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United States v. Lewis

November 6, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

TIMOTHY ANDREW LEWIS,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 94 CR 153 Terence T. Evans, Judge.

Before POSNER, Chief Judge, and ESCHBACH and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED MAY 16, 1996

DECIDED NOVEMBER 6, 1996

A jury convicted Timothy Lewis on charges that, having previously been convicted of a felony, he possessed a firearm that had moved in interstate commerce, in violation of 18 U.S.C. secs. 922(g)(1), that he used a firearm in connection with a drug offense, in violation of 18 U.S.C. sec. 924(c), and that he possessed in excess of five grams of cocaine base with the intent to distribute, in violation of 21 U.S.C. sec. 841(a)(1). Applying the career offender provision of the Sentencing Guidelines (sec. 4B1.1), the district court imposed concurrent prison terms of ten and twenty-two years on the felon-in-possession and narcotics charges and to a consecutive term of five years on the other firearm charge. Lewis contends that his conviction on the felon-in-possession charge must be reversed because the prosecution failed to establish a constitutionally adequate nexus between his possession of the firearm and interstate commerce. He contends that his convictions on the other two charges must also be reversed on the ground that the prosecution failed to establish a chain of custody sufficient for the jury to find that the substance found in Lewis' possession was the same substance introduced into evidence at trial and identified as crack cocaine. We affirm.

I.

In the early morning hours of September 20, 1994, two Milwaukee police officers patrolling in a squad car began to tail Lewis as he was driving two friends home. By their account, Lewis made a series of turns, parked the car, got out, and began to walk across the street. Officer Roberto Caban testified that he parked behind Lewis' car, exited the squad car, and told Lewis to return to his own car. Lewis broke into a run, and Caban gave chase. Caban caught up to Lewis as he was trying to climb over a fence.

Lewis and Caban gave different accounts of what happened next. Lewis testified that he was shot in the back as he was trying to surmount the fence, causing him to fall to the ground. Officers then administered first aid, went through his pockets, and transported him to the hospital. According to Caban, however, Lewis either fell down or came down from the fence just as Caban caught up to him. Lewis, facing Caban, told Caban to "[g]et back, get back, I have a gun, don't make me shoot you," or words to that effect. Caban backed off, shined a flashlight at Lewis, and noticed a shiny object in Lewis' hands. Lewis again tried to scale the fence unsuccessfully. By that time, Caban had drawn his own revolver and was telling Lewis repeatedly to "drop the gun." Lewis did not comply, and as he started to turn toward Caban, Caban shot him in fear for his life.

Caban handcuffed Lewis and discovered a gun at his side. An electronic pager was also found in the alley nearby. Later, when Lewis' clothes were removed at the hospital, Detective Rosalee Vukovich and another officer retrieved a fired bullet and a wad of cash in excess of $750 from a rear pocket of Lewis' pants. In addition, while they were searching the pants, a large, clear plastic bag containing seventy-nine packets of a "white powdery substance" fell to the floor. That substance was analyzed and determined to be crack cocaine.

II.

A. The Felon in Possession Charge: Connection to Interstate Commerce

Section 922(g)(1) of the criminal code prohibits a convicted felon from possessing a firearm "in or affecting commerce." In Scarborough v. United States, 431 U.S. 563, 575, 97 S. Ct. 1963, 1969 (1977), which involved the statutory forerunner to section 922(g)(1), the Supreme Court concluded that the "in commerce or affecting commerce" element of that offense demanded no more "than the minimal nexus that the firearm have been, at some time, in interstate commerce." *fn1 Following Scarborough, we reached the same conclusion about 922(g)(1) itself in United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir. 1988), cert. denied, 490 U.S. 1005, 109 S. Ct. 1639 (1989), where we specifically noted that "proof of a gun's manufacture outside of the state in which it was allegedly possessed is sufficient to support the factual finding that the firearm was "in or affecting commerce." See also United States v. Hubbard, 61 F.3d 1261, 1269 (7th Cir. 1995), cert. denied, 116 S. Ct. 1268 (1996). Here, of course, the parties stipulated that the firearm found next to Lewis had been manufactured outside the state of Wisconsin and consequently had moved in interstate commerce prior to September 20, 1994, when Lewis was arrested. Lewis concedes that this would be enough to satisfy the "in or affecting commerce" requirement as articulated by Scarborough. Nonetheless, Lewis contends that the Supreme Court's recent decision in Lopez v. United States, 115 S. Ct. 1624 (1995), demands that the government establish "a closer, more explicit connection to interstate commerce under sec. 922(g)(1) than was demonstrated in this case and approved in Scarborough." Lewis Br. 10.

In Lopez, the Supreme Court held the Gun-Free School Zones Act, 18 U.S.C. sec. 922(q), which made it unlawful for a person to possess a firearm while in a "school zone," to be an invalid exercise of congressional Commerce Clause power. The statute was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 115 S. Ct. at 1631. At the same time, the statute lacked any "jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. Nor did the statute contain congressional findings ...


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