United States v. Graham, 4:14 CR 333 RLW / DDN

• Decision Date: 11 March 2015
• Docket Number: No. 4:14 CR 333 RLW / DDN,4:14 CR 333 RLW / DDN
• Court: U.S. District Court — Eastern District of Missouri
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. FREDRICK ERNEST GRAHAM, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. FREDRICK ERNEST GRAHAM, Defendant.

No. 4:14 CR 333 RLW / DDN

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 11, 2015

ORDER AND RECOMMENDATION

The pretrial motions of the parties were referred to the undersigned Magistrate Judge under 28 U.S.C. § 636(b). Pending for disposition are the motions of defendant Frederick Ernest Graham:

(a) pro se to dismiss the indictment for violating the Double Jeopardy Clause (Doc. 32);

(b) pro se for a bill of particulars (Doc. 33);

(c) to dismiss the indictment on statutory and constitutional grounds (Doc. 35);

(d) pro se to exclude evidence under Federal Rule of Evidence 403 (Doc. 36); and

(e) to suppress physical evidence and statements (Docs. 14 oral, 21, 24).

Also pending is the oral motion of the United States for a determination by the court of the admissibility or not of any arguably suppressible evidence (Doc. 15). An evidentiary hearing was held on January 28, 2015.

Defendant is charged by indictment in one count with being a felon in possession of a firearm on September 3, 2014, in violation of 18 U.S.C. § 922(g)(1). (Doc. 1.)

(a) Pro se motion to dismiss based on Double Jeopardy Clause

Defendant has moved pro se to dismiss the indictment on double jeopardy grounds. He argues that the federal indictment violates the Double Jeopardy Clause of the federal Constitution, because earlier Missouri state criminal charges arising out of the same facts upon which the federal charge is based, were dismissed against him in the Missouri Circuit Court. (Doc. 32 at 2.)

The protection against double jeopardy is found in the Fifth Amendment of the United States Constitution which states in pertinent part:

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb;

U.S. Const. amend V.

Defendant was charged in the Circuit Court of the City of St. Louis with unlawful possession of a firearm, unlawful use of a weapon, and resisting or interfering with a felony arrest. (Doc. 44-1.) On October 22, 2014, the instant federal indictment was returned by the federal grand jury. On November 4, 2014 the State of Missouri filed a memorandum of nolle prosequi, thereby dismissing the state charges. (Id.) He argues that the federal charge violated the federal constitutional prohibition of double jeopardy.

This argument is without merit, because the federal constitutional Double Jeopardy Clause only prohibits the same governmental entity from putting the same person in jeopardy more than once for the same offense. The prosecution of an individual by separate governmental entities or sovereigns for the same offense does not violate the federal Constitution. United States v. Leathers, 354 F.3d 955, 959-60 (8th Cir. 2004). An exception to this principle occurs when one government acts as the agent of another government; however, mere cooperation between separate governments does not rise to the level of a sham prosecution by one government on behalf of the other. Leathers, 354 F.3d at 960. No factual basis for avoiding the application of the dual sovereignty principle has been established by defendant.

(b) Pro se motion for a bill of particulars

Defendant, pro se, has moved for a bill of particulars, arguing the indictment is not specific enough to allow him to prepare a proper defense and avoid surprise at trial. (Docs. 33, 49.) "An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to subsequent prosecution." United States v. Steffen, 687 F.3d 1104, 1109 (8th Cir. 2012) (quoting United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993)).

The instant indictment alleges all the essential elements of the charged violation of 18 U.S.C. § 922(g)(1): defendant (1) after having been convicted of an offense punishable by imprisonment for more than one year, (2) knowingly (3) possessed a firearm (4) in interstate or foreign commerce. United States v. Jones, 266 F.3d 804, 813 (8th Cir. 2001).

A defendant may request a bill of particulars if the "indictment does not provide enough information to prepare a defense . . . ." United States v. Huggans, 650 F.3d 1210, 1220 (8th Cir. 2011). The court may direct the government to file a bill of particulars under Federal Rule of Criminal Procedure 7(f). If information regarding the specific charge is available from other sources such as hearings and discovery provided by the government, the need for a bill of particulars is eliminated. See e.g., United States v. Hernandez, 299 F.3d 984, 989-90 (8th Cir. 2002) (government's responses to defendant's requests were sufficient to prevent surprise and render a bill of particulars unnecessary); Fleming, 8 F.3d at 1265 (holding the superseding indictment and pre-trial evidentiary hearing provided defendant with sufficient knowledge of the charges against him).

"A bill of particulars is not a discovery device to be used to require the government to provide a detailed disclosure of the evidence that it will present in trial." Id. (quoting United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009)); United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir. 2003) ("the defendant's constitutionalright is to know the offense with which he is charged, not to know how it will be proved.") (internal citations omitted); United States v. Tyler, 42 Fed. App'x 186 (10th Cir. 2002) ("Significantly, a defendant is not entitled to notice of all the evidence the government intends to produce, but only the theory of the government's case") (internal citations omitted).

Whether the one-count indictment alleged information sufficient to enable defendant Graham to defend against the charge, e.g., the nature of the prior offense and a description of the charged firearm, more than sufficient information has been provided to him by the evidentiary record, including the hearing evidence described below. Defendant argues that the state and federal prosecution records against him include contradictory information. Whether or not such is the case, deciding the truth of the case will be the purpose of a jury trial in this case.

Because the federal indictment is legally sufficient on its face, the court should not further investigate to determine whether the indictment is supported by legally obtained and sufficient evidence. United States v. Calandra, 414 U.S. 338, 349-52 (1974); Costello v. United States, 350 U.S. 359, 363-64 (1956).

The motion for a bill of particulars is denied.

(c) Motion to dismiss on statutory and constitutional grounds

Defendant moves to dismiss the indictment on statutory and constitutional grounds.

I. Challenge to predicate convictions under 18 U.S.C. § 922(g)(1)

Defendant argues that a 2014 amendment to the Missouri Constitution allows felons convicted only of violent offenses to be stripped of their right to possess a firearm. This, he argues, in turn restricts the reach of 18 U.S.C. § 922(g)(1), because § 922(g)(1) depends at least in part on the state's firearm restrictions. 18 U.S.C. § 922(g)(1), under which defendant is charged, provides:

(g) It shall be unlawful for any person--(1) who has been convicted in any court of [] a crime punishable by imprisonment for a term exceeding one year;

. . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1).

The relevant Article 1, § 23 of the Missouri Constitution states:

That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as a result of a mental disorder or mental infirmity.

V.A.M.S. Const. Art. 1, § 23 (Aug. 5, 2014).

Defendant's argument that Article 1, § 23 of the Missouri Constitution limits the reach of § 922(g)(1) is without merit. Under §922(g)(1) a person need only be convicted by any court of a crime punishable by one year or more. Federal firearm laws "focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons." Lewis v. United States, 445 U.S. 55, 67 (1980) (emphasis added). "Congress focused on the nexus between violent crime and the possession of a firearm by any person with a criminal record." Id. The plain language of the statute does not limit convictions to only those which are violent. See United States v. Akens, 602 F.3d 904, 907 (8th Cir. 2010) (possession of a controlled substance); DeRoo v. United States, 223 F.3d 919, 922, 925-26 (8th Cir. 2000) (sale of a controlled substance). A conviction is sufficient if the defendant may be punishable byimprisonment exceeding one year. United States v. Tankersley, 374 F.3d 721, 722 (8th Cir. 2004) (only requires the possibility of serving over one year, not actually serving over one year). Additionally, this court has held "the right to possess a firearm under state law does not affect the ability of the federal government to restrict this right." United States v. Niccum, No. 4:09 CR 00171 ERW, 2009WL1382941,...