UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

UNITED STATES OF AMERICA, )

)
Plaintiff, )
v. ) No. 3:10-CR-73
) (VARLAN/GUYTON)
DARREN WESLEY HUFF )
)
Defendant. )

UNITED STATES’ RESPONSE TO

THE DEFENDANT’S OBJECTION TO
REPORT AND RECOMMENDATION REGARDING
MOTION TO DISMISS FOR FAILURE TO ESTABLISH
COMMERCE CLAUSE JURISDICTION

COMES NOW the United States of America this 13th day of January, 2011, by and

through the undersigned Assistant United States Attorney for the Eastern District of Tennessee,

and hereby submits for consideration by this Honorable Court its Response to the Defendant’s

Objection to the U.S. Magistrate Judge’s Report Recommending the Denial of Mr. Huff’s

Motion to Dismiss for Failure to Establish Commerce Clause Jurisdiction [Doc. 67, “Objection”]

as follows:

PROCEDURAL BACKGROUND

On August 13, 2010, the Defendant filed a motion to dismiss the Superseding Indictment

“for failing to establish interstate commerce jurisdiction” based upon the argument that Count

One, charging a violation of 18 U.S.C. § 231(a)(2), “does not comport with contemporary

understandings of the limited bounds of federal jurisdiction on the Commerce Clause” and,

secondly, that “the indictment failed to sufficiently allege the ‘commerce’ element and failed to

set forth any facts that would support it.” [ Doc. 29, Motion to Dismiss, p.1]. The government

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filed a response in opposition arguing that the statute in question is constitutionally valid on its

face and not in any way affected by the holding in United States v. Lopez, 514 U.S. 549 (1995),

and, secondly, that the Superseding Indictment sufficiently alleges an interstate nexus and

provides the Defendant with sufficient notice of the basis for federal jurisdiction. [Doc. 45].

On December 20, 2010, the magistrate judge filed a Report and Recommendation that

recommended that the Defendant’s Motion to Dismiss be denied on the basis (i) that Section

231(a)(2) “does not exceed Congress’s authority under the Commerce Clause” based upon both

the plain statutory language of that provision and interstate nature of what the statute regulates

and (ii) that the Superseding Indictment sufficiently alleges that the Defendant transported a

firearm “in commerce” so as to allege a federal jurisdictional element. [Doc. 64, the “R&R,”

pp.7&9]. On January 3, 2011, the Defendant filed his objections to the R&R in which he argues

that the magistrate judge made eight errors in the recommended findings of the R&R, and which

he in turns breaks down into two broader categories of objections: first, he reasserts his prior

arguments by objecting to the R&R’s finding that Section 231(a)(2) is a “constitutional exercise

of Congress’s authority under the Commerce Clause” (essentially arguing that the statute is

facially defective) and, second, that “indictment is constitutionally sufficient” (arguing the

Superseding Indictment as drafted is deficient). Objection, pp. 5 & 10.

The government submits that this Court should adopt the R&R as it properly finds, based

upon both the controlling legal authority and principles as to the language of Section 231(a)(2)

and the Superseding Indictment itself, that there exists a sufficient basis to find that federal

jurisdiction exists in this case under the Commerce Clause.

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 ARGUMENT

In his Objection, the Defendant essentially argues that the R&R is erroneous because it

“avoid[s] the statute-specific and indictment-specific Commerce Clause challenges.” Objection,

p.3. The Defendant argues that the “crux of the constitutional challenge to § 231(a)(2) is that the

statute prohibits transportation ‘in commerce,’ not interstate commerce.” Id., at. 3. Moreover,

he restates his earlier argument that “Section 231(a)(2) – both as drafted and as it has been

charged in the Superseding Indictment – does not govern conduct that falls within Congress’s

power to regulate.” Id., at 4. Yet, while he seeks to disregard earlier case law which found that

other subsections of Section 231 to be constitutional against similar Commerce Clause

challenges [Objection, pp. 3-4], he does not demonstrate how the magistrate judge was in error

in his finding that the specific statutory language of Section 231(a)(2) regarding the

transportation of any firearm in commerce, as defined as meaning “between any State...and any

place outside thereof” in Section 232(2), falls well within the well established power of Congress

to regulate just that, the transportation of an item between two states, or “interstate commerce.”

First, the Defendant argues that the R&R was in error in finding that Section 231(a)(2)

was within Congress’s Commerce Clause power as he argues that the term “in commerce”

actually means “to be involved in the economic flow of goods or services to a market or

consumer” and that Section 232(a)(2) “central prohibition relates to civil disorders, not interstate

commerce....” Objection, p. 5. Accordingly, the Defendant argues that on the face of the statute

there exists no basis for federal Commerce Clause jurisdiction, as “[a]n end-consumer lawfully

possessing a firearm, even if he crosses a state line, is not within the flow of commerce, such that

Congress does not have jurisdiction to regulate and criminalize his conduct. Id., at 6.

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 This represents a fundamentally mistaken interpretation of both what Section 231(a)(2)

regulates and what conduct is proscribed, i.e., the interstate transportation of a firearm or

explosive from one state to another and not a purely intrastate occurrence of some activity, such

as a civil disorder. The R&R correctly considered the inherent interstate nature of the conduct

being regulated under Section 231(a)(2), which prohibits the transportation of an item for an

illegal purpose as opposed to the assembly of persons within a state, and found that such conduct

clearly falls within established the Commerce Clause power of the Congress. In this respect, the

R&R correctly interprets the principles set forth in the Supreme Court’s opinions in Lopez and

the related case law in finding that, if one were to consider Section 231(a)(2) in terms of the

broad categories described in Lopez, it falls within the category of the power to regulate

“persons or things in commerce.” R&R, p. 5. The Defendant has not demonstrated any error by

the magistrate judge is his findings in the R&R that (1) Section 231(a)(2) contains a specific

jurisdictional element; (2) which falls within Congress’s power to regulate the transportation of

persons or things between states; (3) which constitutes interstate commerce, that being an

activity which is not restricted in any way to only things “in the flow of commerce”; and (4) that

the holding in Lopez and subsequent related case law in no way limits or alters the power of

Congress to regulate interstate commerce.

Having properly found that Section 231(a)(2) has sufficient Commerce Clause grounds,

the R&R correctly recommends that Count Two, alleging violation of 18 U.S.C. § 924(c), be

held to have sufficient federal jurisdiction.

As to the second facet of the Defendant’s objection, namely as to the finding by the

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magistrate judge that the Superseding Indictment itself is constitutionally sufficient both as it

relates to the jurisdictional element cited from Section 231(a)(2) and as to the specific factual

allegations, the Defendant’s arguments fail to show any error. The R&R properly finds that the

Superseding Indictment alleges that the Defendant transported a firearm “in commerce” (which

is defined by the statute as including transportation between two states) between Tennessee and

elsewhere, thereby satisfying a federal jurisdictional element. R&R, p. 9. The R&R notes

correctly that it will be a matter of proof at trial as to how and in what manner the Defendant

transported a firearm in commerce, but this is a different question than what constitutes a proper

“plain, concise written statement of the essential facts constituting the offense charged[.]” R&R,

pp. 8-9. The essence of the Defendant’s objections in this regard appear to be that the

Superseding Indictment does not set forth the actual facts in evidence (or to be proved) that the

government would need to prove to obtain a conviction. Specifically, he objects to the finding in

the R&R that the Superseding Indictment sufficiently alleges federal jurisdiction, arguing that

this conclusion “is based on inferences....” Objections, p.11. To the contrary, the R&R clearly

states that it is the jurisdictional language of the statute alleged to have been violated, combined

with the allegation that the firearm was “transport[ed] in commerce” by the Defendant in

“Tennessee and elsewhere,” that makes the Superseding Indictment sufficient for purposes of

both Fed.R.Crim.P 7(c)(1) and case law regarding whether an indictment “passes constitutional

muster.” R&R, p. 8-9. This conclusion by the magistrate judge is not “based on inferences,” but

based on the plain and clear language of the Superseding Indictment and well established

Constitutional law.

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 As a matter of Constitutional fairness, it is clear that the Superseding Indictment provides

the Defendant with sufficient notice that the nature of his alleged crime is the transportation

between Tennessee and elsewhere of a firearm “in commerce,” which term is clearly defined as

between two states. The magistrate judge made such a finding in the R&R which is correct

based upon both the language of the Superseding Indictment and well established case law. The

Defendant has not shown any error in this finding; rather he essentially argues that he would

prefer to have greater specificity of the evidence against him written into the Superseding

Indictment. Case law does not require the government to prove its case in an indictment; the

magistrate judge was not in error by finding that the Superseding Indictment as written properly

alleges a constitutional jurisdiction under the Commerce Clause.

CONCLUSION

WHEREFORE, for the reasons noted above and the legal authorities cited herein, the

United States respectfully requests that the Court adopt the Report and Recommendation [Doc.

64] and deny the Defendant’s Objection to the U.S. Magistrate Judge’s Report Recommending

the Denial of Mr. Huff’s Motion to Dismiss for Failure to Establish Commerce Clause

Jurisdiction [Doc. 67].

Respectfully submitted this 13th day of January, 2011.

WILLIAM C. KILLIAN
United States Attorney

By: s/ A. Wm. Mackie

A. WM. MACKIE
Assistant United States Attorney
800 Market Street, Suite 211
Knoxville, Tennessee 37902
(865) 545-4167

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 CERTIFICATE OF SERVICE

I hereby certify that on the 13th day of January, 2011, a copy of the foregoing Response
was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic
filing system to all parties indicated on the electronic filing receipt. All other parties will be
served by regular U.S. Mail. Parties may access this filing through the Court’s electronic filing
system.

s/ A. Wm. Mackie
A. William Mackie
Assistant United States Attorney

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