United States v. Lundy

• Decision Date: 27 October 2020
• Docket Number: Criminal Action No. 3:19-cr-38-RGJ
• Parties: UNITED STATES OF AMERICA Plaintiff v. MARK LUNDY Defendant
• Court: U.S. District Court — Western District of Kentucky

UNITED STATES OF AMERICA Plaintiff v. MARK LUNDY Defendant

Criminal Action No. 3:19-cr-38-RGJ

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

October 27, 2020

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MEMORANDUM OPINION AND ORDER

A jury convicted Defendant, Mark Lundy, of possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(3) (Count 1), manufacturing a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) (Count 2 and Count 6), and possession of a controlled substance in violation of 21 U.S.C. § 844(a) (Count 3). [DE 67; DE 22]. Lundy timely moves for a judgment of acquittal under Fed. R. Crim. P. 29 or, in the alternative, a new trial under Fed. R. Crim. P. 33. [DE 71]. The United States responded. [DE 82]. This matter is ripe. Having considered the parties' filings and the applicable law, the Court DENIES Lundy's Motion [DE 71].

I. DISCUSSION

A. Motion for Judgment of Acquittal Under Rule 29

1. Legal Standard

Lundy moves for a judgment of acquittal under Rule 29 for Counts 1, 2, 3, and 6. Id. at 269. A court should grant a motion for judgment of acquittal under Rule 29 only when the evidence admitted at trial, viewed in the light most favorable to the United States, was insufficient to permit a rational trier of fact to find guilt beyond a reasonable doubt. United States v. Connery, 867 F.2d 929, 930 (6th Cir. 1989) (citations omitted). Put differently, a court should not grant a motion of acquittal unless "'the prosecution's failure is clear.'" Id. (quoting Burks v. United States, 437 U.S. 1, 17 (1978)). In evaluating challenges to sufficiency of evidence, courts must not "weigh the evidence presented, consider the credibility of witnesses, or substitute [its] judgment for that of the jury." United States v. Siemaszko, 612 F.3d 450, 462 (6th Cir. 2010) (citations and quotation omitted). "Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not 'remove every reasonable hypothesis except that of guilt.'" United States v. Meyer, 359 F.3d 820, 826 (6th Cir. 2004) (quoting United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. 1989) (citation and quotation omitted)).

2. Count 1—Possession of a Firearm by a Prohibited Person

a. Sufficiency of evidence

Lundy argues that "[w]ith regard to the counts charging [him] with possession of firearms by a prohibited person, the evidence was insufficient to prove beyond a reasonable doubt that [he] knowingly and unlawfully possessed the firearms, when he reasonably believed he was not a 'prohibited person.' The government's proof failed to establish the element of mens rea." [DE 71 at 270-271 (emphasis in original)]. Citing Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019), Lundy also argues that the United States failed to prove that he "'possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.' The government did not produce any evidence that would suffice to prove that element." Id. at 71. The United States disagrees: "There was sufficient evidence introduced to convict Mr. Lundy on Count 1, and Defendant's Motion for Judgment of Acquittal as to that Count must be denied. His argument that the prosecution must prove that Mr. Lundy knew that he was prohibited person is not supported by the decisions in Rehaif v. United States, — U.S. —, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), and United States v. Bowens, 938 790 (6th Cir. 2019)." [DE 82 at 361].

To sustain a conviction for possession of a firearm by a prohibited person, the United States "'must prove . . . that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm.'" Bowens, 938 F.3d 790, 793 (6th Cir. 2019), cert. denied sub nom. Hope v. United States, 140 S. Ct. 814 (2020), and cert. denied, 140 S. Ct. 2572 (2020) (quoting United States v. Burchard, 580 F.3d 341, 350 (6th Cir. 2009)).

The United States' evidence against Lundy was enough to support the jury's verdict that he was an unlawful user of a controlled substance while in possession of a firearm. Bowens is on point. There, as here, the defendants argued that "even if they knowingly used marijuana, Rehaif requires something more: that the Government prove each defendant 'knew he was prohibited from possession [of a firearm] because he was an unlawful user of a controlled substance' that in other words he 'knew of his status as a prohibited person.'" Id. at 797. The Sixth Circuit disagreed and reasoned that "Rehaif did not graft onto 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code." Id. Thus, under § 922(g)(3), "the Government . . . must prove that defendants knew they were unlawful users of a controlled substance, but not, as defendants appear to argue, that they knew unlawful users of controlled substances were prohibited from possessing firearms under federal law." Id.

Here, the United States carried its burden by presenting evidence that Lundy "knew he was an unlawful user[] of controlled substances." Id. During trial, the United States admitted Lundy's prior testimony about his prolonged marijuana use. [DE 82 at 360]. Lundy testified that he smokes pounds of marijuana a year, is a lifelong smoker of marijuana, and eats, drinks, and smokesmarijuana. Id. The United States also admitted Lundy's incriminating statements to a Kentucky State Police trooper:

I don't sell marijuana. I sell oil. I'll give you some marijuana. I'll smoke some with you.

I don't sell weed. I gave people weed but I don't sell it.

What little bit of marijuana here is my personal use, my stash.

I got 2 pounds [of marijuana] out there in the freezer.

But I do not sell weed. I have peoples asked me, and no. I might give you a joint but I will not sell it to you. That's five fucking years.

I got my personal use. I done testified that before. I got my stuff for myself.

I do not sell weed. You cannot buy weed from me. I've had a few people try. I'll give you one but I ain't . . . that's 5 years.

Id. at 354-355.

Law enforcement officers recovered several issues of "High Times" magazine from his house, as well as drug paraphernalia used to smoke marijuana. Id. at 354. Lundy also admitted that he knew which plants in his underground grow operation were "hot." Id. at 360. And his hair and urine samples contained elevated levels of THC. Id. at 356-357. As to Lundy's possession of firearms, the jury heard testimony that law enforcement officers recovered numerous firearms from Lundy's house. Id. The evidence admitted at trial, viewed in the light most favorable to the United States, was sufficient to permit a rational trier of fact to convict Lundy of Count 1. See Burchard, 580 F.3d at 353 ("Reasonable jurors could have concluded from this evidence that Burchard's use of crack cocaine was regular, sustained, and contemporaneous with his possession of the five firearms" because, among other things, "warrants executed at [his] farm uncovered four . . . firearms he owned, as well as drug paraphernalia, some of which tested positive for cocaine. Further, [his] blood and urine samples . . . yielded positivetest results for cocaine"); United States v. Bellamy, 682 F. App'x 447, 451 (6th Cir. 2017) ("Defendant stated that the officers would find a loaded firearm in his bedroom. He also testified to smoking marijuana on a regular basis. For these reasons, we hold that there was evidence in the record that Defendant engaged in repeated use of marijuana, and that there is evidence that said pattern of use occurred during a period of time in which he possessed the firearm").

b. § 922(g)(3) is not void for vagueness

Lundy next argues that § 922(g)(3) is void for vagueness because it does not "define[] a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited, and also in a manner that does not encourage arbitrary and discriminatory enforcement." [DE 71 at 274]. Lundy argues that "there was no evidence presented that [he] could have knowingly and unlawfully possessed firearms while having a status as a 'prohibited person' . . . The government did not prove any regular and ongoing use of a marijuana, a controlled substance, during the same time period as the firearms possession which qualified Defendant as a 'prohibited person.'" Id. at 275 (emphasis in original). The United States contends that § 922(g)(3) is not void for vagueness: "Title 18 U.S.C. § 922(g)(3) is an offense that ordinary people can understand what is prohibited and does not encourage arbitrary or discriminatory enforcement." [DE 82 at 362].

"No person shall . . . be deprived of life, liberty, or property, without due process of law." U.S. Const. amend. V. "[A] criminal law" violates this guarantee of due process if it "[is] so vague that it fails to give ordinary people fair notice of the conduct it punishes, or [is] so standardless that it invites arbitrary enforcement." Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). A law provides fair notice when it "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City ofRockford, 408 U.S. 104, 108 (1972). Typically, "vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2001) (quoting United States v. Powell, 423 U.S. 87, 92 (1975)); see also United States v. Kernell, 667 F.3d 746, 750 (6th Cir. 2012) ("For challenges to the statute that do not implicate First Amendment concerns, the defendant bears the burden of establishing that the statute is vague as applied to his particular case, not merely that the statute could be construed as vague in some hypothetical situation.") (internal quotations and...