Opinion
IP 01-081-CR-01 T/F
November 8, 2001
B Joe Vaughn United States Attorneys Office, Indianapolis, IN.
Richard Kammen Gilroy, Kammen Hill, Indianapolis, IN.
ENTRY ON DEFENDANT'S MOTIONS TO DISMISS
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendant was indicted for possessing firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and with having possessed a machine gun and silencer. He filed a motion to dismiss, which the Government contests. The court rules as follows.
I. Factual Background
On December 3, 2000, a building on the south side of Indianapolis owned by Brent E. Merritt burned down. During the investigation into the cause of the fire, agents from the Bureau of Alcohol, Tobacco, and Firearms obtained a warrant to search Merritt's home for financial records. When investigators searched Merritt's home on January 23, 2001, they found an office concealed in the walls of the basement. In the office, investigators found a Remington 12 gauge shotgun as well as identification that falsely identified Merritt as a deputy marshal with the Whitestown Marshal's Department and a magazine addressed to Brent Merritt.
Merritt also contends that there was not sufficient probable cause to obtain a warrant if the officers had presented all the facts to the magistrate judge. He raises this contention in a motion to suppress, which will be addressed separately by this court.
Investigators also found a walk-in vault concealed behind a basement wall. Merritt claimed that he did not know how to open the vault, and his wife then opened it for the investigators. Inside the vault, investigators found seventy-four firearms and ammunition. Also in vault were "glamour shots" of Pamela Merritt, photographs of nude and partially nude women, one of which was signed, "Brent, Lustfully Yours," three picture identifications of Merritt, and several pieces of mail addressed to Brent Merritt.
Although Pamela Merritt and Merritt's sons, Brent Merritt II and Bradley Merritt, claimed ownership of the firearms, during the execution of the search warrant, officers overheard Merritt talking about "my" guns. One of Merritt's fingerprints was found on one of the firearms. Receipts in the vault indicated the Pamela owned a machine gun, and that Brent II owned a suppressor tube (a silencer) and an Uzi conversion bolt, which were not found in the search of the house. Pamela and Brent II claimed they did not know where the weapons were, but Merritt claimed they were "in a safe place." On June 12, 2001, the machine gun, suppressor tube, and conversion bolt were found in a safe deposit box that had been acquired one day after the execution of the warrant and on which Pamela and Brent II were signatories.
Merritt was charged with a violation of 18 U.S.C. § 922(g)(1), which prohibits a person convicted of a felony from possessing firearms. On September 25, 2001, Merritt filed a motion to dismiss. The Government objects. The court rules as follows.
II. Motions to Dismiss
Merritt filed a motion to dismiss alleging that (1) the evidence is insufficient and the indictment must be dismissed; (2) Merritt has no property or possessory interest in any firearms that are owned by his wife; (3) the indictment violates his Tenth Amendment rights; and (4) the indictment violates the Second and Tenth Amendment rights of Merritt's wife and son. The Government replies that the motion should be denied because the prosecution is not predicated on the ownership of firearms and ammunition. Rather, it is predicated on defendant's possession of firearms and ammunition as a convicted felon, and does not criminalize the ownership of firearms and ammunition by person who are not prohibited from possessing firearms and ammunition.
A. Sufficiency of the Evidence
Merritt first claims that the evidence is insufficient and the indictment must be dismissed. Criminal Rule 12 allows "[a]ny defense, objection, or request which is capable of determination without trial of general issue" to be raised in a pre-trial motion. The rule then lists items that must be challenged pre-trial, including "(2) Defenses and objections based on defects in the indictment or information." The rule does not provide for the equivalent of a summary judgment proceeding in the civil context. Rather, "at the pretrial stage, the indictment ordinarily should be tested solely by its sufficiency to charge an offense, regardless of the strength or weakness of the government's case." United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988).
Merritt contends that "[i]t is the government's theory that Pamela Merritt, the defendant's wife and his sons are somehow agents of the defendant and the guns are `owned' by the defendant." (Def.'s Mem. in Supp. of Mot. to Dismiss at 2.) He then recites the evidence the government will present at trial. Any argument about the sufficiency of the evidence is inappropriate at this stage of the proceedings. However, Merritt can challenge the sufficiency of the indictment. Given that limitation, Merritt's only argument seems to be that the indictment cannot stand because he did not own the guns. He is incorrect because to be convicted under 18 U.S.C. § 922(g)(1), one does not need to own the guns. Rather, that Section provides:
It shall be unlawful for any person —
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . 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.
The Government's theory appears to be that Merritt had constructive possession of the weapons, which is possible even if he did not own them. See United States v. Bogden, 865 F.2d 124, 126 (7th Cir. 1988). A defendant may have constructive possession if he knowingly has the power and the intention at a given time to exercise dominion and control over an object. United States v. Walls, 225 F.3d 858, 864 (7th Cir. 2000); see also United States v. Lane, 267 F.3d 715 (7th Cir. 2001) (finding that holding a firearm establishes possession as a matter of law). Because the indictment sufficiently charges an offense, Merritt's motion to dismiss fails on this claim.
B. Possessory Interest
Merritt also claims that he had no possessory or property interest in the guns because they were owned by his wife. He cites to the Married Women's Act, which held that married women could own property, as support for the idea that any firearms owned by her are her separate property in which Merritt has no interest. Merritt again ignores case law which says that ownership and possession are not coextensive. It is possible for Pamela to own the guns, but for Merritt to have constructive possession of them in violation of 18 U.S.C. § 922(g)(i). Because Merritt cannot challenge the sufficiency of the evidence at this stage of the proceeding and this indictment sufficiently charges an offense, his motion to dismiss on this point is denied.
C. Merritt's Tenth Amendment Claim
Merritt also claims that the indictment violates his Tenth Amendment rights. The Tenth Amendment provides that: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It is unclear how exactly Merritt's indictment for possession of firearms violates this amendment. This court's best guess is that Merritt is contesting the federal government's ability to criminalize this conduct where the possession of a firearm or ammunition did not affect interstate commerce. As a preliminary matter, it is unclear whether Merritt has standing to contest this issue. See Tennessee Elec. Power Co. v. T.V.A., 306 U.S. 118, 144 (1939) (observing that private parties have no right to raise any question under the Tenth Amendment). But see New York v. United States, 505 U.S. 144, 181-82 (1992) (observing that the Constitution protects the sovereignty of the States for the benefit of individuals, not the State itself); Gillespie v. City of Indianapolis, 185 F.3d 693, 703 (7th Cir. 1999) (allowing private citizen to sue under Tenth Amendment).
However, even assuming that Merritt does have standing, he loses on the merits of his claim. Whether Congress has invaded the province reserved to the States under the Tenth Amendment is a question that must be answered by inquiring whether Congress has exceeded the limits of authority bestowed upon it by Article I of the Constitution. Id. at 704. The Gun Control Act and its amendments were enacted pursuant to the Commerce Clause, which allows regulation of commerce "among the several States." U.S. Const. art. I, § 8, cl. 3. The Supreme Court in United States v. Lopez, 514 U.S. 549 (1995), explained that the Commerce Clause allows Congress to regulate: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, as well as person and objects in interstate commerce, and (3) activities that substantially affect interstate commerce. Id. at 558-59. In Lopez, the Supreme Court concluded that the Gun-Free School Zone Act of 1990 exceeded Congress' power under the Commerce Clause because on its face the provision had nothing to do with commerce. More specifically, it lacked a jurisdictional element ensuring by means of a case-by-case inquiry that a given firearm affects interstate commerce. Id. at 561-63. Section 922(g)(1) includes that jurisdictional element that was lacking in Lopez. See 18 U.S.C. § 922(g)(1) (prohibiting convicted felons from possessing firearms "in or affecting interstate commerce"). After Lopez, courts have "repeatedly found the inclusion of that jurisdictional element in other provisions of the Gun Control Act sufficient to overcome Commerce Clause challenges." Gillespie, 185 F.3d at 704-05 (collecting cases).
Merritt also loses on an "as applied" challenge. Because in the aggregate, the effect of the regulation of firearms on interstate commerce is "easy to see," the only thing "that need be shown in the individual case . . . [i]s that the firearm in question had previously moved across states lines." Id. at 705. Merritt does not claim that the guns he is alleged to have possessed never crossed state lines. In any event, that is a matter of proof for trial. Accordingly, Merritt's motion to dismiss for this reason is denied.
D. Second and Tenth Amendment Rights of Merritt's Wife and Sons
Finally, Merritt claims that the indictment violates his wife and sons' Second and Tenth Amendment rights. Specifically, he claims that "[t]o restrict their possession by prohibiting access to the weapons by Mr. Merritt without more is to in reality hold that as a matter of law, they cannot possess firearms." (Def.'s Reply at 1.) However, Merritt lacks standing to contest an alleged constitutional violation of another person's rights. Cf. United States v. Salvucci, 448 U.S. 83, 86-87 (1980) (defendant has standing to challenge admission of evidence only if his own constitutional rights are violated); United States v. Stowe, 100 F.3d 494, 500 (7th Cir. 1996) (police actions during search toward defendant's girlfriend do not grant defendant standing to suppress evidence).
III. Conclusion
For the foregoing reasons, Defendant's Motion to Dismiss is DENIED.
ALL OF WHICH IS ORDERED this 8th day of November 2001.