United States v. Cecchetelli

573 F.Supp.3d 452

UNITED STATES of America, Plaintiff,

v.David CECCHETELLI, Defendant.

Criminal Action No. 20-30008-PBS

United States District Court, D. Massachusetts.

Filed November 22, 2021

Laura Kaplan, Assistant US Attorney, United States Attorney's Office, Boston, MA, for Plaintiff.

Mark D. Smith, Laredo & Smith, LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

Saris, D.J.

INTRODUCTION

Defendant David Cecchetelli is charged with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). He moves to dismiss the indictment on the basis that 18 § 922(g)(1) is unconstitutional as applied to him under the Second Amendment. Cecchetelli also moves to suppress the ammunition evidence obtained from execution of a search warrant at 126 Firglade Avenue, Springfield, Massachusetts. Cecchetelli argues that the search was unconstitutional under the Fourth Amendment, as his bedroom constituted a separate "unit" of the residence.

After a non-evidentiary hearing, the Court DENIES both Cecchetelli's Motion to Dismiss (Dkt. 75) and Cecchetelli's Motion to Suppress (Dkt. 80).

FACTUAL BACKGROUND ¹

Cecchetelli resided in an apartment at 126 Firglade Avenue in Springfield, Massachusetts with his nephew, Michael Cecchetelli ("Michael"). The property is a colonial house with two apartments. Cecchetelli slept in the bedroom (which had a lock on the door), and Michael slept in the dining room. The two shared a kitchen, bathroom, and living room. They paid rent separately to the landlord.

At some point before December of 2019, the government began to investigate Michael, whom it believed to be the East Coast Regional Overseer of the Latin Kings. Through surveillance and cell phone records, the government determined that Michael lived at 126 Firglade Avenue with his uncle, David.

On December 2, 2019, the government applied for a search warrant of 126 Firglade Avenue to recover evidence related to Michael's involvement with the Latin Kings. Magistrate Judge Bowler issued a warrant later that day, authorizing the government to search "all rooms, crawl spaces, storage areas, and any containers such as safes, vaults, file cabinets, drawers, luggage, briefcases, valises, boxes, jewelry boxes, cans, bags, purses, and trash cans" and "all areas commonly accessible to the tenants of 126 FIRGLADE AVENUE, SPRINGFIELD, MA, including hallways, basements, attic spaces, storage spaces, driveway, garage, front yard, back yard, and curtilage of the property" for such evidence. Dkt. 83-3 at 12.

Officers executed the search warrant at approximately 4:00 a.m. on December 5, 2019. After announcing their presence and entering the property, they observed Cecchetelli emerging from the bedroom and Michael emerging from the rear of the apartment. Both men were wearing only boxers.

Officers arrested Michael pursuant to the warrant. At his request, the officers retrieved sweatpants, a shirt, and sneakers from the dining room before transporting him to an FBI location for booking.

Cecchetelli was informed of the search warrant and remained seated on a sofa in the living room. He chatted with officers, eventually requesting that officers retrieve his glasses, sneakers, and a shirt, all of which were located "right there by [his] bureau in there." Dkt. 83-1 at 2–3. When officers searched the room, they discovered four rounds of ammunition under the bed and a loaded firearm with five rounds of ammunition behind a table fan on the bureau.

Cecchetelli pled guilty in 2005 for Gaming Conspiracy in violation of 18 U.S.C. § 371 and Conducting an Illegal Gambling Business in violation of 18 U.S.C. § 1955, crimes punishable by a term of imprisonment of more than one year. He received an 8-month sentence. The conviction came out of an investigation into a bookkeeping operation involving Genovese Crime Family members. Because of Cecchetelli's prior felony conviction, the officers arrested him and charged him with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1).²

DISCUSSION

I. Motion to Dismiss

Cecchetelli first asks the Court to dismiss the indictment on the ground that 18 U.S.C. § 922(g)(1), which prohibits the possession of firearms by convicted felons, is unconstitutional under the Second Amendment as applied to him because he committed the nonviolent felony of sports betting.

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II. In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court recognized an individual right to bear arms. 554 U.S. at 635, 128 S.Ct. 2783. Noting that the Court's "first in-depth examination of the Second Amendment" does not "clarify the entire field," the decision at least applies to "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id.

Like other rights, the Second Amendment right is "not unlimited." Id. at 626, 128 S.Ct. 2783. The Court noted that "nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," among other examples, calling these regulatory measures "presumptively lawful." Id. at 626–27, 627 n.26, 128 S.Ct. 2783. The Court again endorsed the constitutionality of felon in possession measures in McDonald v. City of Chicago, Ill., 561 U.S. 742, 786, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (reiterating that the Heller holding "did not cast doubt" on regulatory measures like felon-in-possession prohibitions and "repeat[ing] those assurances here"). See also Vartelas v. Holder, 566 U.S. 257, 271, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012) (referencing Heller’s approval of felon dispossession laws).

After Heller, the First Circuit—along with every other circuit to consider the issue—has held that § 922(g)(1) does not facially violate the Second Amendment. See United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011) (collecting cases). Stating "[i]t is well-established that felons are more likely to commit violent crimes than are other law-abiding citizens," the First Circuit ventured that after Heller the Supreme court "may be open to claims that some felonies do not indicate potential violence" and "might even be open to highly fact-specific objections." Id. at 113. The court stressed that this approach "would obviously present serious problems of administration, consistency and fair warning." Id. Because Torres-Rosario had previously been convicted of two drug offenses and "drug dealing is notoriously linked to violence," the court dispensed with its analysis fairly quickly: "Assuming arguendo that the Supreme court might find some felonies so tame and technical as to be insufficient to justify the ban, drug dealing is not likely to be among them." Id.

Cecchetelli contends that the First Circuit would apply intermediate scrutiny to his as-applied challenge, citing United States v. Booker, 644 F.3d 12, 25 (1st Cir. 2011). The government responds that Booker dealt with a different subsection of the statute, and the appropriate standard in this case is still unknown. Booker considered a facial challenge under § 922(g)(9) to the state misdemeanor offense of domestic violence. Booker, 644 F.3d at 22. Although the government in Booker urged the court to adopt the intermediate scrutiny standard, the court thought it sufficient to conclude: "[A] categorical ban on gun ownership by a class of individuals must be supported by some form of ‘strong showing,’ necessitating a substantial relationship between the restriction and an important governmental objective." Booker, 644 F.3d at 25 (citing United States v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) ). It held that "the categorical regulation of gun possession by domestic violence misdemeanants thus appears consistent with Heller’s reference to certain presumptively lawful regulatory measures." Id. See also United States v. Rene E., 583 F.3d 8, 15 (1st Cir. 2009) (discussing the debate among historians about the extent to which the right to bear arms in the founding period turned upon concerns about the possessor's "virtue").

The First Circuit did not explicitly adopt an intermediate scrutiny standard, but the "strong showing" analysis is substantially the same. As stated by the Supreme Court, under the intermediate scrutiny standard, "a statutory classification must be substantially related to an important governmental objective." Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). The "fit" between the statute and the objective need not be perfect, but it must be reasonable. United States v. Marzzarella, 614 F.3d 85, 98 (3d Cir. 2010) ; Kanter v. Barr, 919 F.3d 437, 448 (7th Cir. 2019).

Congress enacted § 922(g)(1) to "keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society." Small v. United States, 544 U.S. 385, 393-94, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005) (citations omitted). The government cites public safety and crime prevention as important governmental interests. Cecchetelli does not dispute that "it is an important government objective to keep the public safe." Dkt. 75 at 16. He argues, however, that this interest only justifies disarming violent felons, and "[p]erhaps" individuals "convicted of fraud or other serious crimes of deception." Id. He asks "[w]hat important government objective could be served by prohibiting someone who was convicted of a non-violent gaming crime from possessing ammunition?" Id. But recidivism risk and public safety concerns are not limited to those with prior violent convictions.

Courts have upheld the felon ban in as-applied challenges where the individuals sought injunctive relief to restore their Second Amendment rights after being convicted of non-violent...