MEMORANDUM & ORDER
I. Intrоduction...............................................................80
II. Facts.....................................................................81
A. Prior State Indictment .................................................81
B. Indictment Under 18 U.S.C. § 922(n).....................................81
II. 18 U.S.C. § 922(n).........................................................82
A. Legislative History.....................................................82
B. Current Statutory Text............................................,.....84
C. Meaning of “Receive” ..................................................84
D. Government Interest at Stake...........................................87
E. Prior Constitutional Challenges..........................................88
IV. Background...............................................................88
A. Power of the Grand Jury................................................88
B. Rights of Individuals Under Arrest or Indictment.......:..................90
C. Treatment of Unconvicted Conduct.......................................93
V. Constitutionality of 18 U.S.C. § 922(n)........................................93
A. Facial vs. As Applied Challenges........................................93
B. Commerce Clause......................................................94
C. Fifth Amendment Notice Requirement ...................................94
D. Presumption of Innocence...............................................95
E. Second Amendment....................................................97
1. Kinds of Constitutional Scrutiny......................................98
2. Right to Bear Arms ...............................................100
3. 18 U.S.C. § 922(n) Imposes a Substantial Burden......................101
4. No More Than Intermediate Scrutiny is Appropriate...................102
5. 18 U.S.C. § 922(n) Survives Intermediate Scrutiny.....................104
F. Equal Protection......................................................105
G. Procedural Due Process ...............................................106
1. Private Interest at Stake...........................................107
2. Risk of Erroneous Deprivation......................................108
3. Government Interest at Stake.......................................108
VI. Power to Dismiss for Insufficient Evidence...................................109
VII. Conclusion...............................................................110
Defendant Jamal Laurent is charged with receipt of a firearm and ammunition while under indictment for a crime punishable by a term of imprisonment exceeding one year. See 18 U.S.C. § 922(n). On October 18, 2011, the parties were ordered to show cause why the indictment should not be dismissed on the grounds that § 922(n) is unconstitutional. Ct.’s Order to Show Cause, Doc. Entry 34, Oct. 18, 2011. Concerns raised included that the statute may violate equal protection, the Fifth Amendment’s notice requirement, and the presumption of innocence. Defendant subsequently argued that the statute violates his Second Amendment right to keep and bear arms, Def.’s Mem. of L. in Supp. of Mot. to Dismiss, Doc. Entry 46, Nov. 17, 2011, and the Commerce Clause, Def.’s Letter, Doc. Entry 51, Nov. 20, 2011. A hearing on these issues was held on November 21, 2011. See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011.
Challenges to the statute are multifarious. Under § 922(n), the fact of an indictment in any jurisdiction for any felony converts what can be assumed to be an otherwise lawful activity — the shipping, transportation, or receipt of a firearm— into a crime. At the time the defendant commits this act, he has not been convicted of any offense. He has not seen the evidence against him, or had the other рrotections of due process, including an opportunity to present his own version of events. While the grand jury which originally indicted him determined that there was probable cause of a crime, there has not necessarily been an independent judicial determination that the defendant poses a danger to the community. Despite the absence of these procedural protections, the statute permits the government to both deprive someone of what is arguably a constitutional right to receive a gun, and to punish the exercise of that right with criminal sanctions.
Defendant questions whether the broad prohibition of the statute is necessary to achieve the congressional goals. Arguably, public safety could be adequately protected if the judge in the initial felony case made an individual determination regarding whether the defendant is sufficiently dangerous to be deprived of his right to obtain a gun as a condition of bail. Def.’s Mem. of L. in Supp. of Mot. to Dismiss, Doc. Entry 46, Nov. 17, 2011. See, e.g., 18 U.S.C. § 3142(e)(l)(B)(xiv) (permitting federal courts to set conditions of pre-trial release); N.Y.Crim. Proc. § 530.14 (stating conditions when a trial court may revoke or suspend a defendant’s firearms license, order the defendant ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed). Even if the statute does not violate the presumption of innocence, equal protection, the Commerce Clause, or the Second Amendment, does it run afoul of the Fifth Amendment right to procedural due process?
The issues raised pose the question: is it necessary to impinge on a fundamental right to receive guns with a strict rule when the same interest in public safety might be adequately served while providing appropriate procedural protections to defendants? The answer is that Congress could reasonably respond, “Yes.”
For the reasons stated below, the motion to dismiss on constitutional grounds is denied. The facts of this case demonstrate that the statute is constitutional both on its face and as applied to this particular defendant.
Defendant also moved for a bill of particulars specifying when and where the defendant received the firearm in question. Def.’s Mem. of Law in Supp. of Pre-Trial Mot., Doc. Entry 49, Nov. 18, 2011. The
II. Facts
A. Prior State Indictment
On June 21, 2010, an individual (“Victim 1”) residing at 1445 Schenectady Avenue, Brooklyn, New York reported to the New York City Police Department (NYPD) that someone shot a bullet through the wall of his apartment from the adjoining room. Compl. ¶ 2, Doc. Entry 1, Apr. 11, 2011. Shortly thereafter, the defendant entered Victim l’s room. Id. He apologized for the shooting and asked Victim 1 not to report the incident to the police. Id.
Later that day, NYPD officers entered the defendant’s room and observed a nine millimeter pistol, a spent shell casing, and a bag of marijuana. Id. ¶ 3. Although Laurent was present when the NYPD first arrived, he immediately fled the scene on foot. Id.
Defendant was arrested by NYPD officers on July 11, 2010 in connection with the June 21, 2010 incident. Id. ¶ 4. On July 29, 2010, he was indicted in Kings County Supreme Court for: 1) criminal possession of a weapon in the second degree; 2) reckless endangerment in the first degree; 3) intimidating a witness in the third degree; 4) reckless endangerment in the second degree; 5) criminal possession of a weapon in the fourth degree; and 6) menacing in the third degree. Gov’t Resp. to Order to Show Cause 4, Doc. Entry 41, Nov. 16, 2011. Both the first and second counts charged are felonies punishable by a term of imprisonment exceeding one year. Id.
Laurent was arraigned on the stаte court indictment on August 24, 2010. Id. The charges, as amended, are still pending. Id. He currently stands indicted for intimidating a witness in the third degree, a felony, and menacing in the third degree, a misdemeanor. Gov’t Resp. to Order to Show Cause Ex. A, Doc. Entry 41, Nov. 16, 2011. It is defense counsel’s view that he may be permitted to plead guilty to a misdemeanor. Def.’s Mem. of L. in Supp. of Mot. to Dismiss 2 n. 2, Doc. Entry 45, Nov. 17, 2011.
B. Indictment Under 18 U.S.C. § 922(n)
On March 21, 2011, eight months after his initial state indictment, two NYPD officers witnessed an altercation between defendant and another victim (“Victim 2”). Victim 2 shouted to the officers that he was being robbed and that the defendant had a gun. Compl. ¶ 7, Doc. Entry 1, Apr. 11, 2011. When Laurent ran, the officers pursued him. Id. They caught up with him while he was attempting to hide behind a tree. Id. He was ordered to come out with his hands up; Laurent complied and was placed under arrest. Id. When the police officers searched the area where he had tried to hide, they located a .38 caliber revolver, a brown wallet, and $3,000 in cash. Id. ¶ 8. Victim 2 identified the wallet and cash as his. Id.
On May 9, 2011, the defendant was arraigned in federal court on a single-count indictment for receiving a firearm in violation of 18 U.S.C. § 922(n). Indictment, Doc. Entry 9, Apr. 26, 2011. Section 922(n) reads as follows:
It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
III. 18 U.S.C. § 922(n)
A. Legislative History
The federal government and many states now limit indictees’ access to guns. See, e.g., Ohio Rev.Code Ann. § 2923.13(A)(2)~(3) (“Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if ... [t]he person is under indictment for ... any felony offense of violence” or “is under indictment for ... any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”); Wash. Rev.Code § 9.41.040(2)(a)(iv) (“A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm ... [i]f the person is free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense.”); see also Gun Laws: Prohibited Persons (Most Recent) By State, StateMaster.com, http:// www.statemaster.com/graph/gov_gun_Iaw_ pro-per-government-gun-laws-prohibited-persons# source (last visited Nov. 18, 2011) (describing restrictions on gun possession by state). This limitation is of comparatively recent vintage.
Prior to 1923, at least seven state legislatures had adopted bans on the carrying of concealed weapons by violent offenders. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 695, 702, 707-09 (citing Handbook of the National Conference of Commissioners on Uniform State Laws and Proceedings of the Thirty-Fifth Annual Meeting 862-63 (1925)).
The first federal statute limiting the right of individuals under indictment to access firearms was enacted in 1938. Federal Firearms Act of 1938, 75 Cong. Ch. 850, § 2(e), 52 Stat. 1250, 1251 (repealed). It prohibited individuals under indictment for, or convicted of, a crime of violence from shipping or transporting any firearms or ammunition in interstate commerce. Id. It also proscribed possession of firearms by any fugitive from justice, id., as well as by violent felons and misdemeanants. Id. § 2(f), 52 Stat. 1250, 1251. “Crimes of violence” were commonly understood to include only those offenses “ordinarily committed with the aid of firearms.” Marshall, supra, at 702. As described by one court:
The evils sought to be corrected by Congress through the Federal Firearms Act, 15 U.S.C.A. § 901 et seq., are well known — the practice of roaming racketeers and predatоry criminals who know no state lines — a situation beyond the power of control by local authorities to such an extent as to constitute a national menace.
United States v. Platt,
In 1961, Congress expanded the prohibition of § 2(e) to encompass all individuals under indictment, regardless of the crime they were accused of. See Act of Oct. 3, 1961, Pub.L. No. 87-342, 75 Stat. 757 (repealed). The act was intended “[t]o strengthen the Federal Firearms Act,” id., and “make it more difficult for the criminal elements of our society to obtain firearms,” S.Rep. No. 364, 87th Cong., 1st Sess. 2 (1961). Introduced at the request of the Attorney General, the legislation was an integral part of an anti-crime program. S.Rep. No. 364, 87th Cong., 1st Sess. 2 (1961). In recommending that § 2(e) and other portions of the Federal Firearms Act be amended, the House Ways and Means Committee reported that “the infiltration of racketeering into society and the exploding crime rate ha[d] increasingly become a cause for national concern.” United States v. Thoresen,
The scope of the statute wаs again expanded by the Gun Control Act of 1968. Pub.L. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. § 921 et seq.). The 1968 Act clarified the definition of “indictment” to include an information or indictment in any court- — state or federal — if the court had power to prosecute any crime punishable by more than one year in prison. Id. § 921(a)(14), 82 Stat. 1216 (defining indictment as “an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted” (emphasis added)). The statute was designed to require the indictment to be a felony, emphasizing the crime rather than the indicting court’s jurisdiction. See S.Rep. No. 1501, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2201 (“Inasmuch as a person under indictment for certain crimes is proscribed from shipping or receiving firearms in interstate or foreign commerce and a license will not be issued to such a person, the definition makes it clear that either an indictment or an information in any court for a felony comes within the meaning of the term.” (emphasis added)). It criminalized receipt of a firearm or ammunition “by any person ... who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” Gun Control Act of 1968, Pub.L. 90-618, § 102, 82 Stat. 1219-20 (emphasis added). It also continued to criminalize the shipping or transportation of firearms or ammunition by an individual under indictment. Id. § 922(g)(1), 82 Stat. 1219.
As described by the Supreme Court:
[T]he 1968 Act reflects a ... concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons. Its broadly stated principal purpose was “to make it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency.” S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968), 1968 U.S.C.C.A.N. 2112, 2113. See also 114 Cong. Rec. 13219 (1968) (remarks by Sen. Tydings); Huddleston v. United States, 415 U.S. [814] at 824-825,94 S.Ct. 1262 ,39 L.Ed.2d 782 ....
[I]t is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trapshooting, target shooting, personal protection, or any other lawful activity, and ... this title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.
S.Rep. No. 1501, 90th Cong., 2d Sess., 22 (1968), 1968 U.S.C.C.A.N. 2112, 2199.
In 1986, Congress again revised the statute to combine the provisions of § 922(g)(1) and (h)(1) that dealt with indictees into a single section, § 922(n). Firearms Owners’ Protection Act, Pub.L. 99-308, 100 Stat 449 (1986). In passing the Act, Congress found that “the rights of citizens ... to keep and bear arms under the second amendment to the United States Constitution; ... and assurance of due process of law under the fifth amendment ... require additional legislation to correct existing firearms statutes and enforcement policies.” Id. § 1, 100 Stat 449. Congress also reaffirmed its intent not “to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.” Id.
Subsequent amendments to the statute have not changed the language of § 922(n) or the content of its prohibitions.
B. Current Statutory Text
18 U.S.C. § 922 imposes a wide range of restrictions on gun manufacture, transportation, sale, and possession. While it does not prohibit the transportation or receipt of guns generally, it regulates the transportation, receipt, or possession of guns by certain classes of individuals. Section 922(n) specifically prohibits the shipment, transportation, or receipt of firearms by “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(n). Under the statute, the fact that the defendant has been indicted for any felony converts the otherwise lawful act of transporting or receiving а gun into criminal conduct. It thus both limits the ability of indictees to access weapons and applies criminal sanctions to the exercise of that liberty. It does so categorically, without requiring an independent determination of dangerousness. It imposes significant penalties for this crime, including imprisonment of up to five years. 18 U.S.C. § 924(a)(1).
C. Meaning of “Receive”
When viewed in the context of other provisions of 18 U.S.C. § 922, the words “ship,” “transport,” and “receive” in § 922(n) are used with precision. They contrast with specifications such as, e.g., “to ship or transport ..., or possess ...; or to receive,” § 922(g); “to receive, possess, or transport,” § 922(h)(1); “to receive, possess, conceal, store, barter, sell or dispose of,” § 922(j); “to import,” § 922(¿); “and to transfer or possess,” § 922(o )(1).
The word “receive” is defined principally as an action: “to take back, take, accept.” Webster’s Third New International Dictionary (1993); see also, e.g., The Complete
In the present case, the contrast is between possession, which does not require a change in condition — possession could have started at any time, even before indictment for a felony — and “receipt,” which requires a transfer of possession at a specific time, the taking.
By its own terms, § 922(n) does not prohibit possession of a weapon by someone under indictment, but only shipping, transportation, or receipt. The government urges that receipt can be proved by mere possession or constructive possеssion. See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011. This claim has no merit.
The government points to United States v. Rivera, in which the Court of Appeals for the Second Circuit held that evidence of constructive possession was sufficient to support a conviction under § 922(h)(1), an earlier version of § 922(n).
It shall be unlawful for any person ... who is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Gun Control Act of 1968, Pub.L. 90-618, § 102, 82 Stat. 1219-20 (emphasis added). The defendant Pedro Rivera stipulated that he was a convicted felon, and that the gun travelled in interstate commerce. Brief for Appellant Pedro Rivera at 7, United States v. Rivera,
The government argues that, because the language of § 922(h)(1) mirrors the current language of § 922(n), this court should adopt the Second Circuit’s interpretation of receipt by a felon under § 922(h)(1) as the meaning of receipt by an indictee under § 922(n). See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011.
The Court of Appeals for the Second Circuit’s holding in Rivera is inapposite.
First, because the defendant in Rivera conceded that possession was sufficient to establish receipt, the distinction between “receipt” and “possession” was never before the court. Brief for Appellant Pedro Rivera at 7, United States v. Rivera,
As described in Part 111(A), supra, the 1986 amendments to § 922 were intended to provide further protection to “the rights of citizens ... to keep and bear arms under the second amendment to the United States Constitution; ... and assurance of due process of law under the fifth amendment....” Id. § 1.
As amended, section 922(g) specifically criminalizes gun possession, as well as transportation and receipt, by several categories of individuals, including convicted felons. 18 U.S.C. § 922(g) (stating that it shall be unlawful for particular categories of individuals to “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce” (emphasis added)). Other subsections of the amended § 922 prohibit possession of certain kinds of firearms, or of firearms by certain individuals. See, e.g. 18 U.S.C. § 922(k) (“It shall be unlawful for any person knowingly to ... possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.” (emphasis added)).
In the same 1986 act, the provisions of 18 U.S.C. § 922(h)(1) that pertained to individuals under indictment were recodified as 18 U.S.C. § 922(n). By omitting the word “possession” from § 922(n), Congress intended that “[persons under indictment are prohibited from receiving or transporting firearms but may continue to possess them.” H.R.Rep. No. 495, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1360; see Keene Corp. v. United States,
In recodifying the provisions of § 922(h)(1) so it pertained only to indictees as § 922(n), rather than as part of § 922(g), Congress evinced its decision not to criminalize mere possession of firearms by indictees. “[A]n indictment that alleges only possession of a firearm by a person under indictment is insufficient to charge a violation of 18 U.S.C. § 922(n)”:
Even assuming that one who possesses a firearm necessarily received it first, receipt is a discrete occurrence while possession implies a continuous act. A person who acquires a firearm and is later indicted continues to possess the firearm, but he does not receive the firearm again by virtue of that possession.
United States v. Adams, No. 11-cr-00046,
In order to prove the defendant guilty of violating § 922(n), the government must establish that he shipped, transported, or received the gun after and while still under an indictment for a crime punishable by a term of imprisonment exceeding one year. To interpret the statute otherwise would criminalize mere possession and would be contrary to the law as written and interpreted.
D. Government Interest at Stake
The government’s interest is of critical importance in evaluating the statute’s constitutionality. Substantial legislative history indicates that § 922(n) is supported by a compelling government interest in public safety.
In its report on the Gun Control Act of 1968, the Senate found that “[t]he ready availability; that is, ease with whiсh any person can anonymously acquire firearms (including criminals ... and others whose possession of firearms is similarly contrary to the public interest) is a matter of serious national concern.” S.Rep. No. 1501, 90th Cong., 2d Sess., 1968 U.S.C.C.A.N. 2112, 2113 (1968). It was believed that crime and racketeering could be curtailed nationwide by limiting the ability of those whose past records demonstrated a propensity to engage in such activity from transporting or receiving weapons in interstate commerce.
“The federal gun control statute is designed to prohibit the ownership of firearms not only by individuals who have already committed dangerous acts, but also by those with a potential for violence as well.” United States v. Waters,
The Supreme Court has explained that “[t]he government’s interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno,
Since the statute requires the defendant to know that he has been indicted and thereafter to knowingly received a gun, see Part V(C), infra, the government’s interest is narrow and clear. It would take a particularly brazen and dangerous individual
E. Prior Constitutional Challenges
The Supreme Court has not ruled on the constitutionality of 18 U.S.C. § 922(n) or its predecessor provisions. Several district courts and courts of appeals have found that the section does not violate the Commerce Clause, e.g. United States v. Gaines,
IV. Background
In order to understand the nature of the deprivation accomplished by the statute, some background on the grand jury and the rights of individuals under indictment is necessary.
A. Power of the Grand Jury
An indictment is not a finding of guilt beyond a reasonable doubt, nor even by a preponderance of the evidence. It requires only two things: 1) that a prosecutor seek an indictment; and 2) that a grand jury conclude that there is probable cause to believe that the defendant is guilty of the charged crime. The grand jury need not consider either exculpatory evidence or the defendant’s version of events.
' Federal grand jury proceedings are not limited by the procedural protections guaranteed to defendants at trial. Costello v. United States,
Traditionally the grand jury has been accordеd wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. “It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Blair v. United States,250 U.S. 273 , 282,39 S.Ct. 468 ,63 L.Ed. 979 (1919).
United States v. Calandra,
Federal grand juries have enormous power to consider a wide range of
A defendant has a limited ability to inquire into the propriety of a grand jury’s determinations, even if that determination is based on incompetent, irrelevant, or unconstitutionally-obtained evidence. See Costello,
Some state grand juries may provide some additional procedural protections. John F. Decker, Legislating the New Federalism: Grand Jury Reform in the States, 58 Okla. L.Rev. 341, 369-70 (2005) (“[A]t least twenty-four state legislatures have created a statutory right to counsel in conjunction with the grand jury.”); id. at 373-74 (noting that several states require prosecutors, either by statute or case law, to present exculpatory evidence to the grand jury); id. at 380 (stating that five states recognize that the target of a proceeding has a right to appear before the grand jury, at least in some instances). Even so, these protections fall far below those a defendant is entitled to at trial. Id. at 370-71(“In most states that have established a statutory right to counsel [in the grand jury], this light is limited to counsel privately retained; only seven states require the appointment of counsel to targets, subjects, or witnesses.... Virtually all the state laws permitting counsel to be present in the grand jury room include language strictly limiting the attorney’s participation in the proceedings.”); id. at 375 (“Cases in which an indictment was dismissed for failure to present exculpatory evidence generally involve egregious problems with the prosecutor’s presentation of the evidence to the grand jury.”); id. at 376 (“Many state courts ... are reluctant to limit the grand jury’s investigative powers and to permit judicial inquiries into the quality of evidence presented to the grand jury.”).
The great power and discretion vested in the grand jury reduces delay. See Costello,
“[M]any lawyers and judges have expressed skepticism concerning the power of the Grand Jury.” United States v. Navarro-Vargas,
Because of the ease of indictment, courts have been troubled by the possibility that individuals may suffer the collateral consequences of an indictment that is unfounded. See, e.g., United States v. Serubo,
B. Rights of Individuals Under Arrest or Indictment
While an indictee is presumed innocent, see Part V(D), infra, an indictment “is not without [adverse] legal consequences.”
It establishes that there is probable cause to believe that an offense was committed, and that the defendant committed it. Upon probable cause a warrant for the defendant’s arrest may issue; a period of administrative detention may occur before the evidence of probable cause is presented to a neutral magistrate .... Once a defendant has been committed for trial he may be detained in custody if the magistrate finds that no conditions of release will рrevent him from becoming a fugitive.
United States v. Salerno,
Indictment has historically had a limited effect on an individual’s constitutional rights. Probably the most important consequence is the potential for pre-trial detention. See Bail Reform Act of 1984, 18 U.S.C. § 3141 eb seq.; Salerno,
In Salerno, the Supreme Court upheld the ability of a federal court to detain an arrestee before trial on a finding by “clear and convincing” evidence that detention is the only way to reasonably insure the safety of the community. Salerno,
[T]he Government must first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person....
Id. at 751-52,
An indictee may also be subject to pre-trial release conditions that infringe upon his constitutional rights, provided that there has been an independent judicial determination that such conditions are necessary. Compare, e.g., 18 U.S.C. § 3142(c)(l)(B)(xiv) (“If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person ... subject to the least restrictive further condition, or com
Arrest can sometimes trigger other collateral consequences such as loss of public housing or employment. See, e.g., 24 C.F.R. § 966.4(1)5(iii)(A) (stating that in conventional public housing, a Public Housing Authority may terminate assistance “regardless of whether the covered person has been arrested or convicted for such activity and without satisfying the standard of proof used for a criminal conviction”); 24 C.F.R. § 982.553(c) (describing an analogous provision for Section 8 vouchers); K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order Maintenance Policing, 33 N.Y.U. Rev. L. & Soc. Change 271, 304-05 (2009) (describing the effects of arrest on employment). These deprivations may occur without significant procedural protections. See 42 U.S.C. 1437d(k) (stating that tenants must be given an opportunity to contest a termination of tenancy through the public housing authority’s grievance procedure); 24 C.F.R. § 966.51(a)(2) (excluding evictions based on certain types of tenant criminal activity from the grievance requirement, including evictions for drug-related criminal аctivity on or near the premises or criminal activity that threatens the health, safety, or peaceful enjoyment of the premises of other tenants).
Generally, indictees are deprived of their constitutional rights only following an individual determination of need by a judge. Convicted felons, by contrast, are often subject to categorical deprivations of constitutional rights. See, e.g., McKune v. Lile,
C. Treatment of Unconvicted Conduct
Reliance on unconvicted conduct — i.e., activities that have not been proven beyond a reasonable doubt — to sanction defendants is constitutionally suspect. See, e.g., Apprendi v. New Jersey,
V. Constitutionality of 18 U.S.C. § 922(n)
A. Facial vs. As Applied Challenges
“To successfully challenge a statute on its face, the challenger must show that no set of circumstances exists under which the Act would be valid.” Ohio v. Akron Ctr. for Reproductive Health,
In an as-applied challenge, the question is whether the statute would be unconstitutional if applied to the facts of the case. Cf. Field Day LLC v. County of Suffolk,
The defendant challenges the statute on its face. Def.’s Mem. of L. in Supp. of Mot. to Dismiss 2-8, Doc. 46, Nov. 17, 2011. He also argues that the fact that he may plead guilty to a misdemeanor may ultimately render it unconstitutional as applied to him. See Tr. of Hr’g on Order to Show Cause, Nov. 21, 2011.
B. Commerce Clause
The Court of Appeals for the Second Circuit has held that the conduct proscribed by 18 U.S.C. § 922 has a sufficient nexus with interstate commerce and does not violate the Commerce Clause. E.g., United States v. Gaines,
Alternatively, defendant argues unpersuasively that § 922(n) should be read to require the government to prove that the firearm he received traveled in interstate or foreign commerce after the indictment. Def.’s Letter, Doc. Entry 51, Nov. 20, 2011. Defendant points to dicta in United States v. Bass:
Title IV, 18 U.S.C. s 922(g) and (h), is a modified and recodified version of 15 U.S.C. s 902(e) and (f) (1964 ed.), 75 Stat. 757, which in turn amended the original statute passed in 1938, 52 Stat. 1250, 1251.... The wording of the substantive offense has remained identical, although the original Act had a provision that possession of a firearm ‘shall be presumptive evidence that such firearm or ammunition was shipped or transported or received (in interstate or foreign commerce).’ That presumption was struck down in Tot v. United States,319 U.S. 463 ,63 S.Ct. 1241 ,87 L.Ed. 1519 (1943), and the Court there noted: “(T)he Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate.” Id., at 466,63 S.Ct., at 1244 .
Such a cramped reading of the statute is inappropriate. Under that interpretation, an indictee could buy a firearm after indictment at a local gun store — or use a straw purchaser to do so — without running afoul of the statute. It would render § 922(n) toothless.
C. Fifth Amendment Notice Requirement
Concerns that § 922(n) may violate the Fifth Amendment’s notice requirement, see Ct.’s Order, Doc. Entry 34, Oct. 18, 2011, are unfounded. Although the statute does not specifically state that a defendant must know that he is under a felony indictment, courts will imply such a requirement.
In order to be convicted under 18 U.S.C. § 922(n), the defendant must “willfully” commit a violation of the statute. See 18 U.S.C. § 924(a)(1)(D) (“Except as otherwise provided in this subsection, subsection (b), (c), (f), or (p) of this section, or in section 929, whoever ... willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both.”); Dixon v. United States,
A defendant must have knowledge of the fact that he is under indictment. As so interpreted, the Fifth Amendment’s notice requirement is satisfied.
D. Presumption of Innocence
Individuals have the fundamental right to be free from punishment unless and until the underlying conduct has been proven beyond a reasonable doubt at a jury trial. See U.S. Const, amend. V, XIV; In re Winship,
“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States,
Within the context of a criminal trial, the presumption of innocеnce affords the accused broad protections. In Estelle v. Williams, for example, the Supreme Court held that the accused may not be brought before the jury in prison attire.
Outside the context of a criminal trial, the presumption of innocence has limited application. It does not prohibit the state from restricting the rights of arrestees who are detained while awaiting trial. In Bell v. Wolfish, the Court of Appeals for the Second Circuit relied on the presumption in crafting a stringent test for whether conditions of confinement violated the rights of pretrial detainees. Bell,
Given the narrow scope of the right outside of trial, the instant statute does not violate the presumption of innocence. Thoresen,
It does not authorize a fact finder at the criminal trial to infer guilt ... from the existence of a prior indictment or even to discount the credibility of a witness because of such an indictment.... It represents nothing more than a ... Congressional finding that persons under indictment ... may have a propensity for misusing firearms.
Thoresen,
While the presumption of innocence is not violated by the instant statute, it does lend color to claims concerning the effect of the statute on other rights of individuals under indictment.
The assumption that [a defendant is] more likely to commit crimes than other members of the public, without an individualized determination to that effect, is contradicted by the presumption of innocence. That an individual is charged with a crime cannot, as a constitutional matter, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody. Defendant is, after all, constitutionally presumed to be innocent pending trial, and innocence can only raise an inference of innocence, not guilt.
United States v. Scott,
The presumption itself is not a sufficient ground to declare the statute unconstitutional.
E. Second Amendment
The limits of the Second Amendment right to bear arms following District of Columbia v. Heller,
In evaluating the constitutionality of a statute under the Second Amendment since Heller, several courts of appeals have applied a two prong test. First, they have asked whether the prohibited act imposes a substantial burden on the right to bear arms for the purpose of self-defense in the home. Only those acts that impose such a burden merit heightened scrutiny — either strict or intermediate. Second, they have evaluated whether the statute survives that scrutiny. United States v. Marzzarella,
Some courts have analogized the Second Amendment to the First, drawing on free speech jurisprudence to define what constitutes a substantial burden and the level of scrutiny necessary. See, e.g., Marzzarella,
1. Kinds of Constitutional Scrutiny
In construing constitutional limits, there are generally three levels of scrutiny. “At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose” — so-called rational basis scrutiny. Clark v. Jeter,
Intermediate scrutiny has been formulated in a number of ways, all requiring some form of serious government interest and a substantial connection between furthering that interest and the limit on the constitutional right. See United States v. O’Brien,
The degree to which the statute must be tailored to the state interest is uncertain. In the equal protection context, intermediate scrutiny only requires that the law be substantially related to an important government interest. See Ramos v. Town of Vernon,
“Narrow tailoring” in the context of First Amendment intermediate scrutiny does not require a perfect fit between the regulation and the government interest at stake.
The requirement of narrow tailoring is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.... So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less ... restrictive alternative.
Ward,
Despite different formulations, courts have applied intermediate scrutiny in similar ways. Formulations of intermediate scrutiny “require the asserted governmental end to be ... either ‘significant,’ ‘substantial,’ or ‘important.’ ” Marzzarella,
2. Right to Bear Arms
The Second Amendment provides that “[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. It confers an individual right to keep and bear arms specifically for the purpose of self-defense. Heller,
Only those laws and regulations that substantially burden the right to keep and bear arms for the purpose of self-defense run afoul of the Second Amendment. See Heller,
The right to self-defense in the home belongs to “law-abiding citizens for lawful purposes.” Heller,
Second Amendment protections thus only extend to those weapons typically possessed for the purpose of lawful self-defense. Heller,
Similarly, the “prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” are “longstanding” and “presumptively lawful.” Heller,
The Supreme Court has indicated that some form of heightened scrutiny is necessary when the conduct at issue falls within the core of the Second Amendment right to bear arms for the purpose of self-defense in the home. See Heller,
3. 18 U.S.C. § 922(n) Imposes a Substantial Burden
To evaluate the burden placed on a constitutional right by government regulation, courts determine whether the
Statutes that criminalize access to guns by particular classes of individuals burden Second Amendment rights. See Reese,
The statute at issue in this ease arguably falls within the core of the Second Amendment right. Section 922(n) is different than a prohibition on gun possession by felons, which the Heller court described as “presumptively lawful.” Because of the presumption of innocence, it is assumed until conviction that the defendant is not guilty of the initial indictment triggering criminal liability. Thus, for purposes of construing the statute, a defendant under indictment is a “law-abiding citizen” who remains eligible for Second Amendment protections. At the same time, if the individual only received a gun after indictment, this conduct raises the suspicion that his purpose is not self-defense in the home, but further crime.
Even if the burden it inflicts is not insignificant, it is temporary. It lasts only from indictment to conviction or acquittal. While the provision does not prohibit individuals under indictment from owning or possessing guns for the purposes of self-defense in the home, it restricts their ability to acquire a weapon until they are free of the indictment.
Unless the defendant already possesses a firearm prior to his indictment, § 922(n) does deny him the ability to keep and bear arms for the purpose of self-defense in his home. This burden may last for a year or more before the initial indictment is adjudicated. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Compendium of Federal Justice Statistics, 2004. 63 (2006) (showing that the average case processing time for a felony was 10.1 months, but that some types of cases lasted more than twenty months on average). Section 922(n) does infringe on Second Amendment rights.
4. No More Than Intermediate Scrutiny is Appropriate
The Supreme Court has indicated that some form of heightened scrutiny is necessary for laws that infringe on core Second Amendment rights. In Heller, the Supreme Court declined to state what level of review is appropriate for statutes that infringe on the core Second Amendment right to bear arms for the purpose of self-defense. It stated that the right to bear arms is a fundamental right, McDonald,
[T]he right [to bear arms] was not unlimited, just as the First Amendment’s right of free speech was not____Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
Heller,
Courts of appeals have adopted intermediate scrutiny to evaluate restrictions on gun possession by particular people or in particular places, analogizing these regulations to time, place, and manner restrictions on speech. Masciandaro,
Two district courts in the Second Circuit have applied intermediate scrutiny to similar laws. See Osterweil v. Bartlett,
Applying intermediate scrutiny, courts have upheld a number of restrictions on gun ownership and possession. In Marzzarella, for example, the Court of Appeals for the Third Circuit held that a federal ban on transportation, receipt, and possession of any firearm which has had the importer’s or manufacturer’s serial number removed was related to the “substantial or important” “law enforcement interest in enabling the tracing of weapons via their serial numbers.”
Intermediate scrutiny is the appropriate level of review for the statute at issue in the present case. But see Masciandaro,
Unlike the total ban at issue in Heller, § 922(n) applies only to a narrow class of persons, rather than to the public at large. It is substantially similar to § 922(g)(9) and § 922(g)(8), the statutes at issue in Skoien and Reese, respectively. Both of those provisions prohibit the possession of firearms by narrow classes of persons who, based on their past behavior, are more likely to engage in domestic violence for an unlimited period. Section 922(n) is less restrictive than either of those statutes, since it only criminalizes shipping, transportation, or receipt of a firearm, not possession. It also only applies for the limited period between indictment and either acquittal or conviction. Intermediate, not strict, scrutiny is appropriate.
5. 18 U.S.C. § 922(n) Survives Intermediate Scrutiny
Prior to Heller, several courts ruled that 18 U.S.C. § 922(n) and predecessor statutes did not violate the Second Amendment. Rivero,
The prohibition at issue in this case is less restrictive than other subsections of 18 U.S.C. § 922, which totally ban possession by particular categories of people, such as felons or misdemeanants convicted of domestic violence. See, e.g., 18 U.S.C. § 922(g). Courts have continued to uphold such provisions in the wake of Heller. E.g. United States v. Barton,
Concededly, given the presumption of innocence, the government’s categorical presumption that all individuals under indictment for a felony are more likely to misuse firearms is somewhat suspect. See Part V(D), supra; see also Bureau of Justice Statistics, U.S. Dep’t of Justice, Compendium of Federal Justice Statistics, 200k 54 (2006) (stating that, in 2004, only 1.8% of felony defendants violated the terms of their pre-trial release by committing any other crime). Congress appears to have determined, however, that a narrower ban would not serve its interest in public safety. Initially, Congress only limited receipt of firearms by violent indictees. Federal Firearms Act of 1938, 75 Cong. Ch. 850, § 2(e), 52 Stat. 1250, 1251. After three decades of experience, it saw the need to expand the prohibition to all indictees. Act of Oct. 3, 1961, Pub.L. No. 87-342, 75 Stat. 757.
As demonstrated by the facts of this case of this case, it cannot be said that Congress’ determination to criminalize the act of receiving a firearm while under indictment was unreasonable, and that “no set of circumstances ... under which [the statute] would be valid.” Salerno,
The fact that Laurent may eventually plead to a misdemeanor is not of statutory or constitutional significance. The crime is committed when the firearm is obtained while the defendant is under a felony indictment; dismissal, acquittal, or conviction does not affect that fact. So long as the government can show that he was under indictment for a felony at the time he received a firearm, he may be convicted under § 922(n).
Because the statute is substantially and directly related to the important government interest in public safety, it survives intermediate scrutiny under the Second Amendment.
F. Equal Protection
The indictment does not violate Laurent’s right to the equal protection of the laws.
The Fourteenth Amendment’s Equal Protection Clause by its terms is only applicable to the states. U.S. Const, amend. XIV (“No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” (emphasis added)). While the Fifth Amendment does not contain an explicit equal protection clause, it has been interpreted to provide the same basic safeguards. See Schneider v. Rusk,
It has been held that § 922(n) and its predecessors do not violate the equal protection principles protected by the Due Process Clause. See Craven,
To the extent that § 922(n) infringes on the Second Amendment right to bear arms, it is subject to intermediate scrutiny. For the reasons discussed in Part V(E)(5), supra, it survives such scrutiny.
To the extent that § 922(n) distinguishes between individuals under indictment and others, it does not seriously burden the presumption of innocence, see Part V(D), supra, and need only survive rational basis scrutiny. Although potentially overbroad, it cannot be concluded that Congress was irrational in concluding that individuals under indictment are more likely to misuse firearms than the general population and that § 922 was properly designed to protect the public against a narrowly defined group of people who are more dangerous than most. See Cases,
G. Procedural Due Process
The Due Process Clause of the Fifth Amendment prohibits the federal governments from depriving any person of “life, liberty, or property, without due process of law.” U.S. Const, amend. V. This clause protects both procedural and substantive rights. “When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner... .This requirement has traditionally been referred to as ‘procedural due process.’” Salerno,
Individuals under indictment have a procedural due process right not to be needlessly deprived of their liberties, including their Second Amendment rights. Under procedural due process, “standard analysis ... proceeds in two steps: We first ask whether there exists a liberty ... interest of which a person has been deprived, and if so we ask whether the procedures followed ... were constitutionally sufficient.” Swarthout v. Cooke, — U.S. —,
Some categorical prohibitions on access to guns have been struck down as violating procedural due process. For example, the Adam Walsh provisions mandate, among other things, that a defendant charged with a child pornography offense be required to “refrain from possessing a firearm” as a condition of pre-trial release. 18 U.S.C. § 3142(c)(1)(B); see also Adam Walsh Child Protection and Safety Act of 2006, Pub.L. 109-248, § 216, 120 Stat. 587 (codified at 18 U.S.C. § 3142). Several courts have held that those provisions violate due process on their face because they “establish that an arrest on the stated charges, without more, irrebuttably establishes that such conditions are required, thereby eliminating the accused’s right to an independent judicial determination as to required release conditions, in violation of the right to procedural due process ... under the Fifth Amendment.” Crowell,
In the instant case, the statute does not violate procedural due process either on its face or as applied to this defendant.
1. Private Interest at Stake
As discussed in Part V(E), supra, the instant statute arguably burdens indictees’ fundamental right to bear arms. The consequences of this deprivation may be severe. Section 922(n) not only denies an individual of their right to bear arms; it permits the government to charge that individual with a new substantive offense and to impose additional punishment as a result.
The prohibition imposed, however, is substantially narrower than that enforced through the Adam Walsh Amendments. Unlike those Amendments, § 922(n) only
2. Risk of Erroneous Deprivation
Categorical prohibitions on the liberties of arrestees and indictees are rare. See Part IV(B). An individual determination of risk is the norm.
In Salerno, the Court upheld the constitutionality of the Bail Reform Act’s provision permitting “pretrial detention on the ground that the arrestee is likely to commit future crimes” against a procedural due process challenge. Id. at 744, 750,
Without an individual determination of risk by the court that issued the original indictment, erroneous deprivation is possible in at least some cases. While individuals with a history of violent offenses may reasonably be suspected to present a high risk of continuing this pattern while awaiting trial, the same cannot be said categorically of individuals with no criminal background under indictment for non-violent crimes. Because section § 922(n) does not require any individualized judicial consideration, it burdens all accused persons, even those who present no risks.
In this case, it is clear that the deprivation would not be found erroneous in an individual judicial hearing. Defendant was initially indicted in state court for criminal possession of a weapon, reckless endangerment, and witness intimidation, among other offenses. It is unclear from the record whether the state trial court exercised its power to revoke or suspend the defendant’s firearms license, order the defendant ineligible for such a license, or order the immediate surrender of any or all firearms owned or possessed. N.Y.Crim. Proc. § 530.14. There is little doubt, however, that had an individualized determination of dangerousness by the state trial judge been made in this case, the defendant could have been constitutionally and reasonably deprived of his right to ship, transport, or receive firearms while awaiting trial.
3. Government Interest at Stake
As a general matter, the government’s interest in preventing crime by indictees is significant. See Part III(D), supra. Nor is the risk of erroneous deprivation easily cured by additional procedures. Unlike the Adam Walsh amendments, which are limited to federal defendants, § 922(n) applies to all indictees. In order to be meаningful, any individual determination of dangerousness would have to be performed by the trial court following the initial indictment. A requirement of additional process would thus implicate state as well as federal procedures. State procedures may not permit a trial judge to prohibit receipt of firearms in all cases involving potentially dangerous defendants. See, e.g., N.Y.Crim. Proc. § 530.14 (authorizing the trial judge to restrict access to guns only in cases involving orders of protection). The ability of § 922(n) to protect the significant government interest in public safety would be significantly impaired if the applicability of the statute turned on state criminal procedure.
On its face, the government interest at stake in this case outweighs the private interest in shipping, transporting, or receiving a firearm while under indictment and the risk of erroneous deprivation. As applied to this defendant, the deprivation
VI. Power to Dismiss for Insufficient Evidence
Defendant moved for a bill of particulars stating when and where he allegedly received the firearm while under indictment. Def.’s Mem. of Law in Supp. of Pre-Trial Mot., Doc. Entry 49, Nov. 18, 2011. The motion was granted. Court’s Mem. & Order, Doc. Entry 53, Nov. 23, 2011. If the government fails to come forward with sufficient evidence to establish a violation of the statute as interpreted herein, see Part III(C), supra, the court will dismiss the indictment.
The Federal Rules of Criminal Procedure require that an indictment set forth a “plain, concise, and definite written statement of the essential facts constituting an offense.” Fed.R.Crim.P. 7(c). “[A]n indictment is sufficient when it charges a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.” United States v. Walsh,
Trial courts retain the power to dismiss a defective indictment in some instances. Under Federal Rules of Criminal Procedure 12(b), “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed. R.Crim.P. 12(b)(2). The Court of Appeals for the Second Circuit has defined the “general issue” as “whether the defendant is guilty of the offense charged.” United States v. Doe,
Sufficiency challenges often turn on the meaning of a statutory term. See United States v. Perez,
In general, the validity of an indictment is tested by its allegations, not by whether the government can prove its case beyond a reasonable doubt at trial. See United States v. Sampson,
The sufficiency of the evidence, as opposed to the allegations, may be appropriately addressed on a pretrial motion to dismiss an indictment only where “the government has made what can fairly be described as a full proffer of the evidence it intends to present at trial.” Alfonso,
Under the order granting defendant’s motion for a bill of particulars, the government is required to “outline any evidence it has regarding when and where the defendant received the gun,” “exchange the names of any witnesses expected to testify on this issue” as well as summaries of that testimony, and turn over “[a]ll relevant documents on this issue.” Ct.’s Mem. & Order, Doc. Entry 53, Nov. 23, 2011. Compliance with this order will be sufficient to constitute “a full proffer of the evidence it intends to present at trial.” Alfonso,
VII. Conclusion
Both on its face and as applied to this defendant, § 922(n) is constitutional. Defendant’s motion to dismiss the indictment as unconstitutional is denied.
The government must present some particulars to support the charge that the defendant received the gun after he became aware of the indictment, or the indictment will be dismissed for failure to charge a crime under § 922(n).
SO ORDERED.