United States v. Saleem

659 F.Supp.3d 683

UNITED STATES of America, v. Arbab SALEEM, Defendant.

DOCKET NO. 3:21-cr-00086-FDW-DSC

United States District Court, W.D. North Carolina, Charlotte Division

Filed March 2, 2023

Signed March 1, 2023

Emily J. Wasserman, Timothy Sielaff, Assistant U.S. Attorney, J. Seth Johnson, United States Attorney's Office, Charlotte, NC, for United States of America.

Peter Adolf, Public Defender, Charlotte, NC, for Defendant.

ORDER

Frank D. Whitney, United States District Judge

THIS MATTER is before the Court on Defendant's Motion to Dismiss the Indictment under the Second Amendment, (Doc. No. 42), wherein Defendant argues both counts of his Indictment must be dismissed because they violate the Second Amendment under the Supreme Court's recent decision in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). This matter is now ripe for review. For the reasons set forth below, Defendant's Motion is DENIED as to both counts of the Indictment.

I. BACKGROUND

On April 7, 2020, law enforcement officers investigating a domestic violence between Defendant Arbab Saleem ("Defendant") and his girlfriend searched Defendant's residence and two locked vehicles in Defendant's driveway pursuant to a search warrant. (Doc. No. 29, p. 5; Doc. No. 45, p. 1). During this search, the officers discovered assorted firearms, ammunition, and firearm accessories, including the short-barreled shotgun and the silencer at issue in Defendant's Motion. (Doc. No. 29, p. 5-6; Doc. No. 45, p. 1; Doc. No. 42, p. 1). The short-barreled shotgun found in Defendant's bedroom was a Stevens, model 94, 16-gauge weapon for which the barrel and stock had been cut off, with an overall length of 19 and ¾ inches and a barrel length of 13 inches. (Doc. No. 29, p. 6). Defendant stated he cut the barrel off approximately three months 1 before the search. (Id.). Defendant explained he purchased the silencer, found in Defendant's vehicle, from "Wish.com" but had yet to affix it to a firearm, though he intended to attach it to a smaller caliber pistol. (Id. at 5-6). Investigators determined the silencer was "an improvised firearm silencer incorporating a fuel filter, cartridge, spring, and an outer aluminum tub having both front and rear end-caps." (Id. at 7). Both the firearm and the silencer lacked a serial number and National Firearms Act ("NFA") manufacturer's marks of identification, and Defendant did not register either with the National Firearms Registry. (Id. at 6-7).

Defendant was indicted on March 17, 2021, for three counts of Possession of a Firearm Not Registered in the National Firearms Registration and Transfer Record ("NFRTR"). (Doc. No. 1). On October 22, 2021, Defendant entered a straight up guilty plea to Counts One and Two of the Bill of Indictment, (Doc. No. 19), for knowingly possessing the unregistered short-barreled shotgun in violation of 18 U.S.C. § 921(a)(6) and 26 U.S.C.§§ 5845(a)(2), 5861(d), and 5871 (Count One), and for knowingly possessing the unregistered silencer in violation of 18 U.S.C. §§ 921(a)(3)(C) and 921(a)(24), and 26 U.S.C.§§ 5845(a)(7), 5861(d), and 5871 (Count Two). (Doc. No. 1, p. 1).¹

Defendant filed this Motion to Dismiss Under the Second Amendment on October 17, 2022, (Doc. No. 42), and the Supplemental Memorandum in Support on October 26, 2022 (Doc. No. 44). The Government filed its Response to Defendant's Motion on November 11, 2022. (Doc. No. 45). On January 9, 2023, this Court held a hearing on Defendant's Motion, taking the parties' oral arguments under advisement. Accordingly, this matter is ripe for review. Thus, the Court must determine whether either count of Defendant's Indictment should be dismissed, which turns on whether both counts of Defendant's Indictment are facially constitutional under the Second Amendment in light of the Supreme Court's recent decision in Bruen.

II. STANDARD OF REVIEW

Rule 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure establishes that a court may dismiss a defective indictment for failure to state an offense where the indictment alleges the defendant violated an unconstitutional statute. U.S. v. Price, No. 2:22-cr-00097, 635 F.Supp.3d 455, 457-58 (S.D.W. Va. Oct. 12, 2022) (citing U.S. v. Engle, 676 F.3d 405, 415 (4th Cir. 2012)); U.S. v. Brown, 715 F. Supp. 2d 688, 689 (E.D. Va. 2010) (citing In re Civil Rights Cases, 109 U.S. 3, 8-9, 3 S.Ct. 18, 27 L.Ed. 835 (1883)); U.S. v. Vandevere, No. 1:19-cr-63-MOC, 2019 WL 4439483, at *1 n.1 (W.D.N.C. Sep. 16, 2019). "To warrant dismissal of the indictment, [the defendant] would need to demonstrate that the allegations therein, even if true, would not state an offense." U.S. v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004) (citing U.S. v. Hooker, 841 F.2d 1225, 1227-28 (4th Cir. 1988) (en banc)).

III. DISCUSSION

In his Motion to Dismiss, Defendant relies on Bruen to argue both counts of the Indictment must be dismissed because the plain text of the Second Amendment protects his conduct—the possession of short-barreled shotguns and silencers—and because there is no historical tradition supporting the regulation of his presumptively-protected conduct. The Government, in response, contends the Second Amendment does not protect a right to bear either short-barreled shotguns or silencers. Specifically, the Government argues Bruen did not impact Supreme Court precedent expressly holding that short-barreled shotguns fall outside the Second Amendment's protection. Additionally, the Government asserts that silencers are not "arms" within the meaning of the Second Amendment, and even if they are, they are considered "dangerous and unusual," such that the Second Amendment does not guarantee a right to their possession. Finally, the Government argues that the NFA's requirements do not unconstitutionally infringe on Defendant's Second Amendment rights, and that the NFA's regulations are sufficiently analogous to the historical regulation of commerce in firearms to justify its regulation of silencers.

Defendant pled guilty, without the benefit of a plea agreement, to Counts One and Two of his indictment, which respectively charged Defendant with: (1) possessing an unregistered short-barreled shotgun in violation of 18 U.S.C. § 921(a)(6), 26 U.S.C. §§ 5845(a)(2), 5861(d), and 5871; and (2) possessing an unregistered silencer in violation of 18 U.S.C. §§ 921(a)(3)(C) and 921(a)(24), and 26 U.S.C. §§ 5845(a)(7), 5861(d), and 5871. (Doc. No. 1, p. 1). The Court will address each count of Defendant's Indictment in turn.

A. Rule 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure

At the outset, the Court must determine whether Defendant's Motion is timely under Rule 12(b) of the Federal Rules of Criminal Procedure. Defendant asserts that his Indictment must be dismissed because even taking the allegations as true, the Indictment fails to state an offense since the Second Amendment protects his conduct. Conversely, the Government contends Defendant's Motion must be denied because Defendant failed to raise his constitutional challenge prior to trial.

Rule 12(b)(3)(B)(v) provides that certain motions "must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits," including motions to dismiss an indictment for failure to state an offense. FED. R. CRIM. P. 12(b)(3)(B)(v). Thus, if a motion challenging the facial constitutionality of the underlying statute is not made before trial it is deemed "untimely," and a district court can only consider it if the defendant can demonstrate "good cause" for his failure to raise the issue prior to trial. FED. R. CRIM. P. 12(c)(3). Where the defendant fails to make such a showing, the untimely motion is waived. U.S. v. Wagoner, No. 4:30-cr-00018, 2022 WL 17418000, at *3 (W.D. Va. Dec. 5, 2022) (citing U.S. v. Ojedokun, 16 F.4th 1091, 1113 (4th Cir. 2021) (motion to suppress)).

Here, Defendant raised his constitutional challenge to the Indictment on October 17, 2022, well after the Court accepted and entered his guilty plea on October 22, 2021. However, for the reasons stated during the hearing on this matter on January 9, 2023, the Court rejects the Government's argument that because Defendant's Motion was untimely, it should be denied. Given the importance of the issue before this Court, and because the Supreme Court's opinion in Bruen announced a new standard for analyzing Second Amendment claims, such as Defendant's, that "transformed and left uncharted much of the legal landscape," Price, 635 F.Supp.3d at 458 (quoting U.S. v. Charles, No. MO:22-CR-00154-DC, 633 F.Supp.3d 874, 875 (W.D. Tex. Oct. 3, 2022)), the Court finds Defendant has shown good cause to consider his Motion. See Brown, 715 F. Supp. 2d at 690 (citing U.S. v. Chester, 367 F. Appx. 392 (4th Cir. 2010) vacated on rehearing on other grounds, 628 F.3d 673 (4th Cir. 2010)). Accordingly, Defendant's Motion is not barred by Rule 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure, and the Court now turns to the merits of Defendant's claims beginning with a summary of the standard outlined in Bruen.

B. The Bruen Standard for Second Amendment Claims

The Second Amendment to the United States Constitution 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." In Bruen, the Supreme Court clarified the appropriate standard for analyzing Second Amendment claims. The Supreme Court held that lower courts had been incorrect in reading precedent to require a means-end analysis in evaluating Second Amendment claims. Bruen, 142 S. Ct. at 2129. Instead, the Court explained that District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), held, "on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms" for self-defense. Id. at 2127 (quo...