Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 CR 484-Robert W. Gettleman, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
ARGUED SEPTEMBER 20, 2007
Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
We have rejected many challenges surrounding the felon-in-possession statute's interstate commerce requirement, and in this case we reject one more. The statute, 18 U.S.C. § 922(g)(1), requires that the government prove, among other things, that a defendant's possession of a firearm was "in or affecting commerce." Complicating matters somewhat, the indictment in this case charged instead that Rice's possession was "in and affecting commerce." (We have added the emphasis.) Seizing on this language, Rice maintains that the government needed, and failed, to prove that his possession of firearms was "in commerce." Because the statute only requires proof that the firearms had moved across state lines at some point before the defendant's possession, a threshold indisputably satisfied here, we conclude that the requisite tie to interstate commerce has been satisfied. Rice's other challenges to his convictions and sentence are similarly without merit. Therefore, as we explain more fully below, we affirm the judgment of the district court.
Julio Rice was charged in a five-count superseding indictment with: (1) unlawful possession of a firearm by a felon; (2) possession of a firearm having a removed, altered or obliterated serial number; (3) possession with intent to distribute a controlled substance; (4) possession of a firearm in furtherance of a drug trafficking crime; and (5) unlawful possession of a firearm by a felon. The first four counts concerned conduct that allegedly occurred on October 29, 2002. Count 5 charged that Rice possessed a firearm on January 12, 2003.
At the first trial, a jury convicted Rice of the conduct charged in Counts 1 and 2. The jury was unable to reach a verdict as to Counts 3, 4, and 5, and the district court declared a mistrial. The government then re-tried Rice on Counts 3, 4, and 5, and the second jury returned a guilty verdict on those counts.
Two separate incidents led to Rice's convictions. On October 29, 2002, two officers stopped the car in which Rice was riding. He left the car holding a handgun in one hand and a blue laundry bag in the other and ran into the building where he resided with his then-girlfriend. Inside the building, he threw the bag up the stairs and attempted to close the door behind him, but the two officers pushed it open. The officers restrained Rice and found the blue laundry bag with a handgun next to it. The bag contained two additional handguns (including an Intratec TecDC9 semiautomatic handgun with an obliterated serial number), an empty safe, and three bags with a total of approximately two-and-a-half pounds of marijuana. The marijuana was divided into two one-pound bags and one half-pound bag. The officers found no other contraband.
Rice testified at trial and admitted that he had purchased the marijuana shortly before his arrest on October 29, 2002. He also admitted that he possessed the three firearms seized by officers that day. He further testified, however, that he did not intend to sell the marijuana and that he needed the handguns to protect himself from other gang members.
Other officers testified that on January 12, 2003, they saw the passenger in a Buick, later identified as Rice, toss a black object out the car window. One testified that he immediately recognized the object as a gun, heard a metallic "clink" as it hit the ground, and yelled out, "gun." The officers arrested Rice and found a loaded Bryco semiautomatic handgun about two to five feet away from the passenger side of the car.
On August 9, 2006, the district court sentenced Rice to 360 months' imprisonment. He now appeals, raising multiple challenges to his convictions and sentence.
A. Interstate Commerce and § 922(g)(1)
Rice's principal challenge on appeal is to his convictions for unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). He maintains that the government failed to prove that he possessed any firearms "in commerce" and that his two § 922(g)(1) convictions cannot stand as a result. This challenge is not one to our subject matter jurisdiction, but is rather an argument that the government failed to prove all the elements ...