United States v. Jimenez

• Decision Date: 06 June 2016
• Docket Number: Case No. 15-cr-00372-JD-1
• Citation: 191 F.Supp.3d 1038
• Parties: UNITED STATES of America, Plaintiff, v. Alejandro JIMENEZ, Defendant.
• Court: U.S. District Court — Northern District of California

191 F.Supp.3d 1038

UNITED STATES of America, Plaintiff,

v.Alejandro JIMENEZ, Defendant.

Case No. 15-cr-00372-JD-1

United States District Court, N.D. California.

Signed June 6, 2016

Brigid Martin, US Attorney's Office, Oakland, CA, for Plaintiff.

Jerome Emory Matthews, Office of the Federal Public Defender, Oakland, CA, for Defendant.

ORDER RE MOTION TO DISMISS

Re: Dkt. No. 12

JAMES DONATO, United States District Judge

A grand jury indicted defendant Alejandro Jimenez on two counts: (1) possession of "a machinegun, specifically, an AR-15-style machinegun lower receiver, with no serial number," in violation of 18 U.S.C. § 922(o ) ; and (2) receiving and possessing "a firearm, specifically, an AR-15-style machinegun lower receiver, with no serial number, not registered to him in the National Firearms Registration and Transfer Record," in violation of 26 U.S.C. § 5861(d). Dkt. No. 6. He moves to dismiss both counts under Rule 12 of the Federal Rules of Criminal Procedure on the ground that these laws are unconstitutionally vague as applied to him. Dkt. No. 12. The Court grants the motion in part and denies it in part.

BACKGROUND

The charges arise out of a single event in July 2015 and the facts are uncontroverted. Jimenez is a convicted felon who cannot legally purchase a firearm. He met an undercover agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") at a shopping mall in Concord, California, to buy the lower receiver of an AR-15 rifle. He was arrested immediately after paying the agent and taking possession of the lower receiver. The receiver had been milled to accommodate an "auto sear" part for automatic firing but did not come with the part. See generally Dkt. No. 13 at 1-4 & Dkt. No. 12 at 11-12.

As the indictment shows, the key physical element of the case against Jimenez is the lower receiver. A receiver is the portion of a gun that houses the operative parts of the firing mechanism—the "parts that make a gun fire." United States v. 1,100 Machine Gun Receivers , 73 F.Supp.2d 1289, 1291 (D.Utah 1999). Many guns have a single receiver. The AR-15, however, has a split receiver that consists of an upper portion and a lower portion. The parties agree that the AR-15 lower receiver houses the hammer and firing mechanism, and the upper receiver houses the bolt or breechblock and is threaded at its forward position to attach to the barrel. Dkt. No. 12 at 8; Dkt. No. 13 at 13.

DISCUSSION

I. LEGAL STANDARD

Jimenez brings an as-applied challenge of vagueness against the statutes in the indictment. Federal Rule of Criminal Procedure Rule 12(b)(1) provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." At this stage of the case, the Court accepts as true the allegations of the indictment. United States v. Blinder , 10 F.3d 1468, 1471 (9th Cir.1993).

A pretrial motion to dismiss a criminal case is appropriate "if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp. , 785 F.2d 1448, 1452 (9th Cir.1986) (citations omitted). A district court "may make preliminary findings of fact necessary to decide the questions of law presented by pretrial motions so long as the court's findings on the motion do not invade the province of the ultimate finder of fact." Id. (internal quotations and citations omitted). Jimenez and the Government have submitted declarations and exhibits in support of their arguments. Neither side has requested an evidentiary hearing.

II. REGULATORY CONTEXT

The statutes at issue are not particularly complicated but do require some mapping to understand. The first count of the indictment charges Jimenez under 18 U.S.C. § 922(o ) for unlawful possession of a machinegun.¹ For purposes of Section 922(o ), "machinegun" has the same meaning given in Section 5845(b) of the National Firearms Act ("NFA"). 18 U.S.C. § 921(a)(23). The NFA states:

The term "machinegun" means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

26 U.S.C. § 5845(b) (emphasis added).

The second count charges Jimenez under Section 5861(d) of the NFA for possessing a firearm not registered to him in the National Firearms Registration and Transfer Record. Section 5845(a) of the NFA defines a "firearm" to include a machinegun and uses the same description in Section 5845(b). 26 U.S.C. § 5845(a).

Consequently, Section 922(o ) and Section 5861(d) criminalize the possession of a machinegun receiver, but neither statute says what a receiver is. As the Government and Jimenez agree, the definition of receiver for purposes of both statutes is stated in the Code of Federal Regulations ("CFR"). The "receiver" is that "part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." 27 C.F.R. § 479.11.

III. VAGUENESS CHALLENGE: "RECEIVER"

The parties' motion to dismiss briefing focused primarily on the issue of whether the meaning of "receiver" was unconstitutionally vague as applied to Jimenez. Defendant contends that nothing in the statutes or CFR gave him fair notice that possessing the lower receiver of an AR-15 rifle would count as the criminal possession of "the receiver." As a corollary, he argues that the lack of clear standards allows the ATF to engage in arbitrary enforcement practices.

The Ninth Circuit has set out a specific framework for evaluating whether a criminal law is void for vagueness. The "test is whether the text of the statute and its implementing regulations, read together, give ordinary citizens fair notice with respect to what the statute and regulations forbid, and whether the statute and regulations read together adequately provide for principled enforcement by making clear what conduct of the defendant violates the statutory scheme." United States v. Zhi Yong Guo , 634 F.3d 1119, 1122–23 (9th Cir.2011). When, as here, the challenged laws do not involve First Amendment rights, vagueness is evaluated on an as-applied basis and "must be examined in the light of the facts of the case at hand." United States v. Harris , 705 F.3d 929, 932 (9th Cir.2013). The inquiry is specific to the individual defendant and "turns on whether the statute provided adequate notice to him that his particular conduct was proscribed." Id. (emphasis added). "For statutes involving criminal sanctions the requirement for clarity is enhanced." Id. (internal quotation marks and citations omitted).

The gist of Jimenez's challenge is that the AR-15 lower receiver does not fit the CFR definition of a "receiver" that is illegal under the gun laws. Significantly, the parties agree on all the factors material to this challenge. They agree that Section 479.11 of the CFR defines a receiver as the "part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." This means a receiver must have the housing for three elements: hammer, bolt or breechblock, and firing mechanism. As the plain language of Section 479.11 shows, barrel threading is not a mandatory element. See also 1,100 Machine Gun Receivers , 73 F.Supp.2d at 1292 (same). They also agree that the lower receiver for which Jimenez was arrested and indicted houses only two of the required features—the hammer and the firing mechanism. Dkt. No. 12 at 8; Dkt. No. 13 at 13. The Government forthrightly concedes that this format "does not perfectly fit the CFR section definition." Dkt. No. 13 at 13.

In light of this record, the Government's task is to show that Jimenez had fair notice that his particular conduct was proscribed and that ATF's action against him was not arbitrary. Harris , 705 F.3d at 932. It has not succeeded. Tellingly, the Government makes no effort to parse the statutes or the CFR for proof of notice or clear standards. In effect, it concedes that the plain language of the law does not answer the vagueness challenge. This is tantamount to acknowledging that even if Jimenez had read the rules and regulations, he could not have known that the lower receiver of the AR-15 would be covered by them. That alone is a strong blow against the Government's position.

The Government's effort to find clear notice and standards outside the statutes and CFR is unpersuasive. It insists that the " ‘receiver’ of an AR-15/M-16-style firearm is and always has been the lower portion" like the one Jimenez acquired. Dkt. No. 13 at 1; see also id. at 11 ("Since the passage of the [Gun Control Act] of 1968, federal law has regulated the lower portion of the AR-15/M-16 as the ‘receiver’ of the firearm."). That might be the case, but the salient question is how a person—and specifically Jimenez—contemplating the purchase of an AR-15 lower receiver would have known about this interpretation or that ATF would treat buying one as a crime. The Government has little to offer in answer.

For the purported notice, the Government relies on two obscure bureaucratic communications from the early 1970s. One is a memorandum on Internal Revenue Service letterhead dated March 2, 1971, from "J. R. Wachter" to "J. F. McCarren." Dkt. No. 13 at Ex. 4. This one-page document appears to be an inter-agency discussion of how the split receiver of the M-16, the military version of the AR-15, should be taxed. The document is striking for several reasons, all of which run counter to the Government's argument. It...