Yesterday, Southern District Judge Valerie Caproni dismissed an indictment for lack of venue. The indictment charged a defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Judge Caproni’s opinion, however, is valuable beyond the § 922(g) context as a concise primer on a difficult-to-parse set of venue cases.
The opinion and order are available here.
Section 922(g) makes it unlawful for a person convicted of a felony to “possess in or affecting commerce, any firearm or ammunition.” In this case, United States v. DeJesus, Port Authority police stopped the defendant at the New Jersey entrance to the George Washington Bridge and found a handgun while searching his car. The government conceded that Mr. DeJesus did not possess a firearm in New York, but contended that venue was proper in the Southern District because “he was about to use an instrumentality of interstate commerce to cross into New York.” Slip op. at 3.
Specifically, the government argued that the prepositional phrase “in or affecting commerce” is an essential conduct element of § 922(g) and thus sufficient to support venue. See United States v. Ramiriez, 420 F.3d 134, 138 (2d. Cir. 2005) (holding that when a criminal statute does not provide for venue, a court must look to where the “essential conduct elements” of the offense were committed) (quoting United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999)). Judge Caproni rejected this argument, and in doing so distinguished the interstate commerce provision of the Hobbs Act, which permits venue in any district where a robbery “‘obstructs, delays, or affects commerce.'” United States v. Davis, 689 F.3d 179, 186 (2d Cir. 2012) (quoting 18 U.S.C. § 1951). As Judge Caproni explained, the Hobbs Act forbids “‘affecting commerce in particular ways,'” and thus makes the commerce provisions essential conduct elements of the act. Slip op at 4 (quoting United States v. Bowens, 224 F.3d 302, 313 (4th Cir. 2000)). Section 922(g), by contrast, “does not criminalize possession of a firearm in terms of its effect on commerce.” Id. at 5.
Judge Caproni’s opinion offers a useful framework for analyzing the interstate commerce provisions of federal statutes as they relate to venue. If a statute requires only a de minimus connection to interstate commerce–as does § 922(g)–then the interstate commerce provisions are not essential conduct elements for venue purposes. See slip op. at 6. The government has a broader range of venue options, however, if a statute expressly prohibits certain ways of affecting commerce. Attorneys should take care not to conflate the scopes of these different statutes’ venue requirements.
N.B. The Federal Defenders represents Mr. DeJesus.
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