United States v. Lewis

682 F.Supp.3d 1038

UNITED STATES of America, v. Tre'von Devonte LEWIS, Defendant.

CRIM. ACTION 22-0222-WS

United States District Court, S.D. Alabama, Northern Division

Filed July 18, 2023

Signed July 17, 2023

Andrew Arrington, Assistant U.S. Attorney, DOJ-USAO, Mobile, AL, Scott Alan Gray, Southern District of Alabama U.S. Attorney's Office, Mobile, AL, for United States of America.

Colin Fitzpatrick, Public Defender, Southern District of Alabama Federal Defenders Organization, Mobile, AL, for Defendant.

ORDER

WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the defendant's motion to dismiss the indictment. (Doc. 18). The government has filed a response and the defendant a reply, (Docs. 21, 22), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be denied.

BACKGROUND

The indictment contains two counts. Count One charges that the defendant, with knowledge that he was an unlawful user of marijuana, knowingly possessed a firearm, in violation of Section 922(g)(3). Count Two charges that the defendant knowingly possessed a firearm, knowing and having reasonable to cause to believe the firearm was stolen, in violation of Section 922(j). (Doc. 1).

DISCUSSION

The defendant argues that both statutes are unconstitutionally vague, facially and as applied. The defendant also argues that both statutes violate the Second Amendment, facially and as applied.

I. Vagueness.

"Our cases establish that the Government violates this [due process] guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States, 576 U.S. 591, 596, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The defendant argues that Section 922(g)(3) is unconstitutionally vague because it does not define "unlawful user," leaving ordinary citizens to guess whether, at any given point in time, they may or may not lawfully possess a firearm.¹ The defendant argues that Section 922(j) is unconstitutionally vague because it does not define "reasonable cause to believe" that a firearm was stolen, leaving ordinary citizens no safe course of action short of overseeing the entire chain of custody of a firearm from manufacture forward.²

As noted, the defendant brings both facial and as-applied challenges. The government argues that both types of challenge are premature and will remain so until trial. (Doc. 21 at 5-7). The government notes that the defendant's as-applied challenge to Section 922(g)(3) depends on his history of illegal drug use, the evidence regarding which has been neither presented to the Court nor agreed to by the parties.³ His as-applied challenge to Section 922(j) depends on the information in his possession bearing on the firearm's history, as to which the record is silent. Because federal law provides no mechanism for resolving such factual issues short of trial, the government concludes that the defendant's as-applied challenges are premature. The defendant concedes that his as-applied challenges cannot be resolved on the present record. (Doc. 22 at 1-2).

The government argues that the defendant's facial challenges are also premature, based on "the rule prohibiting a facial vagueness challenge by one to whom a [criminal] statute may be constitutionally applied." United States v. Di Pietro, 615 F.3d 1369, 1372 (11th Cir. 2010) (internal quotes omitted). (Doc. 21 at 6-7). The defendant responds that this rule is not implicated when, as here, the defendant's as-applied challenge has not been resolved and cannot presently (for lack of factual development) be resolved, and he adds that failing to consider his facial challenge now would improperly subject him (if the statute is indeed impermissibly vague on its face) to an unconstitutional prosecution. The defendant argues further that the Supreme Court has recently expanded the availability of facial challenges not preceded by resolved as-applied challenges. (Doc. 22 at 1-2).

Because "[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others," a court presented "a facial challenge to the . . . vagueness of a law . . . should . . . examine the complainant's conduct before analyzing other hypothetical applications of the law." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 493-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (emphasis added).⁴ The defendant identifies no authority limiting the sequence established in Hoffman to cases where the as-applied and facial challenges ripen at the same time. On the contrary, resolution of a facial challenge must await resolution of an unripe as-applied challenge. Thus, for example, counsel was not ineffective in failing to move for pretrial dismissal due to facial vagueness, since any such motion "must first be considered in light of the facts of the case - i.e., on an as-applied basis." Love v. Butler, 952 F.2d 10, 13-14 (1st Cir. 1991).⁵

The defendant does not assert a constitutional right to pretrial resolution of his as-applied challenge and, to the extent that resolution of his facial challenge requires prior resolution of his as-applied challenge under Hoffman, it would seem to follow that he can claim no constitutional right to pretrial resolution of his facial challenge. The question is moot, because the defendant offers no authority or argument in support of his ipse dixit that his due process rights would be infringed by delayed consideration of his facial challenge, and the Court declines to develop or support an argument on his behalf.

The defendant next argues that, whatever the legal landscape was previously, the Supreme Court rearranged it in Johnson. (Doc. 22 at 1-2). Although the majority opinion employed neither term, the dissent recognized that Johnson accomplished a "facial invalidation" of ACCA's residual clause on vagueness grounds and did so without first engaging in "as-applied" analysis. 576 U.S. at 636-37, 135 S.Ct. 2551 (Alito, J., dissenting). Moreover, the majority jettisoned the commonly understood standard for facial vagueness - that the statute must be vague "in all its applications" - and, without articulating a substitute, rejected "any suggestion that the existence of some obviously [proscribed conduct] establishes [a statute's] constitutionality." Id. at 602-03, 135 S.Ct. 2551 (majority opinion). The defendant asserts that Johnson permits the advancement of a facial challenge without a corresponding as-applied challenge, and without consideration of the statute's application to the defendant's conduct, at least in cases of statutory "hopeless indeterminacy" as in Johnson. Id. at 598, 135 S.Ct. 2551.

The defendant's position has received a cool reception in the federal appellate courts. See Bowling v. McDonough, 38 F.4th 1051, 1061 (Fed. Cir. 2022) ("This principle ["namely, that a person to whom a law is not vague as applied to that person's situation cannot assert facial vagueness"] survives Johnson . . . .") (emphasis omitted); United States v. Hasson, 26 F.4th 610, 618 (4th Cir. 2022) ("Hasson claims that the rule prohibiting vagueness challenges by those whose conduct a statute clearly prohibits perished alongside the rule requiring a statute to be vague in all its applications. . . . . We disagree."); 303 Creative LLC v. Elenis, 6 F.4th 1160, 1190 (10th Cir. 2021) (in Johnson, "the Court described the standard for determining whether a statute is, as a matter of law, unconstitutionally vague - not the standard for determining when a party may bring a vagueness challenge."), rev'd on other grounds, 600 U.S. 570, 143 S. Ct. 2298, 216 L.Ed.2d 1131 (2023); United States v. Cook, 970 F.3d 866, 877 (7th Cir. 2020) ("Johnson did not alter the general rule that a defendant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge."); Kashem v. Barr, 941 F.3d 358, 376 (9th Cir. 2019) ("[W]e conclude that Johnson . . . did not alter the general rule that a defendant whose conduct is clearly prohibited cannot be the one to make a facial vagueness challenge to a statute."); United States v. Westbrooks, 858 F.3d 317, 325 (5th Cir. 2017) ("Johnson did not change the rule that a defendant whose conduct is clearly prohibited cannot be the one making that [facial vagueness] challenge."), vacated on other grounds, 584 U.S. 901, 138 S. Ct. 1323, 200 L.Ed.2d 510 (2018); United States v. Bramer, 832 F.3d 908, 909 (8th Cir. 2016) (after Johnson, "our case law still requires [the defendant] to show that the statute is vague as applied to his particular conduct."); see also Sessions v. Dimaya, 584 U.S. 148, 138 S. Ct. 1204, 1250, 200 L.Ed.2d 549 (2018) (Thomas, J., dissenting) ("This Court's precedents likewise recognize that, outside the First Amendment context, a challenger must prove that the statute is vague as applied to him[, and] Johnson did not overrule these precedents.").

Against this mountain of authority, the defendant proffers only United States v. Morales-Lopez, 2022 WL 2355920 (D. Utah 2022). The Morales-Lopez Court ruled that, "[i]n light of Johnson, the court concludes that it may entertain a facial challenge to [Section 922(g)(3)], even without a showing that it is vague as applied to the facts of this case." Id. at *7. The Court reasoned that, given Johnson's rejection of an "in all its applications" test for facial vagueness, a statute could be facially vague even if it clearly applies to the defendant's conduct - and if that is so, any criminal defendant should be able to raise a facial challenge. Id. at *4. Although superficially appealing, Morales-Lopez fails adequately to address the reasons given by the appellate courts for uniformly rejecting its position⁶ and fails to consider the universe of...