IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

UNITED STATES OF AMERICA )

Plaintiff, )
v. ) Case No. 3:10-CR-73
) JUDGE VARLAN
DARREN WESLEY HUFF )
Defendant. )

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

Comes the defendant, DARREN WESLEY HUFF, by and through counsel, pursuant to

28 U.S.C. § 636, Rule 59(b)(2) of the Federal Rules of Criminal Procedure, and the authorities

cited herein, and hereby objects to the Report and Recommendation (hereinafter “Report”) [Doc.

64] recommending the denial of his Motion to Dismiss for Failure to Establish Commerce Clause

Jurisdiction [Doc. 29].1 The motion to dismiss showed that 18 U.S.C. § 231(a)(2) is an

unconstitutional exercise of Congress’s limited power to regulate interstate commerce and that

an indictment that mentions one county within a single state “and elsewhere” (and does so

without any reference to economic activity) fails to establish federal jurisdiction based on the

Commerce Clause.

Mr. Huff therefore objects to the Report’s recommended findings, as more fully

discussed below, (1) that 18 U.S.C. § 231(a)(2) contains a specific jurisdictional element [Doc.

1
The relevant pleadings are: [Doc. 29: Motion to Dismiss]; [Doc. 45: Response]; [Doc.
49: Reply]. Although argument was heard on four of Mr. Huff’s other motions at the October
12th hearing referenced in the Report at page 1, the magistrate judge did not hear argument on
the Commerce Clause motion. See [Doc. 56: Minute Entry]. Contra [Doc. 64 at 10]. Mr. Huff
requested an evidentiary hearing on this motion; the Report does not address its tacit denial of
this request.

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64 at 5] that is sufficient to invoke federal jurisdiction; (2) that § 231(a)(2) falls within the

second category of activities that Congress may regulate, that of “persons or things in interstate

commerce,” [Doc. 64 at 5]; (3) that Congress has the authority to regulate persons or things that

are not “in the flow of commerce,” [Doc. 64 at 5]; (4) that United States v. Lopez, 514 U.S. 549

(1995), United States v. Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848

(2000), are “inapposite” to an analysis of whether federal jurisdiction may be asserted under the

Commerce Clause [Doc. 64 at 7]; (5) that § 231(a)(2) does not exceed Congress’s authority

under the Commerce Clause [Doc. 64 at 7]; (6) that federal jurisdiction is proper under Count

Two, charging a violation of 18 U.S.C. § 924(c) [Doc. 64 at 8], in that § 231(a)(2) provides

sufficient derivative jurisdiction; (7) that the indictment sufficiently alleges a federal

jurisdictional element [Doc. 64 at 9, 10]; and (8) that information provided in discovery will

prevent surprise at trial about how the government will seek to support the jurisdictional element

[Doc. 64 at 9].

I. STANDARD OF REVIEW

The standard of review is de novo. 28 U.S.C. § 636; Fed. R. Crim. P. 59(b).

II. FACTUAL BACKGROUND

Mr. Huff is charged in a two-count indictment. In Count One, Mr. Huff is charged with

“transport[ing] in commerce a firearm, knowing and having reason to know and intending that

such firearm would be used unlawfully in furtherance of a civil disorder.” [Doc. 19] (charging

violation of 18 U.S.C. § 231(a)(2)) (emphasis added). The term “commerce” is defined for the

chapter on civil disorders as follows:

The term “commerce” means commerce (A) between any State or the District of
Columbia and any place outside thereof; (B) between points within any State or the

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 District of Columbia, but through any place outside thereof; or (C) wholly within
the District of Columbia.

18 U.S.C. § 232(2) (emphasis added). Since the Civil Obedience Act was passed, neither the

constitutionality of § 231(a)(2) nor its viability as an enactment of Congress based on the

Commerce Clause appears to have been addressed.

In Count Two, Mr. Huff is charged with “us[ing] and carry[ing] a firearm during and in

relation to a felony crime of violence for which he may be prosecuted in a court of the United

States . . . .” [Doc. 19] (charging violation of 18 U.S.C. § 924(c)) (emphasis added). Other than

an approximate date (“[o]n or about April 20, 2010”) and approximate location (“in Monroe

County, in the Eastern District of Tennessee and elsewhere”), the indictment provides no

information or circumstances that would establish an effect on interstate commerce or establish

federal jurisdiction over the charged crimes.

III. ARGUMENT

The Report’s erroneous conclusions are reached, in large part, by avoiding the statute-

specific and indictment-specific Commerce Clause challenges raised by Mr. Huff, as when it

characterizes the indictment as charging him with transporting a firearm “in interstate

commerce.” [Doc. 64 at 1]. Not only does the indictment fail to allege interstate conduct, but

the crux of the constitutional challenge to § 231(a)(2) is that the statute prohibits transportation

“in commerce,” not in interstate commerce. See 18 U.S.C. § 231(a)(2); [Doc. 19]. Mr. Huff’s

challenge is only with respect to § 231(a)(2), and does not address §§ 231(a)(1) or 231(a)(3). To

the extent the Report examines the statute as a whole2 or the viability of the other subparts,3 the

2
Compare [Doc. 64 at 2] (“[H]e argues that 18 U.S.C. § 231(a), the statute underlying
both counts, proscribes conduct that cannot be regulated under the Commerce Clause.”) and id.

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Report’s findings are inapposite to the issues before this Court.

The Constitution provides: “The Congress shall have the Power . . . To regulate

Commerce with foreign Nations, and among the several States, and with the Indian Tribes. . . .”

U.S. Const. art. I, § 8. Since 18 U.S.C. § 231(a)(2) was enacted in 1968, the Supreme Court has

repeatedly advanced holdings demonstrating that “the grant of authority to Congress under the

Commerce Clause, though broad, is not unlimited.” Solid Waste Agency of North Cook Co. v.

U.S. Army Corps of Engineers, 531 U.S. 159, 173 (2001). See United States v. Lopez, 514 U.S.

549 (1995); United States v. Morrison, 529 U.S. 598 (2000); Jones v. United States, 529 U.S.

848 (2000). Cf. Commonwealth of Virginia v. Sebelius, No. 3:10-CV-00188-HEH [Doc. 161 at

24] (E.D. Va. Dec. 13, 2010) (declaring that Minimum Essential Coverage Provision of Patient

Protection and Affordable Care “exceeds the Commerce Clause powers vested in Congress under

Article I”).4 Section 231(a)(2) – both as it was drafted and as it has been charged in the

Superseding Indictment – does not govern conduct that falls within Congress’s power to

regulate.

(“The Defendant argues [Doc. 29] that 18 U.S.C. § 231(a) is unconstitutional . . . .”) with [Doc.
29 at 2: Motion to Dismiss] (“Section 231(a)(2) is constitutionally infirm . . . .”) and id. at 4
(“Moreover, § 231(a)(3) requires more of a commerce nexus that § 231(a)(2), because it requires
showing that the defendants[’]s conduct ‘affect[ed] commerce.’”).
3
Compare [Doc. 64 at 6] (“Moreover, the Court notes that the District Court for the
District of Columbia has found that a different subpart of Section 231(a) is not an
unconstitutional exercise of Congress’s power under the Commerce Clause.”) (citing United
States v. Hoffman, 334 F.Supp. 504, 509 (D. D.C. 1971)) with [Doc. 29 at 4 n.3] (noting that the
district court in Hoffman held that neither 18 U.S.C. § 2101 nor § 231(a)(3) were
unconstitutional exercises of commerce power, but did so without discussion”).
4
“In surveying the legal landscape, several operative elements are commonly
encountered in Commerce Clause decisions. First, to survive a constitutional challenge the
subject matter must be economic in nature and affect interstate commerce, and second, it must
involve activity.” Id. at p. 23.

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 A. Mr. Huff objects to the related findings used to support the United States
Magistrate Judge’s recommended conclusion that 18 U.S.C. § 231(a)(2)
is a constitutional exercise of Congress’s authority under the Commerce
Clause.

Mr. Huff objects to the Report’s finding that the “in commerce” element of § 231(a)(2) is

sufficient to trigger federal jurisdiction under the Commerce Clause and its finding that the

conduct prohibited under § 231(a)(2) falls within the second category, Congress’s authority to

regulate “persons or things in interstate commerce.” [Doc. 64 at 5].

i. Contrary to the Report’s finding, to be “in commerce” means to

be involved in the economic flow of goods or services to a market
or consumer.

As shown in his motion, § 231(a)(2) is constitutionally infirm because it attempts to

prohibit conduct that Congress does not have the authority to regulate under the Commerce

Clause. The subsection’s central prohibition relates to civil disorders, not interstate commerce,

and is therefore like the arson statute held unconstitutional by the Supreme Court, a paradigmatic

common law state crime” where the relationship, if any, to commerce is “merely a passive,

passing, or past connection.” Jones, 529 U.S. at 848.

The Report is dismissive of Mr. Huff’s position that “commerce” requires that regulated

conduct be connected in some way with economic activity, referencing Supreme Court cases

upholding Congress’s authority to regulate the movement of persons or things for an illegal

purpose. [Doc. 64 at 5]. The cited cases, though, address statutes with different jurisdictional

elements, and arguably stronger links to commerce. See [Doc. 64 at 5-6] (citing United States v.

Orito, 413 U.S. 139, 143 (1973) (“in interstate commerce”; concluding in part that transportation

of obscene material may be regulated because “the Government has a legitimate interest in

protecting the public commercial environment by preventing such material from entering the

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stream of commerce”); Cleveland v. United States, 329 U.S. 14 (1946) (“in interstate

commerce”; “power of Congress over the instrumentalities of interstate commerce is plenary”);

United States v. Simpson, 252 U.S. 465 (1920) (“‘Whoever shall…cause intoxicating liquors to

be transported in interstate commerce, except for scientific, sacramental, medicinal, and

mechanical purposes, into any state…the laws of which…prohibit the manufacture or sale

therein of intoxicating liquors for beverage purposes shall be punished,’ etc.”) (emphasis

added); Hoke v. United States, 227 U.S. 308 (1913) (“in interstate or foreign commerce”; dealing

with charge of prostitution, referred to as “sexual relations for hire” in Cleveland)). Cf. Gonzales

v. Raich, 545 U.S. 1, 18 (2005) (“Like the farmer in Wickard, respondents are cultivating, for

home consumption, a fungible commodity for which there is an established, albeit illegal,

interstate market.”).

By contrast, in United States v. American Building Maintenance Industries, 422 U.S. 271

(1974), a case cited but not discussed, the Supreme Court directly addressed the jurisdictional

element “in commerce,” pointed out that the phrase does not necessarily have a uniform meaning

whenever used by Congress, but decided that it “appears to denote only persons or activities

within the flow of interstate commerce – the practical, economic continuity in the generation of

goods and services for interstate markets and their transport and distribution to the consumer.”

Id. at 277. An 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.

In order to conclude that the statute is constitutional, the Report glosses over the term

“commerce” as it is commonly understood and repeated within the definition. See 18 U.S.C. §

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232(2) (“The term ‘commerce’ means commerce . . . .”) (emphasis added); Black Law

Dictionary (9th ed. 2009) (defining commerce as “the exchange of goods and services, esp. on a

large scale involving transportation between cities, states, and nations). Whether an indictment

alleges inter-state conduct or an aggregate of purely local conduct, there must be a relationship to

economic activity. See [Doc. 29 at 8-9].

ii. The Report does not explain why it chooses the “second category”
of regulatory authority, but having done so without reference to
the language of the indictment, the choice emphasizes the statute’s
vagueness and the indictment’s defects.

As set forth in the Report, the Supreme Court has “identified three general categories of

regulation in which Congress is authorized to engage its commerce power.” [Doc. 64 at 4-5]

(quoting Gonzales v. Raich, 545 U.S. 1, 16-17 (2005)).

First, Congress can regulate the channels of interstate commerce. Second,

Congress has authority to regulate and protect the instrumentalities of interstate
commerce, and persons or things in interstate commerce. Third, Congress has the
power to regulate activities that substantially affect interstate commerce.

Id. Without discussion, but based on the “in commerce” element “which is defined [in the Civil

Obedience Act] to mean, in part, commerce between any state and any place outside of that

state,” the Report finds that “Section 231(a)(2) falls within the second category, that of

Congress’s ability to regulate ‘persons or things in interstate commerce.’” [Doc. 64 at 5]. Mr.

Huff objects to this finding, because the Report does not indicate what “person or thing” is being

regulated or how – other than “plain language” – it came to settle on the second category to the

exclusion of the others. Instead, the Report quotes a case in which the economic-interstate nexus

is clear (the duty to pay child support when a child lives in another state) for the broad point that

“Congress’s power to regulate things in interstate commerce is plenary.” [Doc. 64 at 5] (quoting

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United States v. Faasse, 265 F.3d 475 (6th Cir. 2001)).

Since the Report later relies on Scarborough v. United States, 431 U.S. 563 (1977),5 it

implies without expressly stating that § 231(a)(2) is premised on Congress’s ability to regulate

the “thing” of a firearm rather than the “person” who is transporting it. However, if it is merely

the firearm that is being regulated, it would be possible to charge someone with violating §

231(a)(2) who lawfully transported a firearm across state lines and only later formed the requisite

intent. If intent must also cross a state line, in addition to weakening the connection with

commerce, this hypothetical highlights questions about what conduct or thoughts may be

regulated and prohibited by § 231(a)(2) and what regulations infringe protected rights. See [Doc.

33: Motion to Dismiss Indictment Due to Vagueness and Overbreadth].

Finding the second category to be the only relevant category and dismissing Lopez,

Jones, and Morrison out of hand for dealing with “purely intrastate activity” is conclusory. See

[Doc. 64 at 6]. Similarly, the Report infers what is not stated in the Superseding Indictment:

interstate activity. As it currently reads, Count One could just as easily be applied to the first

category (“the channels of interstate commerce”). See 18 U.S.C. § 232(2)(B) (“between points

within any State or the District of Columbia, but through any place outside thereof”). Under

such a reading, the government could be alleging Mr. Huff had a firearm while he was traveling

in Monroe County on a federal interstate highway system that passed through other states. See

Faasse, 265 F.3d at 499 (Batchelder, J., dissenting) (“The term ‘channel of interstate commerce’

5
Mr. Huff objects to the Report’s reliance on Scarborough, because the issue in that case
was only whether certain proof was “sufficient to satisfy the statutorily required nexus” between
possession and commerce with respect to the statute-specific “in or affecting commerce”
language. Id. at 564.

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refers to, inter alia, ‘navigable rivers, lakes, and canals of the United States; the interstate

railroad track system; the interstate highway system; ... interstate telephone and telegraph lines;

air traffic routes; television and radio broadcast frequencies.’”). That the government could

change its theory of prosecution and rely on proof other than what was presented to the Grand

Jury is an issue more fully addressed below. Under either reading, though, if legally possessing

one’s firearm while one travels on an interstate highway system or crosses a state line is enough

to trigger federal jurisdiction, then the limits on Congress’s power are effectively meaningless.

iii. The constitutional infirmity of § 231(a)(2) underscores why it

cannot provide the jurisdictional support for a prosecution of §
924(c).

For the above-summarized reasons, Mr. Huff also objects to the finding that Count One

sufficiently provides derivative jurisdiction for Count Two. A jurisdiction-enabling element is

independently necessary to sustain a conviction for violating 18 U.S.C. § 924(c), as charged in

Count Two. As set forth in Mr. Huff’s motion, even accepting that interstate commerce is not

per se an element of § 924(c), this offense must be predicated on a crime that Congress has the

authority to regulate. [Doc. 29 at 14] (quoting United States v. Wang 222 F.3d 234 (6th Cir.

2000)). Mr. Huff objects to the Report’s perfunctory finding that because it “already found that

Congress had the authority under the Commerce Clause to enact Section 231(a)(2) . . . . the

Court also finds that federal jurisdiction is proper under Count Two.” [Doc. 64 at 8]. Mr. Huff

respectfully requests that this Court consider the Rule of Lenity when it examines this issue de

novo, in light of the serious questions raised about the validity of § 231(a)(2). See Van Don

Nguyen v. Holder, 571 F.3d 524, 525-26 (6th Cir. 2009) (“Under the ancient rule of lenity, any

doubt about this conclusion must be resolved in favor of the defendant . . . .”). The once-

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removed nature of any § 924(c) charge from the basis for Congress’s authority to punish this

offense, when combined with § 924(c)’s lack of a mens rea element, should weigh in favor of

resolving this more difficult question in Mr. Huff’s favor.

B. Mr. Huff objects to the Report’s finding that the indictment is

constitutionally sufficient.

Elements, including jurisdictional elements, must be properly charged in an indictment.

See United States v. Resendiz-Ponce, 549 U.S. 102, 107 (2007) (“[A]n indictment must set forth

each element of the crime that it charges.”). The Report clearly informs that an indictment must

set forth all elements of an offense “fully, directly, and expressly” and that statutory language

“must be accompanied with such a statement of the facts and circumstances as well inform the

accused of the specific offense, coming under the general description, with which he is charged.”

[Doc. 64 at 9] (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). Yet, even though

the Report agrees that the indictment “fails to specify that the firearm was transported from the

state of Georgia into the Tennessee,” it concludes that it is sufficient that the indictment alleges

that the firearm was transported “in commerce.” [Doc. 64 at 9]. The words “in commerce” are

the words of the statute and provide none of the illuminating “facts and circumstances” required

of a constitutionally sufficient indictment.

The Report cites to one of the three definitions for “in commerce” provided in § 232(2) in

support of its position that the indictment contains a sufficient jurisdictional allegation. [Doc. 64

at 9] (referencing the definition for commerce “into a state from a point outside the state”).

However, neither the statutory language of the chosen definition nor facts that would establish it

are contained in the indictment. The Report concludes it is enough that the indictment “alleges

that the transportation occurred in Tennessee and elsewhere.” [Doc. 64 at 9]. In fact, Count One

10

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alleges that the conduct took place “in Monroe County, in the Eastern District of Tennessee and

elsewhere.” [Doc. 19]. The “elsewhere” could just as easily mean that the conduct took place in

other counties within the Eastern District of Tennessee. The Report’s findings require this Court

to read facts into the indictment that are not evident on its face. Not only is no other state

mentioned, neither is the word “interstate.”

As such, it is irrelevant that “the Government must still prove that the Defendant

transported the firearm ‘in commerce’ at trial” and that the magistrate judge believes the

Defendant “will not be surprised at trial by the evidence that the Government will seek to use to

support this jurisdictional element.” See [Doc. 64 at 9]. The Report’s interpretation of the

indictment is based on inferences and therefore does not ensure that the theory of prosecution

used to uphold the validity of the indictment was the theory of prosecution presented to the grand

jury; information provided in discovery will not cure a defect in an indictment [Doc. 64 at 9];

and evidence at the suppression hearing was limited to the stop of Mr. Huff’s vehicle in Monroe

County, Tennessee. This indictment therefore violates the Notice Clause of the Sixth

Amendment which requires that a criminal defendant be “informed of the nature and cause of the

accusation” against him and the Indictment Clause of the Fifth Amendment which requires that a

defendant be charged with only those charges brought before the grand jury.

To allow the prosecutor, or the court, to make a subsequent guess as to what was
in the minds of the grand jury at the time they returned the indictment would
deprive the defendant of a basic protection which the guaranty of the intervention
of a grand jury was designed to secure. For a defendant could then be convicted
on the basis of facts not found by, and perhaps not even presented to, the grand
jury which indicted him.

Russell v. United States, 369 U.S. 749, 770 (1962). Mr. Huff objects to the Report’s substitution

of inferences for the words of the indictment and its conclusion that any deficiency in pleading is

11

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harmless. Finally, Mr. Huff submits that the Rule of Lenity also has a role in analyzing whether

the Superseding Indictment establishes federal jurisdiction. Cf. United States v. Debreczeny, 69

Fed. App’x 702, 708 (6th Cir. 2003) (“The government is held to a higher standard because of its

role as the drafter . . . and because it is seen as possessing the upper hand and expertise . . . .”);

United States v. Herrera, 928 F.2d 769, 773 (6th Cir. 1991) (government held to higher standard

than private parties in drafting documents related to criminal proceedings because of due process

implications).

IV. CONCLUSION

For the foregoing reasons, Mr. Huff moves this Court to enter an Order dismissing both

counts of the indictment for failure to establish federal jurisdiction and rejecting all contrary

findings in the Report and Recommendation.

Respectfully submitted this the 3rd day of January, 2011.

FEDERAL DEFENDER SERVICES OF

EASTERN TENNESSEE, INC.

By: s/ Jonathan A. Moffatt

Paula Voss
Jonathan A. Moffatt [BPR No. 18137]
Asst. Federal Community Defender
800 S. Gay Street, Suite 2400
Knoxville, TN 37902
(865) 637-7979

s/ Anne. E. Passino
Anne E. Passino [BPR No. 027456]
Ritchie, Dillard & Davies, P.C.
606 W. Main Street, Suite, 300
Knoxville, TN 37901-1126
(865) 637-0661

Counsel for Mr. Huff

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 CERTIFICATE OF SERVICE

I hereby certify that on January 3rd, 2011, a copy of the foregoing Motion 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/Anne E. Passino
Anne E. Passino

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