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United States v. Lowe

decided: October 17, 1988.


Appeal from the United States District Court for the Central District of Illinois, Rock Island Division. No. 87-40006 -- Michael M. Mihm, Judge.

Richard D. Cudahy, Joel M. Flaum and Daniel A. Manion, Circuit Judges.

Author: Flaum

JOEL M. FLAUM, Circuit Judge.

A grand jury indicted Darrell Lowe for being a convicted felon in possession of a firearm which had traveled in interstate commerce. 18 U.S.C. § 922(g). The one-count indictment also alleged that Lowe had three previous state court convictions for violent felonies in violation of 18 U.S.C. § 924(e). Lowe appeals his subsequent conviction after a jury trial, claiming that the indictment failed to charge an offense under § 922(g). He also argues that the indictment was constructively amended by the jury instructions which impermissibly broadened the original charge. For the reasons stated below, Lowe's conviction is affirmed.


On the evening of January 4, 1987, the police for Rock Island, Illinois were called to the Katydid Tavern to break up a bar fight. The officers dispatched to the tavern were informed that one of the disputants might be armed with a handgun. When the police arrived, they observed Lowe arguing with another patron. After breaking up the fray, the officers frisked Lowe and found a.22 caliber revolver stuck in his belt. Lowe was arrested and ultimately charged on April 8, 1987 in a one-count indictment which alleged that he:

did knowingly possess a firearm which had previously traveled in interstate commerce, to wit: a Liberty.22 caliber revolver with an obliterated serial number, the defendant having been previously convicted three times under the laws of the State of Illinois for felony crimes of violence.

In violation of United States Code, Title 18, Section 924(e).

Lowe moved to dismiss the indictment on numerous grounds, including the contention that 18 U.S.C. § 924(e) is a sentence-enhancement provision for the predicate offense of felony firearm possession in § 922(g) rather than a separate substantive offense.*fn1 When the trial court denied the motion to dismiss, Lowe stipulated to the fact that he had three prior state court convictions for the purposes of § 924(e), and successfully moved in limine to prevent the government or any of its witnesses from mentioning the felonies at trial.

At trial, the government sought to prove the interstate character of the.22 caliber revolver through the testimony of Richard Craze, a firearms enforcement officer from the Treasury Department's Bureau of Alcohol, Tobacco and Firearms. The government qualified Craze as an expert on firearms identification and classification, and he testified that the gun in Lowe's possession was manufactured in West Germany and was imported into the United States by the Liberty Arms Corporation located in Montrose, California. Over the objection of defendant, Craze also testified that in his opinion, the location of the manufacturer and importer of the firearm indicated that it had traveled in interstate commerce.

At the conclusion of the trial, the jury was given the following instructions, again over Lowe's objection, on the commerce nexus necessary for a conviction under § 922(g):

The term "interstate" or "foreign commerce" includes commerce between any place in the state and any place outside of that state or any possession within the possessions of the United States or the District of Columbia, but such term does not include commerce between places within the same state but through any place outside of the state.

"Commerce" means travel, trade, traffic, commerce, transportation or communication among the several states.

If you do not find beyond a reasonable doubt that the firearm had traveled in interstate commerce, then the government has not met its burden of proof on this issue, and you must find the defendant not guilty.

The government may meet its burden of proving that the firearm had previously traveled in interstate commerce if it is demonstrated that the firearm possessed by a convicted felon had previously traveled from one state to another.

The jury returned a guilty verdict and the trial court entered judgment on February 4, 1988.*fn2 Lowe moved to arrest the judgment and for a new trial, again claiming that it was improper to charge a violation of 18 U.S.C. § 924(e) as if it were a substantive offense.*fn3 The court denied these motions and subsequently sentenced Lowe to a term of fifteen years without parole pursuant to the mandatory provisions of § 924(e)(1). Thereafter, Lowe timely filed a notice of appeal.


Lowe's initial claim is that the indictment failed to state an offense under 18 U.S.C. § 922(g). Specifically, Lowe contends that the charge in the indictment that he possessed "a firearm which had previously traveled in interstate commerce," is not the same as the offense of possessing a firearm "in or affecting commerce," the language employed in § 922(g).*fn4 He also argues that for the purposes of § 922(g), "commerce" is a separate and distinct concept from "interstate commerce." As part of this claim, Lowe adds that the government failed to establish the necessary jurisdictional nexus between commerce and the ...

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