Petition for Writ of Certiorari — Chad Preston Brewer, Petitioner v. United States

No. __-_________

IN THE SUPREME COURT OF THE UNITED STATES

___________

CHAD PRESTON BREWER,

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

___________

JASON D. HAWKINS

Federal Public Defender

NORTHERN DISTRICT OF TEXAS

PETER FLEURY

Counsel of Record

ASSISTANT FEDERAL PUBLIC DEFENDER

819 TAYLOR ST., RM 9A10

FORT WORTH, TX 76102

(817) 978-2753

QUESTION PRESENTED

I.

This Court should use this case to answer the reoccurring, important

question whether, when enacting the Unlawful Possession of a Firearm or

Ammunition 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 or ammunition be

in or affection interstate commerce or that there be a knowing violation of

the statute.

II.

Certiorari should be granted to correct 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 or ammunition

that had been shipped in the unknown past by unknown individual=s

unrelated to the defendant or his possession of the firearm, and which

contradicts the plain words of the statute which require that the defendant

Aship or transport in interstate commerce, or possess in or affecting

commerce.@

III.

Certiorari should be granted to correct the Fifth Circuit=s error in reading

the statutory scheme as requiring only a knowing possession of a firearm or

ammunition, in contradiction to the plain language of the statute, which

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

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), all of which hold

that if the mens rea is Aknowingly,@ the government must prove the defendant

had knowledge of the facts that constitute the offense?

ii

PARTIES

Chad Preston Brewer 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 Possession of a Firearm or

Ammunition 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 or ammunition be

in or affection interstate commerce or that there be a knowing violation of

the statute. .................................................................................................................... 4

II.

Certiorari should be granted to correct 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 or ammunition

that had been shipped in the unknown past by unknown individual=s

unrelated to the defendant or his possession of the firearm or ammunition,

and which contradicts the plain words of the statute which require that the

defendant Aship or transport in interstate commerce, or possess in or

affecting commerce.@ .................................................................................................. 12

iv

III.

Certiorari should be granted to correct the Fifth Circuit=s error in reading

the statutory scheme as requiring only a knowing possession of a firearm or

ammunition, in contradiction to the plain language of the statute, which

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

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), all of which hold

that if the mens rea is Aknowingly,@ the government must prove the defendant

had knowledge of the facts that constitute the offense?............................................ 14

Conclusion. ......................................................................................................................................... 21

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

Cases

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

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

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

District of Columbia v. Heller, 554 U.S. 570 (2008) .......................................................................... 16

Flores-Figueroa v. United States, 556 U.S. 646 (2009) ....................................................... 3, 14, 15, 20

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

Jones v. United States, 529 U.S. 848 (2000) ...................................................................................... 13

Liparota v. United States, 471 U.S. 419 (1985) ........................................................................... 14, 20

McFadden v. United States, 135 S. Ct. 2298 (2015) ................................................. 14, 17, 18, 19, 20

Morissette v. United States, 342 U.S. 246 (1952) ..........................................................................14, 20

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ......................................................... passim

Scarborough v. United States, 431 U.S. 563 (1977) ........................................................................ 6, 10

Staples v. United States, 511 U.S. 600 (1994) .............................................................................. 14, 16

United States v. Dancy, 861 F.2d 77 (5th Cir. 1988) .................................................................. 17, 20

United States v. Darby, 312 U.S. 100 (1941) ....................................................................................... 6

United States v. Freed, 401 U.S. 601 (1971) ...................................................................................... 17

United States v. Lopez, 514 U.S. 549 (1995) ............................................................................. 4, 6, 13

United States v. Morrison, 529 U.S. 598 (2000) ............................................................................ 5, 13

United States v. X-Citement Video, 513 U.S. 64 (1994) ............................................................... 14, 20

Wickard v. Filburn, 317 U.S. 111 (1942) ............................................................................................ 8

Statutes

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

18 U.S.C. § 922(g)(1) ............................................................................................................ 2, 4, 6, 9

18 U.S.C. § 924 ................................................................................................................................ 15

18 U.S.C. § 924(a) .............................................................................................................. 18, 19, 20

18 U.S.C. § 924(e) ........................................................................................................................... 16

21 U.S.C. § 802(32)(A) ................................................................................................................ 17, 20

21 U.S.C. § 841(a)(1) .............................................................................................................. 2, 17, 20

vii

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

Federal Rules

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

Miscellaneous

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 ........................................................................................ 16

Bond v. U.S., 12-158, Petition for Certiorari, 2010 WL 1506717

(Aug. 1, 2012) ........................................................................................................................ 10

United States Constitution

U.S. Const. art. I, § 8 .......................................................................................................... 1, 3, 5, 13

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Chad Preston Brewer 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. Chad Preston Brewer, No. 18-10158, and is provided in the Appendix to

the Petition. [Appx. A]. The district court entered judgment on January 26, 2018, 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 September 6, 2018. 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, Section 922(g) of the United States Code provides in pertinent part:

It shall be unlawful for any person B

(1) who has been convicted in any court of, a crime punishable by imprisonment for

a term exceeding one year;. . . to ship or transport in interstate or foreign commerce,

or possess in or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in interstate or

foreign commerce

1

STATEMENT OF THE CASE

A.

Trial Court Proceedings

Mr. Brewer was charged by a two count indictment with possession of ammunition in and

affecting interstate commerce after having been convicted of a felony offense in violation of 18

U.S.C. § 922(g)(1) and with possession with intent to distribute more than 50 grams of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). Mr. Brewer pleaded guilty. There was no

plea agreement no waiver of appeal. The district court sentenced Mr. Brewer to 168 months of

imprisonment, along with a term of supervised release of five years (120 months on count one, 168

months on count two, with three and five years supervision and both sentences run concurrent).

When Mr. Brewer entered his plea of guilty, he was advised that the element of the offense

with regard to the interstate commerce element is as follows: “that possession of the ammunition

was in or affected interstate commerce--that is, that at sometime before the Defendant possessed

the ammunition, it had traveled from one state or country to another.@ As to the mens rea, the

elements as described to Mr. Brewer required only that Mr. Brewer knowingly possessed the

ammunition.

2

B.

Circuit Court Proceedings

On appeal, Mr. Brewer argued that the criminal statute 18 U.S.C. '922(g), as construed,

violates the Constitution in that it regulates conduct that falls outside the commerce clause, Article

I, ' 8, cl. 3. Brewer relied upon the Supreme Court decision in Nat=l Fed=n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012). Brewer also contended that the statute itself has been misconstrued by the

Fifth Circuit. The statute requires that the possession of the ammunition be in affecting interstate

commerce. This phrase is defined by Fifth Circuit precedent to mean that the firearm or

ammunition crossed state lines at some unspecified point in the past. The Fifth Circuit simply does

not require that the defendant=s possession itself be in or affecting interstate commerce. Thus, the

indictment does not allege that the defendant purchased the firearm or ammunition, or possessed

it in connection with any manner of commercial transaction. Petitioner then argued that, as the

indictment does not allege, and the government did not prove, an offense falling within the plain

language of the statute, nor the commerce clause, the conviction must be vacated and the indictment

should be dismissed. Put another way, the Fifth Circuit=s construction of 18 U.S.C. 922(g) is contrary

to its plain words, and violates the commerce clause facially and as applied.

Brewer further contended that the conviction should be vacated because the indictment did

not allege and there was no factual basis to establish that Brewer knew that his possession of the

ammunition was in or affecting interstate commerce. Brewer relied upon, among other decisions,

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

The court of appeals summarily reviewed and affirmed. See Appx. A.

3

REASONS FOR GRANTING THE WRIT

I.

This Court should use this case to answer the reoccurring, important question

whether, when enacting the Unlawful Possession of a Firearm or Ammunition

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 or ammunition be in or affection interstate commerce or that there be a

knowing violation of the statute.

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, 558B559 (1995), does the federal Unlawful Possession of a Firearm or

ammunition 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 or ammunition in question had traveled in interstate commerce at an earlier,

undetermined time. The facts do not establish that the defendant=s possession was in or affecting

4

interstate commerce, quite the opposite, they in no way implicateBmuch lessBestablish any effect on

interstate commerce, much less a requisite substantial effect on commerce. Yet, the Fifth Circuit and

all the circuits do not require more, as they have misconstrued the plain words of the statute and

the requirements of the commerce clause.

A. Introduction.

AIn 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 Constitution are denied to the National

Government. See id. (AThe 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 (AThe 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 Aprotects 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 Aregulate Commerce with foreign Nations,

and among the several States, and with the Indian Tribes.@ Art. I, ' 8, cl. 3.

But this power Amust

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 A[t]he power of Congress over interstate

commerce is not confined to the regulation of commerce among the states,@ and includes a power

5

to regulate activities that Ahave 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 ASubstantial Affect on

Commerce?@

As this Court almost certainly knows, numerous Afacial@ 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 Asubstantial 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) Aactivities having a substantial relation to interstate commerce . . .

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, 558B559 (1995). Challengers have assailed the statute, arguing that mere

possession of a firearm or ammunition 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 courtsC

including the Fifth CircuitChave 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. See Alderman, 131 S. Ct. at 701B02.

Petitioner submits that 18 U.S.C. ' 922(g)(1) is unconstitutional and that LopezCand not

ScarboroughCresolves the challenge in his favor. And he suggests that Justice Thomas and Justice

6

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 Aregulate Commerce ... among

the several 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

B that it affect the legality of pre-existing commercial activity. Possession of firearms or ammunition,

like the refusal to purchase health insurance, may or may not Asubstantially affect commerce.@ But

such possession is not, without more, a commercial act.

To be sure, NFIB does not explicitly repudiate the Asubstantial effects@ test. Indeed, the Chief

Justice=s opinion quotes Darby=s statement that A[t]he power of Congress over interstate commerce

7

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 or

ammunition), and its power to affect commerce by compelling people to join a commercial market

(like health insurance). Rather it simply says that Congress may Aregulate ... 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 that were, themselves, regulations of commerce. NFIB thus allows Congress only the

power Ato 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 Aactive in the market for health

care@ because they were Anot currently engaged in any commercial activity involving health care...@

id. at 556 (Roberts., C.J. concurring) (emphasis added). The Chief Justice significantly observed that

A[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 A[i]f the individual mandate is targeted at a class, it is a class whose commercial

8

inactivity rather than activity is its defining feature.@ Id. (Roberts, C.J. concurring) (emphasis added).

He agreed that ACongress 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 Ain 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 ammunition 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 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 Acurrently

engaged@ in the relevant market. Id. at 556.. As an illustration, the Chief Justice provided the

following example: AAn 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 or ammunition which has previously and remotely passed

9

through interstate commerce should be considered to indefinitely affect commerce without Aconcern

for when the [initial] nexus with commerce occurred.@

Scarborough v. United States, 431 U.S. 563,

577 (1977).

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

This Court=s decision in Bond v. United States, 134 S.Ct. 2077 (2014), resolved 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, the Court

recognizes the federalism principles that limit 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

holdingBthat prohibitions on the use of poison represent an area of traditional state concern, outside

the scope of federal authorityB support a finding that federal prohibitions on ammunition

possession are likewise unconstitutional. Ammunition and firearms, like poison, are dangerous

instrumentalities traditionally committed to the State police power. Both arguably affect commerce,

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

of them, prohibitions on commercial activity in the ordinary case.

10

Here, of course, the record establishes only that Mr. Brewer was a felon and that he had

possessed a firearm or ammunition that had, at some antecedent time, traveled in interstate

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

possession of the weapon was actually in or had an effect on interstate commerce, much less any

Asubstantial@ effect. Furthermore, at the time he was arrested and the ammunition in question

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

11

II.

This Court should grant certiorari to determine if 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 ammunition that

had been shipped in the unknown past by unknown individual=s unrelated

to the defendant or his possession of the ammunition), contradict the plain

words of the statute which require that the defendant Aship 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 allowed 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 because the statute requires that the defendant Aship or transport in

interstate . . . commerce, or possess in or affecting commerce . . . . @ This is contrary to the Fifth

Circuit=s misreading that the government need only prove that the defendant possessed ammunition

that had been shipped in the unknown past by unknown individuals unrelated to the defendant

and unrelated to the defendant=s possession of the ammunition. Therefore, the conviction below is

invalid.

The statute requires and the indictment in this case alleged that Mr. Brewer= possession of

ammunition was Ain and affecting commerce.@ However, this phrase is defined by Fifth Circuit

precedent to mean something different than those plain words. The Fifth Circuit requires only that

the jury find that the ammunition crossed state lines at some unspecified point in the past. Nor does

12

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 or ammunition passed

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

Apossess in or affecting commerce, any firearm or ammunition . . . .@

18 U.S.C. 922(g) (emphasis

added). The current possession of a firearm or ammunition 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 interstate

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 or ammunition 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.

13

III.

This Court should grant certiorari to determine if the Fifth Circuit erred 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 or ammunition, 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 Aknowingly,@ 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 there be a 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 circuit courts

all hold that the government need only prove a knowing possession of a firearm or ammunition.

The courts are wrong.

14

The plain language of the statute limits prosecutions to one who Aknowingly

violates@ the statute.

In 1986, Congress passed the Firearm 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 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 A[w]hoever knowingly violates

subsection . . . (g) . . . of 922 . . . .@ (Emphasis added.) The statute simply does not punish whoever

Aknowingly possesses a firearm or ammunition@ if that person happens to be a felon. Nor does the

statute punish whoever Aknowingly possesses a firearm or ammunition@ if the firearm or

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

knowing violates@ the statute.

Obviously, knowing possession of a weapon is 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 an felon, that he possessed a weapon, and that the possession of the

weapon was in or affecting interstate commerce.

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

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

This Court has held that the knowing violation requirement in 18 U.S.C. ' 924 requires the

government to prove that the defendant did have Aknowledge 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,

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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 Aknowing@ element, the government must

prove that a defendant had knowledge of Athe facts that make his conduct illegal.@

In Staples, the Supreme Court noted that there is a Apresumption that a defendant must

know the facts that make his conduct illegal@ which Ashould apply@ especially where the alternative

is that the statute Awould require the defendant to have knowledge only of traditionally lawful

conduct. . . .@

Id. Here, the knowing possession of a firearm or ammunition is not only traditionally

lawful conduct, it is a fundamental right. See District of Columbia v. Heller, 554 U.S. 570, 602 (2008).

Also, the Supreme Court noted that the Asevere 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. AIt 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.

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

gun laws to abolish or alter the perceived Astrict 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 (2015). The Court in McFadden construed 21 U.S.C. '841(a)(1) (the

Controlled Substances Act, or ACSA@) as incorporated by 21 U.S.C. '802(32)(A) (the Controlled

Substance Analogue Enforcement Act of 1986, or AAnalogue 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 Afor 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 Aknowingly

... 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 only that he or she is

distributing something that happens to be a controlled substance, but also that he or she knows the

substance is in fact Aa controlled substance.@ See id. at 2304. This is true whether or not the defendant

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is prosecuted for trafficking an analogue. See id. at 2305. Notably, the Acontrolled substance@ element

embraces a legal conclusion B 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 Aknow@ that a distributed

substance is Aa 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 Aa

controlled substance.@ That is, he or she may know:

that the substance with which he was dealing is some controlled substanceCthat is,

one actually listed on the federal drug schedules or treated as such by operation of

the Analogue ActCregardless of whether he knew the particular identity of the

substance.

Id. at 2305. Second, the defendant might know Aall 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 Acan be established by evidence that the

defendant knew the specific analogue he was 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 Aknowingly violates subsection ... (g) ... of section 922...@

And Section 922(g) is violated when a felon possesses a firearm or ammunition or ammunition if

that possession is undertaken Ain or affecting commerce...@ Like the term Acontrolled substance,@

the term Aviolates@ embraces a legal conclusion. To say that a defendant has Aviolated@ a law is not

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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 Aknowingly ...

distribute ... a controlled substance,@ so '924(a) provides penalties only if the defendant Aknowingly

violates subsection ... (g) ... of section 922 . . .@

McFadden suggests that when the term Aknowingly@ 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 Aall 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 Aknowing ... 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 or ammunition traveled in

interstate commerce. There is no exception for special elements involving a legal conclusion, or that

are otherwise unlike traditional components of a criminal offense. The Anatural reading@ of '924(a)

flatly requires the defendant=s knowledge of a Aviolation@ of '922(g), which statute is not violated

without interstate movement of a firearm or ammunition.

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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 Aknowingly@ 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) B which requires that the defendant Aknowingly . . . violate[]@ another statute B 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

firearm or ammunition.

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

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Conclusion

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

issue, Petitioner Brewer asks that this Honorable Court correct this ongoing error by granting a writ

of certiorari in this case.

Respectfully submitted on December 4, 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

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