United States v. Lippman, Case No. C4-02-82 (D. N.D. 10/2/2003)
| Decision Date | 02 October 2003 |
| Docket Number | Case No. C4-02-82. |
| Parties | United States of America, Plaintiff, v. Robert F. Lippman, Defendant. |
| Court | U.S. District Court — District of North Dakota |
Before the Court is Defendant's Motion for Stay of Sentence and Release Pending Appeal, under 18 U.S.C. 3143(b). For the reasons set forth below, the Court denies the Defendant's motion.
On September 13, 2002, the Defendant, Robert Lippman, was charged with possession of firearms by a person subject to a court order in violation of 18 U.S.C. § 922(g)(8). Lippman filed a Motion to Dismiss on November 22, 2002, alleging that 18 U.S.C. § 922(g)(8) is unconstitutional. On January 6, 2003, this Court denied Lippman's Motion to Dismiss. A two-day jury began on April 21, 2003 and a guilty verdict was returned by the jury on April 22, 2003. Lippman was sentenced on September 9, 2003, to 8 months of imprisonment, 2 years of supervised release, and a $100 special assessment. On September 11, 2003, Lippman filed a Motion for Stay of Sentence and Release Pending Appeal. That same day, Lippman filed a Notice of Appeal. Lippman is scheduled to voluntarily surrender on October 9, 2003.
The release of a convicted defendant pending appeal is governed by 18 U.S.C. §3143(b)(1), which provides:
Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds —
(A)by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and
(B)that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in —
(i)reversal,
(ii)an order for a new trial,
(iii)a sentence that does not include a term of imprisonment, or
(iv)a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title, expect that in the circumstances described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.
18 U.S.C. § 3143(b)(1).
Neither party disputes that Lippman has been found guilty of an offense and sentenced to a term of imprisonment. Accordingly, the provisions of 18 U.S.C. § 3143(b)(1) apply to Lippman.
Lippman contends, and the Government does not object, that he does not pose a danger to the community or is likely to flee. The Court agrees. The Court granted Lippman both pre-trial and pre-sentence release and has allowed him to voluntarily surrender himself to begin serving his sentence. Implicit in the Court's earlier findings was a determination that Lippman did not pose a danger to the community and that he was unlikely to flee. Nothing has been presented to the Court to alter its previous findings. Thus, the Court finds that Lippman has met the requirements of Section 3143(b)(1)(A).
The crucial issue is whether Lippman has met the requirements of Section 3143 (b)(1)(B). In United States v. Powell, 761 F.2d 1227, 1233-34 (8th Cir. 1985), the Eighth Circuit interpreted 18 U.S.C. § 3143(b) and set forth the following standard to determine whether a defendant has met the requirements of Section 3143(b)(1)(B).
We hold that a defendant who wishes to be released on bail after the imposition of a sentence including a term of imprisonment must first show that the question present by the appeal is substantial, in the sense that it is a close question or one that could go either way. It is not sufficient to show simply that reasonable judges could differ (presumably every judge who writes a dissenting opinion is still "reasonable") or that the issue is fairly debatable or not frivolous. On the other hand, the defendant does not have to show that it is likely or probable that he or she will prevail on the issue on appeal. If this part of the test is satisfied, the defendant must then show that the substantial question he or she seeks to present is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor. In deciding whether this part of the burden has been satisfied, the court or judge to whom application for bail is made must assume that the substantial question presented will go the other way on appeal and then assess the impact of such assumed error on the conviction. This standard will, we think, carry our the manifest purpose of Congress to reduce substantially, the numbers of convicted persons released on bail pending appeal, without eliminating such release entirely or limiting it to a negligible number of appellants.
Lippman has advanced three issues on appeal: (1) whether 18 U.S.C. § 922(g)(8) is constitutional, (2) whether under 18 U.S.C. § 922(g)(8) the government must prove and the Court must instruct as an essential element that Lippman knew he was subject to the court order in question, and (3) whether the Court erred in instructing the jury on the definition of "hearing" as it relates to the court order in question. As Powell instructs, this Court must determine whether these questions presented by the appeal are substantial in the sense that they are close questions or ones that could go either way. 761 F.2d 1227, 1233.
On November 22, 2003, Lippman filed a Motion to Dismiss alleging that 18 U.S.C. § 922(g)(8) was unconstitutional. This Court denied his Motion stating:
Even assuming for the sake of argument that the Eighth Circuit adopted a position similar to the Fifth Circuit and held that the Second Amendment does protect an individual right to bear arms regardless of militia purpose, Lippman would still have to show that the restriction of his right to bear arms was not narrowly tailored or was unreasonable in scope in order to even assert a legitimate claim of any Second Amendment violation. U.S. v. Emerson, 270 F.3d 203, 261. It is clear that a person may still be constitutionally prohibited from possessing a firearm under 18 U.S.C. § 922(g)(8). In fact, other courts that have considered the issue have consistently upheld the constitutionality of Section 922(g)(8). See United States v. Bayles, 2002 WL 31529012, 310 F.3d 1302 (10th Cir. Nov. 15, 2002); United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002); United Sates v. Napier, 233 F.3d 394, 402-404 (6th Cir. 2000); United States v. Henson, 55 F.Supp. 2d 528 (S.D. W.Va. 1999). Lippman has not cited to any case that has held that 18 U.S.C. § 922(g)(8) is unconstitutional.
. . . The Court concludes that such a prohibition is sufficiently tailored to support a compelling government interest. As such, the motion for dismissal of the indictment on the grounds that the statute under which Lippman was charged (18 U.S.C. § 922(g)(8)) violates the Second Amendment is without merit. The Court concludes as a matter of law that 18 U.S.C. § 922(g)(8) is constitutional on its face and as applied to the defendant.
Order Denying Motion to Dismiss (Doc. No. 22). As stated above, this Court is unaware of any other court that has held that 18 U.S.C. § 922(g)(8) is unconstitutional. All of the courts that have considered such an argument have consistently upheld 18 U.S.C. § 922(g)(8). Thus, the Court finds that the appeal issue that 18 U.S.C. § 922(g)(8) is unconstitutional is not a "close question or one that could go either way." Powell, 761 F.2d 1227, 1233.
As his second basis for appeal, Lippman contends that the Court erred in refusing to give a jury instruction to the effect that the jurors were required to find, beyond a reasonable doubt, that Lippman knew he was subject to the court order in question at the time of the offense. Lippman offered an instruction that would have included as an element of the offense that "the defendant knew he was subject to a valid court order." Defendant's Proposed Final Jury Instruction No. 5 (Doc. No. 30). The Court did not instruct the jury that they must find that Lippman knew he was subject to a valid court order; rather, the Court instructed that "at the time the Defendant possessed the firearm, he was subject to a valid court order." Final Jury Instructions (Doc. No. 39).
Lippman relies on a brief parenthetical expression of the Seventh Circuit in United States v. Wilson, 159 F.3d 280 (7th Cir. 1998) for the proposition that a defendant's knowledge that he was subject to a court order is an essential element of Section 922(g)(8). In Wilson, the defendant alleged Section 922(g)(8) violated his Due Process rights. The Seventh Circuit noted that "whether a person knows that a law has been passed regulating certain conduct is a question separate and distinct from the question of whether that law, as written, adequately describes that conduct it seeks to criminalize." Id. at 288. The Seventh Circuit found the defendant's arguments failed. Id. First, the Seventh Circuit held that Section 922(g)(8) clearly informs those who are subject to it what conduct it prohibits. Id. Second, the Seventh Circuit held that ignorance of the law is no defense to a criminal prosecution. Id. The Seventh Circuit went on to state that the defendant did not argue that he did not have knowledge of the actions constituting the offense and then in parentheses notes "i.e., that he was possessing a gun in his car and...
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