[00:00:00] Speaker 02:
Good morning, Your Honours.

[00:00:01] Speaker 02:
May it please the Court.

[00:00:01] Speaker 02:
My name is Colin Stevens, representing the appellant, John Russell Howald, in this case.

[00:00:07] Speaker 02:
I would be reserving two minutes of my time.

[00:00:10] Speaker 02:
Very well.

[00:00:11] Speaker 02:
Your Honours, in one of my favourite TV shows, one of the main characters stands up in the middle of the office and says, I declare bankruptcy.

[00:00:20] Speaker 02:
And then immediately there's a cutaway to one of the smarter characters who says, it doesn't work like that.

[00:00:24] Speaker 02:
You don't just get to shout it out.

[00:00:26] Speaker 02:
And in this case,

[00:00:29] Speaker 02:
That's what Congress did with its interstate commerce authority and the Hate Crimes Prevention Act.

[00:00:35] Speaker 02:
And it's this court's job to tell Congress that you don't just get to shout it out like that.

[00:00:41] Speaker 03:
Now, is your argument inconsistent with our existing case law?

[00:00:47] Speaker 02:
I would say generally, although I would posit that your current case law is largely inconsistent with Lopez and Morrison, Your Honor.

[00:00:55] Speaker 03:
Yeah, but if that's right, I think we need to go on bonk.

[00:00:58] Speaker 02:
I would, assuming I don't win here, I would absolutely agree with that, sir.

[00:01:05] Speaker 02:
So Mr. Howell was essentially convicted of an intrastate crime that, it's hard, Your Honor, I apologize, an intrastate crime that

[00:01:19] Speaker 02:
is traditionally and almost exclusively the power of the states.

[00:01:23] Speaker 02:
And to get there, we look at Morrison.

[00:01:26] Speaker 02:
Morrison tells us that, and tells this court, that intrastate violence is not directed, that is not directed at the instrumentalities of channels or goods involved, and interstate commerce has always been the province of the states.

[00:01:39] Speaker 02:
and that there's no better example of police power which the founders denied the national government and reposed in the states than the suppression of violent crimes and the vindication of its victims.

[00:01:48] Speaker 02:
And that is what the Hate Crimes Prevention Act does here.

[00:01:52] Speaker 02:
However laudable Congress's intentions were at protecting these categories of victims that are in there,

[00:02:01] Speaker 02:
It's just not something Congress can do under the Commerce Clause.

[00:02:04] Speaker 02:
There may be other congressional authority that it can do it, maybe through the spending power.

[00:02:09] Speaker 02:
I don't know.

[00:02:10] Speaker 02:
But through the Interstate Commerce Clause, the authority is just not there.

[00:02:16] Speaker 02:
So Mr. Howell was convicted after a trial.

[00:02:19] Speaker 02:
And he was indicted essentially under two theories under Section 249.

[00:02:24] Speaker 02:
A, that he used a firearm, and B, that his actions otherwise affected interstate commerce.

[00:02:35] Speaker 02:
At trial, the evidence that came out was that really there was no effect on interstate commerce.

[00:02:40] Speaker 02:
This tiny town of Basin, Montana, experienced the shooting and just sort of went on about its merry way.

[00:02:49] Speaker 03:
So, you know, you're fighting, you know, 20 years, 30 years, 40 years of case law.

[00:02:55] Speaker 02:
With the exception of, of Morrison and Lopez, I think in this court, I would, I would agree with that, but I think, I mean, at the end of the day where Mr. Howell's case shook out where, and there was no sort of effect on interstate commerce, certainly not a substantial effect that's required by the Lopez decision.

[00:03:17] Speaker 02:
All it came down to was, did he use the firearm?

[00:03:21] Speaker 02:
And if that is enough to bestow sort of... A firearm that's traveled in interstate commerce.

[00:03:26] Speaker 02:
Yes.

[00:03:27] Speaker 02:
And if that's enough to bestow sort of jurisdiction for the federal courts, the Lopez decision would have been decided the other way, right?

[00:03:36] Speaker 02:
Because Lopez was specifically a gun regulation.

[00:03:40] Speaker 01:
In Lopez, did the statute have the jurisdictional hook?

[00:03:44] Speaker 01:
It did not.

[00:03:46] Speaker 01:
Isn't that the distinction our court has made?

[00:03:48] Speaker 02:
I think what Lopez says is the Congress may include a jurisdictional hook.

[00:03:55] Speaker 02:
It lists a variety of other things that courts should look at to determine if the statute is a legitimate exercise of commerce power.

[00:04:04] Speaker 02:
Whether the activity that's being regulated is actually a commercial one right so that was absent in Lopez.

[00:04:12] Speaker 02:
I think they were very clear that possessing a firearm regardless of where it's been in its life is not inherently a commercial activity.

[00:04:20] Speaker 02:
So the presence of a jurisdictional hook or a jurisdictional element within the statute itself, I don't think automatically, again, just allows Congress to say Commerce Clause.

[00:04:32] Speaker 02:
Therefore, this regulation is constitutional.

[00:04:34] Speaker 01:
I appreciate what you're saying, because what you're saying is that otherwise any gun crime in the United States effectively could be in federal court.

[00:04:41] Speaker 03:
Absolutely.

[00:04:42] Speaker 01:
The problem I think you have, and I'm going to go back to Judge Fletcher's point, you have cases like Alderman,

[00:04:48] Speaker 01:
That's a problem for you.

[00:04:51] Speaker 01:
So we have great powers, but limited powers as a three-judge court.

[00:04:56] Speaker 01:
How do we get around alderman and all the felon in possession cases, like body armor cases?

[00:05:02] Speaker 01:
Get us there.

[00:05:03] Speaker 02:
I mean, I think you get, you just go back to the bare essentials of what Lopez is.

[00:05:08] Speaker 01:
But you know, we can't, the problem is, I guess, is saying we can't, I don't mean to cut you off, but we can't do that.

[00:05:13] Speaker 01:
So if what you're saying is this case has to go on bonk, then I understand your argument.

[00:05:19] Speaker 01:
If your argument is, no, here's why Alderman doesn't control, or here's why the felony possession cases are different, then maybe you got something to work with.

[00:05:26] Speaker 01:
But if it's just go back to, we're past those cases in the ninth circuit, unfortunately for your client.

[00:05:32] Speaker 01:
Which cases you're like Morrison and Lopez.

[00:05:34] Speaker 01:
I mean those obviously those control but we have cases interpreting those cases like Alderman.

[00:05:38] Speaker 01:
So get it.

[00:05:38] Speaker 01:
Can you get us around Alderman.

[00:05:40] Speaker 02:
Yeah.

[00:05:40] Speaker 01:
I mean I can get you.

[00:05:41] Speaker 02:
I can get you around Alderman in the sense that Alderman was a body armor case.

[00:05:45] Speaker 02:
Right.

[00:05:45] Speaker 02:
And so now we have and again this isn't going to help this particular panel but

[00:05:50] Speaker 02:
to the felon in possession cases where I'm not even sure those cases are standing anymore right post Bruin and the the new Bruin textual analysis so because we're dealing specifically with a gun in this case and not some sort of non-protected by the Second Amendment article that to me is also a distinction I don't know if it gets you over Alderman but there is a wave of you know

[00:06:19] Speaker 02:
law that's coming definitely down from Washington that is going to undermine this nexus between firearms and the Commerce Clause as a whole.

[00:06:30] Speaker 04:
Could you please explain to me why Bruin has anything to do with the interstate commerce jurisdictional hook?

[00:06:37] Speaker 02:
It doesn't, your honor.

[00:06:37] Speaker 02:
I was just trying to sort of distinguish what Alderman does with this wave of case law that's coming.

[00:06:44] Speaker 03:
You know, our colleague Bill Canby had an expression, maybe still uses it, of I'm not going to race the Supreme Court to the corner.

[00:06:53] Speaker 03:
If this wave of cases gets us that way, the Supreme Court's going to have to get there first.

[00:06:58] Speaker 02:
I don't disagree with that.

[00:07:01] Speaker 02:
I think, again, if I lose here today and there's some writing on the wall here, it might be my first step in a much longer journey.

[00:07:12] Speaker 02:
But again, what makes this case unique is the way the evidence played out.

[00:07:20] Speaker 02:
We did not have an individual or a victim who was acting in a sort of interstate commerce capacity that just did nothing to interfere with her employment.

[00:07:32] Speaker 02:
There was just no evidence of interstate commerce.

[00:07:34] Speaker 02:
So all it comes down to is that gun.

[00:07:36] Speaker 02:
And again, I get it.

[00:07:39] Speaker 02:
But I think just with Lopez, with Morrison, coupled with Bruin,

[00:07:47] Speaker 02:
This is the Hate Crimes Prevention Act, at least as it sort of falls under that fourth prong, that what otherwise affects commerce is simply inconsistent with Lopez's requirement that the regulations substantially affect commerce.

[00:08:05] Speaker 01:
Do you want to reserve?

[00:08:06] Speaker 01:
I do.

[00:08:06] Speaker 01:
Very well.

[00:08:06] Speaker 02:
Thank you, Your Honor.

[00:08:21] Speaker 00:
Good morning, Your Honors, and may it please the Court, Janaya Lamar for the United States.

[00:08:26] Speaker 00:
The Circuit's precedent answers the questions in this appeal.

[00:08:30] Speaker 00:
Section 249 is constitutional because it criminalizes violence done through the use of weapons that have traveled in interstate and foreign commerce.

[00:08:38] Speaker 00:
That statute is constitutionally applied to Howald's attempt to rid the town of Basin, Montana of its gay and lesbian community through the use of weapons originating from Russia, Romania, Texas, and Connecticut.

[00:08:51] Speaker 00:
Section 249 also qualifies as a crime of violence because it requires proof that the defendant attempted through the use of a dangerous weapon to kill and cause bodily injury.

[00:09:02] Speaker 00:
Because Howald's arguments today and in this appeal goes in stark contrast to this court's precedent, this court should affirm.

[00:09:09] Speaker 00:
As this panel was just discussing with opposing counsel, Ulderman does answer this question.

[00:09:15] Speaker 00:
This court held there that any statute that has as an element requiring proof that the weapon moved in interstate or foreign commerce is sufficiently tied to the Commerce Clause.

[00:09:25] Speaker 00:
And that's the end of the inquiry.

[00:09:28] Speaker 00:
There is no, if the court were to look at the Lopez and Morrison construct, there is no conflict there.

[00:09:33] Speaker 00:
Contrary to what opposing counsel is discussing, discussing Lopez and Morrison, the Supreme Court in both cases acknowledged the constitutional significance of jurisdictional elements like that in section 249.

[00:09:46] Speaker 00:
In Morrison, the court specifically noted that while the civil provision of the Violence Against Women's Act was unconstitutional, the criminal provision was not.

[00:09:57] Speaker 00:
In Note 5, the court noted that the criminal provision of the Violence Against Women's Act had a jurisdictional element that required proof of some interstate connection.

[00:10:07] Speaker 00:
And the court noted that every court of appeals to consider the criminal provision has upheld that provision as constitutional because of that element.

[00:10:16] Speaker 00:
Additionally, as to Lopez, Lopez specifically said that the Gun Free School Zones Act was different from statutes that had an element requiring commerce proof.

[00:10:26] Speaker 00:
And after the Lopez opinion was issued, Congress amended the Gun Free School Zones Act.

[00:10:31] Speaker 00:
to add in a jurisdictional element requiring such proof that the weapon had traveled in interstate or foreign commerce.

[00:10:37] Speaker 00:
And every court, including this court in its 2005 Dorsey opinion, has upheld that statute as constitutional because of the element.

[00:10:45] Speaker 03:
Did you actually prove that it had traveled in interstate commerce?

[00:10:50] Speaker 00:
Yes, Your Honor.

[00:10:51] Speaker 03:
How did you prove that?

[00:10:53] Speaker 00:
There were agents that testified to where the weapons originated based on the serial numbers and identifying details for the weapons and the ammunition.

[00:11:01] Speaker 00:
And it was uncontested that they traveled, that they originated in these very places.

[00:11:05] Speaker 03:
So if I want to be a criminal and be charged only under state law, I've got to figure out, I've got to move to a state that manufactures weapons, buy the weapons in that state, then I'm okay.

[00:11:16] Speaker 03:
Or rather, I'm okay under federal law.

[00:11:18] Speaker 00:
In that instance, the court looks at, in fact, other elements.

[00:11:22] Speaker 00:
So for example, in section 249, there's different ways to satisfy the commerce element.

[00:11:26] Speaker 00:
One is using a weapon that has traveled in interstate commerce.

[00:11:29] Speaker 00:
Another is to otherwise affect interstate commerce.

[00:11:32] Speaker 00:
And the Supreme Court's jurisprudence is clear, and this court's jurisprudence is clear, is that even if you use a weapon that is intrastate, that can still nonetheless have an effect on the interstate market.

[00:11:44] Speaker 00:
That's what the Supreme Court found in Raich when it was discussing homegrown marijuana nonetheless affected the supply and demand of the interstate market and thus affected the interstate commerce.

[00:11:55] Speaker 03:
And so to be clear... But we don't need to go so far in this case.

[00:11:58] Speaker 00:
Absolutely not.

[00:11:59] Speaker 00:
The Commerce Clause requires that, as the Supreme Court has said, that there be some proof of interstate commerce.

[00:12:06] Speaker 00:
That proof can be minimal.

[00:12:07] Speaker 00:
As this court said in Hannah, Morrison did not change that that minimal nexus is all that's required.

[00:12:12] Speaker 00:
And the existence and the fact that these weapons traveled in interstate and foreign commerce is sufficient.

[00:12:18] Speaker 00:
It is also sufficient to ensure that the statute is constitutionally applied to Howold, where, as we've discussed, he used weapons that had traveled in interstate and foreign commerce.

[00:12:26] Speaker 01:
And I take it that the jurisdiction element here is the same effectively seen in sex trafficking cases, for example, where you show the camera, the video equipment used to take pictures of a minor engaged in a sex act.

[00:12:39] Speaker 01:
That's what gives us the federal jurisdiction hook.

[00:12:41] Speaker 01:
It's the same principle.

[00:12:43] Speaker 00:
Exactly and and how old's argument if you take it to its logical conclusion disrupts all sorts of federal criminal statutes including a sex trafficking as your honor has mentioned the this Sex offender registrations act and that's because as a sixth circuit is held the jurisdictional element is the touchstone of valid congressional action in using its commerce clause power and so in this court this court would have to review its felon possession jurisprudence as it as it detailed in Hannah and

[00:13:11] Speaker 00:
It's jurisprudence discussing the statute that prohibits those who have domestic violence protective orders against them from possessing guns.

[00:13:19] Speaker 00:
This is not just about section 249.

[00:13:21] Speaker 00:
This is how the federal criminal code works.

[00:13:24] Speaker 00:
If there is an element that requires proof that some component of the crime or the crime itself was either in or affecting interstate commerce, that is sufficient because that is the scope of the commerce clause.

[00:13:36] Speaker 00:
Turning to Section 249's qualification as a crime of violence, just briefly, this court's precedent also controls there.

[00:13:45] Speaker 00:
The statute is a crime of violence because it requires proof that the defendant attempted, through the use of a dangerous weapon, to cause bodily injury or to kill.

[00:13:55] Speaker 00:
The first question that you have to answer in this categorical approach is what offense Howald was convicted of and this court's precedent is clear that section 249 is a divisible offense and there is one specific offense listed in 249 that he was convicted of.

[00:14:11] Speaker 00:
He was convicted of the attempt, the use of a dangerous weapon to cause bodily injury.

[00:14:16] Speaker 00:
that is distinct from other offenses listed in section 249, including the willful causation of bodily injury, including an offense that results in death.

[00:14:25] Speaker 00:
It requires different elements.

[00:14:27] Speaker 00:
The willful causation of bodily injury does not require the use of a weapon.

[00:14:30] Speaker 00:
It has a different sentencing.

[00:14:32] Speaker 00:
If you attempt to kill somebody, the statutory max is life imprisonment.

[00:14:37] Speaker 00:
Whereas for willful causation of bodily injury, it's 10 years.

[00:14:41] Speaker 00:
And so in line with this court's precedent,

[00:14:44] Speaker 00:
And Dorsey and Leinen, obviously, Section 249 is divisible.

[00:14:48] Speaker 00:
And if we were to look at the divided offense that he was convicted of, that is categorically a crime of violence.

[00:14:54] Speaker 00:
First, he does not argue otherwise.

[00:14:55] Speaker 00:
He does not address the divided offense that he was convicted of.

[00:14:59] Speaker 00:
And second, this court's precedent is clear.

[00:15:01] Speaker 00:
This court is held repeatedly that attempts to kill, in here and them, the force requisite to be a crime of violence.

[00:15:07] Speaker 00:
This court held that in Dorsey, in Stuthors, in Buck.

[00:15:10] Speaker 00:
This court is also repeatedly held that offenses that require use of a weapon, in here and them, the force to be a crime of violence.

[00:15:18] Speaker 00:
This court in Buck said that the use of a weapon transforms the force into the violent force sufficient for that categorization.

[00:15:25] Speaker 00:
And even if it weren't a crime, even if it weren't divisible, this court has also repeatedly rejected the idea that a statute requiring proof of bodily injury does not inherit the force requisite to be a crime of violence.

[00:15:38] Speaker 04:
Was there evidence that the woman was home when he shot at the house?

[00:15:41] Speaker 00:
Yes, Your Honor, she was home.

[00:15:43] Speaker 00:
She was in the bathroom right behind the room where the bullet lodged.

[00:15:48] Speaker 00:
Because this court's precedent compels this court to reject Howell's arguments, the United States asks that this court affirm his conviction.

[00:15:55] Speaker 00:
Thank you.

[00:15:57] Speaker 01:
Thank you, counsel.

[00:16:04] Speaker 02:
Honors, I'm not going to buck for those extra credit points.

[00:16:06] Speaker 02:
I'm just going to add one thing regarding the element

[00:16:10] Speaker 02:
provision.

[00:16:12] Speaker 02:
The problem with the element provision in this case, the element that ostensibly gives the court the jurisdictional hook, or gives Congress the jurisdictional hook, is that the element itself doesn't muster up to what Lopez requires.

[00:16:26] Speaker 02:
Simply having an element in there that says otherwise affects interstate commerce is not how the US Supreme Court described what

[00:16:37] Speaker 02:
what Congress needs.

[00:16:39] Speaker 02:
The Lopez Court used the phrase substantially twice in its third category and that the local activity that's being sought to be regulated has a substantial relation to or substantially affects commerce, not otherwise affects commerce.

[00:16:56] Speaker 02:
So I think the elements in this case and in this statute

[00:17:00] Speaker 02:
Again, it falls short of what's required in Lopez.

[00:17:03] Speaker 02:
So I will leave you with that and thank the court for its time.

[00:17:07] Speaker 01:
Thank you, counsel, for your argument.

[00:17:09] Speaker 01:
Thanks to both of you for fine argument and very good briefing this case.

[00:17:13] Speaker 01:
Much appreciated.

[00:17:15] Speaker 01:
This case is submitted.

[00:17:16] Speaker 01:
We'll move on to the next one on calendar.