United States v. Sarraj

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3609

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

K HALIL S ARRAJ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:09-cr-00547-1—Virginia M. Kendall, Judge.

A RGUED S EPTEMBER 13, 2011—D ECIDED JANUARY 6, 2012

Before P OSNER, S YKES, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. Defendant Khalil Sarraj

sought to buy guns in Illinois, allegedly for personal

protection, after he was assaulted during a dispute with

criminal associates. Unluckily for Sarraj, the person he

asked for help acquiring guns was a confidential

informant for the Bureau of Alcohol, Tobacco, Firearms,

and Explosives. After determining that Sarraj was a

convicted felon, federal agents sold him two handguns,

2 No. 10-3609

both manufactured outside the state of Illinois, in a

“reverse sting” operation, one in which agents posed as

sellers rather than buyers of contraband. Sarraj pled

guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Sarraj’s

guilty plea was conditioned on reservation of his right

to challenge the way in which the government proposed

to prove the interstate commerce element of the fed-

eral crime.

On appeal, Sarraj asserts that principles of federalism

and the Supreme Court’s decision in United States v.

Lopez, 514 U.S. 549 (1995), require limits on the reach of

section 922(g)(1). Sarraj believes that reverse sting opera-

tions violate those limits because they allow federal agents

to create the required ties to interstate commerce by

choosing so-called “prop” guns that were manufactured

out of state. As he views the issue, this device allowed

agents improperly to “federalize” what would otherwise

have been a purely local gun-possession offense. Sarraj

attempts to distinguish substantial precedent treating

this type of law-enforcement operation as constitu-

tional. We have previously evaluated and described the

requirements for satisfying the interstate commerce

element in section 922(g)(1) prosecutions, and the ele-

ment was properly satisfied here.

Sarraj also fails to account for the substantial practical

consequences of the rule he suggests, which could invali-

date many federal prosecutions based on similar reverse

stings. We decline to prohibit reverse stings when fed-

eral agents and prosecutors provide the grounds for

treating the matter as a federal crime. Although de-

No. 10-3609 3

fendants may prefer to be prosecuted for similar state

crimes, or to escape prosecution entirely because of

differing state enforcement priorities and resources, the

federal Constitution is not offended by the choice of

federal prosecution under concurrent federal criminal

statutes, including the choice to provide a required

federal nexus element of the crime. We do not review

executive branch decisions concerning whether and how

to investigate and prosecute state or federal crimes

absent allegations of illegality or invidious bias in

those decisions, and there were none in this case. We

affirm Sarraj’s conviction and sentence.

I. Factual and Procedural Background

In June 2009, defendant Sarraj was attacked in his

home by two associates — alleged co-conspirators in a

prescription narcotics conspiracy — during an apparent

failed robbery attempt. After his attackers were

sentenced in state court to just ten days in jail, Sarraj

became angry and stated in open court that he would

find some guns and shoot his former associates if he ever

encountered them again. Sarraj knew that his prior

felony conviction made it illegal for him to possess fire-

arms. But Sarraj ignored that restriction and proceeded

to enlist the help of an acquaintance in obtaining the

desired guns. Sarraj said that he wanted untraceable

weapons with the serial numbers filed off.

Sarraj’s acquaintance was actually a confidential infor-

mant who told agents of the Bureau of Alcohol, Tobacco,

Firearms, and Explosives of Sarraj’s wishes. Agents

4 No. 10-3609

prepared to pose as undercover gun sellers, selecting

several weapons from the Bureau’s collection of prop

guns for use in reverse sting sales to prospective gun

buyers. The confidential informant introduced Sarraj to

the undercover agents, and the sting was carried out in

an Illinois grocery store parking lot on June 24, 2009. After

handling several guns and confirming that the serial

numbers had been removed, Sarraj purchased a Smith

and Wesson .357 revolver and a Browning/Fabrique

Nationale .380 semi-automatic handgun.

To ensure that a purchase by Sarraj would violate

federal law, the guns offered by the agents had been

manufactured outside the state of Illinois, though

their manufacturing origin was not discussed during

the sale. See, e.g., United States v. Rice, 520 F.3d 811, 815

(7th Cir. 2008) (holding that “as long as a firearm

moved across state lines at some point prior to the de-

fendant’s possession of it, the possession satisfies

§ 922(g)(1)’s ‘in or affecting commerce’ requirement”).

Sarraj was the proud owner of the two guns for as long

as it took him to walk from the agents’ vehicle to his

own and to stow the guns in his trunk. At that point,

other agents arrested Sarraj. He was eventually charged

in a one-count indictment with being a felon in posses-

sion of a firearm in violation of 18 U.S.C. § 922(g)(1).

In the district court, Sarraj filed a Motion for Modified

Jury Instruction Concerning Whether ATF Prop Firearms

“Affected” Interstate Commerce. The motion argued

that the ATF had removed the subject guns from the

stream of interstate commerce when it took the guns off

No. 10-3609 5

the private market and added them to the Bureau’s prop

gun collection. Accordingly, Sarraj argued, the guns

would not have been “in or affecting commerce” when

they were sold to him, as needed to meet the interstate

commerce requirement of section 922(g)(1). This argu-

ment, if accepted, would distinguish reverse sting opera-

tions from the scenario, common in the case law, of a

felon who is merely caught with a gun that was manu-

factured outside the state. The district court heard argu-

ment on this issue and denied Sarraj’s motion in a

written memorandum. The court correctly found no

support in our cases for the distinction proposed by

Sarraj. Other arguments made by Sarraj in the motion

were not explicitly addressed by the court in its denial,

but are relevant to the waiver issue discussed below.

Sarraj renewed these arguments in a motion to

dismiss the indictment that incorporated “all of the

points, authorities, and arguments” from his prior

motion to modify the jury instruction. The court denied

the motion to dismiss and the next day held a plea agree-

ment hearing in which Sarraj entered a conditional plea

of guilty to the felon-in-possession charge. Sarraj condi-

tioned his plea on reserving his right to appeal the

court’s earlier denials of his motion to modify the jury

instruction and motion to dismiss the indictment (as

well as any sentencing issues). Sarraj was sentenced to

serve 56 months in federal prison and now appeals.

II. The Waiver Issue

Before addressing the merits of Sarraj’s argument,

we must confront the government’s assertion that Sarraj

6 No. 10-3609

has shifted his arguments so much that his appeal falls

outside the scope of the right to appeal that he preserved

with his guilty plea. In the district court, Sarraj chiefly

complained that agents had taken the prop guns out of

the stream of interstate commerce, cleansing the guns

of their interstate character. Here Sarraj argues that the

agents’ affirmative choice of prop guns with an inter-

state commerce history operated to manufacture

authority and offended general federalism concerns.

Sarraj does not argue that section 922(g)(1) is facially

unconstitutional, possibly because we have rejected

such challenges so often that to continue to bring them

might be considered frivolous. See, e.g., United States v.

Van Sach, 458 F.3d 694, 703 (7th Cir. 2006); United States

v. Gillaum, 372 F.3d 848, 862 (7th Cir. 2004) (collecting

cases); United States v. Mitchell, 299 F.3d 632, 633-34

(7th Cir. 2002) (same). Sarraj instead attacks the subset of

section 922(g)(1) applications that involve reverse stings.

The government objects that this new formulation on

appeal was waived. E.g., United States v. Cain, 155 F.3d

840, 843 (7th Cir. 1998) (dismissing portion of appeal

raising suppression issue that defendant failed to pre-

serve).1

1

The Cain opinion phrased this dismissal in terms of a lack

of “jurisdiction” over that portion of the appeal. In view of the

Supreme Court’s more recent efforts to confine the use of the

term “jurisdiction” to those matters affecting the court’s

power to act, see, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510

(2006), it is better to think of the problem in terms of simple

(continued...)

No. 10-3609 7

Sarraj’s arguments on appeal could have been forfeited

if he failed to present them to the district court, or waived

if he presented the arguments but agreed in his plea not

to bring them here. We must determine whether the

arguments were adequately presented in Sarraj’s pretrial

motions, and if so, whether they were also preserved in

his conditional plea agreement. See United States v.

Doherty, 17 F.3d 1056, 1059 (7th Cir. 1994) (finding waiver

of a duplicity issue not mentioned in defendants’ motion

to dismiss an indictment).

We are satisfied that Sarraj presented a sufficiently

clear version of his appeal arguments to the district

court before that court denied his motion to dismiss. For

example, in his reply in support of his motion to

modify the jury instruction, Sarraj characterized his

argument as an as-applied constitutional challenge, and

argued that section 922(g)(1) “does not federalize every

gun possession.” Sarraj also expressly incorporated that

reply brief into his subsequent motion to dismiss. In

the district court, the defense developed more fully

the related removal-from-commerce theory in briefs,

and the district court also focused its denial on that

aspect. But an advocacy choice, selecting particular ar-

guments for emphasis, does not operate to waive other

1

(...continued)

waiver rather than appellate jurisdiction. Accord, United

States v. Cotton, 535 U.S. 625, 630 (2002) (narrowing use of

“jurisdiction” in criminal law context). The government’s

waiver argument is not one we would be required to raise on

our own, indicating that it is not jurisdictional in the strict sense.

8 No. 10-3609

arguments that were still properly presented to the

district court. See United States v. Black, 636 F.3d 893, 898

(7th Cir. 2011) (“While [defendant] may not have fully

developed nor articulately presented the exact argument

below, he did raise the issue . . . .”). Sarraj presented

and did not abandon the arguments he relies on here.

We turn next to the effect of the conditional plea on

preservation of issues for appeal.

Federal Rule of Criminal Procedure 11(a)(2) allows a

defendant, with “consent of the court and the govern-

ment,” to condition a guilty plea on the defendant’s right

to appeal from an adverse determination of a specified

pretrial motion. When the facts underlying the offense

are largely uncontested and the pretrial ruling would

control the outcome, as here, a conditional plea allows

everyone involved to avoid the wasteful exercise of

going through an entire trial just so the defendant can

adequately preserve the controlling pretrial issue for

appeal. See Fed. R. Crim. P. 11 advisory committee’s

notes to 1983 amendments. Without Rule 11(a)(2), an

unconditional guilty plea would concede the point of

pretrial objection along with everything else. At the

same time, the rule does not create a flood of de facto

interlocutory appeals because, to travel this road to the

courts of appeals, a defendant must first enter a guilty

plea — thereby giving up all other possible issues on

which he might contest the charge.

The scope of Sarraj’s right to pursue an appeal was set

forth in the plea agreement and was confirmed during

the plea colloquy. The agreement did not require Sarraj

No. 10-3609 9

to present his arguments in exactly the same way and

with the same emphasis that he gave them in the district

court. The plea agreement left Sarraj free to select and

assert on appeal any argument from the set of arguments

he adequately presented to the district court. Sarraj’s

conditional plea reserved the right to appeal from the

“identified pretrial rulings” generally. The government

cites Doherty, 17 F.3d at 1058, where we held that the

conditional plea therein reserved only the right to

appeal “on the ground the motion had stated.” In Doherty,

however, the motion had stated only one ground, and

the issue presented on appeal had not been raised in the

district court at all. Id. Sarraj preserved his right to chal-

lenge the district court’s denial of his motion to

dismiss and did not limit that appeal to a precise replay

of district court advocacy and reasoning. Finding no

waiver, we turn to the merits of Sarraj’s contention that

principles of federalism render section 922(g)(1) unconsti-

tutional as applied to the reverse sting operation that

snared him.

III. Reverse Stings and the Interstate Commerce Element

Sarraj does not challenge any factual basis for the in-

dictment but instead disputes its legal sufficiency. “We

review questions of law in a district court’s ruling on a

motion to dismiss an indictment de novo.” United States v.

White, 610 F.3d 956, 958 (7th Cir. 2010). Sarraj also does

not dispute that Congress was operating within its enu-

merated commerce power in enacting section 922(g)(1)

and thereby making a federal crime out of a felon’s

10 No. 10-3609

firearm possession “in or affecting commerce.” His con-

stitutional arguments focus on reverse sting operations

by agents seeking to enforce section 922(g)(1) — though

by their own logic the arguments would admittedly

apply to all reverse stings where the government, rather

than the defendant, is the party responsible for creating

the interstate nexus.2

We have repeatedly and consistently held that a

firearm’s single past journey across a state line satisfies

the interstate commerce element of section 922(g)(1). See,

e.g., United States v. Rice, 520 F.3d 811, 815 (7th Cir. 2008)

(“as long as a firearm moved across state lines at

some point prior to the defendant’s possession of it, the

possession satisfies § 922(g)(1)’s ‘in or affecting com-

merce’ requirement”), citing Scarborough v. United States,

431 U.S. 563 (1977). We have also specifically addressed

whether the Supreme Court’s Lopez decision narrowed

the scope of section 922(g)(1), and we have repeatedly

found that it did not. E.g., United States v. Lemons, 302

F.3d 769, 772 (7th Cir. 2002) (collecting cases); United

States v. Lewis, 100 F.3d 49, 52 (7th Cir. 1996). Lopez dis-

2

The interstate commerce element of the section 922(g)(1)

crime is often described loosely as the “jurisdictional” element.

As we have explained in a very similar context, it is better

understood as simply one element of the crime; it does not

affect the court’s subject matter jurisdiction. See United States

v. Skoczen, 405 F.3d 537, 541-42 (7th Cir. 2005) (affirming

conviction for conspiring to steal goods from interstate com-

merce where federal agents ensured that goods in question

had moved in interstate commerce).

No. 10-3609 11

tinguished the statute it invalidated from those like

section 922(g)(1) containing an interstate commerce

element that “would ensure, through case-by-case inquiry,

that the firearm possession in question affects interstate

commerce.” See Lopez, 514 U.S. at 561-62, referring to

United States v. Bass, 404 U.S. 336 (1971), and a

predecessor statute prohibiting possession “in com-

merce or affecting commerce.”

As a practical matter, we have held that the required

interstate nexus under section 922(g)(1) can be

established “merely by evidence that the gun was manu-

factured outside the state in which it was possessed,” from

which we infer that the gun must have traveled in inter-

state commerce at least once. United States v. Humphreys,

468 F.3d 1051, 1053 (7th Cir. 2006). The interstate

nexus requirement is a factual predicate, not a mens rea

element of the crime that would require proof of defen-

dant’s knowledge of facts supporting the nexus. See

United States v. Lindemann, 85 F.3d 1232, 1241 (7th Cir.

1996) (“Thus it has consistently been held that for

statutes in which Congress included an ‘interstate

nexus’ for the purpose of establishing a basis for its

authority, the government . . . need not prove that the

defendant knew the ‘interstate nexus’ of his actions.”);

United States v. Castor, 937 F.2d 293, 298 (7th Cir. 1991)

(same). A history in or affecting interstate commerce is

only a necessary property of the subject gun, not

something the defendant must know. That interstate

history operates to establish federal authority under our

Constitution of limited powers, but it does not in

12 No. 10-3609

any way add to, or subtract from, the wrong that is ad-

dressed by felon-in-possession statutes. It follows that

the defendant need not have been involved with

bringing the gun into the state, nor is there a time limit

or other requirement of a temporal link between the

interstate movement and the defendant’s possession. See

Lemons, 302 F.3d at 771; Rice, 520 F.3d at 816. A firearm

can be stashed away in a friend’s closet for decades prior

to a defendant’s offending possession, and can still

satisfy the required interstate nexus. See, e.g., Lewis, 100

F.3d at 52. By the same reasoning, the firearm can

satisfy the nexus even if it has been locked up in an ATF

storage locker.

Reviewing these and other prior cases, the district

court correctly rejected Sarraj’s arguments that the in-

terstate nexus evaporated when government agents

allegedly removed the guns from the stream of commerce

by adding them to the Bureau’s prop gun collection.

Our cases have not endorsed, and we do not adopt here,

any distinction that would allow passage of time, or

acquisition by the government, to strip a firearm of its

interstate nexus. We do not evaluate and weigh the

scope of an effect on interstate commerce arising from

a particular firearm possession. It is sufficient that the

firearm once had a minimal connection to interstate

commerce. This minimal nexus requirement reflects

the intent of Congress in broadly criminalizing posses-

sion of firearms by convicted felons. See, e.g., Scarborough,

431 U.S. at 572-75 (analyzing the legislative history of a

predecessor statute and finding “no indication of any

No. 10-3609 13

concern with either the movement of the gun or the

possessor or with the time of acquisition”).3

On appeal, Sarraj emphasizes more his argument that

federal agents should not be permitted, in the exercise of

their discretion, to “federalize” local gun-possession

offenses by offering suspects interstate prop guns

rather than letting them buy local. We assume that federal

agents will double-check their factual predicates when

setting up a sting and are unlikely to waste time selling

suspects guns that do not satisfy the requirements of the

statute. Good federal agents will therefore opt to use

interstate prop guns in every section 922(g)(1) investiga-

tion. As a practical matter, Sarraj is arguing that

federal reverse sting operations are never constitu-

tionally acceptable where federal agents supply the link

to interstate commerce but could instead have called in

state authorities to investigate and arrest under state

law. Sarraj asserts that federal agents, by affirmatively

ensuring that factual predicates for their authority are

satisfied, intrude into an area of traditional state sover-

3

We have relied on Scarborough on numerous occasions with

the understanding that Lopez did not invalidate or call into

question the analysis or rule of Scarborough, even if the

minimal nexus requirement of Scarborough might seem to stand

in some tension with the substantial-impact framework of

Lopez. E.g., Lewis, 100 F.3d at 51-52; Lemons, 302 F.3d at 771-72;

see also Alderman v. United States, 131 S. Ct. 700 (2011) (Thomas,

J., dissenting from denial of certiorari) (asserting that Lopez

conflicts with Scarborough).

14 No. 10-3609

eignty and exercise an impermissible “general police

power.” 4

To the extent Sarraj is suggesting that federal law

enforcement officials must defer to state authorities

who may wish to prosecute locally under state law, we

reject the suggestion. We also reject any suggestion

that section 922(g)(1) prosecutions must be confined to

contexts that are uniquely and necessarily federal. In

enacting section 922(g)(1), Congress chose to exercise

the full extent of its power over interstate commerce,

treating gun possession by convicted felons as an issue

of national interest in most circumstances — an interest

that is concurrent with that of the several States. See

Scarborough, 431 U.S. at 572 (“in implementing these

findings by prohibiting both possessions in commerce

and those affecting commerce, Congress must have

meant more than to outlaw simply those possessions

that occur in commerce or in interstate facilities”). Con-

gress intended to regulate to the full extent of its com-

merce power, and permit federal authorities to reach

every violation where a minimal nexus was established.

Id. Section 922(g)(1) is facially constitutional, and a

single past interstate trip sufficiently affects commerce

4

Sarraj variously argued that section 922(g)(1) cannot be

constitutionally interpreted to reach reverse sting operations

and that the statute as applied permits unconstitutional

“unfettered discretion.” The bottom line is that he contends

his prosecution is unconstitutional because it is beyond the

scope of the Congressional power over interstate and foreign

commerce.

No. 10-3609 15

(as our cases hold), so possessing a firearm of foreign

manufacture as a felon can be both a federal and a state

crime. It is up to the various state and federal agencies

to work out together how to share the job of in-

vestigating and prosecuting these crimes.

In general, and particularly in areas of overlapping

authority, we limit our review of decisions by prosecutors

to evaluating allegations of illegal conduct or invidious

bias in the exercise of executive branch discretion. E.g.,

United States v. Podolsky, 798 F.2d 177, 181 (7th Cir. 1986)

(observing that “judges lack the information necessary

to evaluate prosecutorial decisions in areas of concurrent

federal and state criminal jurisdiction”). Returning then

to Sarraj’s core argument, we conclude that the govern-

ment here did not violate Sarraj’s federal consti-

tutional rights by investigating him and prosecuting

him for violation of section 922(g)(1), including by pro-

viding him the opportunity for his firearm possession

to violate federal law. Sarraj does not claim that he

was entrapped by the agents who sold him the guns,

or that the agents violated any of his constitutional

rights in the process. His only objection is to the agents’

selection of the guns they would sell him to ensure the

elements of a federal crime would all be met.

In analogous reverse sting cases, this court has ap-

proved of conduct by federal agents that ensured a re-

quired interstate commerce nexus. In Podolsky, agents

offered to pay a suspect to burn down a commercial

building for insurance purposes. They steered the

aspiring arsonist to a building that was in fact used for

16 No. 10-3609

interstate commerce rather than letting him burn down

an unoccupied target building next door. Id. at 177-78.

We held that although “federal agents could have

turned the evidence over to the local authorities rather

than induce Podolsky to commit a federal crime,” the

“responsibility for wise management of scarce prosecuto-

rial and other governmental resources is not a judicial

responsibility.” Id. at 179. Similarly, in United States v.

Skoczen, 405 F.3d 537 (7th Cir. 2005), agents borrowed a

truckload of cigarettes from a tobacco company in

Virginia and drove them to Illinois for use in a reverse

sting. We found no problem with the agents’ actions,

although we noted that matters “might be different” if

the defendant had expressed an interest in buying local

that agents had frustrated. Id. at 542.5

We see no meaningful distinction between these cases

and the reverse sting here. The agents here did not

offend the Constitution with their choice to provide

interstate prop guns. Accordingly, the judgment of the

district court is A FFIRMED.

5

Sarraj did not express any preference for guns made in

Illinois, so we do not reach the question of whether he could

opt out of federal criminal authority by doing so. Of course,

even a gun manufactured in Illinois and sold to a suspect

in Illinois could have acquired an interstate character via

various histories of travel, trade, or use.

1-6-12