Tag Archives: interstate commerce

Riding Along In My Automobile Ain’t Necessarily Interstate Commerce – Update for October 9, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

8TH CIRCUIT NOT DRIVEN TO FIND INTERSTATE NEXUS IN SEX CRIME

Muhammad Arif ran a little convenience store in rural Arkansas. He had a handyman employee, a guy who worked hard but could barely support his kids on what he made.

Mo wanted to throw a few extra bucks the family’s way. Great idea. He figured he could do that by soliciting the handyman’s young daughter to engage in sex with him. Not so great an idea. Twice while Mo was driving the 15-year-old home, he pitched her for sex in exchange for money. Twice she refused. Twice he gave her $20.00 to keep her mouth shut about his indecent pitch.

The young lady was short of money but not of brains. She secretly recorded Mo both times and turned him in. The Feds charged Mo with commercial sex trafficking of a minor in violation of 18 USC § 1591(a)(1).

The statute requires that the prohibited act was done “in or affecting interstate commerce.” At trial, a detective testified that Mo drove a 2016 Nissan that had been built in Mississippi. The government offered no evidence about how Mo’s use of the Nissan otherwise affected interstate commerce but argued that because Mo had propositioned the girl while driving in a car built in another state, his crime affected interstate commerce.

Mo argued the government failed to prove that what he did met the “interstate commerce” element. The district court agreed, holding that driving a car on a road, without more, is not evidence of “an actual rather than potential effect on interstate commerce.” The government appealed, arguing that committing a crime that affects interstate commerce, like commercial sex trafficking, satisfies the commerce element of § 1591(a)(1) even if the offense was committed without traveling across state lines.

Last week, the 8th Circuit upheld the district court’s dismissal of Mo’s case. While the case is sex-related, the “interstate commerce” element – common to many federal criminal statutes – makes the analysis interesting and applicable to a variety of statutes that depend on “affecting commerce” for validity.

The Constitution’s Commerce Clause grants Congress the power to “regulate Commerce… among the several states.” For more than a century, the 8th observed, “Supreme Court decisions have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that ‘substantially affect’ interstate commerce.” This third category includes “purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce.”

The Circuit had previously held “that Congress’s use of ‘affecting’ in § 1591(a)(1)… suggests that there must be evidence of an actual rather than potential effect on interstate commerce.” The 8th admitted that “it does not take much for a criminal act to affect interstate commerce. Any actual impact, no matter how minor, will do.” However, while “a probability of affecting commerce is sufficient in some cases… the probability must be realistic rather than merely speculative.”

Congress may prohibit conduct committed “through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce,” such as in the arson statute (18 USC § 844). But § 1591(a) is textually different than § 844. “The commerce element in § 1591(a)(1) is conduct ‘in or affecting interstate commerce,’ not use of an instrumentality of interstate commerce,” the appellate court wrote. “Merely using the channels or instrumentalities of interstate commerce is relevant but does not necessarily demonstrate an actual effect on commerce that satisfies the jurisdictional element.”

The government argued that, because a car is an instrumentality of commerce, proof of any use of a car in committing commercial sex trafficking of a minor is sufficient evidence of an actual impact. The Circuit disagreed: “Merely driving a car on a road, without more, does not establish a sufficient interstate commerce nexus. The use of an instrumentality of commerce for a 20-minute intrastate trip in this case is simply not the same as connecting to a multi-state cellular network or the internet, a system that is inexorably intertwined with interstate commerce.”

Mo’s Nissan was certainly linked to interstate commerce, but “the government’s evidence failed to establish that Arif’s use of the car in soliciting [the girl] during two short intrastate drives to her home had an identifiable actual effect on intrastate commerce.”

United States v. Arif, Case No. 24-2323, 2025 U.S. App. LEXIS 25582 (8th Cir. October 2, 2025)

~ Thomas L. Root

What Part of a Gun is a Gun, 8th Circuit Ponders – Update for August 16, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PARTS IS PARTS

I waste a lot of brain space recalling TV ads. Wendy’s had one in the 1980s belittling places that sold processed chicken. “Parts is parts,” the bored counterman told the skeptical customer.

parts210816That tagline rings true with a vengeance for firearms. A conviction under 18 USC § 922 requires proof that the firearm in question must have traveled in interstate commerce. Congress had to include the provision in order to be able to pass enforceable legislation. Yet the interstate commerce requirement can lead to some strange results.

If you’re a convicted felon, you can legally own a Smith and Wesson revolver. Just live in Massachusetts. Want a TEC-9, maybe for duck hunting? Move to Miami. If you live in the same state in which the firearm was made and sold, possession is not prohibited by 18 USC 922(g).

Cautionary note: Just don’t ever buy any ammo. That’s a different story.

Notguns170330Not so with the gun itself. The statute (18 USC 921(a)(3)) defines a “firearm” as “(A) any weapon… which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [or] (B) the frame or receiver of any such weapon.” The frame or receiver is defined by regulation as the “part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 27 CFR 478.11. Which brings us to the strange world of the AR-15.

One of the worst kept secrets in America is that anyone with a drill press or router and a few hundred bucks in parts can build an AR-15 lower receiver at home in a few hours. The chunk of aluminum or plastic that gets milled into a lower receiver can be bought online, and because it’s only 80% complete, it is not a firearm under the law (for now, but new rules are coming). Once the home hobbyist completes the lower receiver and mates it with an upper receiver (many versions of which are available online and which in and of themselves are not defined as “firearms” either), he has a completed firearm. Because the part the ATF considers to be the “firearm” – the lower receiver – was just a block of metal when it crossed state lines, no firearm had crossed state lines, and a former felon who possessed one is not violating § 922(g).

gunar15lower210816By a weird twist, the ATF defines the frame or receiver of a firearm to include trigger parts, the bolt, and possibly the threads for mounting the barrel. This definition makes great sense for a revolver, semi-automatic pistol, and most rifles. But the AR-15 has two separate parts, a lower receiver that has the trigger parts and magazine well, and an upper receiver holding the bolt, bolt carrier, and barrel threads. At least one federal district court has thrown out a felon-in-possession case where the defendant had a box full of AR-15 lower receivers, holding that – no matter what the ATF tried to argue in court – its own definition held that an AR-15 lower receiver is not a firearm.

gunar15upper210816(Yet another cautionary note: President Biden has ordered the ATF to redefine various other parts of the guns as firearms that require serial numbers, so this loophole may be closing. But millions of AR-15 upper receivers, barrels, magazines, and the such without serial number will remain in circulation.)

Which brings us to a decision last week in the 8th Circuit. Luke Burning Breast had a prior felony conviction. After local police confiscated an AR-15 style rifle from him, the Feds brought an 18 USC 922(g) felon-in-possession case against him.

Luke argued that the lower receiver was not a firearm under the ATF’s own definition. While there was no question the lower – which had a serial number – had been made in another state, Luke argued that only the lower and upper receivers together make a firearm, and because the government did not prove the upper receiver traveled in interstate commerce, the evidence was insufficient to convict him of being a felon in possession of a firearm.

guns170111Last week, the 8th Circuit shot Luke down in a 2-1 decision remarkable for its circular reasoning. The majority argued that the ATF’s definition of a frame or receiver is only one way to define a firearm. “Another way is if the weapon will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. Notwithstanding the lack of evidence establishing the upper receiver had, in fact, been swapped out, there was no evidence that at any point the firearm was anything but a weapon that could, or was designed to, or may readily be converted to expel a projectile by the action of an explosive. Here, it is immaterial whether there was proof that the upper receiver traveled in interstate commerce when the evidence established a completed rifle capable of being shot traveled in interstate commerce prior to Burning Breast’s possession of it.”carriefgun170807

In other words, because the lower receiver was once part of an entire AR-15 that traveled in interstate commerce, the jury could infer that it had always been a firearm.

The dissent observed, “I grant that Burning Breast possessed a functional rifle. But it is not so clear that a jury could reasonably infer that it traveled in interstate commerce. In order for an inference to be reasonable, there must be some evidence to support it. But there is no evidence that anything other than the lower receiver moved in interstate commerce. The ATF agent admitted as much.”

The decision is interesting for what it implies. Had Luke made his own lower receiver – without a serial number – the government would have been unable to prove the firearm had ever crossed state lines, and Luke could not have been convicted.

United States v. Burning Breast, Case No 20-1450, 2021 U.S.App. LEXIS 23778 (8th Cir., August 11, 2021)

– Thomas L. Root