UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BLAIR COOK, Defendant-Appellant.
No. 18-1343
United States Court of Appeals For the Seventh Circuit
DECIDED AUGUST 17, 2020
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cr-00048 — James D. Peterson, Chief Judge. ON REMAND FROM THE UNITED STATES SUPREME COURT
Before FLAUM, MANION, and ROVNER, Circuit Judges.
I.
On May 25, 2017, officers of the Madison, Wisconsin police department conducted a traffic stop of the car that Cook was driving. When officers approached the car and spoke with Cook, they noticed a strong odor of marijuana emanating from the car. Apart from the possibility that Cook was driving under the influence of marijuana, Cook was also driving on a suspended license and with a license plate missing from his vehicle, so the officers decided to detain him and ordered him to step out of the vehicle. Officer Matthew Wentzel removed a loaded, .40-caliber Glock Model 23 pistol from a holster under Cook‘s shoulder. The gun had an extended capacity magazine with a total of 19 bullets within it when Cook was stopped. Cook was transported to the police station for further questioning. During a recorded interview at the station, Cook acknowledged to Wentzel that “I‘ve been smoking weed since I was like 14” (a period of nearly ten years), that he did so because “it really mellows me out,” and that he had smoked two “blunts” earlier that day. R. 22-1 at 2–3.2 As Judge Peterson would later note in denying Cook‘s motion for a new trial, “The way Cook
Cook had purchased the firearm from Max Creek Outdoors in Oregon, Wisconsin on April 2, 2017. At the time of the purchase, he was required to complete a Firearms Transaction Record (Form 4473) promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF“). On that form, Cook answered “No” to the question, “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” Directly under that question the reader of the form was admonished, “Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside.” Gov. Trial Ex. No. 1.
A grand jury subsequently charged Cook with two offenses: knowingly possessing in or affecting commerce a firearm and ammunition as an “unlawful user” of marijuana, in violation of sections
Cook moved to dismiss both counts of the indictment on the ground that the term “unlawful user” of a controlled substance found in section 922(g)(3) is unconstitutionally vague. The district court denied the motion. R. 21 at 2–3.
The defendant was an unlawful user of marijuana if he used marijuana on a regular and ongoing basis for a period of time that began before and continued through the date of the charged offense. The government is not required to prove that the defendant was under the influence of marijuana when he filled out the Firearms Transaction Record or when he possessed the firearm. The government is not required to prove that the defendant used marijuana on any particular day, or within a certain number of days of when he committed the charged offenses.
R. 44 at 8; R. 56 at 70–71 (emphasis in original). The defense rejected the government‘s offer to include an additional sentence in this instruction advising the jury that a one-time use of marijuana is insufficient to render the defendant an “unlawful user” within the meaning of section 922(g)(3). R. 87 at 17.
Following a one-day trial, a jury convicted Cook on the possession charge but was unable to reach a verdict on the false statement charge, which the district court dismissed without prejudice. R. 46, 53. The district court denied Cook‘s Rule 33 motions for a new trial (R. 73) and ordered Cook to serve a four-year term of probation in lieu of any term of imprisonment (R. 76).
We begin our reconsideration with the charges Cook raised prior to the Supreme Court‘s decision in Rehaif. Although we conclude in section III below that Rehaif entitles Cook to a new trial, these issues are not moot and our analysis remains relevant to the proceedings on remand.
Section
Cook challenges his conviction pursuant to section 922(g)(3) on three grounds: (1) the statute is facially vague as to who constitutes an “unlawful user” of a controlled substance; (2) the statute violates his Second Amendment right to possess a
A. Facial vagueness challenge to section 922(g)(3)
Cook contends that section 922(g)(3) is vague on its face, such that his conviction violates the Fifth Amendment‘s due process clause. The void-for-vagueness doctrine requires that a criminal statute define an offense with sufficient clarity that an ordinary person has fair notice of what conduct is prohibited and so as to avoid arbitrary and discriminatory enforcement. See, e.g., Skilling v. United States, 561 U.S. 358, 402–03 (2010); United States v. Sylla, 790 F.3d 772, 774–75 (7th Cir. 2015). “What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.” United States v. Williams, 553 U.S. 285, 306 (2008).
The general practice, outside of the First Amendment context,4 has been to consider the purported vagueness of a statute in light of the facts of the particular case—i.e., as applied—rather than in the abstract. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 361 (1988); United States v. Johnson, 875 F.3d 360, 370 (7th Cir. 2017). This
Nonetheless, the Supreme Court has on a number of occasions entertained facial challenges to criminal statutes that do not implicate First Amendment concerns. See, e.g., Skilling, 561 U.S. at 402–14 (honest services fraud); City of Chicago v. Morales, 527 U.S. 41, 52–64 (1999) (loitering by gang members in public places); Lanzetta v. New Jersey, 306 U.S. 451, 453–58 (1939) (gang participation); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89–93 (1921) (price gouging). As we noted in United States v. Jones, 689 F.3d 696 (7th Cir. 2012), abrogated on other grounds, Johnson v. United States, 135 S. Ct. 2551 (2015), the common thread uniting these cases with facial challenges in the First Amendment context appears to be a concern (or at least a colorable contention) that the challenged statute “simply has no core” and lacks “any ascertainable standard for inclusion and exclusion,” id. at 703 (quoting Smith v. Goguen, 415 U.S. 566, 578 (1974)). Such a standardless statute poses a trap for the person acting in good faith, who is given no guidepost by which he can divine what sort of conduct is prohibited. See Colautti v. Franklin, 439 U.S. 379, 395–96 (1979),
The statutory prohibition at issue here does not present such concerns. True enough, section 922(g)(3) does implicate Cook‘s Second Amendment right to possess a gun. But the prohibition is not a strict liability offense requiring no mens rea, as in Colautti. By virtue of the separate penalties provision found in section 924(a)(2), a violation of section 922(g)(3) must be knowing – that is, the defendant must have knowledge of the facts that constitute the offense. E.g., Dixon v. United States, 548 U.S. 1, 5 (2006) (“unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense“) (quoting Bryan v. United States, 524 U.S. 184, 193 (1998)); see Humanitarian Law Project, 561 U.S. at 21 (“the knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement“) (collecting cases); United States v. Johnson, 911 F.3d 849, 853 (7th Cir. 2018) (word “knowingly” cures any potential vagueness in challenged condition of supervised release) (citing Screws v. United States, 325 U.S. 91, 102 (1945)). And as Rehaif has now clarified, that knowledge requirement extends to the particular status that renders a defendant‘s possession of a firearm unlawful. 139 S. Ct. at 2194,
Yancey construes the term “unlawful user,” as used in section 922(g)(3), to mean one who regularly or habitually ingests a controlled substance in a manner other than as prescribed by a physician. Id. at 682. Our opinion adds that such use must be contemporaneous with the defendant‘s possession of a gun. Id. at 687 (collecting cases); see also United States v. Grap, 403 F.3d 439, 446 (7th Cir. 2005) (adopting same contemporaneity requirement for purposes of
Cook nonetheless suggests that the Supreme Court‘s recent decision in Johnson authorizes his facial vagueness challenge, regardless of whether the statute is vague as applied to his particular conduct. Johnson declared the (now defunct) residual clause of the Armed Career Criminal Act (“ACCA“) to be impermissibly vague without requiring the defendant to first show that the clause was vague as applied to him. 135 S. Ct. at 2563. The ACCA specifies an enhanced sentence of 15 years to life for one convicted of a firearms offense if the defendant has three or more prior convictions for either a “serious drug offense” or a “violent felony.”
In declaring the residual clause to violate the due process clause, the Court expressly rejected the government‘s contention that an otherwise vague statute is constitutional so long as “there is some conduct that clearly falls within the provision‘s grasp.” Id. at 2561. While acknowledging that statements in some of its opinions could be read to support such a rule, the Court emphasized that its prior holdings squarely contradicted such a practice. Id. at 2560–61. Simply because it is possible to envision some factual scenarios that would violate an ambiguously-worded statute is not enough to rescue that statute from a vagueness challenge, the Court made clear. Id. at 2561.
The Court was also at pains to emphasize, however, that simply because a criminal statute uses qualitative language to articulate a liability standard does not mean that the statute is impermissibly vague, especially when the statute under scrutiny calls upon the court to apply that standard to a concrete set of facts. Id. at 2561; see also id. at 2558.
As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as “substantial risk” to real-world conduct; “the law is full of instances where a man‘s fate depends on his estimating rightly … some matter of degree,” Nash v. United States, 229 U.S. 373, 377 (1913). The residual clause, however, requires application of the “serious potential risk” standard to an idealized ordinary
case of the crime. Because “the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect,” this abstract inquiry offers significantly less predictability than one “[t]hat deals with the actual, not with an imaginary condition other than the facts.” International Harvester Co. of America v. Kentucky, 234 U.S. 216, 223 (1914).
It is not clear how much Johnson—and the Court‘s follow-on decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which invalidated similar language in the Immigration and Nationality Act—actually expand the universe of litigants who may mount a facial challenge to a statute they believe is vague. Not surprisingly, Cook contends that Johnson permits any defendant who can postulate doubts as to what particular conduct a criminal statute does or does not reach to pursue a facial challenge to that statute, without having to show that there is any real question as to whether his own conduct is proscribed. It is true that Johnson puts to rest the notion—found in any number of pre-Johnson cases—that a litigant must show that the statute in question is vague in all of its applications in order to successfully mount a facial challenge.5 135 S. Ct. at 2561. And,
Cook‘s appeal, by contrast, presents a much more routine vagueness challenge that highlights some imprecision in the statutory language and posits uncertainty as to whether the statute might apply to certain hypothetical facts. But section 922(g)(3) does not call for the court to engage in any abstract analysis; it calls on the court to apply the statutory prohibition
For these reasons, we are not convinced that Cook is entitled to mount a facial vagueness challenge to section 922(g)(3). Johnson did not alter the general rule that a defendant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge. United States v. Westbrooks, 858 F.3d 317, 325–26 (5th Cir. 2017) (collecting cases), cert. granted & judgment vacated on other grounds, 138 S.
Cook‘s attempt to challenge section 922(g)(3) as facially vague fails for all of the reasons we have discussed, and because he asserts no as-applied challenge to the statute, we reject his contention that the statute is inconsistent with his due process rights.
B. Second Amendment
Cook agrees that Yancey forecloses this challenge to section 922(g)(3). Yancey, as noted, held that there was a substantial relationship between the government‘s legitimate interest in preventing violent crime and the statute‘s ban on gun possession by unlawful drug users. 621 F.3d at 683–87. Although Cook asserts that Yancey was wrongly decided, he offers us no real reason to reconsider our precedent on this point. As the
C. Jury Instruction
Cook argues finally that the district court did not properly instruct the jury as to the elements of his offense. As we noted in our summary of the proceedings below, the court advised the jury that “[t]he defendant was an unlawful user of marijuana if he used marijuana on a regular and ongoing basis for a period of time that began before and continued through the date of the offense.” R. 44 at 8; R. 56 at 70–71 (emphasis omitted). The court added that Cook need not have been under the influence of marijuana when he possessed a firearm, nor was the government required to prove that he used marijuana on any particular date or within a specified number of days of the offense. (Recall that Cook had rejected the government‘s offer to add language that use of marijuana on a single occasion was insufficient to establish unlawful drug use.) Cook contends that the instruction as given was erroneous because (a) it was not grounded in the language of section 922(g)(3); (b) it was not consistent with Yancey‘s holding as to who constitutes an unlawful drug user; (c) the instruction was internally inconsistent; and (d) it foreclosed the defense from urging the jurors to use their own understanding of “unlawful user” in assessing Cook‘s conduct. None of these arguments is persuasive.
The instruction was grounded in the language of the statute in that it endeavored, consistent with the case law regarding section 922(g)(3), to define for the jury who constitutes an unlawful drug user. The statute itself does not define “unlawful user.” As discussed, this court in Yancey concluded that an
Nor was the instruction inconsistent with Yancey. Cook suggests that Yancey defined “unlawful user” of drugs to mean either one who is addicted to controlled substances or one who has simply used them within the past year, and that the reference to “regular and ongoing” drug use in the district court‘s instruction is both broader than addiction and narrower than use within the past year. But Cook‘s reading of Yancey is not a faithful account of the court‘s opinion. The opinion makes clear that section 922(g)(3) requires regular or habitual drug use, 621 F.3d at 682, that is contemporaneous with the possession
The instruction was also internally consistent. Cook‘s contention to the contrary focuses on the fact that the instruction advised the jury, on the one hand, that his marijuana use must have “beg[u]n before and continued through the date of the charged offense” but, on the other hand, that he need not have “used marijuana on any particular day, or within a certain number of days of when he committed the charged offense.” R. 44 at 8; R. 56 at 71. These portions of the instruction were not at odds with one another. Consistent with Yancey‘s requirement that the defendant‘s drug use be contemporaneous with his possession of a firearm, the court appropriately advised the jury that Cook‘s marijuana use must have been “ongoing” at the time he was discovered in possession of a gun. But the requirement that the drug use and firearm possession be contemporaneous does not literally mean that the defendant must have been ingesting (or under the influence of) a controlled substance at the same time as he possessed the gun. The statute, after all, prohibits firearm possession by a drug user, not simply possession during drug use. So long as the defendant was still engaged in the regular use of a drug at the time
Finally, we are no more persuaded than the district judge was that the instruction should have left it to the jurors to consult their own collective sense of who constitutes an “unlawful user” of marijuana. Yancey establishes the relevant parameters on this point, and the district court was required to convey those parameters to the jury to guide its decisionmaking, which Judge Peterson did admirably.
That said, our holding should not be construed to foreclose alternate versions of the “unlawful user” instruction. The Sixth and Eighth Circuits, for example, have promulgated instructions with slightly different language. See
III.
In compliance with the Supreme Court‘s mandate, we must now consider whether the Court‘s decision in Rehaif entitles Cook to a new trial. At our request, the parties have filed supplemental briefs on this question, which we have found to be quite helpful.
As we noted, Rehaif held that a charge under
Consistent with this circuit‘s pre-Rehaif cases, the superseding indictment omitted any allegation that Cook knew he was an unlawful user of marijuana, and the jury that convicted Cook was not instructed that the government was required to prove Cook‘s knowledge in this regard. See, e.g., United States v. Lane, 267 F.3d 715, 720 (7th Cir. 2001) (sole scienter requirement imposed by
The error in this case relieved the government of the burden of proving an essential element of offense beyond a reasonable doubt. The error was not so fundamental that it qualifies as structural. Maez, 960 F.3d at 957-58. Nonetheless, it was a serious error, in the sense that it both omitted a key element of the government‘s case and deprived Cook of the right to have the jury assess the sufficiency of that evidence as to that element. See United States v. Holmes, 93 F.3d 289, 294 (7th Cir. 1996); United States v. Perez, 43 F.3d 1131, 1139 (7th Cir. 1994); United States v. Kerley, 838 F.2d 932, 937-39 (7th Cir. 1988).
Given the nature of the element omitted from the indictment and the jury instructions, we do not think this qualifies as an exceptional case. The government was required to prove that Cook had knowledge of a status that has both legal and
Knowledge of one‘s status under
Knowledge that one is an unlawful user turns on his awareness of somewhat nuanced factual aspects of his drug use. As our analysis with respect to the “unlawful user” jury instruction demonstrates, unlawful use of a drug entails (1) use other than as lawfully prescribed by a physician, but also (2) use that was both regular and ongoing at the time that the defendant possessed a gun. So Cook would have to realize that he was using marijuana other than as prescribed by a physician, and that his use was sufficiently regular and ongoing at the time he possessed the firearm as to make it “unlawful” in the sense that this and other cases explain (as there is no statutory standard).
As we consider what the record tells us about Cook‘s knowledge in these respects, our focus at the third step of the plain error inquiry—whether the error affected Cook‘s substantial rights (i.e., prejudice)—must be confined to the jury record alone. Maez, 960 F.3d at 959-63. Evidence that lies outside of
There certainly is evidence in the trial record that would have supported a jury finding that Cook knew he was an unlawful user of a controlled substance. He obviously knew what the scope of his own marijuana use was: he told an investigator he had been using marijuana for nearly ten years to “mellow[ ] [himself] out” (R. 22-1 at 3), and he acknowledged that he had smoked two blunts on the day of his arrest. And the officers who pulled him over could smell marijuana, confirming that his use was recent. So a properly instructed jury certainly could have found that his use was both regular and ongoing as of the date of his arrest. Given the evidence presented at trial, the jury also might fairly have inferred that Cook knew marijuana was a controlled substance that was illegal for him to possess and use. As we have noted, marijuana possession and use was (and is) prohibited under Wisconsin as well as federal law. There was no indication that Cook had ever been prescribed marijuana for medicinal purposes—and, indeed, Wisconsin does not permit medical marijuana use, see Paige, 870 F.3d at 700 n.19.8 Moreover, as the government
But the evidence was by no means overwhelming on these points, and Cook‘s briefs on remand have convinced us that he did have a plausible defense to make as to his knowledge. Even if we take it as a given that Cook understood marijuana was a controlled substance that was illegal for him to possess and use, we do not regard it as inevitable that the jury would have found that Cook knew he was an unlawful user as the case law defines that term. Particularly in view of the regularity and contemporaneity components of unlawful use, it is possible for any given user to think that his use falls outside the range of regular, ongoing use. Past, regular use would not qualify as ongoing use if it has come to a definitive end before one possesses a gun, for example, and likewise current but isolated use (perhaps only when offered at the occasional social gathering) likewise would not count as regular use. Cook, of course, had confessed to a long-term pattern of use that included the day of his arrest, and he has not suggested that his use was sporadic. But his counsel points out that Cook detailed that history of use after the interviewing police officer noted that “shake” (loose marijuana), packaging, and scales had been found in Cook‘s car during prior traffic stops—all of which
Interestingly, the jury was asked to evaluate Cook‘s knowledge in relation to the false statement charge stemming from the ATF Form 4473 he completed in connection with the purchase of his gun. As to that charge, the government was required to show that Cook had falsely certified that he was not an unlawful user of marijuana and that he knew his certification was false when he made it, see United States v. Petitjean, 883 F.2d 1341, 1346 (7th Cir. 1989); and the jury was instructed accordingly. R. 44 at 5; R. 56 at 67. Cook‘s counsel argued to the jury that the ATF form was unclear and that his client could only have guessed at whether he qualified as an unlawful user for purposes of the certification. R. 56 at 82-83. Although we have no window into the jury‘s deliberations, it is possible that some number of the jurors may have agreed with that argument, given the deadlock on this count. Given that the jury would be presented with a quite similar question, post-Rehaif, on the possession charge, it is not implausible to
On balance, we are convinced that the omission in the indictment and the instructions did affect Cook‘s substantial rights. The question is not whether we find Cook‘s potential defense to the knowledge element persuasive, see Maez, 960 F.3d at 961, but whether there is a reasonable probability that one or more jurors might have done so. We conclude that the answer to that question is yes.
Which brings us to the fourth step of the plain-error inquiry: whether we should exercise our discretion to grant Cook a new trial. Additional evidence found in the pre-sentence report bears on that inquiry; as with the trial record, that evidence points in different directions. First, prior to his arrest in this case, Cook had been cited and adjudged liable on three occasions for marijuana possession in violation of local ordinances (R. 70 ¶¶ 47, 53, 59), and he had also been convicted of disorderly conduct in 2014 that involved hiding marijuana in his groin area just as he did in this case (R. 70 ¶ 57), all of which tends to confirm his awareness that marijuana is a controlled substance and could be understood as confirmation of his ongoing use of marijuana at the time of those incidents. But, second, Cook suffers from learning disabilities and cognitive deficits (R. 70 ¶¶ 94-96) and has, by his own account, received Social Security disability benefits since he was a child, (R. 70 ¶ 93). A mental status evaluation conducted in 2012, when Cook was 18, suggested that his cognitive functioning was in the borderline to sub-average range. A measure of his IQ using the Wechsler Adult Intelligence Scale-Fourth Edition produced a
The government‘s case against Cook was certainly solid, and, again, we view it as quite possible that a properly instructed jury would have convicted him. But taking into account the totality of the evidence, including evidence beyond the trial record, we are not convinced that Cook‘s conviction was inevitable. Especially in view of the fact that the jury deadlocked on the false statement count which, like the possession count (in view of Rehaif) requires that Cook knew he was an unlawful user of marijuana, the possibility that the jury might have either deadlocked or acquitted on the possession count still strikes us as a reasonable one. We can only conclude that the Rehaif error is one that does affect the fairness, integrity, and public reputation of the proceeding; and we therefore exercise our discretion in favor of granting Cook relief in the form of a new trial.
We once again reject Cook‘s contentions that the term “unlawful user” found in
However, in view of the Supreme Court‘s intervening decision in Rehaif, and what we find to be a reasonable probability that the outcome of the trial might have been different had the government been required to prove, and had the jury been required to find, that Cook knew he was an unlawful user of marijuana, we reverse the conviction and remand for a new trial. Circuit Rule 36 shall not apply on remand.
We once again commend everyone involved in the briefing and arguing of this case, along with Judge Peterson and Magistrate Judge Crocker for their thorough and careful handling of the case below. Their dedication and hard work have greatly aided this court‘s deliberation and resolution of the appeal. The new trial we have ordered is due solely to the Supreme Court‘s intervening decision in Rehaif and certainly not owing to any omission on their part.
REVERSED AND REMANDED FOR NEW TRIAL