United States v. Posey

655 F.Supp.3d 762

UNITED STATES of America v. Vanessa POSEY

Case No. 2:22-CR-83 JD

United States District Court, N.D. Indiana, Hammond Division

Signed February 9, 2023

Caitlin M. Padula, Government Attorney, U.S. Attorney's Office, Hammond, IN, for United States of America.

Roxanne Mendez Johnson, Chad Pennington, Public Defenders, Federal Community Defenders Inc., Hammond, IN, for Vanessa Posey.

OPINION AND ORDER

JON E. DEGUILIO, Chief Judge

The Defendant, Vanessa Posey, has moved for count three of the indictment against her to be dismissed (DE 17). Defendant argues this count should be dismissed as the statute underlying the charge, 18 U.S.C. § 922(g)(3), is unconstitutional in light of the Supreme Court's recent decision in New York State Rifle & Pistol Association v. Bruen, — U.S. —, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Further, Defendant argues this statute is unconstitutional as applied to her in light of a pardon issued by President Biden on October 6, 2022. For the following reasons, this motion will be denied.

A. Factual Background

A federal grand jury returned a four-count indictment against Defendant in August 2022, charging her with a series of drug offenses and a firearm related offense. The count relevant to this motion is count three, the firearm offense, which charges Defendant with being an unlawful controlled substance user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3) on or about February 10, 2022 (DE 1 at 3). The alleged facts underlying this charge are that Defendant possessed multiple firearms while also being a user of marijuana, which is a Schedule I controlled substance. (DE 1 at 3; DE 17 at 2.)

For the limited purpose of adjudicating this motion, the Court assumes these alleged facts to be true. The Court will reiterate that Defendant remains presumed innocent of the charges against her, and the Court takes no position on the question of her guilt, or the veracity of any factual allegation presented by the Government.¹

B. Legal Standards

A defendant can move before trial to dismiss an indictment for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B). A defendant can make such a motion on the basis that the charged offense is based on an unconstitutional statute. United States v. Holden, 638 F.Supp.3d 931, 935-36 (N.D. Ind. Oct. 31, 2022) (internal citations omitted).

A constitutional challenge to a statute can be brought either as a facial challenge, or an as-applied challenge. Defendant brings both types of challenges against § 922(g)(3) in her motion. To succeed on a facial challenge to the constitutionality of a statute, the moving party must show that the statute is unconstitutional in all applications. City of L.A. v. Patel, 576 U.S. 409, 415, 418, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015). To succeed on an as-applied challenge, the moving party must show it is unconstitutional because the way it was applied to the particular facts of their case. See United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011).

C. Discussion

Defendant's motion challenges the constitutionality of 18 U.S.C. § 922(g)(3). This statute provides that "[i]t shall be unlawful for any person . . . who is an unlawful user of or addicted to any controlled substance . . . [to] possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(3). Defendant argues that "as applied to [her], § 922(g)(3) is not a well-defined firearm restriction" because the government is attempting to criminalize her firearm possession based on her status as an unlawful user of marijuana, when marijuana use during the relevant period was no longer unlawful by effect of a presidential pardon. (DE 17 at 12-13.) Defendant's facial challenge is that § 922(g)(3) violates the Second Amendment. The Court will address each argument in turn.

(1) The Bruen standard for applying the Second Amendment

Defendant argues that this case must be dismissed because 18 U.S.C. § 922(g)(3) is unconstitutional under the Second Amendment to the United States Constitution. Therefore, the Court must analyze and apply the Second Amendment jurisprudence articulated by the Supreme Court.

The text of the Second Amendment states: "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 District of Columbia v. Heller, the Supreme Court concluded that the Second Amendment confers "an individual right to keep and bear arms." 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In reaching this conclusion, the Court recognized that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Id. at 626, 128 S.Ct. 2783. Relevant to this case, the Court also warned that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." Id. In a footnote, the Court went on to classify these traditional restrictions on firearm possession as a non-exhaustive list of "presumptively lawful regulatory measures." Id. at 627 n. 26, 128 S.Ct. 2783.

In Bruen, the Supreme Court built upon its prior holdings to further define the scope of the Second Amendment right. The Court described its earlier Second Amendment decisions as "recogniz[ing] . . . the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense." 142 S.Ct. at 2122. (citing Heller, 554 U.S. 570, 128 S.Ct. 2783; McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010)). The Bruen Court went on to lay out the methodology lower courts should utilize in reviewing Second Amendment challenges.

Prior to Bruen, the various circuit courts had largely converged on a two-step framework for analyzing Second Amendment challenges. Id. at 2126. At the first step, the government could justify its regulation by establishing that the challenged law regulates activity falling outside the scope of the Second Amendment right as originally understood. Id. At the second step, the courts analyzed 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.

In Bruen the Court stated that this test was "one step too many." Id. at 2127. The Court held that the first step of this framework was broadly consistent with Heller, but the "means-end scrutiny" of step two was inconsistent with the Second Amendment and the appropriate methodology centers on the "constitutional text and history." Id. at 2127-29. The Court articulated that the proper standard is as follows:

"In keeping with Heller, we hold that 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 2129-2130 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961)).

Phrased another way, this test is composed of two prongs. The first prong is determining whether the plaint text of the Second Amendment covers the conduct at issue. Id. at 2129, 2134-35. The second prong is determining whether the Government has established the regulation is consistent with the historical tradition of firearms regulation in the United States. Id. at 2129-30.

The Supreme Court stated that the second prong would require the use of "historical analogies" and reasoning by analogy as is commonly done by lawyers and judges. Id. at 2132. Consequently, in comparing a historical firearm regulation and a modern one, the key determination to be made is whether the two are "relevantly similar." Id.² The Bruen Court did not provide an exhaustive survey of the features that could render regulations relevantly similar but found that Heller and McDonald outlined at least two: "how and why the regulations burden a law-abiding citizen's right to armed self-defense" Id. at 2132-33.³ Phrased differently, "whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are " 'central' " considerations when engaging in an analogical inquiry." Id. at 2133 (quoting McDonald, 561 at 767 (itself quoting Heller, 554 U.S. at 599, 128 S.Ct. 2783)).

The Court further noted that this analogical reasoning is "neither a regulatory straitjacket nor a regulatory blank check." Id. While warning courts to not "uphold every modern law that remotely resembles a historical analogue," the Court also clarified that the Government is only obligated to identify a "historical analogue, not a historical twin." Id. (internal citation omitted). Therefore, even if a modern regulation is not a "dead ringer" for a historical precursor, it may be sufficiently analogous to pass constitutional muster. Id.

(2) Defendant's as-applied challenge fails as the presidential pardon is irrelevant to the charged offense in count three of the indictment

The Court will begin with Defendant's as-applied challenge. The Court finds that this argument is without merit.

Underlying this argument is the fact that on October 6, 2022, President Biden pardoned all individuals who committed the offense of simple possession of marijuana in violation of 21 U.S.C. § 844 or D.C. Code § 48-904.01(d)(1) on or before the date the pardon was issued. Granting Pardon for the Offense of Simple Possession of Marijuana, 87 Fed. Reg. 61441 (Oct. 12, 2022) (Pardon issued on October 6, 2022, and published in Federal Register on October 12).

Defendant argues that the presidential pardon extends to her alleged conduct of marijuana use and therefore dismissal is compelled because of the pardon's retroactive effect. In other words, Defendant argues that...