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This lifeline, however, has seen a historical progression of inequity among race (and often class) lines. Transportation can serve as a barrier to opportunity causing people to become “transportation disadvantaged,” due to factors including car inaccessibility, low income, disability, language barriers, and long-term obligations such as work, school, or medical needs. There are a myriad of historical events, beginning just after the Civil War Reconstruction, up to the present, which demonstrate how transit, race, and equity of opportunity are linked. These examples highlight that the Free to Ride story is not an isolated occurrence, but is rather woven within over a century of transportation equity history that has had negative impacts on minorities, especially African Americans.
On June 7, 1882 Homer Plessy, a biracial, 30 year old shoemaker, was arrested for violating the Louisiana Separate Car Act. He had bought a first class ticket and sat in a whites-only passenger car on the East Louisiana Railroad, which ran from New Orleans to Covington Louisiana. Before his train ride, Plessy was already an activist for civil rights, serving as vice-president of the Justice, Protective, and Education, and Social Club, which demanded education reform and equality for African Americans.
Could states replace the caste system of slavery with a set of legal racial barriers to keep African Americans in a status inferior to whites, despite the constitutional changes after the Civil War that had extended federal protection of basic rights to all citizens?
Justice Brown’s court rejected Tourgee’s claims arguing that Plessy was not currently enslaved and that the act in general was not intended to reestablish slavery or create inequities among whites and African Americans. Furthermore Brown stated “if one race is inferior to the other socially, the Constitution of the United States cannot put them in the same plane.” After closing arguments Justice Brown delivered the majority opinion on May 18, 1896, which upheld Louisiana’s decision.
Amidst the defeat, political scholar Harvey Fireside makes a good point about Tourgee’s argument. He notes that Tourgee “tried to unmask the Louisiana law as an exercise of ‘white class privilege’, which the legislature disguised by camouflaging its bias, specifically using the ‘unequal, but separate’ seating provisions to give an appearance of ‘impartiality’” (2004, p.194). In Free to Ride Dayton-area resident, Joyce Kasprzak, states that “people don’t understand [that] what they’ve done… is perpetrating the next situation of racism, or classism” (2015). Kasprzak’s comment is a direct parallel to Tourgee’s argument more than a century ago of how seemingly race-neutral language and decisions can have disparate impacts on minorities. The case’s ruling allowed the “separate but equal” framework to shape and become deeply rooted within the next 50 years of American public life and urban development.
Rosa Parks became to be known as “the mother of the Civil Rights Movement” for her refusal to give up her seat to a white man, but her activism did not begin on the bus. She had worked as a secretary for the Montgomery NAACP chapter, advocated for the desegregation of schools, and mobilized African American voters.
On December 1, 1955 Parks boarded a bus heading home after a long day’s work. When Parks did not give up her seat to a white man, the bus driver threatened to have her arrested, upon which she said, “You may do that.” Brinkley states “her majestic use of the word ‘may’ rather than ‘can’ put Parks on the high ground, establishing her as a protester, not a victim.” News of her arrest spread like wildfire across the activist community. President of the local NAACP chapter, E.D. Nixon had been waiting for this moment as he was looking for a strong and respected individual that could withstand police backlash and publicity from being at the center of a bus boycott.
The boycott of Montgomery’s bus system was orchestrated by E.D. Nixon and the Women’s Political Council. Nixon chose Martin Luther King Jr. to be the face of the boycott as he had the charisma to lead. Tens of thousands of leaflets were made asking African Americans to stay off the bus and when the day came, the streets were filled with African Americans of all ages walking to their destinations. At the end of the day organizers tallied that over 90% of African American riders had not used the bus. That night the Holt Street Baptist Church swelled with people where Martin Luther King Jr. addressed the crowd calling for justice. It was agreed that the boycott would continue until African Americans could ride as equals with whites, which was eventually granted 381 days later in 1956.
What arose in Parks that fateful evening was her belief in what Dr. Martin Luther King Jr. often said: that ‘some of us must beat the burden of trying to save the soul of America.’ When a white man tried to use an unfair system to undermine her dignity, Rosa Parks realized that it was her burden to stay put (Brinkley, 2005, p.109).
At the same time that bus boycotts were taking place Brown v. Board of Education (1954) was handed down in the U.S. Supreme Court, which overturned the 1896 “separate but equal” ruling.
To separate black children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone… We conclude that in the field of public education ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.
This ruling set the stage for schools to integrate their classrooms, but integration was often frustratingly slow. Education professor, Peter Moran highlights this point in his study of desegregation in Kansas City. He states that more than nine years after the Brown v. Board decision, Kansas City schools did begin a busing program, but the school system did so by transplanting whole classes from one school to the other. Students remained with the same classmates and teachers, and only mixed with other students at lunch and recess. This example from Kansas City demonstrates how well-intended regulations can still be carried out within a racist framework. A 1971 ruling did, however, build upon the Brown V. Board ruling to integrate students by busing them to other districts.
The 1971 Swann v Charlotte Mecklenburg case held the busing be used as a remedy to integrate schools. Political scholar Steven Taylor explains that the case stemmed from the Charlotte-Mecklenburg Public School District’s “freedom of choice” plan where students could transfer to schools outside their zone provided they could obtain their own transportation and that the school had vacant seats. The plaintiffs objected to this plan as it would “place the burden of desegregation on black students.” The Judge in the federal district court case had education professor, Dr. John Finger devise a desegregation plan, in which he included a cross-district busing plan to integrate the schools. Finger’s plan put school systems into districts, pairing African American and white neighborhoods together. African American students would then be bussed to white neighborhoods within their districts. On April 20, 1971 the U.S. Supreme Court upheld the order mandating the implementation of a desegregation plan utilizing busing as a tool of school integration.
It was true cross-town busing… there were a lot parents that were worried about their children because we did elementary through high school, going to a completely different part of town. Some of these trips were a half hour away, these were long rides. I think the distance concerned a lot of people.
Since the late 1980s, an about-face has occurred within public school integration. In a 2001 newspaper survey in Dayton, Ohio, 53% of African American parents felt that desegregation should end compared to 43% in 1986. Contrary to research findings, African American parents believed that integration did not increase their children’s school achievement and that it only led to white families moving away to suburbs. This switch in opinion came fifteen years after the 1986 the U.S. Supreme Court case Riddick v. School Board of Norfolk, Virginia that granted school districts the authority to dismantle its school integration programs. Since that ruling school districts across the country began ending their desegregation programs, including Dayton in 2002. The switch led to children going back to their neighborhood schools, which were originally planned within intentionally segregated residential patterns. In Dayton, this in turn not only concentrated students racially, but economically as well.
What happened in Dayton is not isolated. The U.S. Department of Education released data in 2014 stating that across the country African-American and Latino students in segregated schools are at a great disadvantage. They have the least experienced and qualified teachers, receive the worst course offerings, the worst school facilities, and the least access to AP and upper-level classes. Oftentimes the most segregated African-American schools also have high concentrations of children who grew up in poverty.
The crux of this reality is ironically not about desegregation in decades past, but about how racial patterns are still present in schools, with disparate outcomes on pupil performance depending on the student’s school district. Although much progress has been made to seek racial equity, examples from recent decades, like the Beavercreek case, still highlight severe gaps and missteps in achieving transportation equity among minority groups.
The following case studies depict how seemingly “race neutral” transportation policies and funding allocations build upon an overtly racialized past negatively affect people of color. Examples of this are taken from Atlanta, the Bay Area, and Buffalo. A positive example from Seattle shows how necessary it is to foster equity and prevent displacement among low-income (and often minority) populations through coordinating affordable housing with transportation planning.
Although 75% of MARTA’s riders are African American, MARTA has ironically been accused of not maintaining the same quality of service for its riders in minority communities. In a 2005 article in The Atlanta Journal-Constitution, one MARTA rider exclaimed: “I think the nicer trains are sent to the northern suburbs while the STANKY old 1977 original trains are sent to the Indian Creek station, and all points west of it.” Like in Free to Ride the Metropolitan Atlanta Transportation Equity Coalition (MATEC) filed an administrative complaint in 2000 with the U.S. Department of Transportation (DOT). MATEC charged MARTA with a failure to comply with the Americans with Disabilities Act and violating Title VI of the Civil Rights Act—the same charge brought to Beavercreek in Free to Ride. They claimed that a disproportionate number of MARTA’s overcrowded bus lines were in minority communities and that these communities lacked clean compressed natural gas buses and bus shelters. MATEC reported that disabled riders often faced malfunctioning equipment and endured long delays and trips before reaching their destination.
The Bay Area’s transportation system, like in most large metropolitan areas, was laid on existing racialized geography patterns. Like Dayton, Ohio’s west side, African Americans became confined in the East Bay area due to decades of enforced Jim Crow laws, 1950s restrictive housing covenants, mortgage red-lining, and occupancy criteria within public housing that maintained segregation. Race then became not just a demographic category, but acted to mold urban development across the United States.
After the streetcar (Key System) was reduced in 1960 and mostly replaced with the AC Transit Bus System, the Metropolitan Transportation Commission (MTC) looked to rail as an effective form of mass transit for people traveling from affluent suburbs to central business districts. As an effect of white flight, the Bay Area had grown tremendously and the new Bay Area Rapid Transit (BART) would serve as a commuter rail system between San Francisco and new outlying suburbs. Construction began in 1964 with service beginning in 1972. With the goals of efficiency and creating convenient commutes for white-collar professionals, BART was not designed to serve the transit needs of minority communities.
In 2011 the U.S. Department of Transportation reported that since its opening BART service levels increased, with station expansion and headway reductions, while bus service has plateaued. Funding was disproportionately invested in Bay Area rail. MTC’s 2001 “Regional Transit Expansion Program” allocated 94% of its $13 billion in funds to rail expansion. Projects to expand local (non-commuter) bus services were not eligible for the funding program at all and no funding was given to the Lifeline Transportation Study, which identified service gaps critical to low-income and transit-dependent communities. BARTs funding decisions reflect in ridership statistics. Data from 2000 shows that 21% of whites used the bus system, while BART users were wealthier and 60% White. Furthermore, although West Oakland is 12.5% white, those who boarded BART at the West Oakland station were 40% white.
As a result of calculated funding decisions in the Bay Area’s transportation systems by the MTC, residents have been displaced and neighborhoods divided, which reinforces the segregation of the city’s real estate and job markets. Scholars Golub, Marcantonio, and Sanchez summarize that “although the MTC arguably acted with no desire to harm African Americans, it built its rail expansion program on a deeply racialized and segregated map…. under the race-neutral rubric of ‘congestion management.’” As seen in Free to Ride, these local and federal decisions, which seemed independent of race on their surface, soon manifested into barriers to opportunity for minority groups.
Mirroring Dayton’s bus line, Buffalo’s number 6 bus line began in a largely working class, African American area and ended in the predominately white suburb of Cheektowaga. A transportation official stated that mall representatives felt that the bus would “not bring in the type of people they want to come to the mall.” During the case’s civil trial, mall representatives claimed that “the mall wanted to avoid… ‘riotous youth’ who use the number 6 [bus]” from congregating at the mall. After seven years of court battles and under threat of a boycott, the Galleria Mall finally permitted the number 6 bus to stop on the mall property.
Sometimes we fail to look at what’s the route that people have to take just to get to the bus route. Are there crosswalks? Are there sidewalks? And for so many low-income communities of color, the answer is no. So people are taking their lives in their hands just to be able to get to that bus stop in order to connect to that job or healthcare or childcare or educational opportunity. And as a result, the pedestrian fatality rates are disproportionate for people of color.
Although their plans are still in process, results thus far have been positive. In the case of the NewHolly/ Othelle Light Rail Station, which was planned in the late 1990s, over 1,400 mixed income rental and ownership units have been built by the Seattle Housing Authority adjacent to the station. Seattle is becoming a best practice model for equitable transit-oriented development along with other cities such as Denver, Colorado and Portland.
These case studies demonstrate how cities also view transit equity under two different lights depending on its historic background and economic context. Some like Seattle, view it as a highly valued amenity, where stress is placed on station access and housing affordability. Other cities like Dayton, stress the access that the system provides to places of employment, health services, etc. Primarily, the focus is to make sure it gets those who are dependent on it where they need to go. As a result cities like Seattle who see transit as an amenity have more robust housing markets, versus the latter, like Dayton, whose markets are more depressed.
The historical progression from Plessy v. Ferguson to the Free to Ride story shows that transportation inequities still exist, which translate to employment, health, and neighborhood disparities in minority communities. These historic and contemporary examples show the deep ties between race and transit. Even in a post-Civil Rights country, seemingly neutral decision making when layered upon a segregated geography, produces disparate impacts and reinforces racial barriers to opportunity. Consequentially moving from past decades into the present, transportation equity becomes and still remains a civil rights issue.
Armor, D. (1995). Forced Justice School Desegregation and the Law. New York: Oxford University Press.
Baugh, J. (2011). The Detroit School Busing Case: Milliken v. Bradley and the Controversy over Desegregation. Lawrence: University Press of Kansas.
Brinkley, D. (2000). Rosa Parks. New York: The Pengin Group.
Fireside, H. (2004). Separate and Unequal: Homer Plessy and the Supreme Court Decision That Legalized Racism. New York: Carroll and Graf Publishers.
Glass, I. (Narrator). (2015, July 31). The Problem We All Live With [broadcast episode]. Ira Glass in collaboration with Chicago Public Media (Producer). This American Life. Chicago, IL: National Public Radio.
Hain, E. (1973). Busing, Taxes, and Desegregation (Roger Demont, et. al. Ed.). Detroit: Metropolitan Detroit Bureau of School Studies, Inc.
Kohl, H. (2005). She Would Not be Moved: How we Tell the Story of Rosa Parks and the Montgomery Bus Boycott. New York: The New Press.
Marable, M. and L. Mullings. (2000). Let Nobody Turn us Around: Voices of Resistance, Reform, and Renewal and African American Anthology. Lanham: Rowman & Littlefield Publishers, Inc.
Medley, K. (2003). We as Freemen: Plessy v. Ferguson. Gretna: Pelican Publishing Company, Inc.
Moran, P. (2005). Race, law, and the Desegregation of Public Schools. New York: LFB Scholarly Publishing, LLC.
PBS and WOSU Public Media. (2010), Jim Crow Laws. [Electronic Source]. Retrieved September 30, 2015 from http://www.pbs.org/wgbh/americanexperience/freedomriders/issues/jim-crow-laws/.
Taylor, S. (2004). Creating Constitutional Change. (Edited by Ivers, Gregg and Kevin McGuire Ed.). Charlottesville: University of Virginia Press.
Telgen, D. (2005). Defining Moments Brown v. Board of Education. Detroit: Omnigraphics, Inc.
The Atlanta Journal-Constitution. (2005, November 13). COMMUTANTS COME HOME: Highs and Lows of MARTA. The Atlanta Journal-Constitution. Pg.3C.
Wright, R. (1991). The Birth of the Montgomery Bus Boycott. Southfield. Charro Book Co.
Ziegler, B. (1958), Desegregation and the Supreme Court. Washington, DC: Heath and Co.
What lead Dayton to become a segregated city? How does Dayton’s history compare to other U.S. cities? How does this history compare with your city?
Why did busing become necessary to desegregate schools? List some examples from Dayton, Ohio.
Why did political representatives believe that racial desegregation was not needed anymore?
What ironies has Dayton witnessed since racial desegregation? How has the past repeated itself in Dayton?
What examples, past and present, show a connection between transportation and civil rights issues?
What benefits and limitations can transportation policy create the in realms of health care, economic opportunity, and affordable housing? What advantages or setbacks have you or people you know experienced due to transportation policy?
What suggestions do the authors give to foster transportation equity? How can some of their ideas be applied in your community?
What do you believe is the biggest transportation inequity in your city? Why? What historical and policy decisions may have contributed to it? What reforms would you propose to improve the situation?
America’s Unfair Rules of the Road: How our Transportation System Discriminates Against the most Vulnerable.
 Litman, T. Victoria Transport Policy Institute. (2015). Evaluating Transportation Equity: Guidance for Incorporating Distributional Impacts in Transportation Planning. [Electronic version]. Victoria, British Columbia: Retrieved from http://www.vtpi.org/equity.pdf, pg.9.
 Fireside, H. (2004). Separate and Unequal: Homer Plessy and the Supreme Court Decision That Legalized Racism. New York: Carroll and Graf Publishers. pg. 89.
 Wilson, Wishon. (2004). Brown v. Board of Education at 50 Reflections on Plessy, Brown, and Our Professional Conscience. [Electronic version]. Young Children, 59(3), 77-79. Retrieved September 16, 2015, from ERIC database http://www.jstor.org.proxy.lib.ohio-state.edu/stable/42729106 .
 Medley, Keith. (2003). We as Freemen: Plessy v. Ferguson. Gretna: Pelican Publishing Company, Inc.
 Brinkley, D. (2000). Rosa Parks. New York: The Penguin Group. pg.57.
 Marable, M. and L. Mullings. (2000). Let Nobody Turn us Around: Voices of Resistance, Reform, and Renewal and African American Anthology. Lanham: Rowman & Littlefield Publishers, Inc. pg.376.
 Wright, R. (1991). The Birth of the Montgomery Bus Boycott. Southfield. Charro Book Co. pg.63.
 Baugh, J. (2011). The Detroit School Busing Case: Milliken v. Bradley and the Controversy over Desegregation. Lawrence: University Press of Kansas. pg.13.
 P.L. 347 U.S. 483 (1954) at 494-495 as cited in Armor, D. pg.19.
 Taylor, S. (2004). Creating Constitutional Change. (Edited by Ivers, Gregg and Kevin McGuire Ed.). Charlottesville: University of Virginia Press. pg.298.
 Glass, I. (Narrator). (2015, July 31). The Problem We All Live With [broadcast episode]. Ira Glass in collaboration with Chicago Public Media (Producer). This American Life. Chicago, IL: National Public Radio. para. 18 and 19.
 Golub, A, R. Marcantonio & T. Sanchez.
 Golub, A, R. Marcantonio & T. Sanchez pg.711.
 Bay Area Rapid Transit. (2015). A History of BART: The Concept is Born. Retrieved September 14, 2015 from https://www.bart.gov/about/history.
 Golub, A, R. Marcantonio & T. Sanchez pg.712.
 Golub, A, R. Marcantonio & T. Sanchez pg.715.
 Golub, A, R. Marcantonio & T. Sanchez pg.718.
 Golub, A, R. Marcantonio & T. Sanchez pg.714.
 Golub, A, R. Marcantonio & T. Sanchez pg.722.
 Duke, L. (1999, November 15). Buffalo Family Seeking Millions for Fatal Lack of a Bus Stop. [Electronic version]. The Washington Post, p.A03. Retrieved September 16, 2015 from http://www.washingtonpost.com/wp-srv/WPcap/1999-11/15/002r-111599-idx.html. pg.A03.
 Quamie, L. 2011. Transportation Equity a Key to Winning Full Civil Rights. Reimagine Race Poverty and the Environment. 18(2), 59-60. [Electronic source]. Retrieved from http://reimaginerpe.org/files/18-2.quamie.pdf. pg.60.
 Centers for Disease Control and Prevention. (2013). Motor Vehicle Traffic-Related Pedestrian Deaths — United States 2001-2010. Mobility and Mortality Weekly Report. 62(15), 277-282. Retrieved September 16, 2015 from http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6215a1.htm. pg.277-282.
 Puget Sound Regional Council. (1999). Creating Transit Station Communities in the Central Puget Sound Region. Seattle: Puget Sound Regional Council. Retrieved from http://www.psrc.org/assets/3463/_99-09_todreport.pdf?processed=true. pg.7.
 Growing Transit Communities. (2013). Phase 1 Report: Best practices Research and Assessment of Station Areas. Seattle: Growing Transit Communities. Retrieved from http://www.psrc.org/assets/9341/EastCorridorBestPracticesPhase1.pdf?processed=true. pg.1.

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


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