IN THE UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

XX XXXXX,

Defendant-Appellant.

)

CA. No. 00-00000

D.C. No. CR 99-00014-MJJ

Northern California

(San Francisco)

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

APPELLANT=S OPENING BRIEF

BARRY J. PORTMAN

Federal Public Defender

HILARY A. FOX

Assistant Federal Public Defenders

1301 Clay Street, Suite 200C

Oakland, CA 94612

Tel: (510) 637-3500

Counsel for Defendant-Appellant XXXX

ISSUES PRESENTED FOR REVIEW

1. Did the district court err in permitting the government to introduce through its expert "pay-owe sheets" that were otherwise inadmissible, solely on the grounds that the expert was relying on the inadmissible evidence in the formulation of his opinion?

2. Did the district court err in permitting the government=s expert witness to testify regarding the defendant=s mental state regarding his reason for possessing drugs and a weapon?

3. Where the undisputed evidence established that defendant was a drug addict who was carrying personal use paraphernalia with his drugs, and where the government argued at trial that defendant, as a drug user, must have also been selling drugs, did the district court err in imposing sentence as if none of defendant=s drugs were for personal use?

4. Did a prosecution under 18 U.S.C. ' 922(g) -- felon-in-possession of a firearm -- exceed Congress= jurisdiction under the Commerce Clause where the only link to commerce is the fact that the firearm once crossed a state line?

PETITION FOR INITIAL HEARING EN BANC

Pursuant to Federal Rule of Appellate Procedure 35, appellant-defendant XXXX hereby requests that the instant case be heard initially en banc, with regard to the following issues:

1) Whether the Supreme Court=s Lopez trilogy -- United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 120 S. Ct. 1740 (2000), and Dewey Jones v. United States, 120 S. Ct. 1904 (2000) (hereinafter "Dewey Jones"), require reconsideration of this Court=s decisions in United States v. Hanna, 55 F.3d 1456 (9th Cir. 1995), and United States v. Michael Jones, 231 f.3D 508 (9th Cir. 2000) (hereinafter "Michael Jones"). In Hanna and Michael Jones, this Court concluded that a conviction under Title 18 U.S.C. ' 922(g) requires only a "minimal nexus" between the regulated item and interstate commerce. The Supreme Court, by contrast, has concluded that a regulated item must "substantially affect" interstate commerce to fall within Congress= jurisdiction over items "affecting" commerce. Initial hearing en banc will allow the Court to modify its earlier Commerce Clause jurisprudence and correct its erroneous holding in Michael Jones, consistent with Supreme Court authority.

2) Whether consideration by the full Court is necessary to secure and maintain uniformity of the Court=s decisions, because the holding in Hanna conflicts with the Court=s earlier decision in United States v. Nukida, 8 F.3d 665 (9th Cir. 1993). Specifically, Hanna held that the mere showing that a regulated item once crossed state lines at any previous time, no matter how remote, is sufficient to establish the requisite nexus to interstate commerce. Nukida, however, mandates that the link to commerce be predicated on a showing that the regulated item recently crossed state lines. Hanna should be reconsidered en banc to resolve this conflict.

STATEMENT OF JURISDICTION

A. Jurisdiction in the District Court

On November 3, 1998, a complaint was filed in the United States District Court for the Northern District of California charging the defendant with violating 18 U.S.C. ' 922(g)(1), being a felon in possession of a firearm and ammunition. CR 1.^[1] On January 5, 1999, an amended complaint was filed, containing the same charge but citing a different felony prior in the complaint affidavit. CR 10. On January 11, 1999, an indictment was filed charging the defendant with one count of unlawful possession of a firearm by a felon. CR 13. On March 24, 1991, the grand jury returned a superseding indictment charging the defendant with: two counts of unlawful possession of a firearm by a felon; possession of controlled substances with intent to distribute; and possession of a firearm during and in relation to a drug trafficking crime. CR 20; ER 1. The district court had jurisdiction under 18 U.S.C. ' 3231.

B. Jurisdiction in the Court of Appeals

This Court has jurisdiction over the defendant's appeal from a final judgment of the United States District Court, Northern District of California, under 28 U.S.C. '' 1291 and 1294(1).

C. The Notice of Appeal was Timely Filed

The district court sentenced the defendant on October 12, 2000. The judgment was issued on October 20, 2000, and entered on the criminal docket on October 23, 2000. CR 98; ER 184. The defendant filed a notice of appeal on October 23, 2000. CR 99; ER 190. His appeal is timely under Federal Rule of Appellate Procedure 4(b).

BAIL STATUS

To the best of counsel's knowledge, the defendant currently is incarcerated at FCI-Sheridan, Sheridan, Oregon, serving the sentence of 144 months imprisonment imposed in this case. There is no outstanding motion for bail pending appeal.

STATEMENT OF THE CASE

A. Procedural Background

On June 6, 1998, in San Francisco, California, the defendant was arrested for unlawful possession of a gun and ammunition. PSR at & 4.^[2] He was charged in state court. PSR at & 5. He failed to make an appearance and a bench warrant issued for his arrest. PSR at & 5. On November 24, 1998, the defendant was arrested pursuant to the bench warrant. PSR at && 5, 7. At the time of his arrest, he was seen carrying a backpack. PSR at & 7. Upon searching the backpack, the officers found drugs, a scale, drug paraphernalia, and a gun. PSR at & 7. The defendant was charged in federal court with violating 18 U.S.C. ' 922(g)(1), felon in possession, based on the June 6, 1998, arrest. CR 1, 13. In a superseding indictment, the government added charges for possession of a firearm by a felon, possession of drugs for distribution, and possession of a firearm in connection with a drug trafficking crime, all arising out of the November 24, 1998, arrest. CR 20; ER 1.

On July 8, 1999, the defendant pleaded guilty to the first count of the indictment, which charged him with unlawfully possessing a firearm, in violation of 18 U.S.C. 922(g)(1), on June 6, 1999. CR 53. Trial on the remaining three counts began on July 12, 1999. CR 58.

The defendant did not challenge the constitutionality of 18 U.S.C. ' 922(g)in the district court.

1. In limine motion to exclude government expert

The defendant moved in limine to exclude the government's proposed expert witness from the Drug Enforcement Agency (AD.E.A.@). CR 33. The government proposed to have D.E.A. Agent Michael Heald opine that the drugs in the backpack were possessed for the purpose of distribution, not personal use, and that the gun was possessed in connection with the drug trafficking. CR 28; RT 7/7/99 at 13; ER 5.

The district court denied defendant=s motion to exclude the expert. RT 7/8/99 at 3; ER 7.

2. Motion in limine to exclude anonymous ledger

The defendant also moved in limine to exclude admission of handwritten notes found in the backpack the defendant carried, including pages the government referred to as pay-owe sheets, on the grounds that these constituted inadmissible hearsay. CR 42. The district court held that the notes were hearsay. RT 7/8/99 at 6-7; ER 8-9. The court denied defendant=s motion, however, on grounds that the ledger was part of the Acalculus of factors@ upon which the D.E.A. agent relied for his opinion that the drugs were possessed for distribution. Id. The court therefore ruled that the ledger was admissible for the non-hearsay purpose as it related to the expert=s opinion. Id. The court stated that it would instruct the jury to consider the ledger only as it relates to the expert=s opinion, and for no other purposes. Id.

3. Trial

The trial began on July 12, 1999. CR 58. At trial, the witnesses for the government included the police officers who arrested the defendant; Anita Davis, who was with the defendant shortly before he was arrested; D.E.A. Agent Michael Heald; and A.T.F. Agent Anthony Costakis. The defendant testified on his own behalf, as did Dr. Gregory Hayner, an expert on drug users. On July 15, 1999, the jury found the defendant guilty of counts 2, 3, and 4. CR 60.

4. Rule 29 Motions

At the close of the government=s case, and again after the return of the verdict, the defendant moved for judgment of acquittal on counts 2 (possession of drugs with intent to distribute) and 3 (use of a firearm in connection with drug trafficking). RT 7/14/99 at 349, 383-89; ER 79, 101-07; RT 7/15/99 (II) at 9-10; ER 150-51; CR 68. The district court denied those motions. RT 7/15/99 at 432; ER 115; RT 6/22/00 at 3-6; ER 153-56.

5. Sentencing

The defendant's sentencing hearing began on June 22, 2000 and was continued to October 12, 2000. CR 90, CR 96. On October 12, 2000, the district court sentenced the defendant to 144 months imprisonment. CR 96; RT 10/12/00 at 48-49; ER 182-83. Defendant filed a timely notice of appeal. CR 99; ER 190.

B. Evidence at Trial

The defendant stood trial on three charges: unlawful possession of a firearm, in violation of 18 U.S.C. ' 922(g)(1); possession with intent to distribute methamphetamine, cocaine, and crack cocaine, in violation of 21 U.S.C. ' 841(a)(1); and carrying a firearm during and in relation to a drug crime, in violation of 18 U.S.C. '924(c). CR 20, 58. The defendant admitted that he possessed drugs and a gun at the time of his arrest, and stipulated to the fact of his prior felony conviction. RT 7/12/99 at 71; ER 11; RT 7/14/99 at 264-65;

ER 46-47. Thus, for the second and third charges, the only element left for the government to prove was the defendant=s mental state: did the defendant intend to distribute the drugs, and did he have the gun for the purpose of facilitating a drug trafficking crime? For the fourth charge, only the interstate nexus element was left to be established.

1. The Arresting Officers

The government established that when the defendant was arrested, he was carrying LSD, marijuana, and 13.4 grams of a substance containing powder cocaine in his pockets.^[3] RT 7/12/99 at 137, 155; ER 26, 28. He also had six rocks of crack cocaine packaged in small baggies and weighing a total of 1.78 grams. Id. at 155; ER 28. The backpack he was carrying contained a loaded gun, a packet of 13.8 grams of brown methamphetamine, a packet of 25.98 grams of white methamphetamine. Id. at 84-85, 155; ER 13-14, 28. The backpack also contained a pipe, four Bic lighters, a butane torch and fuel, rolling papers, a small gold-colored spoon, a compact mirror, and a three-ring notebook with pages that the government contended were pay-owe sheets. Id. at 99-108; ER 15-24. Inside the backpack was a fanny pack containing women's cosmetics. Id. at 104; ER 19. The backpack also held a zip wallet, which contained a small electronic scale and identification papers for Jessica Figure. Id. at 105-06; ER 21-22.

2. Anita Davis

The government called as a witness Anita Davis, the woman whom the defendant was with shortly before his arrest. She recognized the scale as a broken one that she had owned but had given to the defendant previously so that he could repair it. RT 7/12/99 at 165-66; ER 31-32. She also testified that the fanny pack looked familiar and that she had owned many like it, though she did not know if that particular pack was hers. Id. at 171-72; ER 36-37.

3. D.E.A. Agent Heald

The government=s star witness was the agent from the Drug Enforcement Agency, Michael Heald, who testified as an expert in drug distribution. Agent Heald opined that, based on the weight, the brown methamphetamine, the white methamphetamine, and the powder cocaine were all possessed for distribution, not for personal use.^[4] RT 7/14/99 at 276, 297; ER 49, 64. He stated that, based on his conversations with informants and others, a person could not use more than one gram of methamphetamine a day without becoming essentially dysfunctional. Id. at 276-77; ER 49-50. Agent Heald described the paraphernalia used to smoke methamphetamine as a small glass pipe which is heated with a butane lighter until the methamphetamine becomes smokable vapor. Id. at 280-81; ER 51-52.

In response to questioning by the government, Agent Heald testified that it was not unusual at all for a user of methamphetamine to become a distributor of methamphetamine. Id. at 281; ER 52. He described the usual process by which people who are using methamphetamine become involved in distribution as their use increases. At first, the user will acquire larger amounts of the drug and sell some to friends to offset the cost of the habit. Id. at 282; ER 53. With increasing use, the user may become an addict and become less well able to function. Id. The addict may lose both employment and family support. Id. At that point, the user will have to sell the drug in order to acquire not only the drug for personal use but also for the other necessities of life. Id. at 282-83; ER 53-54. In this way, the user becomes a full-time seller or distributor of the drug. Id. Agent Heald testified that possession of drug paraphernalia along with the drugs supported his opinion that the drugs were for distribution, because Aabusers oftentimes are distributors.@ Id. at 300; ER 66. See also, id. at 331-32; ER 72-73.

Agent Heald opined that a user who is not involved in distribution would be unlikely to have a scale. Id. at 283; ER 54. When asked whether that changed when a user "graduate[d] to a distributor," Agent Heald replied that a scale is an essential part of the enterprise for a distributor. Id. at 285; ER 56. However, on cross-examination, he agreed that the scale was unlikely to be used in public. Id. at 335-36; ER 75-76.

Agent Heald also opined that the handwritten loose notebook pages were pay-owe sheets used to keep track of drug sales. Id. at 286; ER 57. Upon Agent Heald's testimony, the district court admitted the notebook pages into evidence and instructed the jury that they were not to be considered for their truth, "but merely to help you evaluate the weight that you give to the expert's opinion and how it relates to the offering of that opinion." Id. at 348; ER 78.

Agent Heald additionally testified that a gun like that found in the defendant's backpack would have two purposes for a narcotics distributor: protection from theft, and a means of intimidation when collecting drug debts. Id. at 294; ER 61.

Agent Heald additionally testified that a street dealer would be more inclined to be a polydrug distributor than someone higher up in the chain, because the street dealer interacts with a wide variety of users. Id. at 340; ER 77.

4. A.T.F. Agent Costakis

To establish the interstate nexus for the ' 922(g)(1) charge, the government called A.T.F. Agent Anthony Costakis as an expert witness. RT 7/12/99 at 197-98, 202; ER 38-39, 39.5. Agent Costakis testified that neither the firearm nor the ammunition had been manufactured in California and thus all had traveled in interstate commerce. Id. at 204; ER 40.

5. Dr. Gregory Hayner

Defendant called as an expert witness Gregory Hayner, Chief Pharmacist at the Haight Ashbury Clinic. The Haight Ashbury Clinic is an outpatient drug treatment and counseling center which sees between 3,000 and 5,000 patients each year. RT 7/14/99 at 350, 353; ER 80, 82. Dr. Hayner evaluates clinic patients and collects medical and drug use history from them. Id. at 350-51; ER 80-81. He speaks to nearly all the patients who come through the clinic. Id. at 351; ER 81.

Dr. Hayner testified that it is not uncommon for people to use several grams of cocaine a day. Id. at 358-59, ER 83-84. He testified that the amount seized from the defendant could be used up in a few days. Id. at 360; ER 85. In discussing the effects of cocaine use, Dr. Hayner testified that after a certain number of years of heavy use, almost all cocaine users start to show symptoms of paranoia. Id. at 363; ER 88.

Dr. Hayner also testified about methamphetamine use. In his experience, methamphetamine users often use one gram or more per day but usually do not use much over a couple of grams a day. Id. at 368; ER 92. The methamphetamine in the defendant=s backpack, which had purity rates of 4.7% and 7%, was of low potency. Id. at 368; ER 92. An individual who regularly uses methamphetamine will develop a tolerance to it and will require larger and larger quantities to achieve the same effect. Id. at 370; ER 93.

In his experience, drug users, and particularly heavy drug users, may buy drugs in as large a quantity as they can afford. Id. at 360; ER 85. This is because it is cheaper to buy in bulk, and the drugs are less likely to be diluted. RT 7/14/99 at 361-62, 365-66; ER 86-87, 89-90.

Dr. Hayner additionally noted that the backpack contained items that are commonly used to consume those drugs: a pipe, lighters, and a butane torch with fuel. None of the drugs, apart from the crack cocaine, were packaged for individual sale. Id. at 375; ER 95. While the six baggies of crack cocaine were packaged for individual sale, Dr. Hayner noted that it was both common to sell it that way and also common to buy it that way. Id. at 377; ER 97. The amount in the backpack could be consumed in a day, Aeasily.@ Id. at 377; ER 97.

Dr. Hayner also testified that in his experience, users use scales to keep track of how much they are using. Id. at 375-76; ER 95-96. While dealers use scales, there were no packaging materials in the backpack. Id. at 375; ER 95. Without any materials to actually repackage the drugs into smaller quantities, the scale was not necessarily indicative of sales. Id. at 376; ER 96.

In his opinion, Athey were reasonable quantities to assume somebody might procure it for their own use.@ Id. at 381-82; ER 99-100. See also, id. at 374; ER 94. In addition, Athere were a lot of things that were indicative of use of drugs and really not much there to indicate that person was selling it.@ Id.

On cross-examination, Dr. Hayner testified that it was very infrequent to see someone combine methamphetamine with either cocaine or crack cocaine. Id. at 394; ER 110. If someone did use methamphetamine, cocaine, and crack all at the same time, that person would be liable to get very toxic on the combination. Id. at 395; ER 111. He testified that a heavy user who used all three substances for a long period would deteriorate and become paranoid and distrustful. Id. at 396; ER 112. He testified that it was not uncommon for a heavy drug user to lose his or her job. Id. In order to afford to buy drugs, users may sell drugs, shoplift, engage in prostitution or other criminal activity. Id. at 396, 399; ER 112, 113.

6. XX XXXXX

The defendant testified that he has been a heavy user of methamphetamine and cocaine for years. He described how his use of each drug had increased over time. RT 7/15/99 at 441, 445; ER 116, 119. He testified that he was using 2 to 3 grams of cocaine almost every day. Id. at 441, 443; ER 116, 117. He testified that he had not used crack cocaine for a long time before his arrest. Id. at 481; ER 131. He also testified that cocaine was not his preferred drug, and that he had not previously informed Pretrial Services that he used cocaine or crack, though he had admitted to other drug use. Id. at 505-508; ER 143-146.

The defendant testified that he was Aheavy into meth@ in the preceding year and could use 3 grams or more in a day, weighing and using it a quarter gram at a time. Id. at 445-46; ER 122-23. The defendant testified that he purchased methamphetamine and cocaine by the half ounce or ounce in order to reduce the number of times he would be out on the street, in part because there was a warrant out for his arrest and he was trying to avoid detection. Id. at 448-49; ER 124. At the time of his arrest, he was carrying all of his drugs because he had been moving from place to place and did not have a safe place to store his things. Id. at 450; ER 125. He was carrying a gun because he is paranoid and takes the gun with him for protection, not because of the drugs. Id. at 463; ER 125.

On cross-examination, the government queried the defendant again about the extent of his drug habit. Id. at 476-85; ER 126-35.

7. Verdict

The jury found the defendant guilty of all counts. RT 7/15/99 (II) at 2-3; ER 148-149.

C. Sentencing

The defendant's sentencing hearing began on June 22, 2000 and was continued to October 12, 2000. CR 90; CR 96. At sentencing, defendant argued that his offense level for the violation of 21 U.S.C. ' 841 should be predicated only upon those drugs intended for distribution, not the drugs that were for his personal use, and that the burden fell on the government to establish the quantity of drugs intended for distribution. CR 82. Defendant argued that the evidence supporting conviction for distribution came primarily, if not exclusively, from Agent Heald. RT 6/22/00 at 18-19; ER 157-58. At the time Agent Heald tendered his opinion, however, he knew nothing of the purity levels of the drugs. Id. at 20-21; ER 159-60.^[5] The purity testing demonstrated that the methamphetamine defendant possessed had a purity level of only 4.7% and 7%. Id. at 20-22; ER 159-61. Defendant also argued that the white methamphetamine was not his but instead belonged to Anita Davis. CR 82. Defendant also noted that the presence of personal use paraphernalia and the absence of any packaging materials supported a finding that at least some portion of the drugs were for the defendant=s own. Id. The government presented no new evidence but relied on the quantities to which the parties= stipulated and the trial testimony of Agent Heald that all of the drugs were for distribution. RT 6/22/00 at 23-24; ER 162-63; RT 10/12/00 at 9-10; ER 171-721.

The court rejected defendant=s arguments. The court held that it would premise the base offense level on the entire quantity of drugs in defendant=s possession. RT 6/22/00 at 26-31; ER 164-69; RT 10/12/00 at 10-12; ER 172-74. The court agreed that the government bore the burden of establishing the quantity of drugs for distribution, but found that the government met that burden by a preponderance of the evidence based on the variety and quantity of drugs and on the court=s interpretation of Agent Heald=s trial testimony. RT 6/22/00 at 27-28; ER 165-66. Specifically, the court referenced Athe testimony of Agent Heald with respect to street dealers more likely being polydrug abusers@ and his testimony with respect to a scale.^[6] Id. at 27-28; ER 165-66. The court acknowledged that the defendant had testified that the drugs were for his personal use and that he was using methamphetamine and powder cocaine. Id. at 28; ER 166. The court cited the testimony of Agent Heald and Dr. Hayner Awith respect to the effect on the user of large doses of methamphetamine in combination with powder cocaine and crack,@ however, and noted that the experts agreed that "it would be highly unusual to possess that combination of drugs and to ingest them in combination, because it would produce a kind of toxicity that would be dangerous to the person who ingested them." Id. at 27-28, RT 10/12/00 at 11; ER 165-66, 173. The court found that someone who took all of the drugs that defendant possessed would show symptoms of toxicity, and that the defendant did not have those symptoms at the time of his arrest. RT 6/22/00 at 27; ER 165.

In a cryptic but significant leap of logic, the court then held that defendant=s position that he possessed these drugs for personal use Ashould and must be consistent across the scope of the drugs that he possessed,@ apparently ruling that, if defendant used any of the drugs, he must use all of them and at the same rate. RT 6/22/00 at 28; ER 166. See also RT 10/12/00 at 11, ER 173. Finding it implausible that the defendant used all the drugs at the same rate, the district court ruled that the quantities possessed were inconsistent with personal use. RT 6/22/00 at 28-29; ER 166-67. The court therefore dismissed all of the defendant=s testimony as not credible and held that, without the defendant=s testimony, there was no evidence of personal use. Id. at 29; ER 167._

The court did not address defendant=s argument regarding the absence of packaging materials. With regard to the defendant=s possession of personal use paraphernalia, the court held only that Athe other accouterments, the scales and the other items, . . . don=t detract from distribution for sale in these amounts, as Agent Heald indicated that it supported his view." RT 10/12/00 at 12; ER 174.^[7]

In the alternative, defendant requested a downward departure based on the unusually low purity of the methamphetamine. CR 82. Defendant also sought downward departures for overstatement of criminal history, for diminished mental capacity because of his psychiatric history, and because of the unusually harsh conditions of confinement he had endured while awaiting trial. Id.^[8]

The district court found that the applicable offense level was 24 and that defendant's criminal history was V. RT 10/12/00 at 12-13; ER 174-75. The district court denied all the defendant's downward departure motions except for the motion based on the harsh conditions the defendant had endured. Id. at 36-38, 45-47; ER 176-78, 179-81. The court departed downward 2 levels on that basis, and sentenced the defendant to a mid-range sentence of 144 months. CR 96, 98; RT 10/12/00 at 49; ER 183. This sentence included the 60-month consecutive sentence for a violation of 18 U.S.C. 924(c).

STANDARDS OF REVIEW

A trial court=s decision to admit evidence is reviewed for an abuse of discretion. See United States v. Hernandez, 109 F.3d 1450, 1452 (9th Cir. 1997).

The court reviews the district court's factual findings at sentencing for clear error. United States v. Asagba, 77 F.3d 234, 235 (9th Cir. 1996). However, factual findings by the court must be supported by a preponderance of the evidence. United States v. Frega, 179 F.3d 793, 811 n.22 (1999). The trial court's evaluation of the credibility of witnesses is reviewed under the clearly erroneous standard. United States v. Matta-Ballesteros, 71 F.3d 754, 766 (9th Cir. 1995), amended by 98 F.3d 1100 (9th Cir. 1996). The trial court's assessment of the reliability of evidence used for the purpose of sentencing is subject to review for abuse of discretion. United States v. Shetty, 130 F.3d 1324, 1331 (9th Cir. 1997). Similarly, the trial court's decision about what evidence to consider in sentencing is reviewed for abuse of discretion. United States v. Ayers, 924 F.2d 1468, 1481 (9th Cir. 1991).

This Court reviews a challenge to the constitutionality of a statute de novo. United States v. Mack, 164 F.3d 467, 471 (9th Cir. 1999).

SUMMARY OF ARGUMENT

The district court abused its discretion in admitting into evidence purported "pay-owe" ledgers when those ledgers were inadmissible hearsay by an anonymous author. It was error to allow the government's expert to be a mere conduit of inadmissible hearsay under the guise of Federal Rule of Evidence 703. That Rule permits an expert to rely on inadmissible hearsay in forming an opinion, but does not permit the admission of inadmissible hearsay.

The district court further erred in permitting the government's expert to opine about the defendant's mental state in violation of Federal Rule of Evidence 704. An expert is barred by Rule 704(b) from stating "an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged." Here, because there was no direct evidence of drug dealing, the government's key evidence that the defendant possessed drugs with the intent to distribute was the expert's testimony.

The court additionally erred in finding that at sentencing, the government met its burden of proof of showing that the defendant possessed all of the drugs for sale and none for personal use. The government's entire theory at trial was that the defendant was a drug user who graduated to drug dealing, and defendant's testimony that he was a drug addict was undisputed. Thus, it was error for the district court to disregard the defendant's uncontradicted testimony of drug use and to find that none of the drugs were possessed for personal use.

Finally, in light of recent Supreme Court authority, this Court must reconsider its prior conclusion that the felon-in-possession prong of 18 U.S.C. ' 922(g), when construed to require only a Aminimal nexus@ with interstate commerce, is a permissible exercise of Congress=s Commerce Clause authority. Under the Lopez Trilogy, mere possession of a firearm by a felon must be found to lack the requisite nexus to commerce where the only basis for federal jurisdiction is the incidental fact that the firearm had once crossed a state line.

Because a merely incidental nexus to interstate commerce may no longer be considered constitutionally adequate to support convictions under 18 U.S.C. ' 922(g), the defendant=s conviction must be reversed. This Court, in United States v. Michael Jones, 231 F.3d 508 (9th Cir. 2000), did not address the as-applied challenge set forth herein, and the defendant therefore requests that the Court grant initial hearing en banc to consider the application of Michael Jones and to consider the constitutionality of section 922(g) as applied to this case.

ARGUMENT

I. THE DISTRICT COURT ERRED IN ADMITTING THE PAY-OWE SHEETS THROUGH THE TESTIMONY OF THE EXPERT BECAUSE THE PAY-OWE SHEETS WERE INADMISSIBLE HEARSAY

Expert testimony under Federal Rule of Evidence 703 may be based on facts or data that are not admissible in evidence -- such as inadmissible hearsay -- as long as the facts or data are of a type that is reasonably relied upon by experts in the field. Fed. R. Evid. 703. However, while an expert may rely on hearsay in forming his opinion, that hearsay should not be admitted into evidence unless the hearsay evidence is independently admissible. This is because

Rule 703 does not authorize admitting hearsay on the pretense that it is the basis for expert opinion when, in fact, the expert adds nothing to the out‑of‑court statements other than transmitting them to the jury. In such a case, Rule 703 is simply inapplicable and the usual rules regulating the admissibility of evidence control.

29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence ' 6273 (1997).

Entries in a ledger such as Apay-owe@ sheets constitute inadmissible hearsay under Federal Rule of Evidence 801(c) and cannot be admitted into evidence unless the author of the entries has been identified. See United States v. Valles-Valencia, 811 F.2d 1232, 1237 (9th Cir. 1983) (citing United States v. Ordonez, 722 F.2d 530, 535-336 (9th. Cir. 1984)) (A[E]ntries in a ledger constitute inadmissible hearsay when the government cannot identify the person(s) who made the notations.@). This is because Athe government's failure to identify the declarant or indicate the basis of his knowledge vitiate[s] the foundation required to establish the statement's reliability.@ See id. (citing Ordonez).

As inadmissible hearsay, anonymous ledger entries should not be admitted into evidence through the testimony of an expert simply because the expert relied on the ledger entries in forming his opinion. See Ordonez, 722 F.2d at 533-34, 537. This Court=s analysis in Ordonez is instructive. There, the defendants were charged with, inter alia, possession of cocaine with intent to distribute. The only evidence supporting the charges were drug ledgers for whom no author was identified at trial. See id. The government presented the ledgers to the jury through an expert who opined that Athe ledgers were business records made in the regular course of business, which reflected daily cocaine transactions including deliveries made to numerous individuals.@ See id. at 533. On appeal, this Court concluded that the ledgers were inadmissible hearsay because the government did not present evidence establishing the author of the ledgers. See id. at 535-37.

In evaluating the admissibility of expert testimony, district courts must draw a distinction between the expert=s opinion, which may be based on hearsay under Rule 703, and the threshold admissibility of the underlying hearsay evidence itself. The Seventh Circuit considered this issue in United States v. Tranowski, 659 F.2d 750, 755 (7th Cir. 1981). There, the court reversed the defendant=s conviction for perjury on grounds that the district court had erred in admitting an astronomical chart through the testimony of an expert witness because the chart lacked circumstantial guarantees of trustworthiness. See id. Importantly, the court noted:

It is true that under Rule 703 [the expert=s] opinion evidence might have been admitted without the chart itself, if it had been shown that astronomers who engaged in the field of analyzing and dating photographs would rely on such a chart in making their calculations.

See id. at 755. The court then noted, however, that even if the expert=s opinion were admissible, the chart which formed the basis for his opinion was arguably hearsay. See id. at 755 n.10. The court concluded, however, that the district court could nonetheless admit the expert=s opinion under Rule 703 because an expert opinion may be based upon hearsay. See id. at 755 n.10 (AEven though the chart would arguably be hearsay evidence in such circumstances, Rule 703 permits a court to admit an expert opinion based on hearsay, if reliance on such factual bases is the normal practice of experts in the field in reaching their conclusions.@). The Tranowski court thus drew an important distinction between the admissibility of the expert opinion and the admissibility of the hearsay evidence on which it is based: while the expert=s opinion is admissible, the underlying hearsay evidence is not.

In this case, the district court correctly ruled that the anonymous ledgers constituted inadmissible hearsay statements.

As a result of the court=s erroneous ruling, the jury was permitted to review anonymous ledgers that lacked reliability and that unfairly prejudiced the jury in its consideration of the evidence. This was not harmless error. Agent Heald testified that the ledgers were pay-owe sheets that showed that the defendant had the intent to distribute the drugs. Aside from these ledgers and Agent Heald's testimony, there was little evidence that the defendant possessed drugs for sale rather than for personal use. No witness saw the defendant deal drugs. No informant testified that he was a drug dealer. No undercover police officer testified that the defendant sold drugs. No wiretaps demonstrated that the defendant was dealing drugs. The ledgers were therefore key evidence against the defendant on the crucial question of his mental state. Because the ledgers were inadmissible hearsay, the district court abused its discretion in admitting them. The defendant=s conviction must be reversed on that grounds.

II. THE GOVERNMENT=S EXPERT SHOULD NOT HAVE BEEN PERMITTED TO OFFER AN OPINION REGARDING THE DEFENDANT=S MENTAL STATE

An expert is barred by Rule 704(b) from stating "an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged." See Fed. R. Evid. 704(b). Additionally, expert testimony that would otherwise be admissible under Rule 704(b) should be excluded where the district court finds that, in light of the facts of the case, the proffered testimony will be more prejudicial than probative. See Fed. R. Evid. 403; United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000).

Over the defense=s objection, the district court permitted Agent Heald to opine to the jury that the defendant must have intended to distribute the seized drugs. RT 7/14/99 at 293-96, 331-32; ER 60-63, 72-73. The district court abused its discretion in permitting this expert to testify regarding the defendant's mental state because the Federal Rules of Evidence preclude any expert from offering an opinion regarding a defendant=s state of mind. In United States v. Morales, 108 F.3d 1031 (9th Cir. 1997) (en banc), this Court ruled that Rule 704(b)=s limitations on the scope of expert opinion testimony "appl[y] to all experts who are asked to state an opinion or inference as to a defendant=s mental state," not just to mental health experts. Id. at 1035-36 (noting circuit split on this issue). The Morales decision also clarified that Rule 704(b) precludes admission of expert testimony about a defendant=s mental state where the jury, if it believed the expert=s testimony, would be compelled to find that the defendant had the requisite mental state for the offense:

A prohibited "opinion or inference" under Rule 704(b) is testimony from which it necessarily follows, if the testimony is credited, that the defendant did or did not possess the requisite mens rea.

See Morales, 108 F.3d at 1037.

In this case, Agent Heald testified that the defendant must have intended to distribute the seized drugs and that the drugs were not simply for personal use. Because such testimony goes to the defendant's mental state, it was inadmissible and should have been excluded.

III. THE DISTRICT COURT CLEARLY ERRED IN FINDING AT SENTENCING THAT ALL OF THE DRUGS WERE POSSESSED FOR DISTRIBUTION

A. The Government Did Not Meet Its Burden Of Proof

At sentencing, the district court found that all of the drugs in the defendant's possession were possessed with intent to distribute and found that the applicable offense level was 24 pursuant to U.S.S.G. ' 2D1.1(c)(7).^[9] Because the government failed to meet its burden of showing that the entire quantity was intended for distribution, the district court erred.

As a matter of law, the sentence imposed for possession of drugs with intent to distribute must be based only on those drugs which were intended for distribution, not for personal use. United States v. Kipp, 10 F.3d 1463, 1466 (9th Cir. 1993) (noting that failure to distinguish the amount possessed for personal use contravenes a fundamental principle of the Sentencing Guidelines, proportionality in sentencing). The burden falls on the government to establish by a preponderance of the evidence the quantity that was intended for distribution. Id.

The district court's finding that the government had met its burden of proof was based on its finding that possession of different drugs in the amounts found in the backpack was inconsistent with personal use because a person using drugs in those amounts would show symptoms of toxicity, and the defendant did not show those symptoms; its finding that possession of a scale was inconsistent with personal use; its finding that polydrug users were more likely to be street dealers; and its finding that the defendant was not credible when he claimed that he was a drug user. RT 6/22/00 at 27-29; ER 165-67; RT 10/12/00 at 11-13; ER 173-75.

The district court erred through misunderstanding the testimony and through erroneously disregarding the defendant's uncontradicted testimony that he was a drug addict who used methamphetamine and cocaine. As an initial matter, the district court's finding is illogical, inconsistent, and based on a misunderstanding of the testimony. The district court found that Agent Heald testified street dealers were more likely to be polydrug abusers. RT 6/22/00 at 27; ER 165. The inference from this finding is that the defendant was therefore a street dealer. The district court misapprehended Agent Heald's testimony. What Agent Heald actually testified was that a street dealer was more likely to be a polydrug seller than was a higher-level drug dealer, who would be less likely to deal in more than one type of drug. RT 7/14/99 at 340; ER 77. He did not testify that polydrug users were more likely to be street dealers than addicts who confined their usage to one type of drug. Thus, as an initial matter, there is no support in the record for the district court's conclusion that as a polydrug user, defendant was necessarily a street dealer.

But even if there were factual support for this proposition, the district court's resulting reasoning is flawed. The district court appears to have reasoned that, as the government contended, the defendant was a polydrug user, and therefore he was a drug seller. From there, the district court concludes that all of the drugs were possessed for sale. This conclusion does not follow from the premise that the defendant was a drug user who became a drug dealer. Instead, it stands to reason that a drug user, even one who became a drug dealer in order to support his drug habit, would possess some drugs which he intended to personally use because of his drug habit. This is particularly so when the defendant was arrested with drug use paraphernalia, and without packaging materials.

Additionally, the district court's conclusion is completely inconsistent with its finding that the defendant was not a drug user at all.

The flawed and inconsistent logic of the district court underscores a flaw in the government's position at sentencing. The government specifically relied at trial on the fact that the defendant was an admitted drug user with a substantial drug habit. The government=s direct examination of Agent Heald repeatedly pursued the theme of the drug user who Agraduates@ to becoming a drug dealer in order to make enough money to support his own drug habit. RT 7/14/99 at 281-88; ER 52-59. In response to the government=s questioning, Agent Heald testified that the defendant must have intended to distribute some portion of the drugs because he would need the money in order to support his own drug habit. Id. at 281-282; ER 52-53. Agent Heald also testified that the presence of drug use paraphernalia in the defendant's backpack bolstered his opinion that the drugs were for distribution, because they indicated that defendant was a drug user and, in his opinion, drug users are likely to be selling drugs. Id. at 300; ER 66. See also id. at 302-03; ER 67-68 (Aless likely@ that a non-drug user would be selling drugs than a drug user; his opinion Agenerally would be I=d be looking at that person as being involved in distribution as well as personal use.@) (emphasis added).

The government=s cross-examination of Dr. Hayner was similarly focused: after establishing that drug addicts have difficulty maintaining normal employment, and reviewing how much it would cost to purchase various drugs, the prosecutor obtained Dr. Hayner=s endorsement of the theory that drug users who have ingested high dosages of numerous drugs over a long period Aoften turn to distribution so as to support their habits.@ RT 7/14/99 at 399; ER 113.

Where, as here, the government's own theory was premised upon the position that the defendant was a drug user, where the government=s own expert testified under oath that, in his opinion, the defendant was a drug dealer because he was a drug user, and where the defendant was carrying drug use paraphernalia on his person, with the drugs, at the time of his arrest, the government is unable to meet the burden of establishing by a preponderance that defendant possessed all of the drugs for sale and none for personal use.

1. The amounts in the backpack were not so great as to support a finding that they were all possessed for distribution

a. Cocaine Base

The police recovered a total of six rocks of cocaine base. These drugs were packed in $10 or "dime" bags, and had a total street value of only $60. RT 7/14/99 at 377-378; ER 97-98. Possession of six prepacked rocks of cocaine is entirely consistent with personal use because, according to Dr. Hayner, a buyer who was buying more than one rock would likely buy several separate prepackaged bags. Id. at 377; ER 97. Dr. Hayner also testified that this amount could easily be consumed by a drug user in one day. Id.

Other courts who have considered similar quantities have held, as a matter of law, that an amount of crack cocaine this small could be for personal use and is not by itself indicative of possession for sale. See United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996) (possession of 2.89 grams of crack cocaine with razor and no paraphernalia for personal use not sufficient to infer intent to sell); United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997) (8 grams of cocaine base not inconsistent with personal use); United States v. Onick, 889 F.2d 1425, 1431 (5th Cir. 1989) (7.7 grams of heroin and cocaine alone not sufficient to infer intent). Courts have also recognized that buyers as well as sellers may possess separately packaged quantities of drugs, since this may be the manner in which the drugs were available for purchase. See, e.g., United States v. Lucien, 61 F.3d 366, 375 (5th Cir. 1995) (possession of packaging not inconsistent with personal use; individual who purchased three packages of cocaine base for personal use would thus possess three separate packets).

b. Cocaine

The facts established that defendant was carrying a single packet of cocaine weighing approximately 13.4 grams. RT 7/12/99 at 155; ER 28. Dr. Hayner confirmed that a cocaine user could use several grams or as much as a half an ounce in one day, and that the amount defendant possessed was consistent with personal use. RT 7/14/99 at 360; ER 85. Dr. Hayner also testified that a heavy cocaine user would be inclined to buy relatively large quantities, sufficient for several days' use, in order to save money, increase purity, and to minimize the need to engage in illegal (and thus risky) drug purchases. Id. at 361-62; ER 86-87.

The Supreme Court has recognized that this amount of powder cocaine (13.4 grams) is consistent with personal use and does not necessarily support an inference of intent to sell. In Turner v. United States, 396 U.S. 398 (1970), the Court held that the even greater quantity of 14.68 grams of powder cocaine was not a sufficient amount to infer intent to distribute, as that amount "is itself consistent with Turner's possessing the cocaine not for sale but exclusively for personal use." Other courts agree. In United States v. Latham, 874 F.2d 852, 863 (1st Cir. 1989), the First Circuit concluded that 28.35 grams of cocaine could be a personal use quantity for two people.

c. Methamphetamine

The facts established that defendant was carrying in his backpack two packages of methamphetamine. Both packages, when tested, proved to be primarily inert and to contain very little actual methamphetamine. The white methamphetamine weighed 25.9 grams but was only 7% pure. It thus contained only 1.81 grams of actual methamphetamine. The second, brown methamphetamine, weighed 13.8 grams but was only 4.7% methamphetamine. It thus contained only about 0.65 grams (or 650 mg) of actual methamphetamine. The total amount of actual methamphetamine was thus 2.46 grams.

The Ninth Circuit has concluded that the "standard or average dose taken by a drug abuser is approximately 100 mg" of actual methamphetamine. United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 & n. 2 (9th Cir. 1994). The defendant in Rodriguez-Sanchez possessed methamphetamine that was 62% pure. Id. At trial, without considering purity, Agent Heald testified that one gram a day was the most methamphetamine a person could take without becoming Aessentially dysfunctional.@ RT 7/14/99 at 276-77; ER 49-50. Agent Heald also testified that one gram per day was the average dose taken by a user. Id. at 327; ER 71. Dr. Hayner testified that many of the clinic=s clients were using one or more grams per day. Id. at 367-68; ER 91-92.

The district court erroneously failed to consider the import of the extremely low purity of defendant=s methamphetamine. The court acknowledged that Athere=s lots of argument in this record as to the purity of the methamphetamine and how that affects the dosage,@ but declined to address the significance of the drug purity to an assessment of personal use quantities. RT 6/22/00 at 5; ER 155.

Yet, once purity is taken into account, it becomes clear that even if all of the methamphetamine is attributed to the defendant, the amount was not an amount inconsistent with personal use. Defendant here possessed the equivalent of only 2.46 grams of methamphetamine. Thus under the Rodriguez-Sanchez analysis, defendant possessed between 6 and 7 Astandard@ doses of methamphetamine.

2. The court erred in disregarding the defendant's testimony that he was a drug addict

The district court=s evaluation of the credibility of witnesses is reviewed for clear error. United States v. Matta-Ballesteros, 71 F.3d 754, 766 (9th Cir. 1995), amended by 98 F.3d 1100 (9th Cir. 1996). A credibility finding is clearly erroneous when the reviewing court is left with a "definite and firm conviction that a mistake has been made." United States v. Maldonado, 215 F.3d 1046, 1050 (9th Cir. 2000). In this case, the Court cannot but be left with a firm conviction that the district court made a mistake in discrediting the defendant's testimony that he was a drug user.

At trial, the defendant testified that he had been using 2 to 3 grams of cocaine nearly every day and 3 or more grams of methamphetamine per day, RT 7/15/99 at 443-46; ER 117-20. On cross-examination, the government did nothing to discredit defendant=s testimony that he was a drug user. Instead, the cross-examination only confirmed his drug use. Id. at 492-93; ER 136-37.

Indeed, the government's entire case against the defendant was premised on the view that he was a drug user who sold drugs to support his serious drug habit. In light of the uncontradicted testimony that the defendant was a drug addict, and in light of the fact that such a finding was the lynchpin of Agent Heald's opinion that the defendant was a drug dealer as well as the heart of the government's proof that the drugs were possessed for sale, this court must be left with a definite and firm conviction that the district court made a mistake in discrediting all of the defendant's testimony.

3. The scale was not inconsistent with personal use

The district court relied on the presence of a scale in the defendant's backpack, and on Agent Heald's testimony that a scale was consistent with possession for distribution in order to find that the drugs were not for personal use. However, Dr. Hayner also testified about the import of a scale. He opined that a drug user would have a scale in order to keep track of his use, or to check the weight before purchasing drugs to make sure he was not being cheated. RT 7/14/99 at 375-76; ER 95-96. Even Agent Heald admitted that a drug dealer was not likely to bring a scale with him when trafficking in drugs. Id. at 320-21; ER 69-70. Additionally, Ms. Davis testified that this particular scale, which was burnt, was broken. RT 7/12/99 at 165-67; ER 31-33.

Furthermore, this court has also found that possession of a borrowed scale used for consumption of narcotics is not probative of intent to distribute. United States v. Martin, 599 F.2d 880, 888 (9th Cir. 1979) rev'd on other grounds, 730 F.2d 1255 (9th Cir. 1984).

4. Possession of a gun is not sufficient evidence of drug dealing

While the defendant was carrying a gun, possession of a gun is insufficient as a matter of law to establish intent to distribute narcotics. In the absence of other evidence to establish trafficking, merely possessing a gun Ais no more probative of distribution of drugs than that of other, non-nefarious purposes for which one may keep a gun.@ United States v. Hunt, 129 F.3d 739, 744 (5th Cir. 1997) (where other items consistent with personal use, gun alone insufficient grounds to sustain conviction for drug distribution).

IV. THE POSSESSION PRONG OF ' 922(G) IS UNCONSTITUTIONAL BECAUSE THE CONDUCT IT PRESCRIBES, POSSESSION OF A FIREARM BY A FELON, IS INSUFFICIENTLY TIED TO INTERSTATE COMMERCE

In United States v. Michael Jones, 231 F.3d 508 (9th Cir. 2000), this Court rejected a Commerce Clause challenge to 18 U.S.C. ' 922(g)(8), which prohibits a person subject to a domestic violence restraining order from possessing a firearm. The Michael Jones decision rested upon an analysis of the Commerce Clause which is directly contrary to the Supreme Court=s decisions in United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison, 120 S.Ct. 1740 (2000), and Dewey Jones v. United States, 120 S.Ct. 1904 (2000) (hereinafter "Dewey Jones").

A. Section 922(g) Cannot be Upheld Based Solely on its Inclusion of an Express Jurisdictional Element

In Michael Jones, this Court rejected the defendant=s argument that the Supreme Court=s reasoning in Lopez renders ' 922(g) unconstitutional. Citing Hanna, Michael Jones reduced Lopez to a case in which the Supreme Court "invalidated former ' 922(q) (the Gun-Free School Zones Act) on the ground that it lacked a jurisdictional element that would ensure that the firearm possession in question affects interstate commerce." Id. at 514. Michael Jones held that Lopez was inapplicable because ' 922(g), unlike ' 922(q), "contains a jurisdictional element explicitly requiring a nexus between the possession of firearms and interstate commerce." Id. In other words, under both Hanna and Michael Jones, as long as a statute contains an express jurisdictional element, the requirements of the Commerce Clause are satisfied. Id.; see also Hanna, 55 F.3d at 1462 n.2. This was a misreading of Lopez.

In holding that 18 U.S.C. ' 922(q) was unconstitutional, Lopez cited the statute=s lack of an express jurisdictional element as only one factor in its decision. See Lopez, 514 U.S. at 561. Nowhere did Lopez indicate that simply by including an express jurisdictional element, Congress can immunize a statute from Commerce Clause challenges.

Furthermore, this Court=s reading of Lopez cannot be squared with the Supreme Court=s decision in Dewey Jones. In Dewey Jones, the Court construed the federal arson statute, 18 U.S.C. ' 844(i), a statute which, like ' 922(g), contains an express jurisdictional element. According to Michael Jones and Hanna, the presence of an express jurisdictional element should have been sufficient to make ' 844(i) constitutional, regardless of whether ' 844(i) were construed to include owner-occupied residences, since presumably the statute would require a "case-by-case inquiry" into whether a particular owner-occupied residence satisfied the jurisdictional element.

Dewey Jones rejected this interpretation of Lopez, demonstrating that it is not enough for a statute to contain an express jurisdictional element; the statute=s scope must be narrow enough to give force to the jurisdictional element. See Dewey Jones, 120 S.Ct. at 1911.

B. The Possession Prong of ' 922(g) Does Not Regulate an Item "in Interstate Commerce"

The Commerce Clause empowers Congress to regulate three categories of activity: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "activities having a substantial relation to interstate commerce." Lopez, 514 U.S. at 558-59.

In Hanna, this Court upheld ' 922(g) as an exercise of Congress=s authority under the second category. As this Court explained in United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995), "the conviction at issue in Hanna that was upheld against facial challenge was not predicated on the argument that the firearm affected interstate commerce, but rather "on the fact that the firearm had previously moved in interstate commerce." Id. at 527; see also Michael Jones, 231 F.3d at 514 (citing Hanna for the proposition that ' 922(g) "can also be seen as falling within the third [sic] category, which requires only a minimal nexus that the firearm in question have moved in interstate commerce at some time").

According to Hanna, the Commerce Clause is satisfied as long as the government can demonstrate "the minimal nexus that the firearm have been, at some time, in interstate commerce." Hanna, 55 F.3d at 1462 (citation omitted). Under Hanna, it makes no difference whether the firearm traveled in interstate commerce on December 5, 1999, or December 5, 1909. The movement of a firearm in interstate commerce on a single occasion, 90 years before the defendant possessed it, is sufficient to satisfy ' 922(g)=s jurisdictional element.

The Hanna decision was based primarily upon two pre-Lopez decisions: Scarborough v. United States, 431 U.S. 563 (1977), and United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988). In Scarborough, the Supreme Court analyzed Congress=s intent in enacting 18 U.S.C. ' 1202(a), the precursor to ' 922(g). Noting that "Congress sought to reach possessions broadly, with little concern for when the nexus with commerce occurred," the Court concluded that "there is no question that Congress intended no more than a minimal nexus requirement." Scarborough, 431 U.S. at 577. Sherbondy, in turn, concluded that Scarborough=s analysis applied equally to ' 922(g):

In amalgamating sections 922(g), 992(h), and 1202(a), Congress gave no indication that it meant to narrow the statutory reach with respect to possession. Accordingly, we hold that the Scarborough minimal nexus standard applies to section 922(g) and that a past connection is enough.

Sherbondy, 865 F.2d at 1000-01.

To the extent that Hanna sought to characterize Congress=s intent with regard to ' 922(g), its reliance on Scarborough and Sherbondy was proper. And Hanna=s evaluation of Congress=s intent may well be accurate. The problem is that Hanna made no distinction between what Congress intended to do and whether the Commerce Clause gives Congress the authority to do it.

Decisions in both the Supreme Court and this Circuit suggest that -- whatever Congress may have intended -- an item cannot be deemed forever "in interstate commerce" based upon a single past movement across state lines.

This Court has repeatedly indicated that "Congress=s power to regulate articles or goods in interstate commerce may not permit it to regulate an item for an eternity simply because it has once passed state lines[.]" United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir. 1995); see also United States v. Nukida, 8 F.3d 665, 671 (9th Cir. 1993) (collecting cases).

These cases are consistent with the Supreme Court=s analysis in United States v. Bass, 404 U.S. 336 (1971), an early felon-in-possession case. In Bass, the Court explained that the nexus required for prosecution under the possession prong is necessarily greater than that required for prosecution under the receiving prong:

[W]e add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person "possesses . . . in commerce or affecting commerce" if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of "receiving . . . in commerce or affecting commerce," for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.

Id. at 350.^[10]

To the extent that Hanna held that ' 922(g) was a proper exercise of Congress=s authority to regulate items "in interstate commerce," and to the extent that Michael Jones relied upon Hanna for that proposition, these cases should be reconsidered en banc because they conflict with precedent from both this Court and the Supreme Court.

C. The Possession Prong of ' 922(g) Does Not Regulate an Item Which "Substantially Affects" Interstate Commerce

In Michael Jones, this Court held that ' 922(g) can also be justified under the third category identified in Lopez -- as regulating ">activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.=" Michael Jones, 231 F.3d at 514 (quoting Lopez, 514 U.S. at 558-59).

Notably, Michael Jones did not apply the four-factor test established in Lopez. Instead, relying solely upon dicta in Pappadopoulos (which concerned ' 844(i), not ' 922(g)), Michael Jones concluded that ' 922(g) falls within the third Lopez category^[11] because the statute "can >rationally be seen as regulating the interstate transportation of firearms and ammunition.=" Id. (quoting Pappadopoulos, 64 F.3d at 527). Had Michael Jones evaluated ' 922(g) according to the four factors identified in Lopez, it would have concluded that ' 922(g) cannot be upheld as regulating an activity that substantially affects interstate commerce.

The first factor to be considered under Lopez is whether ' 922(g) regulates an activity that can be considered "an essential part of a larger regulation of economic activity." Lopez, 514 U.S. at 561. The Supreme Court has repeatedly demonstrated that an attenuated connection to economic activity is insufficient. See, e.g., Lopez, 514 U.S. at 561 (concluding that ' 922(q), the Gun-Free School Zones Act, did not regulate economic activity); Morrison, 120 S.Ct. at 1751 ("Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity."); Dewey Jones, 120 S.Ct. at 1910 (rejecting argument that owner-occupied residences are "used in interstate commerce").

Unlike the statutes in Lopez and Morrison, ' 922(g) does contain an express jurisdictional element. See 18 U.S.C. ' 922(g). But as the Supreme Court stated in Lopez, and demonstrated in Dewey Jones, the presence of an express jurisdictional element is not sufficient; the express jurisdictional element must function to ensure that, in every case, "the regulated activity substantially affects= interstate commerce." Lopez, 514 U.S. at 559 (emphasis added).

The defendant concedes that, on a case-by-case basis, the possession prong of ' 922(g) may be applied in a manner that would give force to its jurisdictional element. For example, if this Court were to construe ' 922(g) to require proof that the firearm was possessed while moving in interstate commerce or in an interstate facility, the possession prong would pass constitutional muster. But according to both Hanna and Michael Jones, the jurisdictional element is satisfied by proof that the firearm once moved from one state to another, no matter how remote in time. If this minimal nexus were sufficient to establish jurisdiction, courts would be "hard pressed to posit any activity by an individual that Congress is without power to regulate." Lopez, 514 U.S. at 564.

Admittedly, the legislative history of ' 922(g) supports this Court=s construction of the statute to require only a minimal nexus. See Scarborough, 431 U.S. at 575; Hanna, 55 F.3d at 1462. But, as Lopez made clear, whether an activity is sufficiently tied to interstate commerce is a question for the courts, not the legislature. See Lopez, 514 U.S. at 562 (noting that the court must conduct an "independent evaluation of constitutionality under the Commerce Clause"). If anything, the legislative history of ' 922(g) weighs against a finding of constitutionality, since the statute that Congress apparently intended -- one which requires only a minimal nexus -- is unconstitutional under Lopez.

Finally, much like the unsuccessful arguments made by the government in support of ' 922(q) [Lopez] and ' 13981 [Morrison], the argument that ' 922(g) substantially affects interstate commerce can be formulated only in the aggregate -- it is hard to imagine how the possession of an individual gun, which has not traveled from one state to another in nearly 100 years, could have a "substantial effect" on interstate commerce. And after Lopez, arguing about the effect of an activity, in the aggregate, is no longer permissible.

CONCLUSION

For the foregoing reasons, Mr. XXXX respectfully requests that the Court reverse his conviction and sentence and remand this case to the district court. In the alternative, Mr. XXXX requests that the Court grant initial hearing en banc to reconsider its holding in Michael Jones and determine that 18 U.S.C. ' 922(g) exceeds Congress= authority under the Commerce Clause as applied to a one-time movement of a firearm across state lines.

STATEMENT OF RELATED CASES

Counsel for appellant certifies that she is aware of the following cases pending with this Court which raise the same Commerce Clause challenge presented in this appeal:

United States v. Ohman, No. 00-10074; United States v. Johnson, No. 00-10326; United States v. Baroni, No. 00-10388; United States v. Mabini, No. 00-10442; United States v. Larson, No. 00-10609.

DATED: April __, 2001

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

HILARY A. FOX

Assistant Federal Public Defender

FRAP RULE 32(a)(7)(A) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(A), I certify that the instant principal appellate brief complies with this Court=s word-count limitation in that it contains 11,451 words, thereby fewer than 14,000 words.

____________ ______________________________

Date Signature of Attorney

^[1]Throughout this brief, "CR" refers to the trial court docket sheet. "ER" refers to the page number in defendant-appellant's excerpts of record. "RT [date]" refers to transcripts of the district court proceedings.

^[2]Pursuant to Local Rule of Court of the Ninth Circuit, Rule 30-1.8, the defendant's Presentence Report ("PSR") is filed separately under seal with the Clerk of the Court of Appeals.

^[3] The parties stipulated to the weight but not the purity of the methamphetamine, cocaine and crack cocaine. RT 7/12 at 155; ER 28.

^[4] Agent Heald was not qualified as an expert in crack cocaine. RT 7/14/99 at 260; ER 45.

^[5]Agent Heald=s knowledge regarding the quantity of seized drugs was limited to net weight, not purity. The government did not inform Agent Heald of the purity of the methamphetamine or other drugs and thus the opinion he gave at trial was not based on this information. RT 7/14/99 at 303; ER 68. The low purity of the methamphetamine was subsequently addressed during the trial testimony of Dr. Hayner, who was informed of the results of purity testing on the methamphetamine and incorporated this in his opinion. See id. at 365; ER 89.

^[6] The court misremembered the context of this testimony. Agent Heald=s comparison was not between street dealers and users, but between low-level street dealers and dealers higher up in the distribution chain, who would be less likely to be peddling more than one type of drug. RT 7/14 at 340; ER 77.

^[7] The court also rejected defendant=s argument that, although he admitted possessing all the drugs, the white methamphetamine should be attributed to Anita Davis. The court relied both on the fact that Davis had denied ownership of the drugs and on the court=s (mistaken) belief that Athat scale that was given to him is a scale that was found in the fanny pack which contained the white methamphetamine.@ RT 6/22/00 at 30; ER 68. The record reflects that scale was not found in the fanny pack but was found in a large zip wallet which contained indicia of the defendant=s girlfriend. RT 7/12/99 at 103-05; ER 19-21.

^[8] In February 1999, while being detained pretrial in the San Francisco County Jail, defendant was beaten unconscious by guards. RT 10/12/00 at 45-46; ER 179-80.

^[9] In defendant=s criminal history category (category V), offense level 24 corresponds to a sentencing range of 92-115 months.

^[10]Scarborough acknowledged the logic of Bass, but concluded that although a strict nexus requirement for possession "would make sense, further consideration has persuaded us that that was not the choice Congress made." Scarborough, 431 U.S. at 575 n.11 (emphasis added). Because Scarborough dealt only with congressional intent, the Court was able to sidestep the question of whether "the choice Congress made" was constitutional.

^[11] In Michael Jones, the Court alternately referred to the regulation of activities substantially affecting interstate commerce as both the second Lopez category and the third Lopez category. See Michael Jones, 231 F.3d at 514.