U.S. v. Masciandaro, 1:09cr238.

Citation648 F.Supp.2d 779
Decision Date26 August 2009
Docket NumberNo. 1:09cr238.,1:09cr238.
PartiesUNITED STATES of America v. Sean MASCIANDARO.
CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

Rosie Haney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Rachel Sarah Martin, Office of the Federal Public Defender, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

Appellant, Sean Masciandaro, seeks reversal of his conviction by a United States Magistrate Judge of possession of a loaded weapon in a motor vehicle in a National Park, in violation of 36 C.F.R. § 2.4(b) (2007) and 16 U.S.C. § 3. Specifically, Masciandaro argues

(i) that the Magistrate Judge erred by applying the regulation in force at the time of the offense conduct, rather than the later-amended regulation in force at the time of trial and sentencing;

(ii) that the Magistrate Judge erred in rejecting Masciandaro's as-applied and facial Second Amendment challenges to the regulation, in light of the Supreme Court's decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); and

(iii) that the Magistrate Judge erred in rejecting Masciandaro's post-sentencing request for expungement of his conviction.

For the reasons that follow, these arguments fail and the judgment of conviction must be affirmed.

I.

On the morning of June 5, 2008, United States Park Police ("USPP") Sergeant Kenneth Fornshill was on patrol duty in the area surrounding Daingerfield Island, a National Park Service ("NPS") property located appurtenant to and east of the George Washington Memorial Parkway in Northern Virginia.1 At approximately 10:00 a.m., Sergeant Fornshill, who was in a marked patrol car, entered the Daingerfield Island gravel parking lot and observed an illegally parked Toyota hatchback.2 After parking next to the vehicle and exiting his patrol car, Sergeant Fornshill approached the Toyota and noticed two individuals asleep inside, namely (i) a man, later identified to be Masciandaro, who was asleep in the driver's seat; and (ii) a woman, later identified to be Masciandaro's girlfriend, asleep in the front passenger seat. Sergeant Fornshill then awakened Masciandaro and the passenger by tapping on the driver's side window and asked Masciandaro, the owner of the vehicle, to produce his driver's license. Masciandaro reached behind the reclined passenger seat and pulled a latch on the back seat, giving him access to the vehicle's trunk. He then retrieved a messenger bag from the trunk and placed it on the back seat, which was obscured by the vehicle's tinted rear windows. After removing his wallet from the bag, Masciandaro, who had remained in the driver's seat, produced his Virginia driver's license.

As Masciandaro was retrieving his driver's license, Sergeant Fornshill observed a large knife in plain view protruding from under the vehicle's driver's seat. This observation prompted Sergeant Fornshill to direct Masciandaro to step out of the vehicle, and to inquire of Masciandaro whether there were other weapons in the vehicle. In response, Masciandaro said that he had a loaded handgun in the messenger bag from which he had obtained his wallet. Sergeant Fornshill then handcuffed both Masciandaro and the female passenger. After a second officer arrived, Sergeant Fornshill searched the vehicle and discovered Masciandaro's Kahr P9 9mm semiautomatic handgun in a gun case inside the messenger bag. Sergeant Fornshill confirmed that the firearm was loaded; six rounds of ammunition were in the weapon's magazine and a seventh was in the weapon's chamber. Sergeant Fornshill then arrested Masciandaro on two charges: (i) unlawful possession of a loaded firearm in a motor vehicle on NPS land, in violation of § 2.4(b); and (ii) failure to comply with a traffic control device, in violation of 36 C.F.R. § 4.12 (2007). Masciandaro was then taken to the nearby USPP station, where he produced an expired Virginia concealed-carry permit and was processed and released pending trial.

Prior to trial before a United States Magistrate Judge, Masciandaro filed two motions to dismiss the firearm charge, arguing (i) that § 2.4 had been amended after his arrest to provide an exception decriminalizing his offense conduct; and (ii) that § 2.4(b), as it existed at the time of the offense conduct, is unconstitutional under the Second Amendment, both facially and as applied to him. On January 14, 2009, Masciandaro appeared, with counsel, before the Magistrate Judge for trial and a hearing on his motions to dismiss. The Magistrate Judge received evidence and heard the live testimony of Masciandaro and Sergeant Fornshill. Following oral argument, the Magistrate Judge took the case under advisement.

Thereafter, on February 3, 2009, the Magistrate Judge issued an Order denying Masciandaro's motions to dismiss and finding him guilty of both the traffic violation and firearm charge. In an accompanying Memorandum Opinion setting forth the reasons for denying the motions to dismiss, the Magistrate Judge ruled (i) that because Masciandaro must be adjudicated under the regulation in force at the time of his offense conduct, and not the subsequently amended regulation, any exception set forth in a post-offense amendment to § 2.4 is inapplicable; and (ii) that § 2.4(b), both facially and as applied to Masciandaro does not violate the Second Amendment right to keep and bear arms as that right was interpreted by the Supreme Court in Heller.3 Thereafter, on March 10, 2009, Masciandaro appeared for sentencing, and the Magistrate Judge imposed a $50 fine on the § 4.12 sign violation and a $150 fine and a $10 special assessment on the § 2.4(b) firearm violation. Following imposition of sentence, Masciandaro orally moved for expungement of the firearm conviction, arguing that "extenuating circumstances, including the fact that the regulation has changed," warranted exercise of the Magistrate Judge's equitable expungement power. Sentencing Tr. 4. The Magistrate Judge denied the request, noting that:

I understand what you are saying. I don't think I can get into that business. I think that the rules are clear here, that the law is clear here and that it still applies. And I took that into consideration, frankly, I think, in the fine. But I don't feel that's appropriate given the case law. So, I am sorry, that is denied.

Id. at 4-5.

On March 24, 2009, Masciandaro filed a timely notice of appeal of the firearm conviction, pursuant to Rule 58(g)(2)(B), Fed. R.Crim.P. Following an order granting the parties' joint motion for an extension of time, Masciandaro filed his opening brief on June 19, 2009, arguing (i) that the Magistrate Judge erred in denying Masciandaro's request to apply the amended version of § 2.4 in force at the time of trial and sentencing; (ii) that the Magistrate Judge erred in denying Masciandaro's as-applied and facial Second Amendment challenges to § 2.4(b)'s prohibition on loaded weapons in motor vehicles on National Park land; and (iii) that the Magistrate Judge erred in refusing to exercise jurisdiction over Masciandaro's post-sentencing expungement request. On July 31, 2009, the parties appeared, by counsel, for oral argument. By Order issued that same day, the appeal was taken under advisement, and the parties were directed to submit supplemental briefs. The parties complied, and Masciandaro's appeal is now ripe for disposition.

II.

Jurisdiction over Masciandaro's appeal derives from 18 U.S.C. § 3402, and original jurisdiction below was proper under 18 U.S.C. § 3401(a). Importantly, "[a]n appellate review conducted by a district court after a bench trial before a magistrate judge is not a trial de novo; rather, the district court utilizes the same standards of review applied by a court of appeals in assessing a district court conviction." United States v. Bursey, 416 F.3d 301, 305 (4th Cir.2005) (citing Rule 58(g)(2)(D), Fed.R.Crim.P.); see also United States v. Steinert, 470 F.Supp.2d 627, 630 (E.D.Va.2007) (same). With respect to Masciandaro's first two arguments, which were preserved below and raise purely legal issues regarding the denial of his motions to dismiss, review is de novo. See Bursey, 416 F.3d at 306. Review of the Magistrate Judge's denial of Masciandaro's post-sentencing expungement request is for abuse of discretion. See Hodge v. Jones, 31 F.3d 157, 166 (4th Cir.1994) (noting that "[e]xpunction ... is a discretionary function of the court, rarely utilized absent extreme circumstances").

III.

Masciandaro's appeal presents three questions. First, it is necessary to determine whether Masciandaro was entitled to the benefit of an exception set forth in an amended regulation in effect at the time of trial and sentencing but not at the time of the offense conduct. Second, assuming the Magistrate Judge correctly held that only the regulation in force at the time of the offense conduct controls, it is next necessary to determine whether that regulation, either as applied to Masciandaro's offense conduct, or on its face is unconstitutional under the Second Amendment. And finally, assuming that Masciandaro was constitutionally convicted under the appropriate regulation, it is necessary to determine whether the Magistrate Judge's rejection of Masciandaro's post-sentencing expungement request constituted an abuse of discretion.

Each of these questions is separately addressed.

A. Applicable Regulation

Masciandaro's first argument, distilled to its essence, is that he was entitled to the benefit of an exception to § 2.4(b)'s general prohibition on possession of loaded weapons in motor vehicles on National Park land, which exception was not in force at the time of his offense conduct. In this regard, Masciandaro was convicted of violating § 2.4(b), which prohibits "[c]arrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation" on National Park land.4 The...

To continue reading

Request your trial
31 cases
  • Kachalsky v. Cacace
    • United States
    • U.S. District Court — Southern District of New York
    • September 2, 2011
    ...responsible citizens to use arms in defense of hearth and home”) (internal quotation marks omitted); United States v. Masciandaro, 648 F.Supp.2d 779, 788 (E.D.Va.2009) (“[A]lthough Heller does not preclude Second Amendment challenges to laws regulating firearm possession outside the home, H......
  • Clark v. City of Shawnee
    • United States
    • U.S. District Court — District of Kansas
    • January 5, 2017
    ...that firearms being transported in a vehicle are most typically not visible to others outside of the vehicle. United States v. Masciandaro , 648 F.Supp.2d 779, 790 (E.D. Va. 2009) (" Heller 's approval of concealed weapons bans provides further support for rejecting Masciandaro's as-applied......
  • Kachalsky v. Cacace, 10-CV-5413 (CS)
    • United States
    • U.S. District Court — Southern District of New York
    • September 6, 2011
    ...responsible citizens to use arms in defense of hearth and home") (internal quotation marks omitted); United States v. Masciandaro, 648 F. Supp. 2d 779, 788 (E.D. Va. 2009) ("[A]lthough Heller does not preclude Second Amendment challenges to laws regulating firearm possession outside the hom......
  • Nichols v. Brown
    • United States
    • U.S. District Court — Central District of California
    • March 3, 2013
    ...and McDonald might mean for future questions about open-carry rights, for now this is unsettled territory.”); United States v. Masciandaro, 648 F.Supp.2d 779, 788 (E.D.Va.2009) (“[A]lthough Heller does not preclude Second Amendment challenges to laws regulating firearm possession outside th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT