United States v. Larkin
| Docket Number | 23-cr-33-pp |
| Decision Date | 26 October 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SHELTON W. LARKIN, JR., Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER OVERRULING DEFENDANT'S OBJECTIONS (DKT. NO 31), ADOPTING JUDGE DUFFIN'S REPORT AND RECOMMENDATION (DKT. NO. 22), AND DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT (DKT. NO. 15)
The indictment alleges that on eight occasions, in connection with the acquisition of firearms from federal licensees defendant Shelton Larkin knowingly made a false and fictious statement intended and likely to deceive the licensees, by representing on a Firearms Transaction Record (ATF Form 4473) that he was not an unlawful user of a controlled substance. Dkt. No. 1. The defendant has moved to dismiss the indictment on two grounds: (1) the charges violate the defendant's Fifth and Sixth Amendment rights by failing to state an offense under 18 U.S.C. §§922(a)(6) and 924(a)(2); and (2) even if the indictment legally states an offense, the charges alleged in the indictment violate the Second Amendment under the legal framework enunciated by the Supreme Court in New York State Rifle & Piston Ass'n v Bruen, 597 U.S.___, 142 S.Ct. 2111 (2022). Dkt. No. 15.
Magistrate Judge William E. Duffin has recommended that this court deny the motion because the indictment sufficiently tracks the language of the statutes the defendant is alleged to have violated and the Seventh Circuit foreclosed the defendant's Second Amendment argument in United States v. Holden, 70 F.4th 1015 (7th Cir. 2023). Dkt. No. 22. The court has reviewed the parties' arguments de novo; it adopts Judge Duffin's recommendation and denies the motion to dismiss.
In his original motion, the defendant first argued that the indictment omits the mens rea for §§922(a)(6) and 924(a)(2). Dkt. No. 15 at 3. He asserted that the government was required to allege more than that the defendant knew the statement he made on the ATF Form 4473 (that he was not an unlawful user of a controlled substance) was false. Id. The defendant cited Rehaif v. United States, 588 U.S.___, 139 S.Ct. 2191, 2195 (2019) for its holding that, with respect to a different statute (18 U.S.C. §922(g)), “Congress intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 2195. The defendant argued that this reasoning applies equally to §922(a)(6) because §922(a)(6) and §922(g) have the same scienter requirement in their shared penalty section. Id. at 4 (citing 18 U.S.C. §924(a)(2)). The defendant maintained that to prove the charges of making false statements in connection with the purchase of firearms, the government was required to allege that the defendant (1) knowingly made a false or fictitious oral or written statement; (2) knew the statement was likely to deceive the federally-licensed firearms dealer; and (3) knew that that the false statement was material to the lawfulness of the sale. Id.
Second, the defendant argued that the validity of the charges alleging that he violated 18 U.S.C. §922(a)(6) by making false statements depended on the constitutionality of 18 U.S.C. §922(g)(3), the statute which prohibits unlawful users of controlled substances from possessing firearms. Id. at 8. He reasoned that his statement on the ATF Form 4473 that he was not an unlawful user of controlled substances would be “material” to the lawfulness of the firearm sales only if it would disqualify him from purchasing or possessing a firearm. Id. While conceding that §922(g)(3) currently prohibits unlawful users of controlled substances (including marijuana) from possessing firearms, the defendant asserted that that “prohibition cannot pass constitutional muster” under Bruen. Id. He argued that because §922(g)(3) is, in his view, unconstitutional, the fact that he made a false statement about whether he met the requirement for §922(g)(3)'s prohibition on possession of firearms by unlawful users of controlled substances was not a fact “material” to the lawfulness of the sales. Id.
In support of this second argument, the defendant analyzed §922(g)(3) and concluded that it violates the Second Amendment under the framework enunciated in Bruen. Id. at 9. He contended that the plain text of the Second Amendment covers the conduct that §922(g)(3) burdens (the possession or receipt of firearms in or affecting commerce). Id. at 10. And he argued that the government could not meet its burden to prove that §922(g)(3) is “consistent with the Nation's historical tradition of firearm regulation.” Id. (citing Bruen, 142 S.Ct. at 2126). He asserted that the government would be “hard pressed to find an analogous blanket prohibition on the possession of firearms by those who use drugs-particularly a drug with the ubiquity and social acceptance of marijuana-in our nation's early history.” Id. at 11. And he contended that the effect of §922(g)(3) is not to disarm dangerous or unlawful individuals, but to disarm, among others, those who engage in conduct that would result in only misdemeanor charges, without procedural protection. Id. (citations omitted).
The government responded that Rehaif does not require knowledge of legal materiality under 18 U.S.C. §922(a)(6). Dkt. No. 18 at 5. The government cited to Fifth and Tenth Circuit cases that have rejected the same arguments made by the defendant. Id. (citing United States v. Kaspereit, 994 F.3d 1202, 1207 (10th Cir. 2021); United States v. Diaz, 989 F.3d 390, 394 (5th Cir.), cert. denied, 142 S.Ct. 368 (2021)). The government argued that even if Rehaif applied to §922(a)(6), the defendant's argument still would lack merit under Seventh Circuit precedent. Id. According to the government, Rehaif requires the defendant to know his status (that he is an unlawful user of controlled substances) but does not require him to know the criminal prohibition that renders people with that status unable to buy firearms. Id. (citing United States v. Cook, 970 F.3d 866, 880 (7th Cir. 2020); United States v. Maez, 960 F.3d 949, 954 (7th Cir. 2020)).
The government disputed the defendant's assertion that the validity of the §922(a)(6) false statement charges was dependent on the constitutionality of §922(g)(3) (). Id. at 6. The government pointed out that in June 2023, the Seventh Circuit had held “that a charge under 18 U.S.C. §922(a)(6) is valid regardless of a constitutional challenge to the underlying legal requirement about which the defendant was lying.” Id. (citing Holden, 70 F.4th 1015). Id. The government quoted the following language from the Holden decision:
Our legal system provides methods for challenging the Government's right to ask questions-lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.
Id. (Holden, 70 F.4th at 1016, citations omitted). The government asserted that the case at bar is indistinguishable from Holden, and argued that if the defendant wanted to challenge the constitutionality of §923(g)(3)-“a statute he is not charged with violating”-the defendant could have filed a civil lawsuit. Id. at 6-7.
In his reply brief in support of the original motion, the defendant began by “taking a moment to clarify some of the factual background of this case that the government discussed in its opposition ....” Dkt. No. 21 at 1. The defendant asserted that at the time of the federal indictment (February 2023), he had no felony, misdemeanor or juvenile convictions. Id. He pointed out that the charges stemmed from firearms he'd purchased in 2021. Id. He stated that the government had alleged that he was an unlawful user of marijuana only because he'd admitted to law enforcement that he'd smoked a few times a week for the previous three years. Id. (citing Dkt. No. 18 at 4). The defendant contended, however, that he had made that admission during a September 2022 interview by agents at his mother's house, “nearly a year after the purchases at issue here.” Id. at 2. The defendant indicated that what he actually told the agents at that September 2022 interview was that he “currently” smoked marijuana “a few times a week,” and when the agents asked him how long he'd been smoking, he responded, “probably like three years.” Id. The defendant insisted that he never told the agents that he “smoked weed a few times a week for the past three years.” Id. The defendant argued that this distinction matters, because the relevant question is not how much marijuana the defendant was smoking at the time of the September 2022 interview, but “whether he met the strict definition of an unlawful user at the time he purchased the guns-a year before he was interrogated.” Id.
The defendant also disputed the government's representation that he had admitted that he sold guns to someone who'd been arrested for homicide. Id. The defendant explained that what he told law enforcement was that he no longer had any of the guns he'd bought from the licensed firearms dealers because he'd sold them, and he identified an acquaintance's boyfriend as the person to whom he'd sold the guns. Id. The defendant asserted that he had received no discovery about this individual (the acquaintance's boyfriend), and that online state-court records indicated that the person had been arrested a few weeks before the defendant's interrogation, but not for homicide. Id. at 3. Regard...
To continue reading
Request your trial