The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Indictment 07 Cr. 384 charges defendant Bryan Noble with possession of a firearm "in or affecting commerce" after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Noble now moves (1) to dismiss the indictment on the grounds that § 922(g) is unconstitutional on its face and as applied; (2) to suppress the firearm recovered from the vehicle he was driving; (3) to suppress his post-arrest statements; and (4) for disclosure of evidence pursuant to Rule 404(b) of the Federal Rules of Evidence, Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the Jencks Act, 18 U.S.C. § 3500. For the reasons that follow, defendant's motions are denied in their entirety.
On June 14, 2006, police officers of the New York Police Department ("NYPD") received a radio call that gun shots had been fired in the vicinity of 4422 Edson Avenue in the Bronx. (Compl. ¶ 2(a).) As the responding officers were en route to that location, they received a second radio call informing them that a suspect in the shooting was traveling southbound on Baychester Road in a "tan grey" Jeep Cherokee (the "Jeep"). (Id.) Shortly thereafter, the police spotted a vehicle matching the description of the Jeep driving south on Baychester Road. (Id. ¶ 2(b).) After seeing the Jeep, the police began to follow it. (Id. ¶ 2(c).) The driver then sped up, began driving erratically, and, as a result, the police briefly lost sight of the Jeep. (Id.) The police officers followed in the same direction as the Jeep, and subsequently saw it crashed on the side of the road. (Id. ¶ 2(d).) The driver was not inside, and the driver's door was open. (Id.) An individual who witnessed the crash told the officers that the driver had exited the car and run away, then directed the police to the driver. (Id. ¶ 2(d).) The driver, defendant Noble, was subsequently arrested. (Id. ¶ 2(e).) After placing defendant under arrest, the police returned to the Jeep, which had been secured by other officers. (Id.) One of the officers who arrested defendant then searched the Jeep and found a .40 caliber Hi-Point handgun behind the driver's seat. (Id.)
The government alleges that, during the drive from the scene of the arrest to the station house, defendant asked one of the officers "if he could get his gun back." (Id. ¶ 3; see Transcript of March 26, 2008 Evidentiary Hearing ("Tr.") at 8-13.) Thereafter, according to the government, defendant made statements to interviewing officers at the station house after waiving his Miranda rights. (Tr. at 38-43.)
With regard to the handgun found in the Jeep, the NYPD ultimately determined that the weapon "is not and has never been manufactured in the State of New York." (Compl. ¶ 4.) Based on a review of criminal records, Special Agent Eric Baldus of the Drug Enforcement Administration ("DEA") also later determined that, in April 1983, defendant was convicted of a Class B felony, criminal possession of a controlled substance in the third degree, in the Supreme Court of the State of New York, Kings County. (Id. ¶ 5.)
A. Defendant's Motion to Dismiss
Defendant argues that the indictment should be dismissed because 18 U.S.C. § 922(g) is unconstitutional, both on its face and as applied to him, in that its application criminalizes the act of carrying a firearm where there is no sufficient relationship between the act and interstate commerce. (Def.'s Mem. at 2-8.) For the reasons that follow, the motion is denied.
Section 922(g)(1) makes it a crime for an individual who has been convicted of a felony to "possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g)(1). It is well-established in this Circuit that § 922(g) requires only a "minimal nexus" to interstate commerce, which can be satisfied by a showing that the firearm at issue traveled at any time in interstate commerce. See United States v. Gaines, 295 F.3d 293, 302 (2d Cir. 2002); United States v. Santiago, 238 F.3d 213, 216-17 (2d Cir. 2001); United States v. Palozie, 166 F.3d 502, 505 (2d Cir. 1999); United States v. Sorrentino, 72 F.3d 294, 297 (2d Cir. 1995). "Testimony that a weapon was manufactured out of state is generally sufficient to meet the interstate commerce element." United States v. Jones, 16 F.3d 487, 491 (2d Cir. 1994) (citation omitted); see also United States v. Sanders, 35 F.3d 61, 62- 63 (2d Cir. 1994) (collecting cases holding that the "in commerce element of § 922(g) is satisfied where ammunition possessed by defendant had been manufactured elsewhere and passed through interstate commerce before defendant possessed ammunition"); United States v. Chin, 910 F. Supp. 889, 894 (E.D.N.Y. 1995) ("Evidence that ammunition was manufactured outside of New York State, and that defendant was found in possession of that ammunition within the State, compels the conclusion that the ammunition crossed state lines at some point.").
(a) § 922(g) is Constitutional On Its Face
Defendant cites several cases, notably 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), and United States v. Bass, 404 U.S. 336 (1971), for the proposition that § 922(g) is unconstitutional because a showing that the firearm traveled in interstate commerce at some point is not enough to satisfy the "in or affecting commerce" prong of § 922(g). (Def.'s Mem. at 2-8.) However, defendant's arguments are unavailing, given that the Second Circuit has repeatedly found that § 922(g) satisifies the requirements of the Commerce Clause. See Gaines, 295 F.3d at 302 (rejecting defendant's Commerce Clause challenge, noting that neither Morrison nor Jones "requires us to revisit our prior holding that only a minimal nexus with interstate commerce is necessary under § 922(g)"); Santiago, 238 F.3d at 216 (holding that § 922(g)'s jurisdictional hook satisfies the Commerce Clause); Palozie, 166 F.3d at 504 (rejecting the contention that § 922(g) "requires more than the de minimis nexus of a single interstate transfer of the firearm"); Sorrentino, 72 F.3d at 297 (holding that Congress was within its powers under the Commerce Clause in enacting § 922(g)).
Indeed, defendant has failed to cite more recent controlling authority on the issue of the constitutionality of § 922(g).*fn2 For example, Lopez, Morrison and Jones were addressed and distinguished by the Second Circuit in Santiago. The court in Santiago found that the revised, post-Lopez version of § 922(g) "avoids the constitutional deficiency identified in Lopez" because it contains a requirement that the government demonstrate a link to interstate commerce. 238 F.3d at 216-17. In so holding, the court specifically found that "[u]nlike the statutes at issue in [Jones, Lopez, and Morrison], § 922(g) includes an express jurisdictional element requiring the government to provide evidence in each prosecution of a sufficient nexus between the charged offense and interstate or foreign commerce." Id. at 217; see also Gaines, 295 F.3d at 302 (citing Santiago and distinguishing Morrison and Jones). Furthermore, in Bass, the Court explicitly held that "the Government meets its burden  if it demonstrates that the firearm received has previously traveled in interstate commerce." 404 U.S. at 350; see also Scarborough v. United States, 431 U.S. 563, 575-77 (1977) (interpreting predecessor statute to § 922(g)). The other cases cited by Noble are equally unavailing. See United States v. Jones, 16 F.3d 487 (2d Cir. 1994) (vacating conviction where there was evidence that the gun was manufactured in New York at one time, and thus the government had not conclusively proven its travel in interstate commerce); United States v. Coward, 151 F. Supp. 2d 544, 551 (E.D. Pa. 2001) (questioning the viability of Scarborough in light of Lopez).
Clearly, the consistent authority of this Circuit recognizes the constitutionality of § 922(g). Accordingly, defendant's motion to dismiss the indictment on the grounds that § 922(g) is unconstitutional on its face is denied.
(b) § 922(g) is Constitutional As Applied to Defendant
Defendant also raises an "as applied" challenge to the constitutionality of § 922(g). (Def.'s Mem. at 6-8.)
As discussed above, § 922(g)(1) makes it a crime for an individual who has been convicted of a felony to "possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Assuming that the other elements - prior felony conviction and possession of a firearm - are met, the Second Circuit has held that the fact that a firearm was manufactured out of state "is generally sufficient to meet the interstate commerce element." Jones, 16 F.3d at 491.
The complaint asserts that defendant was convicted of a felony in 1983, and that a .40 caliber Hi-Point handgun was found in the crashed Jeep, which defendant had been driving before the crash and his subsequent arrest. (Compl. ¶¶ 2, 4.) The complaint also states that the .40 caliber Hi-Point handgun at issue "is not and has never been manufactured in the State of New York." (Id. ¶ 4.) Defendant has not contested the truth of those allegations; rather, defendant argues ...