United States v. Cook

• Decision Date: 17 August 2020
• Docket Number: No. 18-1343,18-1343
• Citation: 970 F.3d 866
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Blair COOK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

970 F.3d 866

UNITED STATES of America, Plaintiff-Appellee,

v.Blair COOK, Defendant-Appellant.

No. 18-1343

United States Court of Appeals, Seventh Circuit.

Decided August 17, 2020

Rita M. Rumbelow, Attorney, Office of the United States Attorney, for Plaintiff-Appellee.

Joseph Aragorn Bugni, Shelley M. Fite, Attorneys, Federal Defender Services of Wisconsin, Inc., Madison, WI,

Before Flaum, Manion, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

A jury convicted Blair Cook of being an unlawful user of a controlled substance (marijuana) in possession of a firearm and ammunition. See 18 U.S.C. §§ 922(g)(3) (proscribing possession of firearm by unlawful user of controlled substance), 924(a)(2) (specifying penalties for one who "knowingly" violates section 922(g) ). Cook appealed his conviction, contending that the statute underlying his conviction is facially vague, that it improperly limits his Second Amendment right to possess a firearm, and that the district court did not properly instruct the jury as to who constitutes an unlawful user of a controlled substance. We affirmed Cook's conviction. United States v. Cook , 914 F.3d 545 (7th Cir. 2019). The Supreme Court subsequently held in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 2194, 2200, 204 L.Ed.2d 594 (2019), that the knowledge element of section 924(a)(2) requires the government to show that the defendant knew not only that he possessed a firearm, but that he belonged to the relevant category of persons barred from possessing a firearm. Consistent with the prior case law of this court, the superseding indictment in this case did not allege, nor the jury instructions advise the jury that it must find, that Cook knew he was an unlawful user of a controlled substance. Cook's petition for a writ of certiorari was pending at the time that Court was considering Rehaif , and Cook had suggested that if the Court in Rehaif expanded the knowledge requirement of section 924(a)(2) to include knowledge of one's status, the Court ought to remand his case for further proceedings. Petition for Writ of Certiorari at 25–26, Cook v. United States , No. 18-9707 (U.S. June 12, 2019).¹ The Court subsequently granted Cook's petition, vacated our decision sustaining his conviction, and remanded for reconsideration in light of Rehaif , as Cook had asked it to do. Cook v. United States , ––– U.S. ––––, 140 S. Ct. 41, 205 L.Ed.2d 4 (2019). Upon reconsideration, we now reincorporate our previous decision, with minor modifications, rejecting Cook's vagueness and Second Amendment challenges to section 922(g)(3) along with his objection to the jury instruction on who constitutes an unlawful user of a controlled substance. But in light of Rehaif , we conclude that Cook is entitled to a new trial.

I.

On May 25, 2017, officers of the Madison, Wisconsin police department conducted a traffic stop of the car that Cook was driving. When officers approached the car and spoke with Cook, they noticed a strong odor of marijuana emanating from the car. Apart from the possibility that Cook was driving under the influence of marijuana, Cook was also driving on a suspended license and with a license plate missing from his vehicle, so the officers decided to detain him and ordered him to step out of the vehicle. Officer Matthew Wentzel removed a loaded, .40-caliber Glock Model 23 pistol from a holster under Cook's shoulder. The gun had an extended capacity magazine with a total of 19 bullets within it when Cook was stopped. Cook was transported to the police station for further questioning. During a recorded interview at the station, Cook acknowledged to Wentzel that "I've been smoking weed since I was like 14" (a period of nearly ten years), that he did so because "it really mellows me out," and that he had smoked two "blunts" earlier that day. R. 22-1 at 2–3.² As Judge Peterson would later note in denying Cook's motion for a new trial, "The way Cook phrased his statement suggests not merely that he smoked weed the first time when he was 14, but that it was a regular activity since then." R. 73 at 2. On prodding from the police, Cook ultimately produced a packet from his groin area containing a half ounce of marijuana.

Cook had purchased the firearm from Max Creek Outdoors in Oregon, Wisconsin on April 2, 2017. At the time of the purchase, he was required to complete a Firearms Transaction Record (Form 4473) promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). On that form, Cook answered "No" to the question, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" Directly under that question the reader of the form was admonished, "Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside." Gov. Trial Ex. No. 1.

A grand jury subsequently charged Cook with two offenses: knowingly possessing in or affecting commerce a firearm and ammunition as an "unlawful user" of marijuana, in violation of sections 922(g)(3) and 924(a)(2), and knowingly making a false statement (that he was not an unlawful user of marijuana) on the ATF form in connection with his purchase of a firearm and ammunition, in violation of section 924(a)(1)(A). R. 7.

Cook moved to dismiss both counts of the indictment on the ground that the term "unlawful user" of a controlled substance found in section 922(g)(3) is unconstitutionally vague. The district court denied the motion. R. 21 at 2–3.

The district court subsequently gave the following instruction to the jury as to who constitutes an "unlawful user" of marijuana:

The defendant was an unlawful user of marijuana if he used marijuana on a regular and ongoing basis for a period of time that began before and continued through the date of the charged offense. The government is not required to prove that the defendant was under the influence of marijuana when he filled out the Firearms Transaction Record or when he possessed the firearm. The government is not required to prove that the defendant used marijuana on any particular day, or within a certain number of days of when he committed the charged offenses.

R. 44 at 8; R. 56 at 70–71 (emphasis in original). The defense rejected the government's offer to include an additional sentence in this instruction advising the jury that a one-time use of marijuana is insufficient to render the defendant an "unlawful user" within the meaning of section 922(g)(3). R. 87 at 17.

Following a one-day trial, a jury convicted Cook on the possession charge but was unable to reach a verdict on the false statement charge, which the district court dismissed without prejudice. R. 46, 53. The district court denied Cook's Rule 33 motions for a new trial (R. 73) and ordered Cook to serve a four-year term of probation in lieu of any term of imprisonment (R. 76).

II.

We begin our reconsideration with the charges Cook raised prior to the Supreme Court's decision in Rehaif . Although we conclude in section III below that Rehaif entitles Cook to a new trial, these issues are not moot and our analysis remains relevant to the proceedings on remand.

Section 922(g)(3) of the Criminal Code provides in relevant part that "[i]t shall be unlawful for any person ... 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 ...." Marijuana is a Schedule I controlled substance, see 21 U.S.C. § 812(c)(10), and because the Glock pistol Cook purchased from Max Creek Outdoors had previously traveled in interstate commerce (it was manufactured in Smyrna, Georgia), section 922(g)(3) forbade Cook's possession of the gun at the time of the May 2017 traffic stop provided that he qualified as an "unlawful user" of marijuana, which the jury necessarily found that he did. Section 924(a)(2) in turn provides that anyone who "knowingly" violates section 922(g) shall be imprisoned for up to 10 years.³

Cook challenges his conviction pursuant to section 922(g)(3) on three grounds: (1) the statute is facially vague as to who constitutes an "unlawful user" of a controlled substance; (2) the statute violates his Second Amendment right to possess a firearm; and (3) the jury instruction defining "unlawful user" was inadequate. For the reasons that follow, we find none of these arguments to be persuasive.

A. Facial vagueness challenge to section 922(g)(3)

Cook contends that section 922(g)(3) is vague on its face, such that his conviction violates the Fifth Amendment's due process clause. The void-for-vagueness doctrine requires that a criminal statute define an offense with sufficient clarity that an ordinary person has fair notice of what conduct is prohibited and so as to avoid arbitrary and discriminatory enforcement. See , e.g. , Skilling v. United States , 561 U.S. 358, 402–03, 130 S. Ct. 2896, 2927–28, 177 L.Ed.2d 619 (2010) ; United States v. Sylla , 790 F.3d 772, 774–75 (7th Cir. 2015). "What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." United States v. Williams , 553 U.S. 285, 306, 128 S. Ct. 1830, 1846, 170 L.Ed.2d 650 (2008).

The general practice, outside of the First Amendment context,⁴ has been to consider the purported vagueness of a statute in light of the facts of the particular case—i.e. , as applied—rather than in the abstract. See , e.g. , Maynard v. Cartwright , 486 U.S. 356, 361, 108 S. Ct. 1853, 1857–58, 100 L.Ed.2d 372 (1988) ; United States v. Johnson , 875 F.3d 360, 370 (7th Cir. 2017). This means, of course, that a litigant challenging the statute ordinarily must show that it is vague as...