United States v. Cook

Decision Date28 January 2019
Docket NumberNo. 18-1343,18-1343
Citation914 F.3d 545
Parties UNITED STATES of America, Plaintiff-Appellee, v. Blair COOK, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

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

Joseph Aragorn Bugni, Attorney, Shelley M. Fite, Attorney, Federal Defender Services of Wisconsin, Madison, WI, for Defendant-Appellant.

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. See 18 U.S.C. § 922(g)(3). Cook appeals 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 affirm Cook’s conviction.

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 without a license plate on the front of 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 22-round capacity magazine with 19 bullets remaining. Cook was transported to the police station for further questioning. During a recorded interview at the station, Cook acknowledged to Wentzel that he had used marijuana almost daily for nearly ten years (since the age of 14), that he did so because marijuana calmed him down, and that he had smoked two "blunts" earlier that day.1 On prodding from the police, Cook ultimately produced a small 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."

A grand jury subsequently charged Cook with two offenses: possession of a firearm and ammunition by an "unlawful user" of marijuana, in violation of section 922(g)(3), and 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 18 U.S.C. § 924(a)(1)(A).

Cook moved to dismiss both counts of the indictment on the ground that the term "unlawful user" of a controlled substance found in sections 922(g)(3) and 924(a)(1)(A) 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 either statute. R. 87 at 17.

Following a one-day trial, a jury convicted Cook on the section 922(g)(3) charge but was unable to reach a verdict on the section 924 charge, which the district court dismissed without prejudice, R. 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.

Section 922(g)(3) 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 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 he qualified as an "unlawful user" of marijuana, which the jury necessarily found that he did.

Cook challenges his conviction pursuant to this statute 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,2 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 applied to him; and if the statute undoubtedly applies to his conduct, he will not be heard to argue that the statute is vague as to one or more hypothetical scenarios. See Holder v. Humanitarian Law Project , 561 U.S. 1, 18–19, 130 S.Ct. 2705, 2718–19, 177 L.Ed.2d 355 (2010) (quoting Village of Hoffman Estates v. Flipside Hoffman Estates, Inc. , 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) ); Broadrick v. Oklahoma , supra n.2., 413 U.S. at 610, 93 S.Ct. at 2915 (collecting cases).

Nonetheless, the Supreme Court has on a number of occasions entertained facial challenges to criminal statutes that do not implicate First Amendment concerns. See , e.g. , Skilling , 561 U.S. at 402–14, 130 S.Ct. at 2927–33 (honest services fraud); City of Chicago v. Morales , 527 U.S. 41, 52–64, 119 S.Ct. 1849, 1857–63, 144 L.Ed.2d 67 (1999) (loitering by gang members in public spaces); Lanzetta v. New Jersey , 306 U.S. 451, 453–58, 59 S.Ct. 618, 619–21, 83 L.Ed. 888 (1939) (gang participation); United States v. L. Cohen Grocery Co. , 255 U.S. 81, 89–93, 41 S.Ct. 298, 300–01, 65 L.Ed. 516 (1921) (price gouging). As we noted in United States v. Jones , 689 F.3d 696 (7th Cir. 2012), abrogated on other grounds by Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the common thread uniting these cases with facial challenges in the First Amendment context appears to be a concern (or at least a colorable contention) that the challenged statute "simply has no core" and lacks "any ascertainable standard for inclusion and exclusion," id. at 703 (quoting Smith v. Goguen , 415 U.S. 566, 578, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974) ). Such a standardless statute poses a trap for the person acting in good faith, who is given no guidepost by which he can divine what sort of conduct is prohibited. See Colautti v. Franklin , 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979), overruled in part on other grounds , Webster v. Reproductive Health Servs. , 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). The concern is heightened when the statute contains no mens rea requirement, Colautti , 439 U.S. at 395, 99 S.Ct. at 685–86, and the uncertainty as to exactly what is proscribed "threatens to inhibit the exercise of constitutionally protected rights," id. at 391, 99 S.Ct. at 683. See also Morales , 527 U.S. at 55, 119 S.Ct. at 1858.

The statutory prohibition at issue here does not present such concerns. True enough, section 922(g)(3) does implicate Cook’s Second Amendment right to possess a gun. But the prohibition is not a...

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