Petition for Writ of Certiorari — Aaron Beasley, Petitioner v. United States

No. 17-_________

IN THE SUPREME COURT OF THE UNITED STATES

___________

AARON BEASLEY,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

___________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

J ASON D. H AWKINS

Federal Public Defender

N ORTHERN D ISTRICT OF T EXAS

PETER FLEURY

Counsel of Record

ASSISTANT FEDERAL

PUBLIC DEFENDER

819 TAYLOR ST ., RM 9 A 10

F ORT WORTH , TX 76102

(817) 978-2753

QUESTION PRESENTED

I.

Recently this Court and individual Justices have increasingly explained

that Congress’s power under the Commerce Clause to criminalize conduct

otherwise falling under the states’ traditional police power is subject to

limits–and that those limits have teeth.

Q: In light of Bond v. United States, 134 S.Ct. 2077 (2014). Nat’l Fed’n of

Indep. Bus. v. Sebelius,567 U.S. 519 (2012) (NFIB) and the dissent from

denial of certiorari in Alderman v. United States,131 S. Ct. 700, 701

(Thomas and Scalia, JJ., dissenting from denial of certiorari), citing

United States v. Lopez, 514 U.S. 549, 558–559 (1995), does the federal

Unlawful Felon in Possession of a Firearm statute (18 U.S.C. § 922(g)(1)),

as construed (or miscontrued) by the circuit courts, exceed Congress’s

authority to regulate under the Commerce Clause?

II.

Does the Fifth Circuit’s interpretation of 18 U.S.C. § 922(g),(which is that

the statute requires only that the government prove that the defendant

possessed a firearm that had been shipped in the unknown past by

unknown individual’s unrelated to the defendant or his possession of the

firearm), contradict the plain words of the statute which require that the

defendant “ship or transport in interstate commerce, or possess in or

affecting commerce,” and, if so, did the district court err in denying the

motion to dismiss the indictment, and in its jury instructions?

III.

Did the Fifth Circuit err in reading the statutory scheme which requires

a knowing violation of 18 U.S.C. § 922(g) for there to be an offense, as

requiring only a knowing possession of a firearm, in contradiction to the

plain language of the statute, the legislative history of the statute and

this Court’s holdings in Bryan v. United States, 524 U.S. 184, 193 (1998),

Flores-Figueroa v. United States, 556 U.S. 646 (2009), Staples v. United

States, 511 U.S. 600, 618-19 (1994), McFadden v. United States, 135 S.Ct.

2298 (2015), United States v. X-Citement Video, 513 U.S. 64, 72 (1994);

Liparota v. United States, 471 U.S. 419, 423 (1985); Morissette v. United

States, 342 U.S. 246, 273 (1952), which hold that where the mens rea is

“knowingly,” the government must prove the defendant had knowledge

of the facts that constitute the offense?

ii

PARTIES

Aaron Beasley is the Petitioner; he was the defendant-appellant below.

The United States of America is the Respondent; it was the plaintiff-appellee

below.

iii

TABLE OF CONTENTS

Question Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index to Appendices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdictional Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional and Statutory Provisions Involved. . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reasons for Granting the Writ.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

This Court should use this case to answer the reoccurring,

important question whether, when enacting the Unlawful Felon

in Possession of a Firearm statute (18 U.S.C. § 922(g)(1), Congress

intruded into an area traditionally left to the states’ exercise of the

police power and exceeded its authority under the Commerce

Clause; whether the courts below have contradicted the plain

words of the statute, legislative history, and this Court’s holdings

in allowing for convictions that do not comport with the statute’s

requirements that the possession of the firearm be in or affection

interstate commerce or that there be a knowing violation of the

statute; the writ should also be granted to enforce this Court’s

holding in Gaudin that a jury must be the entity that finds the

facts and applies the law to the facts... . . . . . . . . . . . . . . . . . . . . . . . . . 4

II.

Does the Fifth Circuit’s interpretation of 18 U.S.C. § 922(g),(which

is that the statute requires only that the government prove that

the defendant possessed a firearm that had been shipped in the

unknown past by unknown individual’s unrelated to the defendant

or his possession of the firearm), contradict the plain words of the

statute which require that the defendant “ship or transport in

interstate commerce, or possess in or affecting commerce,” and, if

so, did the district court err in denying the motion to dismiss the

indictment, and in its jury instructions?. . . . . . . . . . . . . . . . . . . . . . . 11

III.

Did the Fifth Circuit err in reading the statutory scheme which

requires a knowing violation of 18 U.S.C. § 922(g) for there to be

an offense, as requiring only a knowing possession of a firearm, in

contradiction to the plain language of the statute, the legislative

history of the statute and this Court’s holdings in Bryan v. United

States, 524 U.S. 184, 193 (1998), Flores-Figueroa v. United States,

iv

556 U.S. 646 (2009), Staples v. United States, 511 U.S. 600, 618-19

(1994), McFadden v. United States, 135 S.Ct. 2298 (2015), United

States v. X-Citement Video, 513 U.S. 64, 72 (1994); Liparota v.

United States, 471 U.S. 419, 423 (1985); Morissette v. United

States, 342 U.S. 246, 273 (1952), which hold that where the mens

rea is “knowingly,” the government must prove the defendant had

knowledge of the facts that constitute the offense?. . . . . . . . . . . . . . . 13

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

v

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court

for the Northern District of Texas

vi

TABLE OF AUTHORITIES

FEDERAL CASES

Alderman v. United States, 131 S. Ct. 700 (2011). . . . . . . . . . . . . . . . . . . . . . . . ii, 4, 6

Bond v. United States, 134 S. Ct. 2077 (2014). . . . . . . . . . . . . . . . . . . . . . ii, 4, 5, 9, 10

Bryan v. United States, 524 U.S. 184 (1998). . . . . . . . . . . . . . . . . . . . . . . ii, 13, 14, 15

District of Columbia v. Heller, 540 U.S. 570 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . 15

Flores-Figueroa v. United States, 556 U.S. 646 (2009). . . . . . . . . . . . ii, 13, 14, 15, 18

Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1 (1824). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Jones v. United States, 529 U.S. 848 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Liparota v. United States, 471 U.S. 419 (1985). . . . . . . . . . . . . . . . . . . . . . . . ii, 13, 18

McFadden v. United States, 135 S. Ct. 2298 (2015). . . . . . . . . . . . . . . . . . . . ii, 13-18

Morissette v. United States, 342 U.S. 246 (1952). . . . . . . . . . . . . . . . . . . . . . . ii, 13, 18

National Federation of Independent Business v. Sebelius,

567 U.S. 519, 132 S.Ct. 2566 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, 4-9

Scarborough v. United States, 431 U.S. 563 (1977).. . . . . . . . . . . . . . . . . . . . . . . . 6, 9

Staples v. United States, 511 U.S. 600 (1994). . . . . . . . . . . . . . . . . . . . . . ii, 13, 14, 15

United States v. Dancy, 861 F.2d 77 (5th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Darby, 312 U.S. 100 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

United States v. Freed, 401 U.S. 601 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Lopez, 514 U.S. 549 (1995). . . . . . . . . . . . . . . . . . . . . . . ii, 4, 5, 6, 12

United States v. Morrison, 529 U.S. 598 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

United States v. X-Citement Video, 513 U.S. 64 (1994). . . . . . . . . . . . . . . . . . ii, 13, 18

Wickard v. Filburn, 317 U.S. 111 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

vii

FEDERAL STATUTES

21 U.S.C. §802(32)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18

21 U.S.C. §841(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 922(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 8

18 U.S.C. § 924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

18 U.S.C. § 924(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

18 U.S.C. § 924(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 924(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

FEDERAL RULES

Sup. Ct. R. 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MISCELLANEOUS

Bond v. United States, 12-158, Petition for Certiorari (August 1, 2012),

2010 WL 1506717.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted in 1986 U.S. Code Cong.

and Ad.News 1327, 1351-52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

UNITED STATES CONSTITUTION

U.S. Const. art. I, § 8, cl. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 12

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Aaron Beasley respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The unpublished opinion of the United States Court of Appeals for the Fifth

Circuit is captioned as United States v. Aaron Beasley, No. 17-10945, and is provided

in the Appendix to the Petition. [Appx. A]. The district court entered judgment on

August 22, 2017, which judgment is attached as an Appendix. [Appx. B].

JURISDICTIONAL STATEMENT

The instant Petition is filed within 90 days of an opinion affirming the judgment,

which was entered on December 27, 2017. See SUP. CT. R. 13.1.

This Court’s

jurisdiction to grant certiorari is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, RULES, AND STATUTES INVOLVED

Article I, Section 8 of the U.S. Constitution provides in part:

The Congress shall have power... [t]o regulate commerce with foreign

nations, and among the several states, and with the Indian [sic] tribes

Title 18 U.S.C. 924(a)(2) of the United State Code provides:

Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of

section 922 shall be fined as provided in this title, imprisoned not more

than 10 years, or both.

Title 18, Section 922(g) of the United States Code provides in part:

It shall be unlawful for any person –

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

Page 1

STATEMENT

A.

Trial Court Proceedings

On November 1, 2016, an indictment was filed in the Northern District of Texas,

Fort Worth Division, which indictment charged Mr. Beasley in two counts with "having

been convicted in a court of a crime punishable by imprisonment for a term in excess

of one year, did knowingly possess in and affecting interstate and foreign commerce,

a firearm . . . .” Each count alleged he possessed a separate firearm, and count one was

alleged to have occurred on January 31, 2016, with count two alleged to have occured

on June 9, 2016. Mr. Beasley entered a plea of guilty to both counts. He was advised

that the elements of the offense with regard to the interstate commerce element on

both counts were as follows: “[t]hat the possession of the firearm was in and affected

interstate commerce, that is, at some time before Mr. Beasley possessed the

firearm, it had traveled from one State or Country to another.” (Emphasis

added.) The facts that ostensibly supported the plea, stipulated to by Mr. Beasley, as

to the interstate commerce element, were that the firearm “had previously been

shipped and transported in interstate and foreign commerce.” As to the mens rea, the

elements as described required only that he knowingly possessed the weapon, and that

is what he stipulated to as the factual basis for the plea.

B.

Circuit Court Proceedings

On appeal, Petitioner argued, first, that he plain words of 18 U.S.C. § 922(g) do

not allow for prosecutions for the possession of weapons that have in the distant past

been in or affected interstate commerce; second, that even if Congress did intend to

allow for such prosecutions, the statute is unconstitutional; and third, that the Fifth

Circuit has incorrectly interpreted the statute to apply the mens rea of knowingly only

to the possession of the firearm. Therefore, the district court erred in accepting this

Page 2

plea because there was an insufficient factual basis for the plea, and in the alternative,

the statue is unconstitutional.

Page 3

REASONS FOR GRANTING THE WRIT

This Court should use this case to answer the

reoccurring, important question whether, when

enacting the Unlawful Felon in Possession of a

Firearm statute (18 U.S.C. § 922(g)(1), Congress

intruded into an area traditionally left to the states’

exercise of the police power and exceeded its

authority under the Commerce Clause; whether the

courts below have contradicted the plain words of

the statute, legislative history, and this Court’s

holdings in allowing for convictions that do not

comport with the statute’s requirements that the

possession of the firearm be in or affection interstate

commerce or that there be a knowing violation of the

statute.

I.

In light of Bond v. United States, 134 S.Ct. 2077 (2014). Nat’l Fed’n

of Indep. Bus. v. Sebelius,567 U.S. 519 (2012) (NFIB) and the

dissent from denial of certiorari in Alderman v. United States,131

S. Ct. 700, 701 (Thomas and Scalia, JJ., dissenting from denial of

certiorari), citing United States v. Lopez, 514 U.S. 549, 558–559

(1995), does the federal Unlawful Felon in Possession of a Firearm

statute (18 U.S.C. § 922(g)(1)), as construed (or misconstrued) by

the circuit courts, exceed Congress’s authority to regulate under

the Commerce Clause?

The Court should review this increasingly-timely issue because the admitted-to

facts establish only that the firearm in question had traveled in interstate commerce

at an earlier, undetermined time and in no way implicate–much less–establish any

effect on interstate commerce, much less a requisite substantial effect on commerce.

A. Introduction.

“In our federal system, the National Government possesses only limited powers;

the States and the people retain the remainder.” Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519, 533 (2012). Powers outside those explicitly enumerated by the

Page 4

Constitution are denied to the National Government. See id. (“The Constitution's

express conferral of some powers makes clear that it does not grant others.”). There is

no general federal police power. See United States v. Morrison, 529 U.S. 598, 618-619

(2000). Every exercise of Congressional power must be justified by reference to a

particular grant of authority. See Nat’l Fed’n of Indep. Bus., 567 U.S. at 535 (“The

Federal Government has expanded dramatically over the past two centuries, but it still

must show that a constitutional grant of power authorizes each of its actions.”). A

limited central government promotes accountability and “protects the liberty of the

individual from arbitrary power.” Bond v. United States, 134 S.Ct. 2077, 2091 (2014).

The Constitution grants Congress a power to “regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” Art. I, § 8, cl. 3.

But this power “must be read carefully to avoid creating a general federal authority

akin to the police power.”Nat’l Fed’n of Indep. Bus., 567 U.S.. at 536.This Court has

held that “[t]he power of Congress over interstate commerce is not confined to the

regulation of commerce among the states,” and includes a power to regulate activities

that “have a substantial effect on interstate commerce.” United States v. Darby, 312

U.S. 100, 118-119 (1941).

B.

Alderman v. United States: What properly constitutes a

“Substantial Affect on Commerce?”

As this Court almost certainly knows, numerous “facial” challenges have been

brought to Section 922(g)(1) on the basis that, to conform with the Court’s opinion in

United States v. Lopez, section § 922(g)(1) must set out a “substantial affect” on

interstate commerce. The gist of those challenges is that Lopez identifies three

categories of activity that Congress’s commerce power authorizes it to regulate: (1) the

use of the channels of interstate commerce; (2) the instrumentalities of interstate

commerce; and (3) “activities having a substantial relation to interstate commerce . .

Page 5

. i.e., those activities that substantially affect interstate commerce.” See Alderman v.

United States, 131 S. Ct. 700, 701 (Thomas and Scalia, JJ., dissenting from denial of

certiorari ), citing United States v. Lopez, 514 U.S. 549, 558–559 (1995). Challengers

have assailed the statute, arguing that mere possession of a firearm that may have

moved in interstate commerce at some earlier point is not an activity that falls within

Lopez’s third category.

Of course, although with some notable (and increasing) dissents, the circuit

courts— including the Fifth Circuit—have rejected these Lopez challenges and relied

on this Court’s pre-Lopez opinion in Scarborough v. United States, 431 U.S. 563 (1977),

when doing so. In Alderman, however, Justices Scalia and Thomas, noted the

confusion at the circuit court level concerning the interaction between Scarborough and

Lopez.in doing so. See Alderman, 131 S. Ct. at 701–02.

Petitioner submits that 18 U.S.C. § 922(g)(1) is unconstitutional and that

Lopez—and not Scarborough—resolves the challenge in his favor. And he suggests that

Justice Thomas and Justice Scalia’s reasoning in the Alderman dissent from the

denial-of-certiorari only buttresses the need for the Court to decide this case. This is

certainly so in light of the Court’s 2012 and 2014 decisions discussed below.

C.

National Federation v. Sebellius: A Refinement of the Commerce

Clause Analysis.

In Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (NFIB), this Court

suggested a different Commerce Clause analysis comes to bear. In NFIB five members

of this Court found that the individual mandate component of the Affordable Care Act

could not be justified by reference to the Commerce Clause. See Nat’l Fed’n of Indep.

Bus.,132 S.Ct. at 2591 (Roberts., C.J. concurring). Although this Court recognized that

the failure to purchase health insurance affects interstate commerce, five Justices did

not think that the constitutional phrase “regulate Commerce ... among the several

Page 6

States,” could reasonably be construed to include enactments that compelled

individuals to engage in commerce. See id. at 2586 (Roberts., C.J. concurring). Rather,

they understood that phrase to presuppose an existing commercial activity to be

regulated. See id. (Roberts., C.J. concurring).

The majority of this Court in NFIB thus required more than a demonstrable

effect on commerce: the majority required that the challenged enactment itself be a

regulation of commerce – that it affect the legality of pre-existing commercial activity.

Possession of firearms, like the refusal to purchase health insurance, may

“substantially affect commerce.” But such possession is not, without more, a

commercial act.

To be sure, NFIB does not explicitly repudiate the “substantial effects” test.

Indeed, the Chief Justice’s opinion quotes Darby’s statement that “[t]he power of

Congress over interstate commerce is not confined to the regulation of commerce

among the states...” Nat’l Fed’n of Indep. Bus., 567 U.S. at 549 (Roberts., C.J.

concurring); see also id. at 552-53 (Roberts., C.J. concurring) (distinguishing Wickard

v. Filburn, 317 U.S. 111 (1942)). It is therefore perhaps possible to read NFIB

narrowly: as an isolated prohibition on affirmatively compelling persons to engage in

commerce. But it is difficult to understand how this reading of the case would be at all

consistent with NFIB’s textual reasoning.

This is so because the text of the Commerce Clause does not distinguish between

Congress’s power to affect commerce by regulating non-commercial activity (like

possessing a firearm), and its power to affect commerce by compelling people to join a

commercial market (like health insurance). Rather it simply says that Congress may

“regulate ... commerce between the several states.” And that phrase either is or is not

limited to laws that affect the legality of commercial activity. Five justices in NFIB

took the text of the Clause seriously and permitted Congress to enact only those laws

Page 7

that were, themselves, regulations of commerce. NFIB thus allows Congress only the

power “to prescribe the rule by which commerce is to be governed.” Gibbons v. Ogden,

22 U.S. 1, 196, 9 Wheat. 1 (1824).

And indeed, much of the Chief Justice’s language in NFIB is consistent with this

view. This opinion rejects the government’s argument that the uninsured were “active

in the market for health care” because they were “not currently engaged in any

commercial activity involving health care...” id. at 556 (Roberts., C.J. concurring)

(emphasis added). The Chief Justice significantly observed that “[t]he individual

mandate's regulation of the uninsured as a class is, in fact, particularly divorced from

any link to existing commercial activity.” Id. (Roberts., C.J. concurring) (emphasis

added). He reiterated that “[i]f the individual mandate is targeted at a class, it is a

class whose commercial inactivity rather than activity is its defining feature.” Id.

(Roberts., C.J. concurring) (emphasis added). He agreed that “Congress can anticipate

the effects on commerce of an economic activity,” but did not say that it could

anticipate a non-economic activity. Id. (Roberts., C.J. concurring) (emphasis added).

And he finally said that Congress could not anticipate a future activity “in order to

regulate individuals not currently engaged in commerce.” Id. (Roberts., C.J.

concurring) (emphasis added). Accordingly, NFIB provides substantial support for the

proposition that enactments under the Commerce Clause must regulate commercial

or economic activity, not merely activity that affects commerce.

Here, Petitioner’s possession of the gun was not alleged to be, nor was there any

evidence that it was, an economic activity; this should have been fatal to the conviction.

As explained by NFIB, the Commerce Clause permits Congress to regulate only

activities, i.e., the active participation in a market. But 18 U.S.C. §922(g)(1)

criminalizes all possession, without reference to economic activity. Accordingly it

sweeps too broadly, and is certainly unconstitutional as applied against the defendant

Page 8

in this prosecution.

Further, there was no allegation and no evidence that Petitioner was engaged

in the relevant market at the time of the regulated conduct. The Chief Justice has

noted that Congress cannot regulate a person’s activity under the Commerce Clause

unless the person affected is “currently engaged” in the relevant market. Id. at 556..

As an illustration, the Chief Justice provided the following example: “An individual

who bought a car two years ago and may buy another in the future is not ‘active in the

car market’ in any pertinent sense.” Id. (emphasis added). As such, NFIB overrules the

long-standing notion that a firearm which has previously and remotely passed through

interstate commerce should be considered to indefinitely affect commerce without

“concern for when the [initial] nexus with commerce occurred.” Scarborough v. United

States, 431 U.S. 563, 577 (1963).

Here, there was neither an allegation nor evidence that Mr. Beasley was

“currently engaged” in the gun market at the time of his arrest. Nor was there

evidence as to how recently Petitioner came to possess the gun. As to Petitioner, at

least, the statute is unconstitutional.

D.

Bond. v. United States provides additional supporting authority

by which to illustrate congressional overreach.

The Fifth Circuit rejected Petitioner’s arguments because NFIB did not

expressly support Petitioner’s view of the Commerce Clause. But this Court’s decision

in Bond v. United States, 134 S.Ct. 2077 (2014), undercuts that lower court’s assertion.

Bond presented the question of whether federalism limits the authority of Congress to

implement a treaty by criminalizing areas of traditional state concern, specifically the

deployment of poisons. See Bond v. United States, 12-158, Petition for Certiorari

(August 1, 2012), 2010 WL 1506717.

In Bond, the Chief Justice wrote to explain that, as it had explained in NFIB,

Page 9

the Court recognizes the federalism principles that delimit Congress’s regulatory

authority under the Commerce Clause. See Bond, 134 S.Ct. at 2088-2090. For virtually

all of the reasons set out there, its holding–that prohibitions on the use of poison

represent an area of traditional state concern, outside the scope of federal authority–

would occasion a finding that federal prohibitions on firearms possession are likewise

unconstitutional. Firearms, like poison, are a dangerous instrumentality traditionally

committed to the State police power. Both arguably affect commerce, but prohibitions

firearm possession or the deployment of poison are not, either of them, prohibitions on

commercial activity in the ordinary case.

Here, of course, the record establishes only that Mr. Beasley was a felon and

that he had possessed a firearm that had, at some antecedent time, traveled in

interstate commerce to arrive in Texas. At no time in the proceedings below, did the

Respondent allege (or prove) an affect on interstate commerce, much less any alleged

“substantial” effect. Furthermore, at the time he was arrested and the gun in question

detected, Petitioner was not engaged in any economic activity whatsoever.

Page 10

II.

Does the Fifth Circuit’s interpretation of 18 U.S.C. § 922(g),

(which is that the statute requires only that the government

prove that the defendant possessed a firearm that had been

shipped in the unknown past by unknown individual’s unrelated

to the defendant or his possession of the firearm), contradict the

plain words of the statute which require that the defendant “ship

or transport in interstate commerce, or possess in or affecting

commerce?”

Even if the statute on its face is deemed to be constitutional, the Fifth Circuit

has misconstrued the plain words of the statute and allowing for convictions that do

not meet Congress’s intent and which are unconstitutional. The Fifth Circuit’s

interpretation of § 922(g) contradicts the plain words of the statute which require that

the defendant “ship or transport in interstate . . . commerce, or possess in or affecting

commerce,” which is contrary to the idea that the government need only prove that the

defendant possessed a firearm that had been shipped in the unknown past by

unknown individual’s unrelated to the defendant or his possession of the firearm,

therefore the conviction below is invalid.

The statute requires and the indictment in this case alleged that Mr. Beasley’

possession of the a firearm is “in and affecting commerce.” However, this phrase is

defined by Fifth Circuit precedent to mean something different than those plain words

convey. The Fifth Circuit requires only that the jury find that the firearm crossed state

lines at some unspecified point in the past. Nor does the record establish any more

than this. The indictment did not allege and the record does not support an offense

falling within the plain words of the statute, nor the commerce clause

A conviction based on nothing more than the fact that the firearm passed from

one state to another at some point in the undetermined past, and with no showing that

Page 11

the interstate movement of the weapon was in any way related to its present

possession, comports with neither the statute nor the Constitution. The statute in

question, makes it unlawful for a felon to “possess in or affecting commerce, any

firearm or ammunition . . . .”

18 U.S.C. 922(g) (emphasis added). The current

possession of a firearm that has come to rest in a state in the distant past is not a

possession in interstate commerce nor is it a possession affecting intestate commerce.

Moreover, the fact that an item has moved from one state to another at some point in

the undetermined past is not a sufficient basis to confer power to the federal

government to regulate possession of the item under the Commerce Clause. See U.S.

Const. art. I, § 8, cl. 3. The reliance on the interstate movement of a firearm in the

undetermined past as a basis for a federal prosecution/conviction is inconsistent with

the holdings in United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison,

529 U.S. 598, 627 (2000), and Jones v. United States, 529 U.S. 848, 859 (2000).

This Court should grant review to correct the blatant and pervasive error.

Page 12

III.

Did the Fifth Circuit err in reading the statutory scheme which

requires a knowing violation of 18 U.S.C. § 922(g) for there to be

an offense, as requiring only a knowing possession of a firearm,

in contradiction to the plain language of the statute, the

legislative history of the statute and this Court’s holdings in

Bryan v. United States, 524 U.S. 184, 193 (1998), Flores-Figueroa

v. United States, 556 U.S. 646 (2009), Staples v. United States, 511

U.S. 600, 618-19 (1994), McFadden v. United States, 135 S.Ct. 2298

(2015), United States v. X-Citement Video, 513 U.S. 64, 72 (1994);

Liparota v. United States, 471 U.S. 419, 423 (1985); Morissette v.

United States, 342 U.S. 246, 273 (1952), which hold that where the

mens rea is “knowingly,” the government must prove the

defendant had knowledge of the facts that constitute the offense?

The Fifth Circuit has contradicted the plain words of the statute, legislative

history, and this Court’s holdings in allowing for convictions that do not comport with

the statute’s requirements that knowing violation of the statute. This Court should

grant review to correct another blatant and pervasive misconstruction of the statute

regarding the proper mens rea. The courts below all hold that the government need

only prover a knowing possession of a firearm. The courts are wrong.

The plain language of the statue limits prosecutions to one who

“knowingly violates” the statute.

In 1986, Congress passed the Firearms Owners Protections Act [FOPA]. A major

thrust of this legislation was to alter the previous federal criminal law governing

firearms by explicitly doing away with strict liability or quasi strict liability for

offenses. Thus, Congress added the requirement in 18 U.S.C. § 924, that for a person

Page 13

to be liable for punishment, the government must prove that the person either willfully

or knowing violated the relevant section of § 922(g). The explicit language of the

relevant statute in this case allows the government to punish “[w]hoever knowingly

violates subsection . . . (g) . . . of 922 . . . .” (Emphasis added.) The statute simply does

not punish whoever “knowingly possesses a firearm” if that person happens to be a

felon. Nor does the statute punish whoever “knowingly possesses a firearm” if the

firearm possession happens to be in or affect interstate commerce. It punishes

“whoever knowing violates” the statute.

Knowing possession of a weapon is obviously not by itself a crime. The statute

requires a knowing violation of § 922(g). Thus, by the plain words of the statute, the

defendant must know these three things: that he is a felon, that he possessed a

weapon, and that the possession of the weapon was in or affecting interstate commerce.

This Court has held that the government must prove the defendant knew

all the circumstances that make his possession of a weapon a federal

offense

The Supreme Court has held that the knowing violation requirement in 18

U.S.C. § 924 requires the government to prove that the defendant did have “knowledge

of the facts that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193

(1998) Yet again, in Flores-Figueroa v. United States, 556 U.S. 646 (2009), following

a line of cases, the Court held that when a statute requires the government to prove

the defendant acted knowingly, it must prove he knew the facts that made his conduct

a federal offense. Id. at 650-57 1891. In Staples v. United States, 511 U.S. 600, 618-19

(1994), the Court held that, even when a statute has no explicit “knowing” element, the

government must prove that a defendant had knowledge of “the facts that make his

conduct illegal.”

In Staples, the Supreme Court noted that there is a “presumption that a

defendant must know the facts that make his conduct illegal” which “should apply”

Page 14

especially where the alternative is that the statute “would require the defendant to

have knowledge only of traditionally lawful conduct. . . .” Id. Here, the knowing

possession of a firearm is not only traditionally lawful conduct, it is a fundamental

right. See District of Columbia v. Heller, 540 U.S. 570, 602 (2008). Also, the Supreme

Court noted that the “severe penalty” of a potential 10-year sentence suggested that

Congress did not intend to jettison the usual requirement that the defendant know the

facts that make his conduct illegal. See Staples, 511 U.S. at 618. Here, the maximum

penalty for a § 922(g) case can be life, if enhancements apply! See 18 U.S.C. § 924(e).

The legislative history also directly supports the idea that Congress

intended that the government must prove the defendant knew the facts

and circumstances that constitute the offense.

Congress explicitly stated that the government must prove the defendant knew

the facts and circumstances that constitute the offense. “It is the Committee’s intent,

that unless otherwise specified, the knowing state of mind shall apply to circumstances

and results.” H.R. Rep. No. 99-495, 99 Cong., 2d Sess. 25-26, reprinted in 1986 U.S.

Code Cong. and Ad.News 1327, 1351-52.

The legislative history reveals that a major thrust of the FOPA was to

completely alter the gun laws to abolish or alter the perceived “strict liability” created

by the absence of any scienter requirement in the statute, and by the Supreme Court’s

decision in United States v. Freed, 401 U.S. 601, 609 (1971).

A panel of the Fifth Circuit wrongly decided this issue in United States v. Dancy,

861 F.2d 77 (5th Cir. 1988), but in light of Bryan, Staples, and Flores-Figueroa, and

other Supreme Court cases, that decision is not valid.

Moreover, Dancy is called into question by the Supreme Court’s decision in

McFadden v. United States, 135 S.Ct. 2298 (June 18, 2015). The Court in McFadden

construed 21 U.S.C. §841(a)(1) (the Controlled Substances Act, or “CSA”) as

incorporated by 21 U.S.C. §802(32)(A) (the Controlled Substance Analogue

Page 15

Enforcement Act of 1986, or “Analogue Act”). The Analogue Act identifies a group of

chemicals similar to controlled substances and tells the courts to treat them as though

they were controlled substances in certain circumstances. See 21 U.S.C. §802(32)(A).

The CSA makes it a crime “for any person knowingly or intentionally . . . to

manufacture, distribute, or dispense, or possess with intent to manufacture, distribute,

or dispense, a controlled substance.” 21 U.S.C. §841(a)(1). At issue in McFadden was

what precisely a defendant had to know in order to “knowingly ... distribute ... a

controlled substance,” in the context of a prosecution for distributing an analogue. See

McFadden, 135 S.Ct. at 2302.

The Court in McFadden held that the defendant must know not merely that he

or she is distributing something, but that he or she is distributing “a controlled

substance.” See id. at 2304. This is true whether or not the defendant is prosecuted for

trafficking an analogue. See id. at 2305. Notably, the “controlled substance” element

embraces a legal conclusion – to say that something is a controlled substance provides

information about its treatment under federal law. McFadden nonetheless held that

the knowledge element attaches to this requirement. See id. at 2304.

The McFadden court specified two ways that a defendant may “know” that a

distributed substance is “a controlled substance.” First, he or she may know directly

the truth of the legal proposition required for conviction: that the distributed substance

meets the legal definition of “a controlled substance.” That is, he or she may know:

that the substance with which he was dealing is some controlled

substance—that is, one actually listed on the federal drug schedules or

treated as such by operation of the Analogue Act—regardless of whether

he knew the particular identity of the substance.

Id. at 2305. Second, the defendant might know “all of the facts that make his conduct

illegal.” See id. That is, he or she might know what the substance is, even without

knowing that the substance is controlled. See id. (holding that the knowledge element

“can be established by evidence that the defendant knew the specific analogue he was

Page 16

dealing with, even if he did not know its legal status as an analogue.”)

Sections 922(g) and 924(a) are similar to the laws construed in McFadden.

Section 924(a) provides criminal penalties for one who “knowingly violates subsection

... (g) ... of section 922...” And Section 922(g) is violated when a felon possesses a

firearm if that possession is undertaken “in or affecting commerce...” Like the term

“controlled substance,” the term “violates” embraces a legal conclusion. To say that a

defendant has “violated” a law is not merely to describe his conduct, it is also to provide

information about the way that conduct is treated by the law. And just as the CSA (and

the Analogue Act) requires the defendant to “knowingly ... distribute ... a controlled

substance,” so §924(a) provides penalties only if the defendant “knowingly violates

subsection ... (g) ... of section 922...”

McFadden suggests that when the term “knowingly” precedes a legal conclusion

in a criminal statute, the government may prove the element in one of two ways. First,

it may prove the defendant’s actual knowledge of that legal conclusion. In McFadden,

this meant the government could prove the defendant’s knowledge that the distributed

substance in question appeared on the list of controlled substances. See McFadden, 135

S.Ct. at 2305. Second, it may prove the facts underlying that legal conclusion, or “all

of the facts that make [the defendant’s] conduct illegal.” Id. In McFadden, this meant

knowledge of the substance’s identity, or of facts that placed it on the list of controlled

or analogous substances, even if the defendant did not know that the substance was

in fact controlled. See id.

Applying McFadden to §924(a), the government may prove a “knowing ...

violation” of §922(g) in either of two ways. First, it may prove the defendant’s actual

awareness that his conduct constituted a violation of §922(g). Second, it may prove that

the defendant’s knowledge of all facts that constitute a violation of §922(g), including

the fact that the firearm traveled in interstate commerce. There is no exception for

Page 17

special elements involving a legal conclusion, or that are otherwise unlike traditional

components of a criminal offense. The “natural reading” of §924(a) flatly requires the

defendant’s knowledge of a “violation” of §922(g), which statute is not violated without

interstate movement of a firearm.

McFadden also provides another important reason to overrule Dancy and its

progeny. A defendant’s conviction under the Analogue Act depends on the interplay of

two different statutes: the Analogue Act and the CSA. See 21 U.S.C. §§802(32)(A),

841(a). The knowledge requirement was found in the CSA, but nonetheless extended

to the Analogue Act. Specifically, the Court held that the defendant must know that

the substance is an analogue, either by knowing that it is so characterized, or by

knowing what it is. See McFadden, 135 S.Ct. at 2305. Similarly, §924(a) houses the

mens rea element relevant to the instant proceeding. Yet it incorporates 922(g),

without excluding that statute’s interstate commerce element. McFadden teaches that

the scheme’s failure to repeat the knowledge element in an incorporated statute does

not limit its reach.

McFadden, moreover, is hardly an isolated holding. It is the latest in a long

string of Supreme Court opinions that follow a basic rule of construction in criminal

cases, namely that:

courts ordinarily read a phrase in a criminal statute that introduces the

elements of a crime with the word “knowingly” as applying that word to

each element.

Flores-Figueroa, 556 U.S. at 652; United States v. X-Citement Video, 513 U.S. 64, 72

(1994); Liparota v. United States, 471 U.S. 419, 423 (1985); Morissette v. United States,

342 U.S. 246, 273 (1952). Section 924(a) – which requires that the defendant

“knowingly ... violate[]” another statute – falls naturally within this rule. Supreme

Court guidance now overwhelmingly supports the notion that all elements of a §922(g)

violation must be known by the defendant, including interstate transportation of the

Page 18

firearm.

Therefore, this Court should grant review to correct this error.

Conclusion

Because the Fifth Circuit refuses to apply this Court’s precedents to the federal

firearms statute at issue, Petitioner Beasley asks that this Honorable Court correct

this ongoing error by granting a writ of certiorari in this case.

Respectfully submitted this 20th day of March, 2018.

/s/ PETER FLEURY

PETER FLEURY

Counsel of Record

FEDERAL PUBLIC DEFENDER ’S OFFICE

NORTHERN DISTRICT OF TEXAS

819 TAYLOR ST., STE . 9A10

FORT WORTH , TEXAS 76202

817-978-2753

Page 19