United States v. Pierret-Mercedes

1

UNITED STATES OF AMERICA, Plaintiff, v. DIWEL JOSE PIERRET-MERCEDES, Defendant.

CIVIL No. 22-cr-430 (ADC/BJM)

United States District Court, D. Puerto Rico

April 14, 2023

REPORT AND RECOMMENDATION

BRUCE J. MCGIVERIN, UNITED STATES MAGISTRATE JUDGE.

On September 29, 2022, a grand jury indicted Diwel Jose Pierret-Mercedes (“Pierret-Mercedes”) on one count of improper entry by an alien in violation of 8 U.S.C § 1325(a)(2) and one count of knowingly possessing a firearm and ammunition as an illegal alien in violation of 18 U.S.C. § 922 (g)(5). Docket No. (“Dkt.”) 12. Pierret-Mercedes moved to dismiss Count Two of the indictment, arguing 18 U.S.C. § 922 (g)(5) is a facially unconstitutional violation of the Second Amendment after the Supreme Court's decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111 (2022) and that it is unconstitutional as applied to him. Dkt. 19. The government opposed, Dkt. 21, and Pierret-Mercedes responded. Dkt. 23. The parties' motions were referred to me for a report and recommendation. Dkt. 21. For the reasons that follow, I recommend that Pierret-Mercedes's motion to dismiss Count Two of the indictment be DENIED.

BACKGROUND

The following factual allegations are taken from the indictment and from motions made by the parties. For the purpose of determining the present motions, the following facts appear to be undisputed.

Pierret-Mercedes is a 27-year-old from the Dominican Republic. He first entered Puerto Rico without authorization around November 2015. After working as a barber for about a year, he attempted to travel to New York. While at the airport, he encountered Customs and Border Protection (“CBP”) officers who returned him to the Dominican Republic via CBP's Expedited Removal process.

Near the end of 2021, Pierret-Mercedes returned to Puerto Rico. He lived with his aunt in Villa Palmeras and later stayed with his Puerto Rican girlfriend in the Las Margaritas housing development. During the approximately 9 months from his return to Puerto Rico until his arrest, Pierret-Mercedes again worked as a barber.

Puerto Rico Police Bureau (“PRPB”) investigators allegedly received information that an individual later identified as Pierret-Mercedes lived in apartment 376 of building 14 at Las Margaritas. This individual was purportedly storing drugs and guns in that apartment for an organized crime group. PRPB investigators surveilled the area and allegedly witnessed the individual later identified as Pierret-Mercedes repeatedly entering and exiting apartment 376. Further, they repeatedly saw him with what appeared to be pills and marijuana. And they saw him twice with a pistol magazine, once in his waistband and later in his pants pocket.

Based on their observations, PRPB investigators sought and obtained a search warrant for apartment 376, which they executed on the morning of September 13, 2022. Upon entering the apartment, PRPB agents found Pierret-Mercedes and a woman in a bedroom. On the bed beside Pierret-Mercedes, there was a loaded rifle.

Following this encounter, Homeland Security Investigations (“HSI”) agents interviewed Pierret-Mercedes. They gave him a Declaration-of-Rights form written in Spanish and he waived his rights by signing the form. Dkt. 21-2. Pierret-Mercedes stated he had lived with his girlfriend in the apartment where he was arrested for approximately one month. He also said he had been in Puerto Rico for the previous nine months and had arrived via a vessel. Further he admitted the firearm on the bed belonged to him and that he bought it within the past few weeks for protection. HSI agents ultimately determined he was unlawfully present in the United States.

On September 29, 2022, a grand jury indicted Pierret-Mercedes. He moves to dismiss Count Two of the indictment which charges him with knowingly possessing a firearm and ammunition as an illegal alien in violation of 18 U.S.C. § 922 (g)(5).

APPLICABLE LEGAL STANDARDS

Beyond technical defects and cases of misconduct, a federal court can exercise its supervisory power and supplant the grand jury's “fundamental role” by dismissing an indictment only in “extremely limited circumstances.” Whitehouse v. U.S. Dist. Ct. for Dist. of R.I., 53 F.3d 1349, 1360 (1st Cir. 1995) (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988)). Defendants may not challenge the government's evidence, only the facial validity of the indictment. United States v. Guerrier, 669 F.3d 1, 3-4 (1st Cir. 2011) (citing United States v. Eirby, 262 F.3d 31, 37-38 (1st Cir. 2001)). However, the First Circuit has held that a district court may consider pretrial motions to dismiss an indictment “where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts.” United States v. Musso, 914 F.3d 26, 30 (1st Cir. 2019).

DISCUSSION

Pierret-Mercedes contends Section 922(g)(5) is both facially unconstitutional and unconstitutional as applied to him. Dkt. 19. Further, he argues it violates the Equal Protection Clause of the Fourteenth Amendment. Dkt. 23 at 7-9. I address each argument in turn and find that none warrants dismissal of the indictment against him.

I. The Second Amendment

A. Facially Unconstitutional

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 D.C. v. Heller, the Supreme Court held that the Second Amendment protects “the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.” 554 U.S. 570 (2008). And just last term, in Bruen, the Court held “consistent with Heller and McDonald [v. Chicago, 130 S.Ct. 3020 (2010)], that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” Bruen, 142 S.Ct. at 2122.

Before Bruen, courts of appeals had “coalesced around a ‘two-step' framework” when assessing Second Amendment claims, combining a historical analysis with means-end scrutiny. Id. at 2125. For the first step, the court would establish the Second Amendment's original scope through a historical analysis. United States v. Focia, 869 F.3d 1269, 1285. (11th Cir. 2017). If the regulated conduct fell outside the Amendment's original scope, “the analysis can stop there; the regulated activity is categorically unprotected.” United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). But if not outside the Amendment's scope or “inconclusive,” the court would proceed to step two. Kanter v. Barr, 919 F.3d 437, 441 (7th Cir 2019).

In step two, a court would generally analyze “how close the law comes to the core of the Second Amendment right and the severity of the law's burden on that right.” Id. If the “core” Second Amendment right-self-defense in one's home-was burdened, the court would apply strict scrutiny. Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017). Otherwise, it would apply intermediate scrutiny, considering whether the government had shown that the regulation is “substantially related to the achievement of an important governmental interest.” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 86. (2nd Cir. 2012).

But in Bruen, Justice Thomas stated the two-step approach was “one step too many.” 142 S.Ct. at 2127. In its place, Justice Thomas articulated a new standard that courts must follow:

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.”

Id. at 2129-30. Under this inquiry, the threshold question is whether the Second Amendment's plain text covers Pierret-Mercedes's conduct.

i. Pierret-Mercedes's Conduct

“[T]he ‘textual elements' of the Second Amendment's operative clause-‘the right of the people to keep and bear Arms, shall not be infringed'-‘guarantee the individual right to possess and carry weapons in case of confrontation.'” Bruen, 142 S.Ct. at 2134 (quoting Heller, 554 U.S. at 592). Pierret-Mercedes was arrested at home with a pistol in his possession. Prior to his arrest, HSI agents saw him emerge from his home with a pistol magazine. He is charged under 18 U.S.C. § 922(g)(5) which makes it “unlawful for any person . . . who, being an alien is illegally or unlawfully in the United States . . . to . . . possess any firearm or ammunition . . . which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(5).

The Second Amendment undoubtedly protects Pierret-Mercedes's conduct. “Answering whether possession falls under ‘keep and bear' isn't complicated. According to Justice Scalia in Heller, to ‘keep arms' means to ‘have weapons.' The plain meaning of ‘have' is ‘to be in possession of.' Thus, the Second Amendment's ‘keep and bear arms' language plainly encompasses possession.” United States of America v. Jeroswaski Wayne Collette, 2022 WL 4476790, at *2 (W.D. Tex. Sept. 25, 2022) (quoting Have, OXFORD ENGLISH DICTIONARY (3d ed. 2015)). Further, the “definition of ‘bear' naturally encompasses public carry.” Bruen, 142 S.Ct. at 2134. Because the Second Amendment's plain text covers possession of a firearm both in public and private, the constitutionality of Section 922 (g)(5) depends on whether prohibiting undocumented immigrants from possessing a firearm is consistent with the nation's historical tradition of firearm regulation.

The government...