United States v. Posada

670 F.Supp.3d 402

UNITED STATES of America, v. (1) Daniel Antonio Tohme POSADA, Defendant.

CAUSE NO. EP-22-CR-1944(1)-KC

United States District Court, W.D. Texas, El Paso Division

Signed April 20, 2023

Catherine S. Dos Santos, U.S. Attorney's Office, El Paso, TX, Patricia Josefina Acosta, Assistant U.S. Attorney, El Paso, TX, for United States of America.

Felix Valenzuela, Valenzuela Law Firm, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, UNITED STATES DISTRICT JUDGE

On this day, the Court considered Defendant Daniel Antonio Tohme Posada's Motion to Dismiss Indictment ("Motion"), ECF No. 27. For the reasons below, the Motion is DENIED.

I. BACKGROUND

In April 2020, Tohme was indicted in Texas state court for manslaughter, a felony offense.¹ Compl. ¶ 3, ECF No. 1; see also Tex. Penal Code § 19.04. Sometime between October 27 and November 2, 2022, he purchased 45,000 rounds of .223 caliber ammunition in El Paso, Texas. Compl. ¶ 2. Days later, he told agents at a port of entry about the purchase, and they explained it was illegal because he was under felony indictment. Id. ¶ 4. Despite their warning, Tohme purchased another 10,000 rounds of .223 caliber ammunition on November 9. Id. ¶ 5.

On December 7, 2022, Tohme was indicted with one count of receiving ammunition while under felony indictment, in violation of 18 U.S.C. § 922(n), which criminalizes the underlying conduct, and § 924(a)(1)(D), which imposes penalties for willful violations. See Indictment 1, ECF No. 13. On February 21, 2023, Tohme moved to dismiss his indictment, arguing that § 922(n) is unconstitutional under both the Second Amendment and the Due Process Clause of the Fifth Amendment. See generally Mot. On March 24, the United States (the "Government") filed an Opposition to Defendant's Motion to Dismiss ("Resp."), ECF No. 32.

II. STANDARD

Federal Rule of Criminal Procedure 12 allows a party to "raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). These include motions that allege "a defect in the indictment," including "failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). A court may rule on a pretrial motion to dismiss an indictment when the alleged infirmity "is essentially one of law." United States v. Guthrie, 720 F. App'x 199, 201 (5th Cir. 2018) (quoting United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011)).

III. ANALYSIS

A. Second Amendment Challenge

The constitutional questions Tohme raises are appropriate for resolution at this stage of the proceedings. See United States v. Valencia, No. 5:17-CR-882-DAE(1)(2), 2018 WL 6182755, at *2 (W.D. Tex. Nov. 27, 2018) (collecting cases). He first argues that § 922(n) is unconstitutional in light of New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).² Mot. 4-14.

In Bruen, the Supreme Court rejected the predominant "two-step" framework, which "combine[d] history with means-end scrutiny," that federal courts of appeals—including the Fifth Circuit—had previously used to assess Second Amendment challenges. See 142 S. Ct. at 2125-26; see also Nat'l Rifle Ass'n of Am., Inc. v. ATF, 700 F.3d 185, 194-96 (5th Cir. 2012) (adopting the two-step framework). In its place, Bruen set out a test that looks only to the plain text of the Second Amendment and to history. See 142 S. Ct. at 2126. Following Bruen, the Fifth Circuit held that the Supreme Court's new framework "render[ed] [its] prior [Second Amendment] precedent obsolete." United States v. Rahimi, 61 F.4th 443, 451 (5th Cir. 2023).

Under Bruen and Rahimi, the Court must first "determine whether 'the Second Amendment's plain text covers an individual's conduct.' " Rahimi, 61 F.4th at 453 (quoting Bruen, 142 S. Ct. at 2129-30 (alteration omitted)). "If so, then the 'Constitution presumptively protects that conduct,' and the Government 'must justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.' " Id. (quoting Bruen, 142 S. Ct. at 2130). "To carry its burden, the Government must point to 'historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.' " Id. at 454 (quoting Bruen, 142 S. Ct. at 2131-32 (alterations in Rahimi)).

1. Whether Tohme as an individual is protected by the Second Amendment

Before deciding whether the amendment's plain text covers Tohme's conduct at step one of the Bruen framework, the Court must consider whether Tohme as an individual is part of "the people" granted the amendment's protections. See Rahimi, 61 F.4th at 451-53. It appears that nearly every court that has considered whether felony indictees are part of "the people" within the meaning of the Second Amendment has held, or at least assumed, that they are. See United States v. Jackson, 2023 WL 2242873, at *8-9 (D. Md. Feb. 27, 2023) (collecting cases, but assuming without deciding the issue).³ Because the Court would ultimately uphold the constitutionality of § 922(n) either way, and because there is a "strong presumption that the Second Amendment right . . . belongs to all Americans," it also assumes without deciding that Tohme, as someone under felony indictment, is part of "the people" protected by the Second Amendment. Rahimi, 61 F.4th at 451 (quoting District of Columbia v. Heller, 554 U.S. 570, 581, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)).

2. Whether the Second Amendment's plain text covers Tohme's conduct

Since Tohme himself is presumably covered by the Second Amendment, the Court considers whether his conduct—receiving ammunition—is covered as well. The Second Amendment clearly protects the act of receiving: "The amendment grants [people] the right 'to keep' firearms, and 'possession' is included within the meaning of 'keep.' " Id. at 454 (citing Bruen, 142 S. Ct. at 2134-35). And "a necessary predicate to possession" is "receipt." United States v. Simien, 655 F. Supp. 3d 540, 551 (W.D. Tex. Feb. 10, 2023); see also Ball v. United States, 470 U.S. 856, 862, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985) ("[W]hen received, a firearm is necessarily possessed." (quoting United States v. Martin, 732 F.2d 591, 592 (7th Cir. 1984))). Indeed, as courts have observed, "[i]f receiving a firearm were illegal, but possessing or carrying one remained a constitutional right, one would first need to break the law to exercise that right." United States v. Hicks, 649 F Supp. 3d 357, 360 (W.D. Tex. Jan. 9, 2023); United States v. Quiroz, 629 F. Supp. 3d 511, 515-16 (W.D. Tex. Sept. 19, 2022).

Of course, the Second Amendment's plain text protects the right to bear arms, not ammunition, which Tohme is charged with receiving. But "[t]he right to keep and bear arms . . . 'implies a corresponding right to obtain the bullets necessary to use them.' " Luis v. United States, 578 U.S. 5, 26, 136 S.Ct. 1083, 194 L.Ed.2d 256 (2016) (Thomas, J., concurring) (quoting Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014)). And the .223 caliber bullets that Tohme allegedly purchased appear to be " 'in common use[ ]' such that they fall within the scope of the amendment." Rahimi, 61 F.4th at 454 (quoting Bruen, 142 S. Ct. at 2143); Indictment 1. Because the amendment's plain text covers receiving .223 caliber ammunition, Tohme passes the first step of Bruen's framework.

3. Historical Justification

At Bruen's second step, the Government must show that § 922(n) "is consistent with this Nation's historical tradition of firearm regulation." 142 S. Ct. at 2126. This standard does not require the Government to identify a " 'historical twin'; rather, a 'well-established and representative historical analogue' suffices." Rahimi, 61 F.4th at 454 (quoting Bruen, 142 S. Ct. at 2133 (emphasis in Bruen)). At bottom, "[t]he core question is whether the challenged law and proffered analogue are 'relevantly similar,' " especially regarding "how the challenged law burdens the right to armed self-defense, and why the law burdens that right." Id. (quoting Bruen, 142 S. Ct. at 2132-33 (emphasis in Bruen)).⁴

The Government proffers three groups of "relevantly similar" historical restrictions: (1) laws that disarmed felony indictees in pretrial detention, (2) laws that disarmed "dangerous or untrustworthy" people, and (3) surety statutes. Resp. 21. For pretrial detention laws, the Government cites the federal Judiciary Act of 1789. Id. at 27. It also cites cases and scholarship discussing colonial and early American bail laws and practices. See id. Because the constitutionality of § 922(n) can be sustained based on these sources alone, the Court does not address the Government's other proffered analogues.

a. Why § 922(n) and historical pretrial detention laws burden Second Amendment rights

Section 922(n) and the historical pretrial detention laws referenced by the Government burden Second Amendment rights for similar reasons—both aim to keep guns away from allegedly dangerous people. The Judiciary Act of 1789 denied bail in capital cases based on a case-by-case assessment of the strength of the evidence. See Act of Sept. 24, 1789, ch. XX, 1 Stat. 73, § 33 (1789) (barring bail in capital cases except where the judge "exercise[d] their discretion [ ] regarding the nature and circumstances of the offence, and of the evidence."). And the states' contemporary bail provisions worked similarly. See Matthew J. Hegreness, America's Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 921-23 & n.40 (2013); Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 Mich. L. Rev. 510, 555 (1986). Ultimately, defendants were detained pretrial when they posed a risk of flight or a danger to the community. See Sandra G. Mayson, Dangerous Defendants, 127 Yale L.J. 490, 502 (2018); Donald B. Verrilli, Jr., The Eighth Amendment and the Right to Bail: Historical...