United States v. Stupka

418 F.Supp.3d 402

UNITED STATES of America, Plaintiff,

v.Jami Lynn STUPKA, Defendant.

No. 19-CR-3024-LTS-KEM

United States District Court, N.D. Iowa, Central Division.

Signed November 13, 2019

ORDER ON REPORT AND RECOMMENDATION

Leonard T. Strand, Chief Judge

I. INTRODUCTION

This case is before me on a Report and Recommendation (R & R) (Doc. No. 68) in which Chief United States Magistrate Judge Kelly K.E. Mahoney recommends that I deny in part, and defer ruling in part, defendant Jami Stupka's motion (Doc. No. 40) to dismiss Count 3 of the indictment. Neither party has filed written objections to the R & R. Any objections are now deemed waived. See LR 72A; see also 28 U.S.C. § 636(b)(1)(c) ; Fed. R. Civ. P. 72(b)(2).

II. STANDARD OF REVIEW

When a party objects to any portion of an R & R, the district judge must undertake a de novo review of that portion. See 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b). Any portions of an R & R to which no objections have been made must be reviewed under at least a "clearly erroneous" standard. See, e.g. , Grinder v. Gammon , 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed "[the district court judge] would only have to review the findings of the magistrate judge for clear error"). As the Supreme Court has explained, "[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City , 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ). However, a district judge may elect to review an R & R under a more-exacting standard even if no objections are filed:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn , 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Here, because no objections have been filed, I will apply the "clearly erroneous" standard of review to all portions of the R & R.

III. DISCUSSION

On May 23, 2019, a Grand Jury returned an indictment (Doc. No. 1) that charged Stupka and others with conspiracy to possess a stolen firearm (Count 1), possession of a stolen firearm (Count 2) and possession of a firearm by a prohibited person (Count 3). Stupka contends that Count 3 should be dismissed because the statute on which the charge is based, 18 U.S.C. § 922(g)(3), is unconstitutionally vague on its face and as applied to her.

A. Judge Mahoney's Analysis

Judge Mahoney recommends that I defer ruling on Stupka's argument that 18 U.S.C. § 922(g)(3) is unconstitutionally vague as applied. Doc. No. 68 at 1. She notes that case-law mandates, that "any as-applied challenge should not be ruled upon without a full trial on the merits." Id. (citing United States v. Turner , 842 F.3d 602, 606 (8th Cir. 2016) ).

Regarding Stupka's facial challenge, Judge Mahoney cites United States v. Bramer , 832 F.3d 908 (8th Cir. 2016), in recommending that the motion be denied. Doc. No. 68 at 3–4. In Bramer , the Eighth Circuit rejected the defendant's argument that 18 U.S.C. § 922(g)(3) is unconstitutional on its face because the defendant had not shown that any terms were vague "as applied to his particular conduct." Id. at 909–10. The court further explained that "[t]hough [the defendant] need not prove that § 922(g)(3) is vague in all its applications, [the] case law still require[d] him to show that the statute is vague as applied to his particular conduct." Id. at 909. Judge Mahoney found that "Stupka has made no such showing here," and thus the facial challenge must be denied because " Bramer is binding precedent that cannot be ignored by this court." Doc. No. 68 at 3.

B. Void-for-Vagueness Challenges

The Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." One "essential" feature of the Fifth Amendment's due process guarantee is "[t]he prohibition of vagueness in criminal statutes." Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1212, 200 L.Ed.2d 549 (2018). A law is unconstitutionally vague if it (1) "fails to provide a person of ordinary intelligence fair notice of what is prohibited," or (2) "is so standardless that it authorizes or encourages seriously discriminatory enforcement." United States v. Williams , 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ; see also Kolender v. Lawson , 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) ("[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."). A law is unconstitutionally vague due to a lack of fair notice when the law fails to give a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford , 408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). A law is unconstitutionally vague due to arbitrary enforcement concerns if it leaves judges, jurors or law enforcement "free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case." See Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 894, 197 L.Ed.2d 145 (2017) (quoting Giaccio v. Pennsylvania , 382 U.S. 399, 402–03, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966) ).

There are two types of challenges under the void-for-vagueness doctrine. First, a defendant may argue that a law is unconstitutionally vague on its face. This means that a law is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." See Coates v. City of Cincinnati , 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). At times, the Supreme Court has required a defendant making a facial vagueness challenge to "demonstrate that the law is impermissibly vague in all of its applications." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 497, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). More recently, however, the Supreme Court has clarified that a law may still be unconstitutionally vague on its face even if "there is some conduct that clearly falls within the provision's grasp." Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2561, 192 L.Ed.2d 569 (2015).

The second type of challenge under the void-for-vagueness doctrine is an as-applied challenge. See F.C.C. v. Fox Television Stations, Inc. , 567 U.S. 239, 258, 132 S.Ct. 2307, 183 L.Ed.2d 234 (2012) (holding that regulation forbidding fleeting expletives and nudity in broadcasts was unconstitutionally vague as applied to multiple broadcast companies). In an as-applied challenge, the court may "leav[e] aside any concerns about facial invalidity," and asks only whether the law in question is impermissibly vague as to the conduct of the specific challenger. See id. at 254, 132 S.Ct. 2307. In other words, courts ask (1) whether the law is sufficiently clear and definite to give notice to the specific defendant that his or her actions were prohibited and (2) whether vagueness in the law resulted in it being applied arbitrarily to the defendant. See id.

1. Stupka's As-Applied Vagueness Challenge

I need not dwell long on Stupka's as-applied challenge. As Judge Mahoney pointed out, the Eighth Circuit has held that a district court must wait until the facts of a case are fully developed at trial before ruling on an as-applied vagueness challenge. See Turner , 842 F.3d at 605 (holding that "the district court could not rule on [the defendant's] as applied constitutional challenge without resolving factual issues related to his alleged offense, such as the extent of his drug use, and therefore the court should have deferred ruling until trial"). Therefore, I will defer ruling on Stupka's as-applied challenge until her trial.

2. Stupka's Facial Vagueness Challenge

Stupka's facial void-for-vagueness challenge is a more difficult issue. Judge Mahoney correctly looked to Bramer , as it is an Eighth Circuit case that speaks to the facial validity of 18 U.S.C. § 922(g)(3) in a vagueness challenge. Bramer , 832 F.3d at 909–10. However, because this case is procedurally and factually distinguishable from Bramer , I must consider the extent to which Bramer is binding authority.

In Bramer , the Eighth Circuit held that the defendant could not raise a facial challenge to 18 U.S.C. § 922(g)(3) because the defendant could not show that it was unconstitutionally vague as applied to him. Id. at 909–10. The defendant failed an as-applied challenge because his conduct was "clearly prohibited" under the statute and he had waived all challenges except for a facial challenge in his appeal waiver. Id. at 909 & n.2. What made the defendant's conduct "clearly prohibited," however, was that he had pled guilty to "knowingly posses[sing] firearms ... while being an unlawful user of marijuana." Id. Other circuits have rejected facial challenges to § 922(g)(3) in similar situations. See, e.g. , United States v. Bennett , 329 F.3d 769, 777 (10th Cir. 2003) (defendant could not succeed in an as applied challenge to § 922(g)(3) because he had admitted that he used methamphetamine "on a daily basis until his arrest"); United States v. Edwards , 182 F.3d 333, 335–36 (5th Cir. 1999) (defendant could not succeed in an as applied challenge to § 922(g)(3) because he had...