United States District Court, N.D. Iowa, Central Division
ORDER ON REPORT AND RECOMMENDATION
Leonard T. Strand, Chief Judge.
case is before me on a Report and Recommendation (R&R)
(Doc. No. 68) in which Chief United States Magistrate Judge
Kelly K.E. Mahoney recommends that I deny in part, and defer
ruling in part, defendant Jami Stupka's motion (Doc. No.
40) to dismiss Count 3 of the indictment. Neither party has
filed written objections to the R&R. Any objections are
now deemed waived. See LR 72A; see also 28
U.S.C. § 636(b)(1)(c); Fed.R.Civ.P. 72(b)(2).
STANDARD OF REVIEW
party objects to any portion of an R&R, the district
judge must undertake a de novo review of that portion.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Any portions of an R&R to which no objections have been
made must be reviewed under at least a “clearly
erroneous” standard. See, e.g., Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that
when no objections are filed “[the district court
judge] would only have to review the findings of the
magistrate judge for clear error”). As the Supreme
Court has explained, “[a] finding is ‘clearly
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
However, a district judge may elect to review an R&R
under a more-exacting standard even if no objections are
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de novo
if no objections are filed, it does not preclude further
review by the district judge, sua sponte or at the request of
a party, under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Here,
because no objections have been filed, I will apply the
“clearly erroneous” standard of review to all
portions of the R&R.
23, 2019, a Grand Jury returned an indictment (Doc. No. 1)
that charged Stupka and others with conspiracy to possess a
stolen firearm (Count 1), possession of a stolen firearm
(Count 2) and possession of a firearm by a prohibited person
(Count 3). Stupka contends that Count 3 should be dismissed
because the statute on which the charge is based, 18 U.S.C.
§ 922(g)(3), is unconstitutionally vague on its face and
as applied to her.
Judge Mahoney's Analysis
Mahoney recommends that I defer ruling on Stupka's
argument that 18 U.S.C. § 922(g)(3) is
unconstitutionally vague as applied. Doc. No. 68 at 1. She
notes that case-law mandates, that “any as-applied
challenge should not be ruled upon without a full trial on
the merits.” Id. (citing United States v.
Turner, 842 F.3d 602, 606 (8th Cir. 2016)).
Stupka's facial challenge, Judge Mahoney cites United
States v. Bramer, 832 F.3d 908 (8th Cir. 2016), in
recommending that the motion be denied. Doc. No. 68 at 3-4.
In Bramer, the Eighth Circuit rejected the
defendant's argument that 18 U.S.C. § 922(g)(3) is
unconstitutional on its face because the defendant had not
shown that any terms were vague “as applied to his
particular conduct.” Id. at 909-10. The court
further explained that “[t]hough [the defendant] need
not prove that § 922(g)(3) is vague in all its
applications, [the] case law still require[d] him to show
that the statute is vague as applied to his particular
conduct.” Id. at 909. Judge Mahoney found that
“Stupka has made no such showing here, ” and thus
the facial challenge must be denied because
“Bramer is binding precedent that cannot be
ignored by this court.” Doc. No. 68 at 3.
Fifth Amendment to the United States Constitution provides
that “[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law.” One
“essential” feature of the Fifth Amendment's
due process guarantee is “[t]he prohibition of
vagueness in criminal statutes.” Sessions v.
Dimaya, 138 S.Ct. 1204, 1212 (2018). A law is
unconstitutionally vague if it (1) “fails to provide a
person of ordinary intelligence fair notice of what is
prohibited, ” or (2) “is so standardless that it
authorizes or encourages seriously discriminatory
enforcement.” United States v. Williams, 553
U.S. 285, 304 (2008); see also Kolender v. Lawson,
461 U.S. 352, 357 (1983) (“[T]he void-for-vagueness
doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory
enforcement.”). A law is unconstitutionally vague due
to a lack of fair notice when the law fails to give a
“person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act
accordingly.” Grayned v. City of Rockford, 408
U.S. 104, 108-09 (1972). A law is unconstitutionally vague
due to arbitrary enforcement concerns if it leaves judges,
jurors or law enforcement “free to decide, without any
legally fixed standards, what is prohibited and what is not
in each particular case.” See Beckles v. United
States, 137 S.Ct. 886, 894 (2017) (quoting Giaccio
v. Pennsylvania, 382 U.S. 399, 402-03 (1966)).
are two types of challenges under the void-for-vagueness
doctrine. First, a defendant may argue that a law is
unconstitutionally vague on its face. This means that a law
is vague “not in the sense that it requires a person to
conform his conduct to an imprecise but comprehensible
normative standard, but rather in the sense that no standard
of conduct is specified at all.” See Coates v. City
of Cincinnati, 402 U.S. 611, 614 (1971). At times, the
Supreme Court has required a defendant making a facial
vagueness challenge to “demonstrate that the law is
impermissibly vague in all of its applications.”
Vill. of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 497 (1982). More recently, however,
the Supreme Court has clarified that a ...