United States v. Nash
| Decision Date | 01 April 2022 |
| Docket Number | 21-CR-105-JPS |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. LATHEMA NASH, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
This matter comes before the Court on Defendant Lathema Nash (“Nash”)'s objection to Magistrate Judge William E. Duffin's Report and Recommendation (the “R&R”) denying her motion to dismiss the Indictment. ECF Nos. 17, 22. The Government charged Nash with a single count of knowingly making a false and fictitious written statement in order to purchase a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). ECF No. 1. Nash argues that the form she signed, which gave rise to this charge, is fundamentally ambiguous and incapable of being intelligently answered. ECF No. 24. For the reasons explained below, the Court will overrule Magistrate Judge Duffin's R&R and grant the motion to dismiss the Indictment.
When reviewing a magistrate's recommendation, this Court is obliged to analyze de novo “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The Court can “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id. The Court's review encompasses both the magistrate judge's legal analysis and factual findings. Id.; see also Fed. R. Crim. P. 59(b).
On July 9, 2020, Nash went to The Shooter Shop, a licensed firearms dealer in West Allis, Wisconsin. She bought two guns, both Taurus model G2s 9-millimeter handguns. One gun was for herself; it is not clear from the Indictment who the other gun was for, but the Indictment charges that she was “acquiring the firearm for someone else.” ECF No. 1.
In connection with her purchases, The Shooter Shop asked Nash to fill out a single Alcohol, Tobacco, and Firearms (“ATF”) Form 4473, titled “Firearms Transaction Record, ” (the “Form”). Nash filled out Sections A- C, which requested personal identifying and background information. Her answer to Question 11.a gave rise to the Indictment:
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The seller at The Shooter Shop filled out Section D, which provides a place to list the types of firearm(s) purchased, as well as the number of guns to be purchased:
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The Government charged Nash with making a false statement in connection to the second gun, Serial Number ABE615751, which went to “someone else.” ECF No. 1. The Government has not charged her with making a false statement in connection with the first gun, Serial Number ABE622478.
ECF No. 24 at 1. Nash argues that Question 11.a is logically impossible to answer when a person falls in the fourth category, i.e., when she buys multiple guns, some of which are for herself, and some of which are for someone else. Under those circumstances, she cannot answer Question 11.a in a 100% truthful (or 100% false) manner because the Form provides only the option of answering “Yes” or “No.” Thus, if such a purchaser had said, “No, ” that, too, would have been partially false, because one of the firearms was for herself. Nash argues that the question was fundamentally confusing-as demonstrated by her initial answer of “No, ” which she subsequently crossed out, initialed, and answered Yes.”
Magistrate Judge Duffin acknowledged the general principle that the questioner is responsible for asking sufficiently specific questions, but he concluded that Question 11.a was, indisputably, an all-or-nothing question. Nash objects to the all-or-nothing characterization because in one of four purchasing scenarios (i.e., when a person buys one or more guns for herself and one or more guns for someone else), either a “Yes” or “No” answer would be partially true and partially false, and thus, theoretically, either answer would be an indictable offense. In other words, even if the question sought an all-or-nothing answer, it was impossible to provide such an answer under the circumstances.
3.1 Legal Background
The same principles that govern perjury charges also apply to false statement charges. See United States v. Rahman, 805 F.3d 822, 838 (7th Cir. 2015) (). In 1973, the Supreme Court held that a witness's literally true but incomplete and non-responsive testimony in a bankruptcy proceeding did not amount to perjury. Bronston, 409 U.S. 352. At a hearing on June 10, 1966, a creditor asked Bronston the following questions, which elicited the following answers:
Id. at 354. But Bronston did have a personal bank account in Switzerland between 1959 and 1964. Nevertheless, the Supreme Court held that “petitioner's answers were literally truthful”-even the second answer, which “impli[ed] . . . that there was never a personal bank account.” Id. at 354, 357. The Court found that perjury would be a “dramatic sanction” for a “mishap that could readily have been reached with a single additional question by counsel[.]” Id. at 358. Indeed, “so long as the witness speaks the literal truth[, ] [t]he burden is on the questioner to pin the witness down to the specific object of the questioner's inquiry.” Id. at 360. Notably, the Supreme Court did not focus on whether the question itself was inherently confusing but assumed, for the sake of its conclusion, that it was “specifically focused on petitioner's personal bank accounts.” Id. at 357.
The Seventh Circuit has embraced Bronston's line of reasoning in related cases. In United States v. Rahman, the Seventh Circuit reversed a denial of a motion for judgment of acquittal because the Government did not meet its burden in proving that the defendant made a false statement to federal officials. 805 F.3d at 838. During an arson investigation, the defendant told ATF agents that he kept a laptop containing business records in the basement of his restaurant. Id. at 837. Investigators ultimately found a laptop in the defendant's home that did not contain business records, and the false statement charge arose. Id. at 837-38. The Seventh Circuit held that the existence of the defendant's laptop at home did not foreclose the possibility (documented in evidence) of a second laptop at work containing business records. Id. at 839. It further explained that “[a] criminal conviction is a drastic sanction when no questioner pinned [the defendant] down to which laptop he was referring.” Id. at 839.
Similarly, in United States v. Laikin, the Seventh Circuit overturned a perjury conviction because “the questions asked of defendant on the two occasions were objectively not the same and hence admitted of different answers consistently with the ‘literal truth' standard of Bronston.” 583 F.2d 968, 970 (7th Cir. 1978). The Seventh Circuit acknowledged that “[i]t may well be that petitioner's answers were not guileless but were shrewdly calculated to evade” the information that the Government sought. Id. at 971. Nonetheless, “the Government did not ask him [a] precise question, and defendant was not required to answer the unasked question.” Id.
Id. at 1100 (quoting United States v. Lattimore, 127 F.Supp. 405 (D.D.C. 1955) aff'd by an equally divided court, 232 F.2d 334 (D.C. Cir. 1955)); see also United States v. Sarwari, 669 F.3d 401, 407 (4th Cir. 2012) (). “When the question that led to the allegedly false response is fundamentally ambiguous, we cannot allow juries to criminally convict a defendant based on their guess as to what the defendant was thinking at the time the response was made.” Manapat, 928 F.2d at 1101.
From these cases, the Court derives two principles relevant to the instant case. First, it incumbent on the questioner-in this case, the ATF- to pose questions, and follow-up questions, in a way that elicits accurate responsive, and comprehensive answers. Bronston, 409 U.S. at 362; Rahman, 805 F.3d at 838-39; Laikin, 583 F.2d at 970-71. Second, if a question is fundamentally ambiguous, then it cannot sustain an indictment for false statements. Manapat, ...
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