United States v. Giambro

676 F.Supp.3d 9

UNITED STATES of America v. Dario GIAMBRO, Defendant.

Docket no. 2:22-cr-00044-GZS

United States District Court, D. Maine

Signed May 30, 2023

Michael Conley Former, Assistant U.S. Attorney, U.S. Attorney's Office District of Maine, Portland, ME, Nicholas S. Heimbach, Assistant U.S. Attorney, DOJ-USAO, Portland, ME, for United States of America.

Andrew S. Edwards, Northland Legal Solutions, LLC, PA, Portland, ME, Edward S. MacColl, Marshall J. Tinkle, Thompson, MacColl & Bass LLC, P.A., Portland, ME, William Maselli, Law Office of William Maselli, Dover-Foxcroft, ME, for Defendant.

ORDER ON MOTION TO DISMISS INDICTMENT

George Z. Singal, United States District Judge

Before the Court is Defendant Dario Giambro's Motion to Dismiss the Indictment (ECF No. 100). Having considered the Motion and related filings (ECF Nos. 116, 118, 123), the Court DENIES the Motion for the reasons stated herein.¹

I. BACKGROUND

In September 2007, following a one-day jury trial conducted by this Court, Defendant Dario Giambro was convicted of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d), 5841, 5845(a), 5845(e), and 5871. (See D. Me. Docket No. 2:07-cr-41-GZS, ECF No. 82, PageID # 318.) As summarized by the First Circuit, the underlying facts of that case are as follows:

On the night of February 10, 2006, police were called to Giambro's Auburn, Maine home. Giambro had been in an altercation with Richard McClain, who had been involved in a dispute with Giambro's son and had come to Giambro's house. Giambro claimed he fired two warning shots, one of which ricocheted and hit McClain. Giambro was arrested on state charges but the charges were later dismissed when he was found to have acted in self-defense.

After the shooting, officers obtained a search warrant and seized 204 firearms from Giambro's home.

United States v. Giambro, 544 F.3d 26, 28 (1st Cir. 2008). One of the firearms seized, later determined to be an unregistered "Marble Game Getter," formed the basis of Defendant's indictment and subsequent conviction in that case. See id.² His conviction prohibited him from possessing any firearm or ammunition. See 18 U.S.C. § 922(g)(1).

In January 2022, law enforcement discovered and, after securing a warrant, seized numerous firearms from Defendant's home in Hebron, Maine.³ Three months later, a federal grand jury charged Defendant with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a), based on his possession of sixteen firearms on or about January 26, 2022. (See Indictment (ECF No. 3), PageID #s 2-3.)

II. DISCUSSION

In Defendant's Motion to Dismiss the Indictment, he asserts that "section 922(g)(1) is unconstitutionally broad in defining prohibited persons and as applied to him in violation of the Second Amendment." (Def. Mot. (ECF No. 100), PageID # 382.)⁴ His argument largely relies on the Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022). According to Defendant, "Bruen transformed the Second Amendment landscape" and "creates a presumption that regulations that impinge on gun possession violate the Second Amendment." (Def. Reply (ECF No. 123), PageID # 605.) He also asserts that the Second Amendment, as well as the Equal Protection Clause, "precludes the Government from disemboweling [his] right to keep arms based on selective prosecution for a strict liability offense." (Def. Mot., PageID #s 382-83.)

The Second Amendment provides that "the right of the people to keep and bear [a]rms[ ] 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) and McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court "recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense." New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 2122, 213 L.Ed.2d 387 (2022). The Court made clear, however, "that the right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' " McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783); see Heller, 554 U.S. at 626, 128 S.Ct. 2783 ("Like most rights, the right secured by the Second Amendment is not unlimited."). Mindful of this, the Court reaffirmed the presumptive lawfulness of "longstanding regulatory measures [such] as 'prohibitions on the possession of firearms by felons.' " McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783).

In Bruen, the Supreme Court revisited its Second Amendment jurisprudence and clarified that the following standard applies when analyzing Second Amendment claims:

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. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'

142 S. Ct. at 2129-30.⁵ Thus, at issue here is whether 18 U.S.C. § 922(g)(1), which prohibits convicted felons from possessing firearms, meets that standard. Defendant maintains that it does not. For the following reasons, the Court concludes that this position "has no more merit than the ninety-plus defendants that have hoed the same row in the past." United States v. Cummings, No. 1:22-CR-51-HAB, 2023 WL 3023608, at *1 (N.D. Ind. Apr. 20, 2023).

First, Bruen did not disturb the controlling caselaw that came before it. As the Supreme Court explicitly acknowledged, Bruen "is consistent with Heller and McDonald," which recognized that Second Amendment rights apply to "ordinary, law-abiding citizens." Bruen, 142 S. Ct. at 2122 (noting that the Second Amendment " 'elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense" (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783)).⁶ Those cases, as noted previously, reaffirmed the presumptive lawfulness of "longstanding regulatory measures [such] as 'prohibitions on the possession of firearms by felons.' " McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 626, 128 S.Ct. 2783); see Heller, 554 U.S. at 626, 627 n.26, 128 S.Ct. 2783 (characterizing the "longstanding prohibitions on the possession of firearms by felons" as "presumptively lawful regulatory measures"). Keeping with Heller and McDonald, the First Circuit has rejected a constitutional challenge to § 922(g)(1). See United States v. Torres-Rosario, 658 F.3d 110, 113 (1st Cir. 2011). Because Bruen has not "unmistakably . . . cast [that decision] into disrepute," this Court is bound by such precedent. Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 349 (1st Cir. 2004) ("Until a court of appeals revokes a binding precedent, a district court within the circuit is hard put to ignore that precedent unless it has unmistakably been cast into disrepute by supervening authority."), abrogated on other grounds by Carson v. Makin, 596 U.S. 767, 142 S. Ct. 1987, 213 L.Ed.2d 286 (2022); see United States v. Johnson, No. 22-20300, 2023 WL 3431238, at *1 (5th Cir. May 12, 2023) ("[T]here is no binding precedent explicitly holding that § 922(g)(1) is unconstitutional and [ ] it is not clear that Bruen dictates such a result."). Additionally, "[r]elying on the Supreme Court's clear identification of the Second Amendment right in Heller and Bruen as the right of 'law-abiding' citizens to keep and bear arms, numerous post-Bruen courts have concluded that Section 922(g)(1)['s] disqualifying convicted felons from the Second Amendment's protection is consistent with Bruen." United States v. Walker, No. 3:20-CR-0039, 2023 WL 3020321, at *2 (D.V.I. Apr. 20, 2023) (collecting cases); United States v. Jackson, No. CR221969TUCJGZJR, 2022 WL 18956628, at *4 (D. Ariz. Dec. 9, 2022), report and recommendation adopted, 2023 WL 1965424 (D. Ariz. Feb. 13, 2023) (same); United States v. Carrero, No. 2:22-CR-00030, 635 F.Supp.3d 1210, 1213-14 (D. Utah Oct. 14, 2022) (same). Notably, "after Bruen, no appellate court has held that § 922(g)(1) violates the Second Amendment." United States v. Hill, No. 22-2400, 2023 WL 2810289, at *2 (7th Cir. Apr. 6, 2023). This Court finds no basis to disagree with these precedents.

Second, under the Bruen framework, § 922(g)(1) withstands Defendant's constitutional challenge. At the first step of the Bruen framework, the Court must consider whether "the Second Amendment's plain text covers" the "conduct" proscribed by § 922(g)(1). 142 S. Ct. at 2129-30; see United States v. Rowson, No. 22 CR. 310, 652 F.Supp.3d 436, 459 (S.D.N.Y. Jan. 26, 2023) ("[T]he Court's focus in Bruen was not on potentially disqualifying status characteristics of the challengers to the statute. It was instead on whether the Amendment's text covered the "conduct" the statute proscribed."); United States v. Kays, 624 F.Supp.3d 1262, 1265 (W.D. Okla. 2022) (noting that "an individual's conduct, rather than status" is what determines whether "Second Amendment protection exists"). In Bruen, it was "undisputed that [the] petitioners . . . - two ordinary, law-abiding, adult citizens - [were] part of 'the people' whom the Second Amendment protects." Id. Because it was also undisputed that "handguns are weapons 'in common use' today for self-defense," the Supreme Court then "turn[ed] to whether the plain text of the Second Amendment protect[ed] [the petitioners]'s proposed course of conduct—carrying handguns publicly for self-defense." Id. Here, in stark contrast, Defendant is not an "ordinary, law-abiding" citizen but rather a convicted felon.⁷ He...