Opinion
CASE NO. 4:23-CR-50
2023-06-16
UNITED STATES of America v. Eduardo REYES (1)
Lesley Davis Brooks, Assistant U.S. Attorney, U.S. Attorney's Office, Sherman, TX, for United States of America. Kirk Fredric Lechtenberger, Dallas, TX, Heath Enix Hyde, Heath Hyde, PC, Sulphur Springs, TX, for Eduardo Reyes.
Lesley Davis Brooks, Assistant U.S. Attorney, U.S. Attorney's Office, Sherman, TX, for United States of America. Kirk Fredric Lechtenberger, Dallas, TX, Heath Enix Hyde, Heath Hyde, PC, Sulphur Springs, TX, for Eduardo Reyes. MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On May 19, 2022, the report of the Magistrate Judge (Dkt. #40) was entered containing proposed findings of fact and recommendations that Defendant Eduardo Reyes's Motion to Quash (Dkt. #36) be denied.
Having received the report of the Magistrate Judge, and no timely objections being filed, this Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge's report (Dkt. #40) as the findings and conclusions of the Court.
It is, therefore, ORDERED that Defendant Eduardo Reyes's Motion to Quash (Dkt. #36) is DENIED.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Defendant Eduardo Reyes's ("Defendant") Motion to Quash (the "Motion") (Dkt. 36). In the Motion (Dkt. 36), Defendant requests the Court "[q]uash/[s]trike Count Two of the Indictment." Id. at 5. As Defendant seeks to "strike" a count of the Indictment, the Court accordingly considers the Motion (Dkt. 36) as a motion to dismiss the Indictment under Federal Rule of Criminal Procedure 12. Upon consideration, the Court recommends the Motion (Dkt. 36) be DENIED.
Defendant further requests the "Court conduct a hearing [and] take evidence . . . ." Dkt. 36 at 6. However, during the hearing held on May 2, 2023 on Defendant's motion to suppress (Dkt. 32), Defendant represented he would proffer evidence and did not believe a hearing on the Motion (Dkt. 36) was necessary. See Dkt. 32. Accordingly, the Court does not find a hearing is appropriate and considers the Motion (Dkt. 36) solely on the basis of the briefing.
I. BACKGROUND
The Government alleges that in February 2023, Defendant agreed to distribute 5,000 fentanyl pills to a Drug Enforcement Administration ("DEA") undercover officer. See Dkt. 1-1; Dkt. 38 at 6. On February 10, 2023, Defendant was arrested following a traffic stop related to the drug trafficking investigation, during which law enforcement officers found approximately 5,000 pills of fentanyl and Defendant's 1911 pistol inside of his vehicle. See Dkt. 1-1. On March 8, 2023, the Grand Jury returned a two-count Indictment charging Defendant with violations of 21 U.S.C. § 846 (Conspiracy to Distribute and Possess with the Intent to Distribute Fentanyl) and 18 U.S.C. § 924(c) (Possession of a Firearm in Furtherance of Drug Trafficking). See Dkt. 12.
On May 11, 2023, Defendant filed the Motion (Dkt. 36) asserting the firearm at issue under 18 U.S.C. § 924(c) was "used only for self-defense purposes." Dkt. 36 at 1. Defendant asserts New York State Rifle and Pistol Assoc v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) "invalidated any intrusion into the individual right to carry a weapon in public for self-defense unless it is firmly rooted in the history of our nation." Dkt. 36 at 1. Defendant asserts 18 U.S.C. § 924(c) "-as applied to Defendant's situation - is facially unconstitutional as it prohibits the lawful act of carrying a firearm in self-defense and permits regulation of an act wholly authorized [under] the United States Constitution." Id. at 2. Defendant argues 18 U.S.C. § 924(c) is "unconstitutional on its face . . . unless there is some evidence to connect the firearm to a proactive action." Id. Defendant contends he has no criminal history, legally purchased the firearm, and Texas law allows Defendant to carry a firearm in his vehicle while traveling throughout the state of Texas. See id. at 3. In support of the Motion (Dkt. 36), Defendant includes: United States Attorney General Merrick Garland's Memorandum titled "Additional Department Policies Regarding Charging, Pleas, and Sentencing in Drug Cases" (the "DOJ Memorandum") (Dkt. 36-1); the receipt for the purchase of the firearm (Dkt. 36-2); a City of Dallas Police Department Incident Report dated August 30, 2022 (Dkt. 36-3); Miguel Reyes's affidavit dated May 8, 2023 (Dkt. 36-4); and Daylon Jackson's affidavit dated May 8, 2023 (Dkt. 36-5).
In response, the Government argues "the conduct proscribed by § 924(c)—using a firearm to further a separate federal crime—is not within the scope of the 'right of the people to keep and bear arms' at all." Dkt. 38 at 2. The Government asserts that "[b]y definition . . . the penalties in § 924(c) and (j) can never be imposed on those exercising their 'personal right to keep and bear arms for lawful purposes', . . . because a conviction requires the [G]overnment to prove that [Defendant] was using or possessing the firearm for a specific unlawful purpose: the commission of another specified serious federal crime." Id. at 3 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (plurality opinion)). Thus, the Government argues that because the predicate crime of drug trafficking must be proved to establish a violation of § 924(c), "such an offender is by definition not a law-abiding citizen." Id. at 5. The Government asserts that Bruen found the First and Sixth Amendments as "useful points of comparison", and the Court in its analysis should accordingly use jurisprudence regarding these Amendments as points of comparison. Id. (citing Bruen, 142 S.Ct. at 2130, 2156). The Government further asserts 18 U.S.C. § 924(c) is constitutional because it is consistent with the Nation's historical tradition of firearm regulation, including the "longstanding set of prohibitions on bearing arms for unlawful purposes." Id. at 6. Finally, the Government argues it "has the discretion and authority to present evidence of criminal activity to a Grand Jury" and the appropriate place to challenge Defendant's charges "is during the trial of the case." Id. at 7.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 12 allows a party to "raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." FED. R. CRIM. P. 12(b)(1). Challenges alleging a "defect in the indictment or information" include "failure to state an offense." FED. R. CRIM. P. 12(b)(3)(B)(v). " 'The propriety of granting a motion to dismiss an indictment . . . is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact . . . If a question of law is involved, then consideration of the motion is generally proper.' " United States v. Guthrie, 720 F. App'x 199, 201 (5th Cir. 2018) (per curiam) (quoting United States v. Fontenot, 665 F.3d 640, 644 (5th Cir. 2011)).
III. ANALYSIS
The Second Amendment provides: "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. Before Bruen, "the Courts of Appeals [had] coalesced around a 'two-step' framework for analyzing Second Amendment challenges that combine[d] history with means-end scrutiny." Bruen, 142 S.Ct. at 2125. However, the Bruen court declined to follow this approach and required courts engage in a two-step analysis of (1) whether the Second Amendment's plain text covers an individual's conduct; and, if so, (2) then the Government "must justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Bruen, 142 S.Ct. at 2129-30. As Bruen explained, "[i]n keeping with [District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)], we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Id. at 2126. If such conduct is covered, the Government must "identify a well-established and representative historical analogue, not a historical twin." Id. at 2133.
Defendant and the Government dispute whether Bruen affected the constitutionality of 18 U.S.C. § 924(c). The Court concludes Defendant's conduct is not covered by the Second Amendment's plain text and, even if the conduct was covered, 18 U.S.C. § 924(c) is consistent with the Nation's historical tradition of firearm regulation. Accordingly, Defendant's facial and as applied challenges must be denied.
Defendant asserts the Texas Code of Criminal Procedure Art. 2.01, the Justice Manual Section 9-27.320, and the DOJ Memorandum favor more lenient charging decisions by the Government. See Dkt. 36 at 4-5. Defendant does not assert, nor can he assert, this guidance is binding or applicable in the Court's analysis of the Motion (Dkt. 36). See United States v. Crusius, No. EP-20-CR-00389-DCG, 2020 WL 4340550, at *5 (W.D. Tex. July 28, 2020) ("Indeed, the Justice Manual itself makes it plain that it 'provides internal DOJ guidance [and] . . . is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.' " (quoting Justice Manual § 1-1.200; United States v. Cooks, 589 F.3d 173, 184 (5th Cir. 2009))); Tex. Code Crim. Proc. art. 2.01 ("Each district attorney shall represent the State in all criminal cases in the district courts . . . ."). Accordingly, the Court does not consider this argument.
A. Facial Challenge to 18 U.S.C. § 924(c)
18 U.S.C. § 924(c) states in relevant part:
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . . .18 U.S.C. § 924(c)(1)(A). Defendant avers that 18 U.S.C. § 924(c) is "unconstitutional on its face . . . unless there is some evidence to connect the firearm to a proactive action." Dkt. 36 at 2. The Government counters that the Second Amendment does not cover Defendant's conduct as he is not a "law-abiding citizen." Dkt. 38 at 7.
The Government's argument, frequently characterized as the "virtuous citizen" theory, asserts that those individuals who have committed a serious criminal offense are excluded from the Second Amendment's protections, as such individuals are removed from "the people." The virtuous citizen theory has divided courts throughout the Nation, including within the Fifth Circuit. Compare United States v. Barber, No. 4:20-CR-384-SDJ, 2023 WL 1073667, at *6 (E.D. Tex. Jan. 27, 2023) ("The 'virtuous citizen' theory, which excludes certain groups of people—like convicted felons—from the plain text of the Second Amendment, misreads Heller.") with United States v. Collette, No. MO:22-CR-00141-DC, 630 F. Supp. 3d 841, 850-51 (W.D. Tex. Sept. 25, 2022) (finding those convicted of felonies are excluded from "the people"). Courts have largely aligned with the virtuous citizen theory and taken the view that a criminal defendant charged under 18 U.S.C. § 924(c) is necessarily outside the scope of "the people", as 18 U.S.C. § 924(c) requires the Government prove the defendant committed a predicate "crime of violence" or "drug trafficking crime." See United States v. Garrett, No. 18 CR 880, 650 F. Supp. 3d 638, 641-42 (N.D. Ill. Jan. 11, 2023) (collecting cases); see also United States v. Nevens, No. CR 19-774-DMG, 2022 WL 17492196, at *2 (C.D. Cal. Aug. 15, 2022) ("[The defendant] is not a law-abiding citizen, and regulations governing non-law-abiding citizens' use of firearms do not implicate Bruen and Heller.") (citations omitted).
In Rahimi, the Fifth Circuit explained that Heller's exposition as to "law-abiding, responsible citizens" is "shorthand in explaining that its holding (that the amendment codifies an individual right to keep and bear arms) should not 'be taken to cast doubt on longstanding 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 . . . .' " United States v. Rahimi, 61 F.4th 443, 452 (5th Cir. 2023) (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783). Thus, the Rahimi court explained, "while [the defendant] was suspected of other criminal conduct, [the defendant] was not a convicted felon or otherwise subject to another 'longstanding prohibition[ ] on the possession of firearms' that would have excluded him" from 'the people' within the Second Amendment." Id. (quoting Heller, 554 U.S. at 626-27, 128 S.Ct. 2783). The Rahimi court further cautioned against an expansive interpretation of "law-abiding", as it could render the phrase so malleable that it may "risk[ ] swallowing the text of the amendment." Id. at 453.
Ultimately, the Court need not enter the fray and decide whether Defendant is among "the people." Rather, the Court turns to the narrower question of whether Defendant's charged conduct is covered by the Second Amendment's right "to keep and bear Arms." The Court concludes it is not.
The Court observes that the Government's argument would render Defendant's possession of the firearm illegal on the basis of a post-facto conviction for felonious conduct, i.e., the predicate "drug trafficking crime." The Court finds the proper reading for its analysis of 18 U.S.C. § 924(c)'s constitutionality is the firearm's relation to the predicate crime as explained throughout this Report and Recommendation.
The Supreme Court's jurisprudence has made clear that the Second Amendment "is not a 'second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.' " Bruen, 142 S.Ct. at 2156 (quoting McDonald, 561 U.S. at 780, 130 S.Ct. 3020 (plurality opinion)); see also Heller, 554 U.S. at 595, 128 S.Ct. 2783 ("Of course the right was not unlimited, just as the First Amendment's right of free speech was not." (citing United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008))). The textual command of the Second Amendment does not protect the right of citizens to carry arms "for any sort of confrontation." Heller, 554 U.S. at 595, 128 S.Ct. 2783. Heller explained that Americans at the Founding "understood the right to enable individuals to defend themselves" as "permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury.' " Id. at 594-95, 128 S.Ct. 2783 (quoting 1 Blackstone's Commentaries 145-146, n.42 (1803)). "Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, [the Supreme Court] held that individual self-defense is 'the central component' of the Second Amendment right." McDonald, 561 U.S. at 767, 130 S.Ct. 3020; accord Bruen, 142 S.Ct. at 2133. Furthermore, the right protected by States' constitutional guarantees "explicitly protected the right to keep and bear arms as an individual right to self-defense." McDonald, 561 U.S. at 777, 130 S.Ct. 3020 (citations omitted) (emphasis added). Thus, the Second Amendment's plain text is rightfully read to cover the individual right to self-defense.
Turning to the present case, to be convicted of violating 18 U.S.C. § 924(c), the Government must prove beyond a reasonable doubt that: (1) Defendant committed the predicate drug trafficking offense; and (2) Defendant, with the requisite mens rea, possessed the firearm "in furtherance" of the drug trafficking offense. 18 U.S.C. § 924(c)(1)(A). Following Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), Congress amended 18 U.S.C. § 924(c) to include the "possession-in-furtherance" language. See United States v. Ceballos-Torres, 218 F.3d 409, 413 (5th Cir.), amended on reh'g in part, 226 F.3d 651 (5th Cir. 2000). The Fifth Circuit explained that Congress intended 18 U.S.C. § 924(c) to require more than the "mere presence" of the firearm—i.e., the "generality [that] anytime a drug dealer possess a gun, that possession is in furtherance, because drug dealers generally use guns to protect themselves and their drugs." Id. at 414. The Fifth Circuit ultimately adopted the definition of "furtherance" as "[t]he act of furthering, advancing, or helping forward." Id. at 412, 415.
The Fifth Circuit Pattern Jury Instructions for 924(c)(1) for knowingly possessing a firearm in furtherance of a drug-trafficking crime are stated as follows:
For you to find the defendant guilty of this crime, you must be convinced that the government has proven each of the following beyond a reasonable doubt:Fifth Circuit Pattern Jury Instructions (Criminal Cases), § 2.44B (2019).
First: That the defendant committed the crime alleged in Count ___. I instruct you that ___ is a drug-trafficking crime; and
Second: That the defendant knowingly possessed a firearm and that possession was in furtherance of the defendant's commission of the crime charged in Count ___.
To prove the defendant possessed a firearm "in furtherance" of the drug-trafficking crime, the government must prove that the defendant possessed a firearm that furthered, advanced, or helped forward that crime.
The "in furtherance" language of 18 U.S.C. § 924(c) makes clear the Government must prove the firearm was possessed in relation to criminal conduct, not self-defense. See Heller, 554 U.S. at 594-95, 128 S.Ct. 2783; see also United States v. Burgess, No. 22-1110, 2023 WL 179886, at *5 (6th Cir. Jan. 13, 2023) (holding that "Bruen did not disturb . . . [a previous holding that] the original understanding of the Second Amendment did not extend to possession of weapons for unlawful purposes") (internal quotations and quotation marks omitted). The Government is required to present "evidence more specific to the particular defendant, showing that his or her possession actually furthered the drug trafficking offense." Ceballos-Torres, 218 F.3d at 414. Heller and Bruen's reading of the Second Amendment's plain text anchored gun ownership to the natural right of self-preservation. By their own explication, these cases did not provide a right to go on the offensive. Accordingly, the Court finds the Second Amendment's plain text does not cover the conduct proscribed by 18 U.S.C. § 924(c).
The Court does not decide whether intent to use the firearm is a necessary condition for upholding 18 U.S.C. § 924(c). Rather, the Court finds the mens rea requirement is a sufficient condition, as it requires the Government prove beyond a reasonable doubt that the firearm was not used in lawful self-defense. After Bruen, questions regarding whether intent itself or a certain level of intent is necessary under the plain text of the Second Amendment may arise. Similar issues have been debated in our Nation's First Amendment jurisprudence. Compare Elonis v. United States, 575 U.S. 723, 737, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015) ("But communicating something is not what makes the conduct 'wrongful.' Here 'the crucial element separating legal innocence from wrongful conduct' is the threatening nature of the communication." (citing United States v. X-Citement Video, 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994))) with Kansas v. Boettger, — U.S. —, 140 S.Ct. 1956, 1956, 207 L.Ed.2d 1089 (2020) (Thomas, J., dissenting from the denial of certiorari) ("[T]he Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate. It appears to follow that threats of violence made in reckless disregard of causing fear may be prohibited.") (citations omitted).
Furthermore, even if the Second Amendment's plain text covered Defendant's conduct, Bruen's explanation of the Nation's history and tradition articulates a historical analogue to 18 U.S.C. § 924(c). See Bruen, 142 S.Ct. at 2143 ("[These statutes] merely codified the existing common-law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself."). The very nature of the conduct proscribed under 18 U.S.C. § 924(c) goes to criminalizing the knowing possession of firearms in furtherance of a crime of violence or drug trafficking crime, i.e., the advancement of criminal conduct. Thus, 18 U.S.C. § 924(c) has a historical analogue to the prohibitions of bearing arms "in a way that spreads 'fear' or 'terror' among the people." Id. at 2145 ("[These statutes] prohibit bearing arms in a way that spreads 'fear' or 'terror' among the people. As we have already explained, Chief Justice Herbert in Sir John Knight's Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public."); Ceballos-Torres, 218 F.3d at 414 (holding "in furtherance" under 18 U.S.C. § 924(c) demands more than "mere presence" of the firearm and requires "evidence more specific to the particular defendant, showing that his or her possession actually furthered the drug trafficking offense").
Therefore, Defendant's facial challenge to 18 U.S.C. § 924(c) must be denied.
B. As Applied Challenge to 18 U.S.C. § 924(c)
Defendant also challenges that 18 U.S.C. § 924(c) as applied to his conduct is unconstitutional. Similarly, as above, this argument must be denied.
"It is axiomatic that a 'statute may be invalid as applied to one state of facts and yet valid as applied to another.' " Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006) (quoting Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 289, 42 S.Ct. 106, 66 L.Ed. 239 (1921)). Defendant avers that he possessed the firearm for self-defense and there is no connection between the lawfully purchased firearm and a crime of drug trafficking. Defendant includes several affidavits in support, which assert there were burglaries and other concerns for safety near Defendant's work sites. But this argument goes directly to whether Defendant had the requisite mens rea to commit the charged offense, i.e., that he knowingly possessed the firearm in furtherance of a drug trafficking crime. Defendant's proffered evidence presents a fact question as to the credibility of the affiants and whether the Government will meet its burden in proving Defendant knowingly possessed the firearm in furtherance of a drug trafficking crime. Such arguments may rightfully be presented to a jury, but these arguments do not go to whether as a matter of law a reasonable trier of fact could not convict Defendant. As such, the Court finds a reasonable trier of fact could convict Defendant of violating 18 U.S.C. § 924(c). See Guthrie, 720 F. App'x at 203 ("Thus, whether these specific videos are obscene is a question of fact, and we hold that a rational trier of fact could have found that the videos depicted sexual conduct in a patently offensive way.").
Therefore, Defendant's as applied challenge to 18 U.S.C. § 924(c) should be denied.
IV. RECOMMENDATION
For the foregoing reasons, the Court recommends the Motion (Dkt. 36) be DENIED.
Within fourteen (14) days after service of the magistrate judge's report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
A party filing objections is entitled to a de novo review by the district court of the findings and conclusions contained in this report only if specific objections are made, and failure to timely file written objections to any proposed findings, conclusions, and recommendations contained in this report shall bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted by the district court, except on grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); see also Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten (10) to fourteen (14) days).
So ORDERED and SIGNED this 19th day of May, 2023.