at 1404-05.
78. See id.
79. Id. at 1405 (quoting Mackey v. United States, 401 U.S. 667, 679 (1971».
80. Id.
8i. See id. at 1406 (Wiener, J., specially concurring).
82. See id. at 1409 (Wiener, J., specially concurring) (citing United States v. Washington, 12
F.3d 1128, 1138 (D.C. Cir.), cerro denied, 115 S. Ct. 98 (1994».
83. See id. at 1409-10 (Wiener, J., specially concurring) (citing United States v. Washington,
12 F.3d 1128, 1138 (D.C. Cir.), cerro denied, 115 S. Ct. 98 (1994»; see also United States v. Baucum,
66 F.3d 362,363 (D.C. Cir. 1995) (per curiam), cerro denied, 117 S. Ct. 204 (1996). The court in
Baucum explained that an issue not raised at trial will be considered under the supervening decision
doctrine" 'where a supervening decision has changed the law in appellant's favor and the law was so
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doctrine serves to preserve an issue for appeal whenever "(1) law that is
well-settled and thus unobjectionable at the time of trial[;] (2) is chaIiged[;]
(3) without warning[;] (4) during direct appeal."84 Thus, according to
Judge Wiener, McGuire should have the benefit of a harmless error review
.under which the government, and not the defendant, has the burden of
proof as to whether "substantial rights" are affected by the error. 85 In
this case, the error "indisputably affected McGuire's substantial rights."86
Judge Smith dissented from the majority's ruling that plain error
should be considered at the time of review. 87 In his opinion, United States
v. Calverley88 compelled the court to "consider the clarity of the law at
the time of the claimed error. "89
The panel decision in McGuire was subsequently overturned by the
court en banc. 90 In so doing, the court used the tried-and-true technique
of reviewing the jury instructions as a whole to conclude that the materiality
issue really was not taken from the jury, at least as to count four of the
indictment on which the defendant was convicted. 91
The majority
emphasized that the count four instruction listed materiality as an element
and did not repeat the language from the count five instruction, of which
the defendant was acquitted, that admonished the jury not to consider that
issue at all. 92 In his dissenting opinion, Judge DeMoss thought that the
jury should have been given a definition of materiality and told specifically
to make a finding on that issue. 93
By deciding that there was no Gaudin error, the en banc court avoided
the unsettled (and unsettling) issue of the standard of review to be applied
to Gaudin error. 94 As noted by Chief Justice Rehnquist in his concurring
opinion in Gaudin, the government did not argue that the error was either
harmless or not plain. 9S As a result, the Supreme Court did not address
the standard of review issue, but Fifth Circuit cases will continue to do so.
For example, in United States v. Pettigrew, a panel of the court, relying on
the Supreme Court's holding in Sullivan v. Louisiana,96 determined that
well-settled at the time of trial that any attempt to challenge it would have appeared pointless.' ,. See
Baucum, 66 F.3d at 363 (quoting United States v. Washington. 12 F.3d 1128,1139 (D.C. Cir.».
84. McGuire. 79 F.3d at 1410 (Wiener. I .• specially concurring).
85. See id. at 1411 (Wiener, l., specially concurring).
86. [d. at 1412 (Wiener. l., specially concurring).
87. See id. at 1413 (Smith. l., concurring in part. dissenting in part).
88. 37 F.3d 160 (5th Cir. 1994) (en bane). cert. denied, 115 S. Ct. 1266 (1995).
89. See McGuire, 79 F.3d at 1413 (Smith. l., concurring in part. dissenting in part).
90. United States v. McGuire, 99 F.3d 671 (5th Cir. Oct. 1996) (en bane) (per curiam).
91. See id. at 672.
92. See id.
93. See id. at 676-77 (DeMoss, l., dissenting).
94. See id. at 672.
95. United States v. Gaudin. 115 S. Ct. 2310, 2321 (1995) (Rehnquist. C.l .• concurring).
96. 508 U.S. 275 (1993).
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a Gaudin error cannot be harmless,97 In Sullivan, the Court held that a
harmless error review of a defective reasonable doubt instruction is simply
not permissible,98 Under the rationale of Sullivan, if there was no jury
verdict of guilt beyond a reasonable doubt, a finding that the same verdict
would have been reached regardless of the error would be an impossibility.99 Likewise, in Pettigrew, because thejury rendered no verdict on the
issue of materiality, there could be no finding that the same verdict would
have been reached had the issue been submitted to the jury by the trial
court. 100
When the defendant does not object at trial to the failure to instruct on
materiality, as in United States v. lobe, the apparent Fifth Circuit approach
will be to conduct a plain error review, 101 In lobe, however, the court
refused to exercise its discretion under plain error analysis to correct the
Gaudin error because of the overwhelming' evidence of the defendant's
guilt. 102 Of note in lobe was its conclusion that even if the Gaudin error
were considered "structural error," reversal was not required on a plain
error review. 103 This conclusion is at odds with the position finally
reached by the Ninth Circuit in United States v. Keys l04' in which an
earlier panel opinion relied on by lobe was rejected by the full court. 105
In a not-unusual posture for the Ninth Circuit-by its own admission at
odds with eight other circuits-it departed from the mainstream and held
that plain error review is inappropriate in cases in which the defendant does
not object at trial. 106 Only if a full review of the record and the instructions establishes beyond a reasonable doubt that the jury necessarily found
the element of materiality will the error be harmless. 107 The court stated
that to hold otherwise would be "unconscionable" and a "hoax," in light
of its precedent that an objection at trial is unnecessary to preserve the point
on appeal where there existed a "solid wall" of authority supporting the
instruction given at trial. 108 The court reasoned that the message to
counsel would be twofold: do not rely on our opinions and object to
97. 77 F.3d 1500, 1511 (5th Cir. Mar. 1996).
98. See Sullivan, 508 U.S. at 280-81.
99. See Pettigrew, 77 F.3d at 1511 (citing Sullivan, 508 U.S. at 279-81).
100. See id.
101. 77 F.3d 1461, 1475 (5th Cir. Mar. 1996), modified, 90 F.3d 920 (5th Cir. July 1996); and
modified, 101 F.3d 1046 (5th Cir. Dec. 1996).
102. See id. at 1476.
103. See United States v. Jobe, 90 F.3d 920, 923 (5th Cir. July 1996), modified, 101 F.3d 1046
(5th Cir. Dec. 1996).
104. 67 F.3d801 (9th Cir. 1995), withdrawn en bane, 95 F.3d 874 (9th Cir. 1996).
105. See J6be, 90 F.3d at 923.
106. See Keys, 95 F.3d at 879-80 n.7.
107. See id. at 880-81 (citing Carella v. California, 491 U.S. 263 (1989».
108. [d. at 879.
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everything at trial. 109 Whatever the outcome of the appeal of the Ninth
Circuit approach may be, it is likely that its position will not prevail.
B. 18 U.S.C. § 1346
When the Supreme Court in McNally v. United States 110 held that the
federal mail fraud statute did not include schemes to defraud citizens of a
right to honest government, Congress reacted by passing 18 U.S.C. §
1346. 111 The new section defines "scheme or artifice to defraud," a
phrase appearing in the statutes proscribing mail fraud,1I2 fictitious names
or addresses,1I3 wire fraud, 114 and bank fraud,1I5 to include "a
scheme or artifice to deprive another of the intangible right of honest
services. "116
The language in section 1346 had been assumed to overrule McNally,
but the Fifth Circuit decision in United States v. Brumley concluded that the
statute did not have its intended effect. 117 In Brumley, a regional associate
director of the Texas Workers' Compensation Commission obtained
"loans" (that were actually payoffs) transmitted by Western Union from an
attorney who practiced before the Commission. 118 The director also tried
by mail to arrange rental of Commission property to the attorney. 119 In
reversing Brumley's mail and wire fraud convictions, which were based on
a scheme to defraud "citizens" and a "state agency" of the intangible right
to honest services, the court concluded that his conduct simply did not fall
within the section 1346 definition. l20 According to the court, the word
"another" in section 1346 included neither the body politic nor a state
agency.12I Although the word "another" is not defined in the statute, the
term "whoever," referring to the entity in the fraud statutes capable of
committing an offense, includes" 'corporations, companies, associations,
firms, partnerships, societies, and joint stock companies, as well as
109. See id.
110. 483 U.S. 350, 356 (1987). superceded by statute. 18 U.S.C. § 1346 (1994). asstated in.
United States v. Bryan, 58 F.3d 933. 940 n.l (4th Cir. 1995).
Ill. See United States v. Bryan, 58 F.3d 933. 940 & n.l (4th Cir. 1995); 18 U.S.C. § 1341
(1994) (mailfraud statute); Pub. L. No. 100-690, 102 Stat. 4508 (codified at 18 U.S.C. § 1346 (1994».
112. See 18 U.S.C. § 1341 (1994).
113. See 18 U.S.C. § 1342 (1994).
114. See 18 U.S.C. § 1343 (1994).
115. See 18 U.S.C. § 1344 (1994).
116. 18 U.S.C. § 1346 (1994).
117. 79 F.3d 1430, 1440 (5th Cir. Mar. 1996).
118. See id. at 1432-33.
119. See id. at 1433.
120. See id.
121. See id. at 1435.
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individuals.' "122 As an indefinite pronoun, the word "another, "
meaning "one more," must draw its meaning from context and thus could
logically be given the same meaning as "whoever," which does not include
a state agency or the body politic. l23 Thus, the court determined that the
language of section 1346 was at least ambiguous and required a look at the
legislative history. 124 In its extensive discussion of the events leading up
to the statute's passage, the court found it significant that section 1346 was
tagged to an omnibus crime bill when Congress failed to agree on
comprehensive public corruption legislation. 125 This was simply too
cavalier an approach to overrule McNally, a Supreme Court decision. l26
In his dissenting opinion, Judge Wood viewed the majority's reading of
the plain language as too restrictive and thought that the word "another"
was sufficient to include a state citizen, particularly in light of the
congressional purpose. J27 But this is just the point of the majority-the
defendant was not charged with defrauding a specific citizen, which the
statute would cover, but was charged with defrauding the citizenry
generally, which the statute does not cover. l28 Thus, Congress needs to
go back to the drawing board and, in the language of McNally, "speak
more clearly than it has. "129
III. INTERSTATE COMMERCE
A. The Interstate Commerce ''Nexus'' and Lopez
The Fifth Circuit decided a number of cases during this survey period
that dealt with the impact of United States v. Lopez. 13O In Lopez, the
Supreme Court declared that the Gun Free School Zones Act of 1990, 18
U.S.C. § 922(q), was unconstitutional under the Commerce Clause. 131
The Act made it " 'unlawful for any individual knowingly to possess a
firearm at a place that the individual knows, or has reasonable cause to
believe, is a school zone.' "132 The Court held that the Act was beyond
[d. (quoting 1 U.S.C. § 1 (1994».
See id.
See id.
See id. at 1437.
See id. at 1439-40.
See id. at 1452 (Wood, J., dissenting).
See id. at 1442.
129. McNally v. United StaleS, 483 U.S. 350,360 (1987), superceded by stature, 18 U.S.C.
§ 1346 (1994), as stated in, United Stales v. Bryan, 58 F.3d 933,940 n.1 (4th Cir. 1995).
130. 115 S. Ct. 1624 (1995), superceded by statute, 18 U.S.C. § 922(q) (1994), as stated in,
United States v. Tucker, 90 F.3d 1135, 1140 n.1 (6th Cir. 1996); see also Bubany, supra nOle 17, at
674-76 (1996) (discussing earlier cases impacted by Lopez).
131. See Lopez, 115 S. Ct. at 1630-31; 18 U.S.C. § 922(q) (1994).
132. See Lopez, 115 S. Ct. at 1626 (quoting 18 U.S.C. § 922(q)(2)(A) (1994».
122.
123.
124.
125.
126.
127.
128.
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the scope of the Commerce Clause because it did not regulate the channel
or instrumentalities of interstate commerce nor did it regulate activity that
substantially affected interstate commerce. 133 Moreover, the Act did not
contain a jurisdictional element that would ensure a case-by-case inquiry of
whether the firearm had a nexus with interstate commerce. l34
In United States v. Dupaquier, the defendant argued on appeal that his
convictions on three separate counts of firearm violations should be reversed
because of the Lopez decision. 13s However, because the defendant's claim
of Lopez defect in the statutes had not been raised below, it could be
considered on appeal only if the statute's application was plain errorY6
The court held that because Lopez was decided after Dupaquier's trial and
sentencing, the trial court's failure to consider the validity of the statutes
under the Commerce Clause was not plain error. 137
In United States v. Spires, the Fifth Circuit went one step further and
held that the district court's failure to address the constitutionality of 18
U.S.C. § 922(g) under Lopez was not plain error. 138 Spires argued that
because Lopez established a new rule at the time of the appeal, it should be
applied retroactively. 139 The court concluded, however, that even if there
were an exception to the application of the plain error rule in the case of a
clearly new rule, this was not such a case. 14O Noting that section 922(g)
had been upheld as a valid exercise of the Commerce Clause before Lopez
and that it had since been upheld by the Seventh and Ninth Circuits, the
court held that it was not plainly unconstitutional. 141 Thus, its validity
need not have been addressed by the trial court. 142
In United States v. Kirk, the defendant had a prescient trial attorney
who made a motion to dismiss an 18 U.S.C. § 922(0) charge at the district
court level, asserting that the statute violated the Commerce Clause. 143
Section 922(0) criminalizes the transfer or possession of a machine gun
except one lawfully possessed before the effective date of the statute. 144
133. Seeid. aI1630-31.
134. See id. at 1631.
1'35. 74 F.3d 615,619 (5th Cir. Jan. 1996).
136. See id.
137. See id.
138. 79 F.3d 464,466 (5th Cir. Mar. 1996) (citing Lopez, 115 S. Ct. 1634); see 18 U.S.C. §
922(g) (1994) (stating that it is unlawful for certain persons to ship, transport, possess or 'receive
firearms).
139. See Spires, 79 F.3d at 465.
140. See id. at 466.
141. See id. (citing United States v. Bell, 70 F.3d 495 (7th Cir. 1995); United States v. Collins,
61 F.3d 1379 (9th Cir. 1995); United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995».
142. See id.
143. United States v. Kirk, 70 F.3d 791,795 (5th Cir. Nov. 1995); see 18 U.S.C. § 922(0)
(1994).
144. 18 U.S.C. § 922(0) (1994).
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The defendant ~laimed that section 922(0) suffered from the same fatal
defect as section 922(q) as stated in Lopez, namely, an inadequate nexus to
interstate· commerce. 14S However, the majority, relying on United States
v. Wilkes,l46 a Tenth· Circuit case, distinguished Lopez in part and rejected
that claim. 147 The court statedthat section 922(0) regulates only machine
guns. not lawfully possessed before the effective date of the act. 148 An
unlawful possession takes place only if there was first an unlawful
transfer. 149 Thus, the court held that section 922(0) was a rational
exercise of congressional authority under the Commerce Clause because it
criminalizes illegal transfers by those who desire to acquire mere possession. lso
In her dissenting opinion, Judge Jones continued a thorough discussion
of the Lopez issue and concluded that section 922(0) was indeed unconstitu- .
tional because it "reaches wholly intrastate, non-commercial possession. "lSI The majority did not deny that point, but concluded that "there
could be no unlawful possession under section 922(0) without an unlawful
transfer" because the possession prohibited under the law is limited to
possession of machine guns not lawfully possessed before the effective date
of the act. IS2 Criminalizing possession attacks the market for illegal
transfers, which necessarily impacts interstate activity.1S3 Thus, the court
applied a form of the anything-that-affects-anything-that affects interstate
commerce rationale, an approach not new for the court. 1S4
The .court had little difficulty upholding the constitutionality of the
carjacking statute against a Lopez challenge in United States v. Coleman. ISS The court had earlier upheld the statute in United States v.
Harris, a pre-Lopez decision. ls6 The Coleman court concluded that
"Congress could rationally believe that the activity of auto theft has a
substantial effect on interstate commerce. "IS7 Moreover, the statute was
supported by congressional findings of a nexus with interstate commerce
and the statute itself contains a jurisdictional element which requires a court
145. See Kirk. 70 F.3d at 795.
146. 58 F.3d 1518 (lOth Cir. 1995).
147. See Kirk, 70 F.3d at 795-96.
148. See id. at 796.
149. See id.
150. See id.
151. [d. at 799 (Jones. J.• dissenting).
152. [d. at 796.
153. See id.
154. See id.; United States v. Box. 50 F.3d 345,353 (5th Cir.), em. denied, 116 S. Ct. 309
(1995); Bubany, supra nOle 17. at 677.
155. 78 F.3d 154. 158-59 (5th Cir. Mar. 1996), em. denied, 117 S. Ct. 230 (1996); 18 U.S.C.
§ 2119 (1994).
156. 25 F.3d 1275, 1280 (5th Cir. 1994).
157. Coleman. 78 F.3d at 158.
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to find that the carjacked auto had moved into interstate or foreign
commerce. 158
B. The Interstate Commerce Element and the Jury
In United States v. Parker, the defendant was convicted on six counts
of obstructing commerce by robbery in violation of the Hobbs Act. 159 On
appeal the defendant claimed that he was deprived of his right to a jury trial
by the following jury instruction: "If you believe beyond a reasonable
doubt . . . that monies obtained from the operations of such store were
routinely wired or electronically transferred from the State of Texas for
deposit in a bank in another state, then you are instructed that the interstate
commerce element . . . has been satisfied. "160
The defendant, Parker, acknowledged the practice of taking the
interstate commerce element from the jury based on the premise that it was
jurisdictional, but nonetheless contended that this procedure was "in
conflict with the logic of Supreme Court precedent. "161 Parker relied on
the Supreme Court decisions holding that interference with commerce is an
essential element of a Hobbs Act crime and that a defendant has a right to
have a jury determine every element of the· crime beyond a reasonable
doubt. 162
The government argued that the trial court had not taken a factual
element away from the jury entirely, because "the jury was instructed that
they-not the judge-had to believe beyond a reasonable doubt the evidence
supporting an interstate commerce finding." 163 But the court concluded
that what happened in this case was precisely what the Supreme Court had
condemned in an analogous context in Gaudin. l64 The jury was told that
if it decided that certain acts had occurred, the question of whether the
alleged acts affected interstate commerce was a foregone conclusion. 165
This conflicted with the Supreme Court holding in Gaudin that even an
application-of-Iegal-standard-to-fact element in a statute is within the
province of the jury. 166 The government argued further that the effect-on-
158.
159.
affd in part,
(1994).
160.
161.
See id. at 159; 18 U.S.C. § 2119 (1994).
73 F.3d 48,50 (5th Cir. Jan. 1996) reh'g granted, 80 F.3d 1042 (5th Cir. Apr. 1996),
rev'd in part, 1997 WL 11652 (5th Cir. Jan. 14, 1997); see Hobbs Act, 18 U.S.C. § 1951
Id. at 50.
[d.
162. See id. at 50-51 (citing Stirone v. United States, 361 U.S. 212, 218 (1960); United States
v. Gaudin. 115 S. Ct. 2310. 2313 (1995».
163. [d. at 51.
164. See id. (citing Gaudin, 115 S. Ct. 2310. 2313 (1995».
165. See id. at 50.
166. See id. at 51 (citing Gaudin. 115 S. Ct. at 2314).
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interstate-conunerce element was jurisdictional and properly a matter for the
judge's determination. 167 The court rejected this argument by stating that
"Gaudin provides no basis for distinguishing materiality from an effect on .
interstate conunerce by labeling the latter jurisdictional. "168 Thus, it was
error for the trial judge to decide the effect-on-interstate-conunerce
element. 169 But the error was subject to harmless error analysis which
varies according to the nature of the particular element in question. 170
The court held that the error was harmless because' 'the jury found that the
underlying predicate acts did occur" and that "the error did nothing to
change the outcome of the case because under a correct application of the
law, the verdict would have been guilty regardless." 171
Parker is an illustration of why legal logic appeals only to lawyers.
Its result is that the failure to submit the issue of interstate conunerce to the
jury is always error but it is never reversible error to have only the judge
decide, so long as the judge is right. 172
.
The Parker decision has since been reversed in part. 173 On rehearing, the en banc court, after reviewing the record, briefs, and arguments
of the parties, determined that the trial court did not conunit a Gaudin-type
error. 174 The court concluded that the charge given by the trial court was
harmless and therefore declined to decide whether Gaudin error was subject
to a harmless error analysis. 175 Consequently, Parker's Hobbs Act
conviction was affirmed. 176
C. Proof of the "Nexus"
When an effect on interstate commerce is an element of an offense, not
much evidence is required to satisfy it. In Interference with interstate
conunerce to any degree is sufficient. 178 For example, in United States
v. Frost, a Hobbs Act case, an extortion scheme was held to have a
sufficient nexus because its natural effect would have been to have a city
167.
168.
169.
170.
171.
See id.
/d. at 52.
See id.
See id.
/d. at 52-53.
See id. at 53 (stating "We do not address whether this same error might be considered
172.
harmful in future cases. ")
173. See United States v. Parker, No. 94-10557, 1997 WL 11652, at *1 (5th Cir. Jan. 14,
1997).
174.
175.
176.
177.
178.
See
See
See
See
See
id.
id.
id.
Bubany, supra note 17, at 677.
id.
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councilman resign. 179 The councilman's resignation would have had an
effect on the operation of the city, which "at least to· a minimal· degree"
would have affected interstate commerce. ISO
In United States v. Privett, the court held that the interstate commerce
nexus could be shown by expert testimony.t sl Thus, an expert's testimony that a firearm possessed in Texas was manufactured in California was
enough to establish a nexus. l82 The Privett case also reaffirmed the
proposition that no mens rea on the part of a defendant is required as to the
interstate element of the crime of possession of a firearm in or affecting
interstate commerce. 183
IV.
CONCLUSION
This review of substantive criminal law decisions from the Fifth
Circuit has highlighted primarily those cases dealing with statutory
interpretation. A large number of decisions involving routine application
of the law to the facts, such as the evidence sufficiency cases, have not been
discussed. Procedural issues continue to predominate. No better example
is the debate over the standard of review to be applied on appeal.
179. 61 F.3d 1518, 1524 (llth Cir. 1995), modified, 77 F.3d 1319 (11th Cir. 1996), and
petition/or cerr. filed, 65 U.S.L.W. 3295 (U.S. Sept. 4, 1996) (No. 96-538).
180. [d.
181. 68 F.3d 101, 104 (5th Cir. Oct. 1995), cerr. denied. 116 S. Ct. 1862 (1996).
182. See id.
183. See id.
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