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FILED

United States Court of Appeals

Tenth Circuit

AUG 27 2001

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 00-1390

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MIKE MEIENBERG,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 97-CR-179-D)

Sean Connelly, Assistant United States Attorney, District of Colorado, (Thomas

L. Strickland, United States Attorney, District of Colorado; Craig Wallace,

Assistant United States Attorney, District of Colorado; Tim Neff, Assistant

United States Attorney, District of Colorado, with him on the brief), Denver,

Colorado, for Plaintiff-Appellee.

Paula M. Ray, Denver, Colorado, for Defendant-Appellant.

Before BRISCOE, ANDERSON, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Defendant Michael Meienberg appeals his convictions in the United States

District Court for the District of Colorado for one count of sale of a firearm to an

underage person, 18 U.S.C.  922(b)(1), fourteen counts of sale of a firearm in

violation of state law, 18 U.S.C.  922(b)(2), and one count of conspiracy to sell

firearms in violation of state law, 18 U.S.C.  371. Jurisdiction to consider

Defendant's appeal arises under 28 U.S.C.  1291. Defendant argues that all or

some of his convictions should be overturned because of (1) prosecutorial

misconduct in closing arguments, (2) error by the district court in allowing

unauthenticated computer printouts into evidence, and (3) the facial

unconstitutionality of 18 U.S.C.  922(b)(2). Upon review, this court affirms the

convictions.

II. DISCUSSION

A. Prosecutorial Misconduct

During closing arguments the following exchange occurred:

PROSECUTOR: Now, I told you in my opening we had that burden

[to prove the guilt of Defendant beyond a reasonable doubt], didn't I.

Of course we do. I acknowledge it. I acknowledge it freely. That's

how our system works. Well, I believe we've met the burden.

DEFENSE COUNSEL: Objection, Your Honor that's improper.

PROSECUTOR: I believe the government has Ä

THE COURT: Hold on.

DEFENSE COUNSEL: Objection, Your Honor, improper to state

what he believes.

PROSECUTOR: All right. Let me restate. I believe the government

has met its burdens. I'm not asking to believe me personally, I'm

asking you to believe what the evidence shows.

DEFENSE COUNSEL: Still improper, Your Honor.

THE COURT: Sustained.

The government concedes that misconduct occurred when the prosecutor

expressed his personal belief as to the Defendant's guilt. See United States v.

Young, 470 U.S. 1, 7-8 (1985) (discussing the impropriety of prosecutors

expressing their personal beliefs). Such comments can leave the impression that

the prosecutor is basing his conclusion on evidence not presented to the jury and

also may induce the jury to rely on the prosecutor's personal conclusion rather

than an independent review of the evidence. See id.

In some circumstances, prosecutorial misconduct may be so severe that a

new trial is required. See United States v. Gabaldon, 91 F.3d 91, 94 (1996). This

court reviews the denial of a motion for mistrial for an abuse of discretion. See

id. Although Defendant quickly objected to the prosecutor's conduct, Defendant

did not request a mistrial or seek any further relief. "Where there has been no

motion for a mistrial or new trial, the district court has not exercised its

discretion, and therefor it is meaningless to look for an abuse of discretion." Id.

In such circumstances, the

prosecutor's improper statement to the jury is harmless unless there

is reason to believe that it influenced the jury's verdict. In assessing

whether the misconduct had such an impact, we consider the trial as

a whole, including the curative acts of the district court, the extent of

the misconduct, and the role of the misconduct within the case . . .

[T]o warrant reversal, the misconduct must have been flagrant

enough to influence the jury to convict on grounds other than the

evidence presented.

Id. (quotation omitted). In this case, the prosecutor's conduct was not "flagrant

enough to influence the jury to convict on grounds other than the evidence

presented." Id. (quotation omitted). The prosecutor eliminated much of the

prejudice to Defendant by explaining that "I'm not asking to believe me

personally, I'm asking you to believe what the evidence shows." In addition, the

district court instructed the jury that arguments of counsel were not evidence.

Thus, while this court confirms its disapproval of a prosecutor asserting his

personal belief as to a defendant's guilt, the impact of the prosecutor's improper

statements in this case were negligible. See id. at 95.

B. Computer Documents

18 U.S.C.  922(b)(2) makes it a federal crime to sell a firearm in violation

of state law. At the time of the events underlying this lawsuit, Colorado required

gun dealers to perform certain tasks before selling a handgun. See Colo. Rev.

Stat.  12-26.5-103 (repealed 1999). Dealers were required to contact the

Colorado Bureau of Investigation (the "Bureau") for purposes of conducting an

instant background check on the potential purchaser and, if the purchaser was

approved, dealers were required to record the approval number for the transaction.

See id.  12-26.5-103(2)(d)(I)(A), (B) (repealed 1999).

In order to demonstrate that Defendant had often neglected to contact the

Bureau for an instant background check and instead recorded phony approval

numbers, the government introduced the printouts of computerized records

reflecting the approval numbers issued by the Bureau to Defendant's firearms

business. Defendant objected to the printouts based on a lack of authentication.

The district court overruled the objection, allowing the printouts into evidence.

Defendant renews his authentication challenge on appeal. "Evidentiary decisions,

such as findings concerning the authenticity of a document, rest within the sound

discretion of the district court and are reviewed for abuse of discretion." United

States v. Henry, 164 F.3d 1304, 1309 (10th Cir. 1999). There is an abuse of

discretion when the district court's decision is "arbitrary, capricious, whimsical,

or unreasonable." Coletti v. Cudd Pressure Control, 165 F.3d 767, 777 (10th Cir.

1999) (quotation omitted).

Before evidence is admissible it must be authenticated. See Fed. R. Evid.

901(a). This requirement is met by "evidence sufficient to support a finding that

the matter in question is what its proponent claims." Id. "The rationale for the

authentication requirement is that the evidence is viewed as irrelevant unless the

proponent of the evidence can show that the evidence is what its proponent

claims." United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.

1991).

Defendant argues that, in order to authenticate, the government was

required to demonstrate the accuracy of the information contained in the

printouts. Because the government's witness could not verify the accuracy of the

information, Defendant argues that the records were not authenticated. Defendant

relies on Rule 901(b)(9) of the Federal Rules of Evidence. Rule 901(b) provides

numerous nonexhaustive examples of proper authentication. Rule 901(b)(9), one

of these examples, states as follows:

(9) Process or system. Evidence describing a process or system

used to produce a result and showing that the process or system

produces an accurate result.

Defendant's argument is without merit. In order to authenticate the

printouts, the government had only to present "evidence sufficient to support a

finding that the matter in question is what its proponent claims." Fed. R. Evid.

901(a). The computer printouts reflected the Bureau's record of approval

numbers assigned to Defendant's firearms business. The government's witness

testified to this fact, thus satisfying the minimal authentication requirement:

"[The computer printouts are] a record of the transaction[] number[s] issued for

[Defendant's business], all the transactions during each separate exhibit is a

month period of transactions issued [by the Bureau to Defendant's business]. See

Fed. R. Evid. 901(b)(7) (providing that a public record can be authenticated by

evidence that the record "is from the public office where items of this nature are

kept"); see also Fed. R. Evid. 901, Advisory Committee Notes, 1972 Proposed

Rules, note to Subdivision (b), Example 7 ("Public records are regularly

authenticated by proof of custody, without more. The example extends the

principle to include data stored in computers and similar methods . . . ." (citation

omitted)). "Any question as to the accuracy of the printouts, whether resulting

from incorrect data entry or the operation of the computer program, as with

inaccuracies in any other type of business records, would have affected only the

weight of the printouts, not their admissibility." United States v. Catabran, 836

F.2d 453, 458 (9th Cir. 1988).

Defendant's reliance on Rule 901(b)(9) is misplaced. The computer

printouts were not the result of a "process or system used to produce a result";

they were merely printouts of preexisting records that happened to be stored on a

computer. In any event, the government did offer circumstantial evidence that the

computer printouts accurately depicted the approval numbers issued to

Defendant's business. Thus, the district court did not abuse its discretion in

allowing the printouts into evidence.

C. Constitutionality of  922(b)(2)

Section 922(b)(2) provides:

It shall be unlawful for any licensed importer, licensed

manufacturer, licensed dealer, or licensed collector to sell or

deliver-[] any firearm to any person in any State where the purchase

or possession by such person of such firearm would be in violation of

any State law or any published ordinance applicable at the place of

sale, delivery or other disposition, unless the licensee knows or has

reasonable cause to believe that the purchase or possession would not

be in violation of such State law or such published ordinance[.]

Defendant claims  922(b)(2) is unconstitutional, advancing two arguments.

First, Defendant claims that  922(b)(2) exceeds Congress' power to regulate

interstate commerce. Second, Defendant maintains that  922(b)(2) runs afoul of

the federalism concerns expressed in Printz v. United States, 521 U.S. 898 (1997).

It appears that no other court has addressed these questions.

The Supreme Court has "identified three broad categories of activity that

Congress may regulate under its commerce power." United States v. Lopez, 514

U.S. 549, 558 (1995). First, Congress can regulate the use of the channels of

interstate commerce. Second, Congress can regulate the instrumentalities of

interstate commerce and persons or things in interstate commerce. Finally,

Congress can regulate those activities that substantially affect interstate

commerce. See id. at 558-59.

Section 922(b)(2) regulates firearms transactions; such transactions are, by

their nature, commercial in character. Compare id. at 551-68 (striking down 18

U.S.C.  922(q), which criminalized mere possession of a firearm within a place

the individual reasonably knew was a school zone). To the extent the statute

applies to transactions across state lines, the affect on interstate commerce is

obvious. See United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir. 1995) ("The

interstate flow of machineguns not only has a substantial effect on interstate

commerce[,] it is interstate commerce." (quotation omitted)). As explained

below, even those firearms transactions which take place between a dealer and

buyer within the same state substantially affect interstate commerce.

In Huddleston v. United States, the Supreme Court addressed 18 U.S.C. 

922(a)(6) and (d)(1). See 415 U.S. 814, 833 (1974). These statutes make it a

crime for any person to lie to a licensed gun dealer in connection with the

acquisition of a firearm and also make it a crime for a gun dealer to knowingly

sell a firearm to a person convicted of a crime punishable by imprisonment for

more than one year. See id. at 815-17. The Supreme Court stated in Huddleston:

"Congress intended, and properly so, that  922(a)(6) and (d)(1) . . . were to

reach transactions that are wholly intrastate, as the Court of Appeals correctly

reasoned, on the theory that such transactions affect interstate commerce." Id. at

833 (citation and quotation omitted).

Section 922(b)(2), like the statutes under consideration in Huddleston,

applies to wholly intrastate firearm transactions as well as interstate firearms

transactions. In considering Congress' constitutional power to regulate intrastate

transactions, the aggregate interstate affect of the regulated intrastate transactions

is considered. See Wickard v. Filburn, 317 U.S. 111, 127-28 (1942). Well-

documented congressional findings indicate that the market for firearms is a

national market. See, e.g., Huddleston, 415 U.S. at 833; Wilks, 58 F.3d at 1521.

Under these circumstances, the aggregate of intrastate firearms transactions has a

substantial affect on interstate commerce. United States v. Cardoza, 129 F.3d 6,

13 (1st Cir. 1997) ("[T]he supply and demand for handguns in any given state will

`substantially affect' interstate commerce in handguns by causing the weapons to

move across state lines."). Because firearms transactions, even those which are

purely intrastate, substantially affect interstate commerce in firearms,  922(b)(2)

is a valid exercise of Congress' power to regulate interstate commerce.

Defendant also claims that  922(b)(2), by incorporating state law into the

definition of a federal crime, runs afoul of the federalism principles expressed in

Printz. The Supreme Court's decisions in Printz and New York v. United States

stand for the principle that the federal government cannot "commandeer" the

executive and legislative branches of state governments into service for the

purpose of implementing federal law. See Printz, 521 U.S. at 933; New York v.

United States, 505 U.S. 144, 166, 187 (1992).

The federalism concerns expressed in Printz and New York do not apply to

 922(b)(2). By making a violation of state law a federal crime, the federal

government has not commandeered the states into enforcing federal policy. Quite

to the contrary,  922(b)(2) can be seen as a cooperative effort by the federal

government to assist the states in enforcing state policies. There are both old and

recent examples of such cooperative efforts between the federal government and

the states. See 18 U.S.C.  1955(b)(1)(i) (defining an "illegal gambling business"

as one which is in violation of state law); Leonard D. White, The Federalists 401,

403 (1956) (cataloging historic examples of cooperation between the states and

federal government). Because  922(b)(2) does not involve an attempt to use the

states as mechanisms to enforce federal regulation, the political accountability

concerns expressed in both Printz and New York do not apply. See Printz, 521

U.S. at 929-30; New York, 505 U.S. at 168-69.

Defendant notes that the purpose of  922(b)(2) was to "encourage States to

publish and circulate statewide and local firearms regulations." H.R. Rep. No.

1577 (1968), reprinted in 1968 U.S.C.C.A.N. 4419-20. It is well established,

however, that Congress can use its valid constitutional powers to encourage

particular behavior from the states. In New York, the Supreme Court stated:

This is not to say that Congress lacks the ability to encourage a

State to regulate in a particular way . . . . Our cases have identified a

variety of methods, short of outright coercion, by which Congress

may urge a State to adopt a legislative program consistent with

federal interests.

505 U.S. at 166. To the extent that  922(b)(2) seeks to encourage states to pass

firearms laws, it does so in a manner far short of coercion. Thus, it does not

matter that the purpose of  922(b)(2) might be to encourage particular behavior

from the states. Defendant's federalism arguments are rejected.

III. CONCLUSION

For the reasons stated above, Defendant's convictions are AFFIRMED.