United States v. Lahey

• Decision Date: 08 August 2013
• Docket Number: Case No. 10–CR–765 (KMK).
• Citation: 967 F.Supp.2d 731
• Parties: UNITED STATES of America, v. Tracy LAHEY, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

967 F.Supp.2d 731

UNITED STATES of America,

v.Tracy LAHEY, et al., Defendants.

Case No. 10–CR–765 (KMK).

United States District Court, S.D. New York.

Aug. 8, 2013.

Timothy Donald Sini, Esq., U.S. Attorney's Office, SDNY, New York, NY, Jeffrey Ehrlich Alberts, Esq., Anna Margaret Skotko, Esq., U.S. Attorney's Office, SDNY, White Plains, NY, for the Government.

Dominick J. Porco, Esq., Scarsdale, NY, for Defendant Ezra Arthur Davis III.

Theodore Samuel Green, Esq., Green & Willstatter, White Plains, NY, for Defendant Walter Tarrats.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

On August 2, 2011, the Government charged Ezra Arthur Davis III (“Davis”) and Walter Tarrats (“Tarrats”) (collectively, “the Moving Defendants”), along with three others, in an eleven-count Superceding Indictment. (Indictment (“S1”) (Dkt. No. 53).) In the Superceding Indictment, the Government alleges that each of the five Defendants was a member of either the Pagans' or Mongols' Outlaw MotorcycleClub, and that they, among other things, engaged in a narcotics conspiracy. ( Id.) Here, the Court considers the Moving Defendants' Motions To Dismiss Count Eleven of the Superceding Indictment, which charges them with possessing a firearm while being “employed for” specifically prohibited persons—here, convicted felons and known drug users—in violation of 18 U.S.C. § 922(h) ( “ § 922(h)” or “the Bodyguard Statute”). ( See Pre–Trial Mot. (“Tarrats's Mot.”) (Dkt. No. 69); Mem. of Law in Supp. of Pre–Trial Mots. of Tarrats (“Tarrats's Mem.”) (Dkt. No. 72); Notice of Mot. To Dismiss (“Davis's Mot.”) (Dkt. No. 73.); Davis's Mot. Ex. 4 (“ Weaver Mem.”) ¹.) For the reasons stated herein, the Moving Defendants' Motions To Dismiss Count Eleven are denied.

I. Background

This case is the culmination of an eighteen-month undercover operation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), involving two undercover agents, one of whom (“the UC”) infiltrated the Pagans' Outlaw Motorcycle Club (“the Pagans”), and became a full member, and later an officer of the Pagans. (Mem. of Law of the U.S. in Opp'n to the Defs.' Pretrial Mots. (“Gov't Mem.”) 5 (Dkt. No. 84).) The other undercover agent served in a support role, posing as the UC's girlfriend. ( Id.) The Government alleges that, during the course of the investigation, the UC observed, among other things, “that members of the [Pagans] frequently gathered for meetings and/or parties, and purchased, used, and distributed narcotics, including, among others, cocaine, crack cocaine, amphetamines, prescription medications, and marijuana, during those gatherings.” ( Id. at 5–6.) Based on the UC's observations and reports, the Government secured the Superceding Indictment, which charges Defendants with participating in a narcotics conspiracy from in or about 2004 through in or about 2010, (S1 ¶¶ 1–4), distributing narcotics, ( id. ¶¶ 5–6), and with firearms crimes pursuant to 18 U.S.C. §§ 922(g), 922(h), and 924(c), (S1 ¶¶ 7–14).

At issue in this Opinion is Count Eleven, by which the Government charges the Moving Defendants under the Bodyguard Statute. According to the UC, Defendant Tracy Lahey hosted a Pagans gathering on May 22, 2010 at his property in Swan Lake, New York. (Gov't Mem. 6–7.) The UC claims that when he arrived, Pagans officers assigned him, along with other members, including the Moving Defendants, to perform guard duty, for discrete periods of time, at designated armed security checkpoints on Lahey's property. ( See id. at 7.) The UC further alleges that one of the Pagans officers took the UC on a tour of the premises, pointing out where weapons were located. ( See id.) The UC also claims that he served on guard duty with Defendant Davis, and that they were later relieved by Defendant Tarrats and another Pagans member. ( Id.) Based on these allegations, the Government charges in Count Eleven that “[o]n or about May 22, 2010, ... [the Moving Defendants], while being employed by [prohibited persons, and in the course of that employment,] ... knowingly received, possessed, and transported a firearm in and affecting interstate and foreign commerce, to wit, DAVIS and TARRATS received and possessed a Hi–Point 9 millimeter rifle and other firearms” in violation of § 922(h). (S1 ¶ 14.) ² The Moving Defendants seek the dismissal of this Count.

II. Discussion

Title 18 U.S.C. § 922(g) prohibits certain classes of persons, including convicted felons and drug users, from possessing firearms. 18 U.S.C. § 922(g)(1, 3). The Bodyguard Statute, in turn, provides that:

It shall be unlawful for any individual, who to that individual's knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment—

(1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce; or

(2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(h). As noted, the Government charges the Moving Defendants in Count Eleven with violating this provision by knowingly possessing a firearm—specifically, a Hi–Point rifle—while being “employed by” § 922(g) prohibited persons—specifically, members of the Pagans, who are convicted felons and/or drug users. (S1 ¶ 14.) ³

The Moving Defendants seek the dismissal of Count Eleven pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B).⁴ The Moving Defendants assert, or incorporate, both statutory and constitutional challenges to the application of § 922(h) to their conduct. First, they argue that, by its terms, § 922(h) requires that a defendant be an employee of—as opposed to a mere agent or associate of—a prohibited person. If their interpretation of the statute is correct, then the Government is required to allege, and later prove at trial, that the Moving Defendants were hired by the Pagans and given wages, salary, or another form of tangible compensation in exchange for their performing guard duty at the party at Lahey's residence. Second, they argue that absent a compensation requirement, § 922(h) is unconstitutionally vague. Third, they claim that absent a compensation requirement, § 922(h) violates their First Amendment right of association. And Fourth, one Moving Defendant incorporates an argument that the application of § 922(h) to his conduct violates his Second Amendment rights.

During oral argument, the Moving Defendants further clarified their positions. The Court asked counsel for Defendant Tarrats, “[c]an I ... take it that your argument is ... that ... there is a vagueness issue that ... runs into First Amendment and Second Amendment issues as well, or ... are we not going down that road?” Counsel replied: “I didn't raise the Second Amendment issue[;] ... the constitutional issue I raised [was] vagueness.” (Hr'g Tr. 78, Apr. 3, 2012.) During the same argument, counsel for Defendant Davis explained that he was not arguing that the statute requires a criminal defendant to have “be[en] paid.” ( Id. at 81.) Counsel clarified that instead, Davis's position is that the statute requires the Government to prove something more than an individual's mere membership in the Pagans—or, presumably, any outlaw motorcycle club—or, in the alternative, that, if the statute requires only mere membership in an organization, it violates Davis's First Amendment association rights. Counsel for Defendant Davis also “adopt[ed]” Tarrats's vagueness challenge. ( Id. at 88.) Based on counsel's representations, the Court concludes that both Moving Defendants are advancing a vagueness attack on Count Eleven; and Defendant Davis is expressly advancing a First Amendment overbreadth attack on Count Eleven and implicitly, by incorporation, advancing a Second Amendment challenge to Count Eleven.

A. Statutory Challenge

The Moving Defendants argue that, as a matter of pure statutory interpretation—as opposed to as a matter of constitutional avoidance—the Bodyguard Statute requires that a firearms possessor be a compensated employee for a prohibited person.⁵ ( Weaver Mem. 5–10.) In particular, the Moving Defendants contend that § 922(h) requires the Government to establish that a defendant was hired for wages, salary, or another form of tangible compensation, and that Count Eleven must be dismissed, because the Government failed to plead facts in the Superceding Indictment showing an employer-employee relationship.⁶

The Court begins “where all such inquiries must begin: with the language of the statute itself.” Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, ––– U.S. ––––, 132 S.Ct. 1670, 1680, 182 L.Ed.2d 678 (2012) (internal quotation marks omitted); see also United States v. Wilson, 709 F.3d 84, 86 (2d Cir.2013) (“To interpret a criminal statute, we first look to its text and identify the essential elements of the offense.” (citations omitted)); United States v. Abdur–Rahman, 708 F.3d 98, 100 (2d Cir.2013) (per curiam) (“We begin, as we must, with the language employed by Congress and the assumption that ordinary meaning of that language accurately expresses the legislative purpose.” (internal quotation marks omitted)). Here, by its language, the Bodyguard Statute governs firearms possession, receipt, or transfer by individuals, who are “employed for” prohibited persons, in the course of that employment. The question, then, is what it means to be “employed for” someone. Few courts have ever addressed this question, and the phrasing “employed for” appears to be uncommon. There are, however, several definitions of “employ” which do not require a showing of tangible compensation. For example, Black's Law Dictionary defines the transitive verb “employ” to mean “[t]o make use of,” “[t]o hire,” “[t]o use as an agent or substitute in transacting business,” or “[t]o commission and entrust with the performance of certain acts or functions or with the management of one's affairs.” Black's Law...