United States v. Duncan

Docket Number7:20-cr-00167-M-3
Decision Date07 November 2023
PartiesUNITED STATES OF AMERICA, Plaintiff, v. JORDAN DUNCAN, Defendant.
CourtU.S. District Court — Eastern District of North Carolina


This matter comes before the court on the Defendant Jordan Duncan's (Duncan) motions to dismiss [DE 315-318, 320]. Each motion challenges one or both of the pending conspiracy charges against him based on perceived constitutional violations and/or pleading deficiencies in the operative indictment. For the following reasons, the motions are DENIED.

I. Background

A. Factual Background

In 2016, Codefendant Liam Montgomery Collins (“Collins”) used Iron March, an online forum frequented by neo-Nazi/white supremacy groups and sympathizers, to recruit members for “a legitimate Paramilitary/Defense force” resembling “a modem day SS.” DE 149 ¶¶ 1, 6. In February 2017 Collins started communicating with Paul James Kryscuk (“Kryscuk”) about the strategy to accomplish such a task. Id. ¶ 7. Duncan joined the crew sometime before December 2018. Id. ¶ 10. In July 2020, all three individuals met with Joseph Maurino (“Maurino”) in Boise, Idaho to participate in firearms training and collect video footage that they would later turn into a montage displaying neo-Nazi symbols and sentiments. Id. ¶ 15. Kryscuk believed that their group's “final frontier [was] real life violence.” Id. ¶ 14.

By June 2019, Collins, Kryscuk, and Duncan allegedly started working together to manufacture and sell firearms and firearm parts to themselves and paying customers. See Id. ¶¶ 11-13. For example, Kryscuk manufactured a 9mm pistol for one individual, an assault rifle for another individual, and other firearms and/or parts for those two individuals as well as Duncan. Id. In addition to the group's manufacturing activity, they would also send firearms and suppressors into North Carolina. See id. ¶¶ 17-18, 20. They allegedly perpetrated their manufacturing and selling activities in part to murder Black Lives Matter protestors in Boise, Idaho. See id. ¶¶ 23, 24(J).

Around the same time, the group allegedly started targeting energy facilities in Boise, Idaho. DE 149 ¶ 29. Collins, Kryscuk, Duncan, and Maurino studied a previous attempt to destroy a power grid using assault rifles and discussed using incendiary materials to bum through power transformers. Id. ¶¶ 31(H), (J). By October 20, 2020, Kryscuk obtained a handwritten list identifying various components of the power grid powering the northwest United States. Id. ¶ 31(M). The group allegedly aimed to create general chaos in the region and cover for themselves to facilitate their assassinations and other operations. Id. ¶ 30.

B. Procedural Background

On August 18, 2021, the United States charged Duncan with conspiracy to manufacture and ship firearms in violation of 18 U.S.C. § 922(a)(1)(A) (Count One, 18 U.S.C. § 371) and conspiracy to destroy an energy facility (Count Five, 18 U.S.C. § 1366(a)). DE 149. The operative indictment also charged four other individuals with various offenses. See id. All four codefendants have since pleaded guilty pursuant to their respective plea agreements. See DE 195 (Kryscuk to Count 5); DE 202 (Hermanson to Count 1); DE 283 (Maurino to Count 1); DE 353 (Collins to Count 4). Duncan is scheduled for arraignment on December 14, 2023. DE 292. Trial is set for March 4, 2024. Id.

IL Legal Standard

A defendant may object to a defective indictment “if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3). “A district court may dismiss an indictment under Rule 12 ‘where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.' United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012) (quoting United States v. Snipes, 611 F.3d 855, 866 (11th Cir. 2010)). [A] district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts.” United States v Weaver, 659 F.3d 353, 355 n.* (4th Cir. 2011).

III. Discussion

Duncan brings five claims for dismissal based on putative infirmities of law in the third superseding indictment. One claim looks to dismiss the charge for conspiracy to manufacture and ship firearms because it violates his right to keep and bear arms under the Second Amendment. See DE 315. He also claims the charge should be dismissed because it relies on a term that is unconstitutionally vague for purposes of the First and Fifth Amendments. See DE 316. He challenges the charge for conspiracy to destroy an energy facility based on improper venue, see DE 317, and double jeopardy, see DE 318. Lastly, he challenges both charges on grounds that the grand jury returned the operative indictment after receiving erroneous legal instructions. See DE 320. The court discusses each claim in turn.

A. Second Amendment [DE 315]

Duncan lodges a Second Amendment challenge against 18 U.S.C. § 922(a)(1)(A), which makes it unlawful for an unlicensed individual “to engage in the business of importing, manufacturing, or dealing in firearms, or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” To culpably “engage[] in the business” of firearm manufacturing, one must manufacture firearms “as a regular course of trade or business with the principal objective of livelihood and profit,” or “for criminal purposes.” See id. §§ 921(a)(21)(A), 921 (a)(23). Duncan allegedly conspired to engage in the business of manufacturing firearms with the criminal purpose of furthering a civil disorder. DE 149 ¶¶ 22-23. Thus, the statute as applied to Duncan prohibits commercially manufacturing and selling firearms for a criminal purpose. Id.

To analyze whether a challenged regulation violates the Second Amendment, the court must determine if “the Second Amendment's plain text covers an individual's conduct.” N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S.Ct. 2111,2126 (2022). The Second Amendment states that “the right of the people to keep and bear Arms[] shall not be infringed.” U.S. Const, amend. II. Its plain language “guarantee[sj the individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). And its “core protection” concerns “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. at 635. In light of these principals, some courts have held that “the core Second Amendment right to keep and bear arms for self-defense ‘wouldn't mean much' without the ability to acquire arms.” See Teixeira v. Cnty. of Alameda, 873 F.3d 670, 677 (9th Cir. 2017) (quoting Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011)).

Duncan argues that this court should likewise interpret the Second Amendment to confer another implied right based on its core protection. He asks this court to conclude that the plain meaning “necessarily [covers] an ability to sell, or otherwise transfer, firearms.” See DE 315 at 8-9. It is conceivable that the right to keep and bear arms extends to the assembly and sale of firearms. See United States v. McNulty, No. CR 22-10037-WGY, 2023 WL 4826950, at *4 (D. Mass. July 27, 2023); Hillel Y. Levin & Timothy D. Lytton, The Contours of Gun Industry Immunity: Separation of Powers, Federalism, and the Second Amendment, 75 Fla. L. Rev. 833, 886-888, 893 (2023). But such conduct, even if confirmed by plain meaning and commonsense, would have to be for a “lawful purpose.” Cf. Heller, at 592, 618-620 (quoting United States v. Cruikshank, 92 U.S. 542, 553 (1875)). This is not that case. Duncan allegedly conspired to make and sell firearms to advance a mass shooting. His violent purpose is disqualifying. See id. at 618 (“Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.” (citation omitted)).

Moreover, “laws imposing conditions and qualifications on the commercial sale of arms,” like § 922(a)(1)(A), are presumptively constitutional. Heller, 128 S.Ct. at 2816-17; McDonald v. City of Chicago, 561 U.S. 742, 786 (2010); Bruen, 142 S.Ct. at 2162 (Kavanaugh, J. and the Chief Justice, concurring). Because § 922(a)(1)(A) imposes a condition, namely licensing, on firearms commerce, numerous courts around the country have held that it does not violate the Second Amendment. See, e.g., McNulty, 2023 WL 4826950, at *5; United States v. Flores, No. CR H-20-427, 2023 WL 361868, at *5 (S.D. Tex. Jan. 23, 2023); United States v. Kazmende, No. L22-CR-236-SDG-CCB, 2023 WL 3872209, at *5 (N.D.Ga. May 17, 2023), report and recommendation adopted, No. 1:22-CR-00236-SDG, 2023 WL 3867792 (N.D.Ga. June 7, 2023); United States v. King, 646 F.Supp.3d 603, 607 (E.D. Pa. 2022). Duncan has not provided an adequate reason to depart from this weight of relevant authority.

B. Vagueness [DE 316]

Duncan argues that the court should dismiss the charge for conspiracy to manufacture and ship firearms because it relies on 18 U.S.C. § 231(a)(2) to define the purpose of the conspiracy as manufacturing firearms to further a “civil disorder.” See DE 316 at 6. Under the statute, “civil disorder” means “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.” Id. § 232(1). This definition, Duncan argues, is unconstitutionally vague because it lacks an intelligible standard to...

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