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United States v. Roldan-Marin

United States District Court, S.D. Iowa

November 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JUNIOR EMILIO ROLDAN-MARIN, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO STRIKE OR DISMISS

          STEPHEN B. JACKSON. JR. UNITED STATES MAGISTRATE JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION……………………………………………………………………….…2

         II. FINDING OF FACTS……………………….………………………………………….….4

         III. ANALYSIS...………………...………………………………………………………….…6

         A. 18 U.S.C. § 922(g)(3) - Unlawful user of and addicted to a controlled substance.….6

         1. Facial Challenge……………………………………………………………….…8

         2. As Applied Challenge……………………………………………………….…..10

         B. 18 U.S.C. § 922(g)(9) - Misdemeanor Crime of Domestic Violence…………….….11

         1. Categorical Approach Analysis……………………………………………… ..... 15

         a. Iowa Code Section 708.1……………………………………………..….15

         b. Iowa Code Section 708.2A(2)(c)………………………………………...17

         2. Divisibility…………………………………………………………………… ..... 20

         3. Modified Categorical Approach Analysis….…………………………………....25

         IV. RECOMMENDATION AND ORDER…………………………………………………..29

         I. INTRODUCTION

         This matter comes before the Court pursuant to the Motion to Strike or Dismiss Certain Allegations in the Indictment (Dkt. No. 37) and supporting Brief (Dkt. No. 37-1) filed by Junior Emilio Roldan Marin (“Defendant”) on August 6, 2019. The Government resisted the motion on August 27, 2019. Dkt. No. 55. This matter was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for report and recommendation by Chief Judge John A. Jarvey on August 19, 2019. Dkt. No. 51. Trial is set for December 16, 2019. Dkt. No. 74.

         An evidentiary hearing was held on September 5, 2019 in connection with this motion and Defendant's Motion to Suppress. Dkt. 56. The Government appeared by Assistant U.S. Attorneys Andrea Glasgow and Cliff Cronk. Defendant appeared personally and with his attorney, Assistant Federal Defender Terry L. McAtee. The Court received Government's Exhibit #1 - Trial Court's Trial Information for Defendant's domestic abuse assault conviction, Johnson County No. FECR 112728; Government's Exhibit #2 - Waiver of Rights and Plea of Guilty for Defendant's domestic abuse assault conviction, Johnson County No. FECR 112728; Government's Exhibit #3 - Order Accepting Guilty Plea & Entering Judgment and Sentence for Defendant's domestic abuse assault conviction, Johnson County No. FECR 112728; Government's Exhibit #4 - Johnson County Clerk's Certificate for Defendant's domestic abuse assault conviction, Johnson County No. FECR 112728; Government's Exhibit #5 - Officer Jacob Belay's body camera video; Government's Exhibit #6 - Officer Ryan Schnackel's body camera video; and Government's Exhibit #7 - the redacted search warrant and supporting documentation. The Court did not receive any exhibits from Defendant in connection with this motion.

         At the hearing, the Court heard arguments from the counsel for the Government and for Defendant. Subsequent to the hearing, the Government submitted a supplemental brief (Dkt. No. 57) on September 6, 2019 and a notice of supplemental authority (Dkt. No. 60) on September 14, 2019. Considering these filings, the Defendant was granted leave to submit further briefing on the issues before the Court on or before September 23, 2019. Dkt. No. 61. Defendant made no further filings as to that matter.

         On October 9, 2019, a Second Superseding Indictment was returned. Dkt. No. 63. Defendant was arraigned on the Second Superseding Indictment on October 16, 2019. Dkt. No. 72. Due to the filing of this indictment subsequent to the filing of the instant motion, Defendant was granted leave to submit further briefing on or before October 21, 2019. Id. The Government was granted leave to respond on or before October 28, 2019. Id. Defendant filed his Supplemental Brief in Support of Motion to Strike or Dismiss on October 21, 2019. Dkt. No. 77. The Government filed its Response to Defendant's Supplemental Brief in Support of Motion to Strike or Dismiss on October 24, 2019. Dkt. 81.

         On October 21, 2019, the Court ordered the Government to file a response regarding the completeness of Government's Exhibits 1-4, as the exhibits appeared to be missing pages. Dkt. 76. The Government responded the same date and filed as electronic exhibits, complete copies of Government's Exhibits 1-4. Dkt. 78. On October 28, 2019, the Government filed a Motion to Reopen the Record and Offer of Exhibits. Dkt. 85. Defendant did not file a response and on November 6, 2019, the motion was granted, admitting into the evidence for this matter, complete copies of Government's Exhibits 1-4. Dkt. 86. The matter is now fully submitted.

         This Magistrate Judge has carefully considered the record evidence, the arguments and statements of counsel and submits the following report. As set forth below, based on the facts presented and applicable law, it is recommended that the motion seeking to strike or dismiss the allegation under 18 U.S.C. § 922(g)(3) as to the facial constitutional challenge be denied and as to the as applied constitutional challenge be deferred until there is a trial on the merits. It is further recommended that the request in the motion seeking to dismiss the allegation under 18 U.S.C. § 922(g)(9) be denied.

         II. FINDINGS OF FACT

         Defendant was indicted on May 8, 2019, on one count of being a prohibited person in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3), 922(g)(8), 922(g)(9) and 924(a)(2). Dkt. No. 1. The Indictment charged that Defendant possessed a firearm and ammunition, in and affecting commerce, and that he was prohibited from possessing such firearm and ammunition for:

1. being a user of controlled substances, pursuant to 18 U.S.C. § 922(g)(3);
2. having a valid no contact order in place, pursuant to 18 U.S.C. § 922(g)(8); and
3. having been previously convicted of a “misdemeanor crime of domestic violence”, pursuant to 18 U.S.C. § 922(g)(9).

         Dkt. No. 1.

         A Superseding Indictment was filed on August 7, 2019 (Dkt. No. 40) for the same one count “to comply with the recent court decision in United States v. Rehaif, 139 S.Ct. 2191 (2019), reference the defendant's knowledge of his prohibited status.” Dkt. No. 43. The count in the superseding indictment charged the same three grounds that Defendant was prohibited from possessing a firearm as the initial indictment - namely, at the time of the possession of the firearm, Defendant:

1. knew he was an unlawful user of controlled substances, pursuant to 18 U.S.C. § 922(g)(3);
2. knew he was subject to a court order, which prohibited him from possessing firearms and ammunition, pursuant to 18 U.S.C. § 922(g)(8); and
3. knew he had previously been convicted of a “misdemeanor crime of domestic violence”, pursuant to 18 U.S.C. § 922(g)(9).

Dkt. No. 40.

         A Second Superseding Indictment was filed on October 9, 2019 for the same one count, charging that Defendant possessed a firearm and ammunition, in and affecting commerce, and he was prohibited from possessing such firearm and ammunition as follows:

[a]t the time of the offense, the defendant knew he was an unlawful user of and addicted to a controlled substance; knew he had been convicted of a misdemeanor crime of domestic violence; and knew he was subject to a court order issued by the Johnson County, Iowa, District Court, on October 19, 2016, under case number FECR 112728, and issued after a hearing of which he received actual notice, and at which he had an opportunity to participate, restraining him from harassing, stalking, or threatening an intimate partner, restraining him from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner, that by its terms explicitly prohibited the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury, and that included a finding that the defendant was a credible threat to the physical safety of the intimate partner.

Dkt. No. 63. The Government indicated the Second Superseding Indictment “contains additional statutory language regarding the status of being in violation of a no contact order. The substance of the charge is unchanged.” Dkt. No. 66. The Court notes, however, the Second Superseding Indictment also includes additional language, alleging Defendant, at the time of the offense, “knew he was an unlawful user of and addicted to a controlled substance.” Dkt. No. 63 (emphasis added). The Government did not set forth this additional language, included in the Second Superseding Indictment, as required by Local Rule Criminal Rule 7(b).

         Previously, on October 19, 2016, Defendant was convicted in the Iowa District Court in and for Johnson County of violating Iowa Code Sections 708.2A(1) and 708.2A(2)(c). See Government's Exhibits 1, 2 and 3.

         III. ANALYSIS

         Defendant moves to strike or dismiss the allegation under 18 U.S.C. § 922(g)(3), arguing the phrase “unlawful user of and addicted to a controlled substance” is unconstitutionally vague, both facially and as applied. Dkt. Nos. 37-1 pp. 2-5 and 77 pp. 1-3. In addition, Defendant moves to strike or dismiss the allegation under 18 U.S.C. § 922(g)(9), contending his prior conviction does not qualify as a “misdemeanor crime of domestic violence” because it did not require the use of force necessary under 18 U.S.C. § 921(a)(33). Dkt. 37-1 pp. 5-9.

         The Government resists the motion. Dkt. Nos. 55, 57, 60, 81.

         A. 18 U.S.C. § 922(g)(3) - Unlawful user of and addicted to a controlled substance

         The Fifth Amendment provides that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” Johnson v. United States, __U.S. __, 135 S.Ct. 2551, 2556 (2015). It has been established that the government violates this guarantee by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Id. (citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)). The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, ” and a statute that flouts it “violates the first essential of due process.” Id. at 2556-57 (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).

         A two-pronged analysis is conducted in determining whether a statute is unconstitutionally vague: (1) the statute must define the offense with sufficient definiteness to provide fair warning or adequate notice as to what conduct is prohibited, and (2) it must also define the offense in a manner that does not encourage arbitrary and discriminatory enforcement. United States v. Ghane, 673 F.3d 771, 777 (8th Cir. 2012) (citing United States v. Washam, 312 F.3d 926, 929 (8th Cir. 2002)). As to overbreadth, a statute is considered overbroad if it prohibits constitutionally protected conduct in addition to the conduct the statute seeks to proscribe. Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)).

         Title 18 U.S.C. § 922(g)(3) states that it is unlawful for any person “who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)) . . . 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.” 18 U.S.C. § 922(g)(3). Defendant argues this section of the Second Superseding Indictment should be stricken or dismissed because the phrase “unlawful user of or addicted to any controlled substance” is unconstitutionally vague. Dkt. Nos. 37-1 pp. 2-5 and 77 pp. 1-3. Defendant states he is bringing both a facial and an as applied constitutional challenge to this provision of the statute. Dkt. 37-1 p. 3 n. 1.

As for the facial challenge, Defendant argues:
a facial challenge to 18 U.S.C. § 922(g)(3) can be brought in a pretrial motion to dismiss. See United States v. Turner, 842 F.3d 602, 605 (8th Cir. 2016), (n.1). Prior to the Johnson opinion, an Eighth Circuit panel held that criminal statutes challenged on non First Amendment grounds are not amenable to facial attacks. United States v. Ghane, 673 F.3d 771, 777 (8th Cir. 2012). However, in Turner, the Eighth Circuit acknowledged that in the Johnson opinion the Supreme Court noted that its holdings “squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision's grasp.” Turner, 842 F.3d 602, 605, n.1 (8th Cir. 2016).

Id. p. 4. Accordingly, on its face, Defendant contends this statute is vague for several reasons. First, the phrase “unlawful user of a controlled substance” is not defined by statute. Id. Second, unlike possession or distribution of drugs, there is no federal statute which makes using drugs illegal. Id. Third, the judicially mandated temporal proximity between drug use and possession of a firearm ...


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