U.S. v. Reed, 96-3171
| Decision Date | 02 June 1997 |
| Docket Number | No. 96-3171,96-3171 |
| Citation | 114 F.3d 1067 |
| Parties | 97 CJ C.A.R. 861 UNITED STATES of America, Plaintiff-Appellant, v. Derrick D. REED, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lanny D. Welch, Assistant U.S. Attorney, Wichita, Kansas (Jackie N. Williams, United States Attorney for the District of Kansas, and Lisa Simotas, Attorney, Department of Justice, Washington, D.C., with him on the brief), for Plaintiff-Appellant.
Kurt P. Kerns (Aronda Strutt Kerns, with him on the brief), Wichita, Kansas, for Defendant-Appellee.
Before PORFILIO, HOLLOWAY and ANDERSON, Circuit Judges.
This is an appeal by the government under 18 U.S.C. § 3731 from the district court's order dismissing five counts of an eight-count indictment. The counts challenged in the defendant's motion to dismiss were based on 18 U.S.C. § 922(g), which provides, in pertinent part:
It shall be unlawful for any person--... (3) 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 ... possess in or affecting commerce, any firearm or ammunition....
Each of these counts alleged that Reed had possessed a weapon (or in one count, ammunition) and that he "is an unlawful user of a controlled substance, that is Marijuana, a Schedule I controlled substance...."
The district court determined that the statute, as applied to the government's proffer of evidence concerning five of the six counts based upon that statute, was unconstitutionally vague. United States v. Reed, 924 F.Supp. 1052 (D.Kan.1996). We conclude that the district court erred in treating defendant's motion to dismiss as an "as applied" challenge when the motion clearly raised only an invalid facial attack. We also conclude that the district court erred in using the government's mere proffer of evidence as a foundation on which the application of the statute could be analyzed and the vagueness challenge could be determined. Accordingly, we reverse, but without prejudice to defendant's right to raise a vagueness challenge at the proper time.
Defendant Reed was indicted on eight counts. Counts 1, 2, 3, 5, 6, and 7 of the Indictment alleged violations of 18 U.S.C. § 922(g), as noted above. Defendant moved to dismiss these counts on the basis that the statute was unconstitutionally vague. The motion clearly raised only a facial challenge to the statute, and of course at that stage of the proceedings defendant was not able as a practical matter to attack the statute in any other way. Although under no obligation to do so, the government in its written response to the defendant's motion set out a summary of the facts it expected to be able to prove at trial. App. at 12-14. The following recitation is based on the government's submission to the district court.
On July 11, 1993, defendant was pulled over on a traffic stop. The officer determined that an arrest warrant based on unpaid traffic fines was outstanding and arrested defendant. A search of the car revealed a small baggie of marijuana and a loaded pistol under the driver's seat. Count 1 alleged that defendant, a user of unlawful drugs, was in possession of a firearm in violation of section 922(g) based on this incident.
On February 5, 1994, defendant was arrested after a routine traffic stop because his license had been suspended. A loaded pistol was found in the car. This incident was the basis of Count 2, which also alleged a violation of section 922(g).
On November 25, 1994, an officer writing parking tickets observed a pistol on the floorboard of a parked car. Because transporting a gun in this manner violated a city ordinance, the officer watched the car. Defendant was arrested when he entered the car. In the subsequent search, the officer found a baggie of marijuana in defendant's pocket. This incident formed the basis of Count 3, another alleged violation of section 922(g).
Count 4 was a simple possession of marijuana charge, which was not a subject of the motion to dismiss. While being chased by officers, on January 15, 1995, defendant allegedly threw a baggie of marijuana from the window of a car.
On April 2, 1995, the police received a "suspicious person" phone call naming defendant. On arriving at the scene, officers found defendant standing next to a car. Defendant had ammunition on his person, and a loaded gun was seen in plain view in the car. This arrest led to Counts 5 and 6, alleging separate violations of section 922(g) for the gun and the ammunition.
On April 29, 1995, defendant was in the front passenger seat of a car which also contained several other persons when the police stopped the car. The officer reported smelling a strong odor of marijuana. Some marijuana was found in the console between the front seats, and a loaded gun was found in the front seat passenger area. Count 7, based on this arrest, was the only count subject to the motion to dismiss which the district judge refused to dismiss. Count 8, not subject to the motion to dismiss, charged the possession of a sawed-off shotgun in May 1995.
In his analysis of the motion to dismiss, the district judge first noted that the defendant's vagueness challenge was to be examined in light of the particular facts, there being no First Amendment implication in the statutory prohibition. 924 F.Supp. at 1054 (citing United States v. Meraz-Valeta, 26 F.3d 992 (10th Cir.1994)). The central question, the judge reasoned, was whether the statute provided sufficient notice to Reed that he was engaged in criminal behavior. The government conceded below, as it does on appeal, that there must be some proximity in time between drug use and weapon possession. The statute prohibits possession of a weapon by one who "is" a user, not one who "was" a user. Yet, the district judge reasoned, the statute on its face provides no guidance as to how nearly contemporaneous the two elements must be. As the court put it, "The statute does not indicate that point in time when someone who is an unlawful user, and subject to the statute, becomes someone who was an unlawful user, and not subject to the statute." 924 F.Supp. at 1055.
To determine if defendant had sufficient notice for the statute to pass muster, the court considered the six challenged counts in three groups. The court concluded that Count 7 passed constitutional muster, because the allegations indicated that the government might be able to prove contemporaneous marijuana use and possession of a gun. Id. at 1056. In Counts 1 and 3, the court noted, defendant was alleged to have simultaneously possessed marijuana and weapons, although there was no indication of contemporaneous use of the marijuana. Finally, the judge noted that in Counts 2, 5, and 6, defendant allegedly possessed a firearm or ammunition, but there was no indication of either possession or use of marijuana at the time of those arrests.
As to Counts 1 and 3, the court determined that Congress could have outlawed mere possession but chose not to do so. The judge found that mere possession did not establish a time frame for usage, and thus that it would have been impossible for defendant to know whether or not his conduct was prohibited. Accordingly, the judge held that the statute was fatally vague as to those counts. The other three counts arose from arrests for possession of a weapon with no concurrent possession of marijuana. For the same reasons that concurrent possession was insufficient to determine a time frame for usage, the statute was held to be unconstitutionally vague as to these counts.
The doctrine of vagueness arises from principles of due process.
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards...
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