United States v. James

677 F.Supp.3d 329

UNITED STATES of America v. Ivan JAMES (1), Kai James (2), Joh Williams (3),Malachi Benjamin (4), Jahkiebo Joseph (6), Ariel Petersen (7)

CRIMINAL ACTION NO. 19-79

District Court of the Virgin Islands, Division of St. Thomas and St. John

Signed June 14, 2023

Adam Francis Sleeper, Delia L. Smith, U.S. Attorneys/Assistant U.S. Attorneys, United States Attorney's Office, St. Thomas, VI, for Plaintiff.

Carl R. Williams, SmithWilliams, PLLC U.S. Virgin Islands, St. Thomas, VI, Jennie Mariel Espada, CJA Usvi, San Juan, PR, Ruben Cerezo-Hernandez, Cerezo Law Office, San Juan, PR, Jennie Espada, San Juan, PR, William A. Morrison, Pro Hac Vice, The Morrison Firm LLC, Atlanta, GA, Joseph A. DiRuzzo, III, DiRuzzo & Company, Fort Lauderdale, FL, for Ivan James.

Bruce Steven Harvey, Bruce Harvey, Law Office of Bruce S. Harvey, Atlanta, GA, Darren John-Baptiste, St. Thomas, VI, Joseph A. DiRuzzo, III, DiRuzzo & Company, Fort Lauderdale, FL, Ronald E. Russell, The Russell Law Firm, LLP, Kingshill, VI, for Kai James.

Yohana M. Manning, Christiansted, VI, Joseph A. DiRuzzo, III, DiRuzzo & Company, Fort Lauderdale, FL, for Joh Williams.

Joannie Plaza-Martinez, Plaza-Martinez Law Firm, San Juan, PR, Lorenzo J. Palomares, Lorenzo J. Starbuck Palomares, Palomares Starbuck & Associates, Miami, FL, Joseph A. DiRuzzo, III, DiRuzzo & Company, Fort Lauderdale, FL, for Malachi Benjamin.

Melaney LaGrone, Charlotte Amallie, VI, Joseph A. DiRuzzo, III, DiRuzzo & Company, Fort Lauderdale, FL, Michael L. Sheesley, MLSPC, St. Thomas, VI, for Jahkiebo Joseph.

Joseph A. DiRuzzo, III, DiRuzzo & Company, Fort Lauderdale, FL, for Ariel Petersen.

MEMORANDUM OPINION

Smith, District Judge¹

There are two issues presently before the court. First, a subset of defendants move to dismiss several counts of the operative indictment, arguing that the statute on which the charges are based is unconstitutional. Second, all of the defendants move to compel the government to immediately disclose the identity of several confidential informants. The court will deny both motions.

In August 2022, a grand jury returned a second superseding indictment charging three individuals with, inter alia, five counts under 18 U.S.C. section 922(a)(5) for unlawfully transferring firearms to a person not being a licensed importer, manufacturer, dealer, or collector of firearms. One of the defendants has filed a motion asking the court to dismiss these five counts of the indictment, arguing that the statute is unconstitutional because it infringes on the rights of citizens to keep and bear arms protected under the Second Amendment.

Courts must conduct a two-step analysis in evaluating whether a statute withstands a challenge under the Second Amendment. First, the court must determine whether the Second Amendment's plain text covers the regulated conduct and if it does, the Constitution presumptively protects that conduct. At step two, the government must affirmatively justify the regulation by demonstrating that the modern law is consistent with this Nation's historical tradition of firearm regulation. The government must meet this burden by presenting historical analogues that are sufficiently relevant to show that the modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.

The defendants' challenge fails at step one. The statute in question places conditions and qualifications on the transfer of arms between unlicensed individuals, and does not limit the ability for an individual to obtain a firearm within the jurisdiction lawfully. Based on the Second Amendment's core purpose, the right to armed self-defense in case of confrontation, this regulation does not fall within the ambit of the Amendment's plain text. Even if the court were to come to a contrary conclusion at step one, there are sufficient historical analogues to the regulated conduct to show that the modern regulation imposes a burden within the scope of the Second Amendment as understood to the people when the amendment was adopted. Accordingly, the court will deny the motion to dismiss counts five through ten of the second superseding indictment.

Second, the defendants move to compel the government to immediately disclose the identities of various confidential informants. The government has the privilege to withhold the identity of confidential informants that they intend to call to testify until the eve of trial. Here, the government has that right and no evidence has been adduced to show that any exceptions to this rule are applicable. Even applying the balancing test cited by the defendants, the factors weigh in favor of non-disclosure. Accordingly, the court will also deny the defendants' motion to compel.

I. PROCEDURAL HISTORY

A grand jury issued an indictment on December 18, 2019, changing five defendants—Ivan James, Kai James, Joh Williams, Malachi Benjamin, and Tallisa Ceaser²—with eight counts of drug trafficking, conspiracy, and possession of a firearm in furtherance of the drug trafficking conspiracy. See Indictment at 1-7, Doc. No. 1. The grand jury issued a twenty-count superseding indictment on January 30, 2020, adding two defendants, Jahkiebo Joseph and Ariel Petersen. See Doc. No. 48. On August 11, 2022, the grand jury returned a twenty-three count second superseding indictment. See Second Superseding Indictment, Doc. No. 313.

Counts five through ten of the second superseding indictment charged three defendants, Kai James, Jahkiebo Joseph, and Ariel Petersen under 18 U.S.C. sections 922(a)(5) and 942(a)(1)(D). See Second Superseding Indictment at 3-6. On October 24, 2022, defendant Ariel Petersen ("Petersen") moved to dismiss these counts, arguing that section 922(a)(5) is unconstitutional on its face and, in the alternative, as applied because it conflicts with the Second Amendment.³ See Mot. to Dismiss at 13, Doc. No. 353. On December 30, 2022, the government filed a response in opposition to Petersen's motion to dismiss. Doc. No. 385. Petersen filed a reply to the government's response on January 31, 2023. Doc. No. 407. Petersen later filed two notices of supplemental authority. Doc. Nos. 412, 480. On April 4, 2023, the court held a hearing on all outstanding motions, including Petersen's motion to dismiss.

During the hearing on the motion to change vicinage, the government presented testimony from three witnesses who work with the confidential informants on the instant case. These witnesses testified that the confidential informants would fear for their safety and the safety of their families if the trial were to be held in St. Croix and they were called to testify. After the government presented this testimony, the defendants orally moved to compel disclosure of the identities of the confidential informants. The court denied the request. The defendants jointly requested leave to file a motion to compel, which the court granted. On April 5, 2023, defendant Jahkiebo Joseph ("Joseph") filed a motion to compel disclosure.⁴ See Doc. No. 475. On April 26, 2023, the government filed a response in opposition to the motion to compel. See Doc. No. 490. Both motions are now ripe for review.

II. SUMMARY OF THE OPERATIVE INDICTMENT

The second superseding indictment charges twenty-two counts against a total of seven defendants. Three of the defendants, Kai James, Joseph, and Petersen are charged with, inter alia, five counts of transferring ten total firearms to unlicensed residents of states other than their own without having a license to do so, in violation of 18 U.S.C. sections 922(a)(5) and 924(a)(1)(D). See Second Superseding Indictment at 3-6. In whole, section 922(a)(5) states:

(a) It shall be unlawful—

(5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes.

18 U.S.C. § 922(a)(5). 18 U.S.C. section 924(a)(1)(D) states:

(a)

(1) Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever—

(D) willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both.

18 U.S.C. § 924(a)(1)(D).

Count 5 charges three defendants, Kai James, Joseph, and Petersen with conspiracy to transport five firearms to Jason Freeman, a person not being a licensed importer, manufacturer, dealer, and collector of firearms while knowing and with reasonable cause to believe that he did not reside in St. Croix, in violation of 18 U.S.C. sections 922(a)(5) and 924(a)(1)(D). See Second Superseding Indictment at 3. The firearms allegedly transferred are (1) a Smith & Wesson, 9 Millimeter Handgun with the serial number HPP3181; (2) a Smith & Wesson, 9 Millimeter Handgun with the serial number HSR3500; (3) a Glock 22, .40 Caliber Handgun with the serial number BDUN801; (4) a Glock 19, 9 Millimeter Handgun with the serial number RYF733; and (5) a Colt Sporter .223 Caliber, AR-15 Rifle with a serial number MH064994. See id. Counts 6-10 charge the same three defendants under the same statutes, alleging they transferred the above-listed firearms to the same...