United States v. Bell

1

UNITED STATES OF AMERICA, v. TYRONE BELL, Defendant.

No. 23 Cr. 212 (JPC)

United States District Court, S.D. New York

March 8, 2024

OPINION AND ORDER

JOHN P. CRONAN, United States District Judge:

The Government alleges that, on December 6, 2022, Defendant Tyrone Bell discharged a firearm in the vicinity of 366 Canal Place in the Bronx. See Dkt. 1 (“Complaint”) ¶¶ 1, 4-6; Dkt. 6 (“Indictment”) ¶ 1; see also Dkt 25 (“Motion to Dismiss”) at 1. Because Bell had previously been convicted of a felony, he now faces a federal criminal charge for unlawfully possessing ammunition on that date in violation of 18 U.S.C. § 922(g)(1). Indictment ¶ 1; see Complaint ¶ 3. The Court has set a trial date of April 22, 2024. See Dkt. 19.

On November 13, 2023, Bell filed three pretrial motions. First Bell moves to dismiss the Indictment, challenging the constitutionality of Section 922(g)(1) under the Second Amendment. Dkt. 25. Second, Bell seeks suppression of statements he made to law enforcement on January 18, 2023 arguing that those statements were involuntarily given. Dkt 24 (“Motion to Suppress”). And third, Bell also seeks suppression of the results of searches conducted of two cellular telephones that were seized incident to his arrest on January 18, 2023, citing the Government's delay in applying for a search warrant for those devices. Dkt. 23. The Government filed an omnibus opposition on November 30, 2023. Dkt. 28. For reasons that follow, the Court denies Bell's motion to dismiss and motion to suppress his January 18, 2023 statements, and will conduct oral argument on his motion to suppress the results of the cellphone searches on April 9, 2024, at 2:30 p.m. II. Motion to Dismiss the Indictment

Citing the Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen, 142 S.Ct. 2111 (2022), Bell seeks dismissal of the Indictment because his alleged conduct was protected by the Second Amendment. While Bell acknowledges that he has a criminal history, he maintains that Section 922(g)(1) infringes on his right to keep and bear arms because “neither the text of the Second Amendment nor historical tradition allow[s] the complete lifetime prohibition on [his] possession of guns.” Motion to Dismiss at 3. Because the constitutionality of Section 922(g)(1) was upheld by the Second Circuit in United States v. Bogle, 717 F.3d 281 (2d Cir. 2013) (per curiam), and that decision was not disturbed by Bruen, Bell's motion to dismiss is denied. Indeed, this Court recently considered and rejected meaningfully indistinguishable arguments in United States v. Hampton, No. 21 Cr. 766 (JPC), 2023 WL 3934546 (S.D.N.Y. June 9, 2023).

As this Court concluded in Hampton, id. at *10-13, Section 922(g)(1) remains constitutional post-Bruen. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court made clear that “the right secured by the Second Amendment is not unlimited” and that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Id. at 626. Two years later, the plurality in McDonald v. City of Chicago, 561 U.S. 742 (2010), “repeat[ed Heller's] assurances” that the holding “did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill.” Id. at 786 (internal quotation marks omitted). The Court in Bruen characterized its holding as being “consistent with Heller and McDonald.” 142 S.Ct. at 2122. And while the majority opinion in Bruen did not explicitly endorse felon-in-possession laws, it acknowledged that the right to keep and bear arms is “subject to certain reasonable, well-defined restrictions.” Id. at 2156. In addition, six of the nine Justices authored or joined separate opinions which, among other things, noted that Bruen does not disrupt or abrogate Heller's and McDonald's endorsements of felon-in-possession laws. In a concurring opinion joined by Chief Justice Roberts, Justice Kavanaugh noted that when “[p]roperly interpreted, the Second Amendment allows a ‘variety' of gun regulations,” including limitations on the possession of firearms by felons. Id. at 2162 (Kavanaugh, J., concurring) (quoting Heller, 554 U.S. at 636). Justice Alito similarly “reiterate[d]” that “[a]ll that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law. . . is unconstitutional,” but that the Court's holding does not “disturb[] anything that we said in Heller or McDonald . . . about restrictions that may be imposed on the possession or carrying of guns.” Id. at 2157, 2159 (Alito, J., concurring). The three dissenting Justices also noted that they “underst[ood] the Court's opinion today to cast no doubt on th[e] aspect of Heller's holding” that felon-in-possession laws are “presumptively lawful.” Id. at 2189 (Breyer, J., joined by Sotomayor and Kagan, JJ., dissenting).

In addition, following Heller and McDonald, the Second Circuit held in Bogle that “Section 922(g)(1) is a constitutional restriction on the Second Amendment rights of convicted felons.” 717 F.3d at 281-82. In doing so, the Second Circuit rejected a defendant's argument that Section 922(g)(1) violated his Second Amendment rights under “recent Supreme Court opinions [i.e., Heller and McDonald] developing a more expansive interpretation of the Amendment,” and explained that “in both of these opinions, the Supreme Court clearly emphasized that recent developments in Second Amendment jurisprudence should not ‘be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.'” Id. at 281 (quoting Heller, 554 U.S. at 626).

The Court also is not persuaded by Bell's argument that the standard articulated in Bruen, including its repudiation of the “‘two-step' framework for analyzing Second Amendment challenges that combines history with means-end scrutiny,”^[1]Bruen, 142 S.Ct. at 2125, compels a different result. See Motion to Dismiss at 5. The Bruen Court articulated the following standard for applying the Second Amendment to a government firearm regulation: “When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.” Bruen, 142 S.Ct. at 2129-30. Bogle was not inconsistent with that approach. In Bogle, the Second Circuit did not employ a means-ends interest balancing; rather the Second Circuit reasoned purely from language in Heller and McDonald expressly affirming “longstanding prohibitions on the possession of firearms by felons.” Bogle, 717 F.3d at 281 (internal quotation marks omitted). And again, the Court in Bruen made clear that its holding was “consistent with Heller and McDonald.” 142 S.Ct. at 2122.

Thus, judges in this District have repeatedly held that Bruen did not disturb the Second Circuit's holding in Bogle. See, e.g., United States v. Gonzalez, No. 23 Cr. 18 (MKV), 2024 WL 96517, at *2-5 (S.D.N.Y. Jan. 9, 2024); United States v. Davila, No. 23 Cr. 292 (JSR), 2023 WL 5361799, at *2-3 (S.D.N.Y. Aug. 22, 2023); United States v. Garlick, No. 22 Cr. 540 (VEC), 2023 WL 2575664, at *4-5 (S.D.N.Y. Mar. 20, 2023); United States v. Barnes, No. 22 Cr. 43 (JPO), 2023 WL 2268129, at *1-2 (S.D.N.Y. Feb. 28, 2023). This Court, as it did in Hampton, does as well.

To the extent Bell seeks to separately advance an as-applied challenge with respect to his particular criminal history, that too is rejected. As proffered by the Government, Bell's prior felony convictions-a November 22, 2004 conviction for attempted robbery in the third degree and an October 12, 2022 conviction for attempted criminal possession of a weapon in the second degree (less than two months before the alleged unlawful ammunition possession here), Opposition at 34; Complaint ¶ 3-fall squarely within Section 922(g)(1), which, as discussed, is constitutional. See 18 U.S.C. § 922(g)(1) (applying to a person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year”); see also Motion to Dismiss at 1 (“Mr. Bell is 37, and although he has some criminal history, all but one of his prior convictions are more than a decade old.”). Accordingly, Section 922(g)(1) is not unconstitutional as applied to Bell. See, e.g., United States v. Sternquist, No. 22 Cr. 473 (DLI), 2023 WL 6066076, at *6 (E.D.N.Y. Sept. 15, 2023); Davila, 2023 WL 5361799, at *5 n.7; United States v. King, 634 F.Supp.3d 76, 83 (S.D.N.Y. 2022).

Bell's motion to dismiss the Indictment therefore is denied.

II. Motion to Suppress Bell's January 18, 2023 Statements

The parties seem to agree that an officer of the New York City Police Department (“NYPD”) conducted a custodial interview of Bell on January 18, 2023. See Complaint ¶ 6; Motion to Suppress at 1 (seeking “an Order suppressing Mr. Bell's post-arrest statements”). The Government has submitted a video of that interview, Opposition, Exh. A (“Video”), and contends that Bell was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); knowingly, intelligently, and voluntarily waived those rights; and made a series of inculpatory statements. Opposition at 46. Bell, in turn, seeks to suppress his January 17, 2023 statements, contending that “his statements were involuntary” because he “did not voluntarily and knowingly waive his Miranda rights.” Motion to Suppress at 2-4.

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