United States of America v. Rufus A. Thompson Iii (02-5916); Gregory Potter (02-5917)

*The Honorable Robert Holmes Bell, Chief United States District
Judge for the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0079P (6th Cir.)
File Name: 04a0079p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUFUS A. THOMPSON III
(02-5916); GREGORY POTTER
(02-5917),
Defendants-Appellants.
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Nos. 02-5916/5917
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 01-00116—Robert L. Echols, Chief District Judge.
Submitted: December 11, 2003
Decided and Filed: March 17, 2004
Before: BATCHELDER and SUTTON, Circuit Judges;
BELL, Chief District Judge.*
2 United States v.
Thompson, et al.
Nos. 02-5916/5917
_________________
COUNSEL
ON BRIEF: Dwight E. Scott, Nashville, Tennessee, T.
Clifton Harviel, Jr., HARVIEL LAW OFFICE, Memphis,
Tennessee, for Appellants. Van S. Vincent, ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for
Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. After firebombing two houses
with Molotov cocktails, Rufus A. Thompson III and Gregory
Potter were charged, then convicted, of violating several
federal laws, including 26 U.S.C. § 5861(d), which prohibits
the possession of an unregistered firearm. Separately, and as
a result of the same incident, the jury also convicted
Thompson of being a felon in possession of a firearm under
18 U.S.C. § 922(g)(1). The defendants challenge their
convictions under § 5861(d), first as violating due process,
then as exceeding Congress’s taxing power. Thompson
independently argues that his § 922(g)(1) conviction exceeds
Congress’s Commerce Clause powers. We reject each
argument and affirm.
I.
Rufus Thompson was a crack dealer in Nashville,
Tennessee. Two of his customers were Gregory Potter and
William Hunnicutt, who “earned” their drugs by handling
various odd jobs for Thompson. One job involved the
burning of two houses, whose occupants had complained to
the police about Thompson’s drug trafficking. Thompson
suggested that Potter and Hunnicutt use Molotov

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Nos. 02-5916/5917 United States v.
Thompson, et al.
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cocktails—home-manufactured explosives made from glass
bottles, gasoline and cloth fuses—to carry out the task.
Consistent with this plan, Potter and Hunnicutt firebombed
both houses with homemade Molotov cocktails on April 28
and 30, 2001.
A federal grand jury indicted Thompson and Potter on a
litany of statutory violations for the firebombings, only two
of which have any bearing on this appeal. First, the grand
jury indicted both individuals for failing to register their
“firearms” (the Molotov cocktails) in the National Firearms
Registration and Transfer Record in violation of 26 U.S.C.
§ 5861(d). Second, the grand jury indicted Thompson for
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1).
Thompson and Potter filed motions to dismiss both charges.
As to the charges under § 5861(d), Potter argued that his
indictment violated due process while Thompson argued that
his indictment exceeded Congress’s taxing authority. In
support of each argument, the defendants claimed that it was
“legally impossible” to comply with the registration
requirements of the statute. As to the charge under
§ 922(g)(1), Thompson argued that the indictment exceeded
Congress’s power under the Commerce Clause. The district
court denied each motion, and the jury convicted both men on
their respective charges. In considering their appeals, we give
de novo review to the district court’s constitutional rulings.
United States v. Napier, 233 F.3d 394, 397 (6th Cir. 2000).
II.
Among many other commands, the National Firearms Act,
codified at 26 U.S.C. § 5801 et seq., prohibits individuals
from receiving or possessing a firearm that is not registered
in the National Firearms Registration and Transfer Record.
See 26 U.S.C. § 5861(d). The registration provision works
hand-in-glove with taxes that the statute imposes on the
4 United States v.
Thompson, et al.
Nos. 02-5916/5917
transfer and manufacture of firearms covered by the Act. See
id. §§ 5811, 5821. To register covered firearms (and pay
applicable taxes), an individual must apply to the Secretary of
the Treasury. See id. §§ 5812, 5822. Under the Act,
however, “[a]pplications shall be denied if the transfer,
receipt, or possession of the firearm would place the
transferee in violation of law.” Id. § 5812.
Thompson and Potter contend that the registration
provision makes no sense with respect to Molotov cocktails.
Had they applied to the Secretary of the Treasury to register
their Molotov cocktails, they note, the Secretary assuredly
would have denied their applications because possession of
the explosives placed them “in violation of law.” As they
observe, Tennessee law outlaws the knowing possession of
“an explosive or an explosive weapon,” Tenn. Code Ann.
§ 39-17-1302(a), language that one Tennessee court in an
unpublished decision has interpreted to encompass Molotov
cocktails. See State v. Jackson, No. E1999-02013-CCA-R3-
CD, 2001 WL 740707, at *5 (Tenn. Crim. App. June 29,
2001). Relying on these legal and factual predicates, Potter
argues that the provision violates due process and Thompson
argues that it exceeds Congress’s taxing power.
A.
Because Tennessee bans the possession of Molotov
cocktails and because the Secretary accordingly would have
denied an application to register these explosives, Potter
argues that it was legally impossible for him to comply with
the registration provision, 26 U.S.C. § 5861(d). Invoking
United States v. Dalton, 960 F.2d 121 (10th Cir. 1992), which
granted relief on a comparable claim, Potter contends that it
would be “fundamentally unfair” and a violation of due
process to convict him for failing to comply with a statute
with which it was not possible to comply. Potter Br. at 14.

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Thompson, et al.
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Even granting for a moment the assumption that the
Secretary would have denied an application to register a
Molotov cocktail, Potter errs in arguing that he could not
comply with 26 U.S.C. § 5861(d). In a case involving
analogous facts, we rejected a comparable argument. See
United States v. Bournes, 339 F.3d 396 (6th Cir. 2003).
There, the defendant challenged a conviction under § 5861(d)
for failing to register a weapon (a machine gun), possession
of which is outlawed by 18 U.S.C. § 922(o). And there,
following the cue of United States v. Jones, 976 F.2d 176,
182–83 (4th Cir. 1992), and rejecting the analysis of Dalton,
we reasoned that “compliance with the relevant provisions [of
the two statutes] is easily achieved: Bournes could have
complied simply by electing not to possess the machine guns
at issue.” Bournes, 339 F.3d at 399; accord United States v.
Grier, 354 F.3d 210, 214 (3d Cir. 2003). Potter had a similar
remedy. He too could have complied with § 5861(d) and
Tennessee law by opting not to make, then possess, the
Molotov cocktails in the first instance.
Nor has Potter presented us with any reason why it makes
a difference in this case that his legal-impossibility
conundrum arises from a combination of state and federal
law, as opposed to two federal statutes. In both settings, a
comparable answer to impossibility exists: decline to possess
the illegal weapon. See United States v. Djelaj, 842 F. Supp.
278, 281 (E.D. Mich. 1994) (sustaining a conviction under
§ 5861(d) for failing to register a Molotov cocktail,
possession of which is forbidden by Michigan law, in the face
of a legal impossibility challenge). In the end, Circuit
precedent (Bournes) controls and forecloses Potter’s due
process argument.
B.
Thompson raises a similar argument. Based on the alleged
impossibility of registering the Molotov cocktails in the
National Firearms Registration and Transfer Record,
6 United States v.
Thompson, et al.
Nos. 02-5916/5917
Thompson contends that his conviction constitutes an
unconstitutional exercise of Congress’s taxing power, also
citing United States v. Dalton, 960 F.2d 121, 124–25 (10th
Cir. 1992). He contends that the National Firearms Act
permits convictions that bear no “relation, rational or
otherwise,” to revenue collection, because he would not have
been permitted to register the Molotov cocktails and thus
could not have paid the tax even if he had tried to do so.
Thompson Br. at 13. Absent any true connection to tax
collection, he argues, the convictions under § 5861(d)
necessarily exceed congressional authority.
To the extent Thompson means to raise a facial challenge
to § 5861(d), the claim has little to recommend it and much
to overcome. As the United States Supreme Court has made
clear, the registration provision is “obviously supportable as
in aid of a revenue purpose.” Sonzinsky v. United States, 300
U.S. 506, 513 (1937). The registration requirement of
§ 5861(d) is “‘part of the web of regulation aiding
enforcement of the transfer tax provision in § 5811. Having
required payment of a transfer tax and having required
registration as an aid in collection of that tax, Congress under
the taxing power may reasonably impose a penalty on
possession of unregistered weapons . . . [to] discourage[] the
transferor . . . from transferring the firearm without paying the
tax.’” United States v. Birmley, 529 F.2d 103, 106–07 (6th
Cir. 1976) (quoting United States v. Ross, 458 F.2d 1144,
1145 (5th Cir. 1972)).
Thompson does little better in arguing that the registration
requirement, as applied to him, exceeds the national taxing
power. Aside from the Tenth Circuit in Dalton, every Circuit
to consider this type of claim has rejected it. See Grier, 354
F.3d at 215; United States v. Rogers, 270 F.3d 1076, 1079–80
(7th Cir. 2001); Hunter v. United States, 73 F.3d 260, 262
(9th Cir. 1996); United States v. Dodge, 61 F.3d 142, 146 (2d
Cir. 1995); United States v. Ardoin, 19 F.3d 177, 179–80 (5th
Cir. 1994); Jones, 976 F.2d at 182–83. So now do we.

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Nos. 02-5916/5917 United States v.
Thompson, et al.
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Echoing his co-defendant’s claim, Thompson argues that
§§ 5812 and 5822 prevented him from registering and paying
manufacture or transfer taxes on the Molotov cocktails. As a
result, he claims, criminalizing his failure to register his
firearms is not rationally related to the collection of taxes.
This argument might well have force if Thompson in fact
had sought to register the firearms, but had been denied
permission to do so by the Secretary. In that setting, it would
be difficult to perceive the rationality of the statute. But,
here, Thompson has offered no explanation why he should be
permitted to hypothesize what the Secretary would do with
his application, then premise his claim that the statute has no
rational connection to taxation on that speculation. The
relevant statute says that “it shall be unlawful for any person
. . . to . . . possess a[n] [unregistered] firearm.” 26 U.S.C.
§ 5861(d). At the time of his arrest, Thompson’s firearms
were unregistered—not because he was denied permission to
register them but because he never tried to register them. It
does not offend the modest requirements of rationality to
require the individual first to seek the Secretary’s views on
such a matter and to show that he was actually prevented from
registering his firearms. Because neither Thompson nor his
co-conspirators attempted to register the Molotov cocktails,
no one can say with certainty what the Secretary of the
Treasury would have done with his application. See United
States v. Mise, 240 F.3d 527, 530 (6th Cir. 2001) (noting that
Mise had not presented evidence that he applied to register his
pipe bomb); United States v. Aiken, 974 F.2d 446, 449 (4th
Cir. 1992) (in the absence of evidence to the contrary, court
must assume that registration of short-barreled shotgun would
be allowed). And that is particularly significant in view of the
undisputed fact that the Secretary has authority to register and
tax illegal weapons. Grier, 354 F.3d at 215; Ardoin, 19 F.3d
at 180; see also Dep’t of Revenue v. Kurth Ranch, 511 U.S.
767, 778 (1994) (unlawful activity may be taxed); Marchetti
v. United States, 390 U.S. 39, 44 (1968) (same); see also, e.g.,
26 U.S.C. § 4401 (taxing legal and illegal bets).
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Thompson, et al.
Nos. 02-5916/5917
No doubt, it may seem odd to require an application to
register Molotov cocktails—whether before or after
manufacture. And, no doubt, it may seem odd to require an
application that perhaps would have been denied by the
Secretary. Yet it would be odder still if we were to defer to
Thompson’s interpretation of the interplay between the federal
and state statutes at issue—and specifically the meaning of
Tennessee law—and his conclusion that the Secretary would
not permit him to register and pay the tax. If Thompson
wishes to complain that the scheme is utterly devoid of a
taxing purpose because it was impossible for him to register
his weapons, then he must demonstrate that it was truly, and
not merely hypothetically, impossible to obtain the
registration.
III.
Thompson separately argues that his felon-in-possession-
of-a-firearm conviction should be reversed because 18 U.S.C.
§ 922(g)(1) exceeds the National Legislature’s power to
regulate interstate commerce under the Commerce Clause.
We disagree.
Section 922(g)(1) makes it unlawful for a person “who has
been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year . . . to ship or
transport in interstate or foreign commerce, or 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.” Thompson is
not the first criminal defendant to challenge the validity of the
provision in the aftermath of United States v. Lopez, 514 U.S.
549 (1995). After Lopez, we rejected a facial challenge to
§ 922(g)(1) under the Commerce Clause. See United States
v. Chesney, 86 F.3d 564, 568–69 (6th Cir. 1996). So, too, has
every other court of appeals. See United States v. Williams,
128 F.3d 1128, 1133–34 (7th Cir. 1997) (citing cases).

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Nos. 02-5916/5917 United States v.
Thompson, et al.
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In rejecting this argument, our Circuit has relied in large
part on the presence of a jurisdictional element in the
statute—the requirement that the firearm must be “in or
affecting commerce”—to distinguish § 922(g) from the Guns
Free School Zone Act, which Lopez invalidated. This
jurisdictional element, we have held, “ensures [that] only
those activities affecting interstate commerce fall within
[§ 922(g)’s] scope.” United States v. Baker, 197 F.3d 211,
218 (6th Cir. 1999).
In challenging this line of reasoning, Thompson argues that
the presence of a jurisdictional element does not by itself
ensure that the statute falls within Congress’s commerce
power. Recent decisions by the Supreme Court in United
States v. Morrison, 529 U.S. 598 (2000), and Jones v. United
States, 529 U.S. 848 (2000), he adds, cast doubt on this
Court’s holdings that the jurisdictional element of § 922(g)
satisfies Commerce Clause constraints.
Still more-recent precedent from this Circuit, however,
forecloses Thompson’s argument. In United States v. Napier,
233 F.3d 394 (6th Cir. 2000), we took a second look at the
constitutionality of § 922(g) in view of Morrison and Jones.
While Morrison and Jones in their own way each reinforced
the central lessons of Lopez—that Congress’s power to
regulate commerce is not boundless and that the courts have
a responsibility to police the outer limits of that
power—Napier concluded that § 922(g) satisfies the modest
demands of these precedents because it requires a “‘minimal
nexus that the firearm have been, at some time, in interstate
commerce.’” Napier, 233 F.3d at 401 (quoting Scarborough
v. United States, 431 U.S. 563, 575 (1977)).
Nor may Napier be distinguished on the ground that it
involved a conviction under § 922(g)(8) rather than under
§ 922(g)(1). Both provisions criminalize possession of a
firearm, and the same jurisdictional element governs both
provisions. The only difference between them is that
10 United States v.
Thompson, et al.
Nos. 02-5916/5917
§ 922(g)(1) applies to felons while § 922(g)(8) applies to
persons subject to domestic violence restraining orders. That
distinction, however, does not offer a tenable basis for
differential treatment, and Thompson himself has offered no
explanation for drawing such a distinction. In all material
ways, Napier controls.
Because Napier supplies the governing legal precedent and
because the Government presented evidence at trial that the
constituent parts used to make these Molotov cocktails—the
beer bottles and gasoline—had moved in interstate commerce,
we reject Thompson’s constitutional challenge. Thompson
has not argued, and does not argue, that the firearms
themselves (the Molotov cocktails), as opposed to their
constituent parts (the beer bottles and gasoline), must satisfy
the jurisdictional element of § 922(g)(1). We accordingly
need not consider that distinct question, compare United
States v. Stewart, 348 F.3d 1132, 1138 (9th Cir. 2003)
(holding that link between defendant’s homemade
manufacture of machine gun and interstate commerce was
“too tenuous to justify federal regulation”), with United States
v. Gresham, 118 F.3d 258, 265–66 (5th Cir. 1997) (rejecting
argument that movement of component parts of pipe bomb in
interstate commerce was insufficient to sustain § 922(g)(1)
conviction), which Napier does not directly address.
IV.
For the foregoing reasons, we affirm.

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