Wednesday, April 18, 2007

Proof of "Foreign Commerce" Sufficient in Felon-in-Possession Case

U.S. v. Goode, --- F.3d ----, 2007 WL 1113957(10th Cir. April 16, 2007)

D was convicted of being a felon in possession of a firearm, which was manufactured in Spain and possessed in NM. He argued for the first time on appeal that the evidence did not meet the jury instructions that the gun, to meet the interstate commerce requirement, be moved “from state to state.” It could have come from Spain to Mexico to NM. Under a plain error review, and assuming it was error, the 10th finds that “this is one of those rare cases” in which the D's insufficient-evidence claim fails on the fourth element, because the error does not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Although the government may have failed to prove movement of the gun in interstate commerce, it proved it moved in foreign commerce, so that his possession of the gun “affected commerce” as charged in the indictment.