United States v. McIntosh

• Decision Date: 13 October 2019
• Docket Number: CRIMINAL ACTION FILE NO. 1:18-cr-0431-MLB-AJB
• Parties: UNITED STATES OF AMERICA v. JASPER MCINTOSH, Defendant.
• Court: U.S. District Court — Northern District of Georgia

UNITED STATES OF AMERICA v. JASPER MCINTOSH, Defendant.

CRIMINAL ACTION FILE NO. 1:18-cr-0431-MLB-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

October 13, 2019

(Superseding)

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

Defendant Jasper McIntosh, who is charged in the superseding indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e), moves to suppress evidence, [Doc. 17], and statements, [Doc. 18], and to dismiss the superseding indictment. [Doc. 56]. The Court held evidentiary hearings on the suppression motions, [Doc. 26 (hereinafter "T1:_"); Doc. 36 (hereinafter "T2:_")], after which the parties filed briefs, [Docs. 39 (Government), 50 (McIntosh), 53 (Government)]. For the following reasons, the Court RECOMMENDS that the motions be DENIED.¹

I. MOTION TO DISMISS SUPERSEDING INDICTMENT, [DOC. 56]

In this motion, McIntosh moves to dismiss the superseding indictment on the grounds that 18 U.S.C. § 922(g) is unconstitutional as applied to him because the statute exceeds Congress' statutory authority under the Commerce Clause, since his alleged possession of the firearm was purely intrastate and did not affect commerce. He recognizes that in United States v. McAllister, 77 F.3d 387 (11^th Cir. 1996), and United States v. Jordan, 635 F.3d 1181 (11^th Cir. 2011), the Eleventh Circuit held that the Commerce Clause requires only a "minimal nexus" to interstate commerce and that § 922(g) is constitutional as long as the Government proves that that the firearm possessed by the felon traveled in interstate commerce, [Doc. 56 at 1 n.1, 10-11, 16-18]; and states that he is raising the issue to preserve it. [Id. at 1 n.1]. He also contends that the evidence will demonstrate that the firearm at issue was manufactured in Connecticut in 2012 and purchased on two occasions in Georgia by other persons from federally-licensed firearms dealers before the Government contends that he possessed it on September 23, 2018, such that his alleged possession bears absolutely no connection to interstate commerce. [Id. at 18-19].

As McIntosh appears to recognize, the district court is bound by Eleventh Circuit precedent and is not empowered to simply ignore that precedent to make new law. See In re Hubbard, 803 F.3d 1298, 1309 (11^th Cir. 2015) (finding error where "district court inadvertently transgressed the fundamental rule that courts of this circuit are bound by the precedent of this circuit."); Springer v. Wal-Mart Assocs.' Group Health Plan, 908 F.2d 897, 900 n.1 (11^th Cir. 1990) ("[T]he district court is bound by controlling Eleventh Circuit precedent.") (emphasis removed).² As a result, the Court is not authorized to ignore binding Eleventh Circuit precedent, and therefore recommends that McIntosh's motion be denied on the authority of McAllister and Jordan.

Furthermore, in ruling on a motion to dismiss for failure to state an offense, a district court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes. United States v. Sharpe, 438 F.3d 1257, 1263 (11^th Cir. 2006) (citing United States v. Critzer, 951 F.2d 306,307 (11^th Cir.1992)). A court may not "dismiss an indictment . . . on a determination of facts that should have been developed at trial." Id. (quoting United States v. Torkington, 812 F.2d 1347, 1354 (11^th Cir. 1987)). Therefore, the Court cannot consider what the evidence at trial might be in ruling on the motion. The superseding indictment contains the jurisdictional language charging that McIntosh knowingly possessed a firearm in and affecting interstate and foreign commerce, and therefore is sufficient to cause a trial on the general issue. See United States v. Baxter, 579 Fed. Appx. 703, 706 (11^th Cir. Aug. 21, 2014) (holding that indictment sufficiently charged defendant with being felon in possession by presenting essential elements of the offense—i.e., that defendant was a convicted felon, that the defendant had knowledge that he was in possession of a firearm, and that the firearm affected or traveled in interstate commerce—and tracked the language of § 922(g)(1)).³

Accordingly, the undersigned RECOMMENDS that McIntosh's motion to dismiss the superseding indictment, [Doc. 56], be DENIED.

II. MOTIONS TO SUPPRESS EVIDENCE, [DOC. 17]

A. FACTS

The facts for purposes of the motions to suppress are these. On September 23, 2018, at approximately 7:44 PM, Atlanta Police Department (APD) Officers Dougherty and Grant (who was driving) were patrolling in a marked APD vehicle in the Zone 3 area of Atlanta, when they saw McIntosh riding a small motorbike or moped traveling northbound in the righthand lane of Metropolitan Parkway, heading towards Cleveland Avenue. T1:7-8. Dougherty initially saw him in the lane of traffic and then saw McIntosh move over to the bike lane. T1:112, 113, 162. It was dusk and other vehicles on the road had lights illuminated. T1:8. McIntosh was traveling in the opposite direction of the officers, but they noticed that he was not wearing a helmet and the vehicle did not have any lights on. T1:8. The officers' vehicle was in the left-hand turn lane on Metropolitan getting ready to turn onto Cleveland. T1:39-40; Def. Ex. 3. The officers saw McIntosh turn right on Cleveland, and although Dougherty testified that they turned around to pursue him, T1:9, actually they just waited for the light to turn so that they could follow him. T1:44.⁴ The officers saw McIntosh in the lane of trafficon Cleveland. T1:136, 161-62. He was not wearing a helmet. T1:135.

After McIntosh turned right on Forest Hills Drive (about one-half mile from the Cleveland/Metropolitan intersection), the officers turned on their blue lights and siren to conduct a traffic stop. T1:10. McIntosh was in the lane of traffic. T1:112, 113, 134, 146.⁵ At first, McIntosh yelled at the officers and motioned them to move around him. T1:10, 113. After the officers told him several times to pull over, McIntosh turned from the middle of the righthand lane of traffic on Forest Hills Drive into a driveway on the left and turned around, ending up facing the police car's driver's door. T1:10, 58-59, 113, 148. He appeared agitated. T1:10. The stop occurred about .4 miles from the intersection of Cleveland Avenue and Forest Hills Drive. T1:147. The officers told him to get out of the roadway and to pull into the driveway on the left, and McIntosh complied. T1:150, 151.

Dougherty, who was the passenger in the patrol car, was wearing a body cam that records and stores video images until the control is double-tapped, and then both video and audio are recorded. T1:11, 104, 113. The camera systemautomatically saves video (but not audio) from two minutes prior to the activation and continues saving the recorded footage until the system is turned off. T1:11. The counter on Dougherty's body cam reflected 1:41 at the time of the stop and his face-to-face encounter with McIntosh. T1:58. Upon exiting his police car, Dougherty asked McIntosh why he was not wearing a helmet. Govt. Ex. 1 at 2:00-02. McIntosh replied that he had gone to get gas, and his home was nearby. Govt. Ex. 1 at 2:02-05. Dougherty asked McIntosh for his driver's license but McIntosh stated that it was at home. T1:12, 64; Govt. Ex. 1 at 2:25-29. Dougherty asked McIntosh for his name and date of birth, and McIntosh complied. T1:63. Dougherty and Grant told him to step away from the motorbike, in order to separate him from the vehicle if he chose to flee. T1:12-13, 152.⁶ Dougherty noticed that McIntosh was wearing a firearm in a holster on his right hip. T1:13; Govt. Exs. 4A-4D. However, Dougherty conceded that it is legal to carry a firearm in Georgia, so he was not initially concerned. T1:64. He also told McIntosh that he was not arresting him for the helmet violation. T1:66-67.

Dougherty returned to the police vehicle to run a check on the Mobile Data Terminal through the ISIS system to see if McIntosh had a valid driver's license.T1:14, 70. Grant stayed with McIntosh and tried to keep him calm because he was "so amped up." T1:118-19. Grant saw McIntosh call his wife on his cell phone, telling her to bring his identification and perhaps a helmet. T1:156-57. The ISIS program that Dougherty used has the ability to run vehicle registrations and drivers' licenses, and also displays warrants and probation or parole hits. T1:69. Dougherty utilized the ISIS system first because it already was running in the patrol vehicle and, for a simple traffic stop, it is more expedient and also immediately displays any warrants. T1:106. Dougherty described the database search on that system as limited. T1:14-15. Dougherty also checks criminal history on every traffic stop. T1:99. The CAD report⁷ reflects that Dougherty performed this check at 7:45:57 PM. T2:211; Def. Ex. 10 at 2. Dougherty determined at 5:48 on the body cam video that McIntosh had a valid license for the information that he gave him. T1:70, 77. Dougherty testified that in inputting a person's name and date of birth into the ISIS system, various tabs on a dropdown menu are displayed (such as "person" or "NCIC"), and the operator clicks on the various tabs to view the message(s) displayed. T1:74-75, 108. The tabs appear even if the person being investigatedhad no valid driver's license or did not have a criminal history. T1:108-09. Therefore, instead of logging out of ISIS after getting the driver's license information and going to another system (OMNIXX) to view the driver's license photograph, Dougherty clicked on all of the ISIS tabs and obtain a hit for federal probation/supervised parole, leading him to believe that McIntosh was on federal supervision, but at that point he did not know the underlying offense or whether it was for a felony conviction. T1:16-17, 79-80, 81; see also Govt. Ex. 1 at 5:55-6:48. Nonetheless, as a precaution, he called for backup because McIntosh was a...