United States v. Newkirk

• Docket Number: 2:20-cr-00623 (BRM)
• Decision Date: 23 July 2024
• Parties: UNITED STATES OF AMERICA, v. STEVEN NEWKIRK, Defendant.
• Court: U.S. District Court — District of New Jersey

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UNITED STATES OF AMERICA, v. STEVEN NEWKIRK, Defendant.

No. 2:20-cr-00623 (BRM)

United States District Court, D. New Jersey

July 23, 2024

NOT FOR PUBLICATION

OPINION

HON BRIAN R. MARTINOTTI, United States District Judge

Before the Court is DefendantSteven Newkirk's (“Defendant”)Motion to Dismiss(ECF No. 63) the Indictment (ECF No. 30) for being unconstitutional on its face and as applied to Defendant.The United States of America (“Government”) filed an Opposition on February 15, 2024.(ECF No. 67.)Defendant filed a reply on April 18, 2024.(ECF No. 81.)Defendant filed a supplemental letter regarding an additional authority on May 11, 2024.(ECF No. 86.)Defendant filed a further response in support of the Motion on June 25, 2024.(ECF No. 90.)The Government filed supplemental letters on July 1, 2024 and July 2, 2024 highlighting new authorities.(ECF Nos. 91, 92.)Having reviewed the parties' submissions filed in connection with the Motion and having held oral argument on July 3, 2024(ECF No. 94), for the reasons set forth below and for good cause having been shown, Defendant's Motion to Dismiss the Indictment is DENIED.

I.BACKGROUND

A.Factual Background

For the purpose of this motion to dismiss, “the district court accepts as true the factual allegations set forth in the indictment.”United States v. Besmajian, 910 F.2d 1153, 1154(3d Cir.1990).

Defendant is charged with possession of a “Smith & WessonS.D. 40-Model firearm, bearing serial number FYZ9742, and thirteen (13) .40 caliber hollow point rounds of ammunition” in violation of 18 U.S.C. § 922(g)(1)(“§ 922(g)(1)”).(ECF No. 30at 1.)The charge is premised on Defendant's prior conviction on March 14, 2011“of distribution of [a Controlled Dangerous Substance] on or within 1,000 feet of school property in violation of N.J. Stat. Ann. § 2C:35-7.”(ECF No. 67at 3;ECF No. 1at 1.)The Indictment stems from an investigation of the Essex County Prosecutor's Office(“ECPO”) of Defendant and others for drug trafficking out of Defendant's apartment.(ECF No. 67at 1.)Law enforcement witnessed drugs being sold from Defendant's apartment, and a confidential informant alleged he saw Defendant sitting in the living room next to a handgun.(Id.)ECPO officers allegedly found drugs and large quantities of cash on Defendant and others shortly after they left Defendant's apartment.(Id. at 1-2.)

The ECPO obtained a warrant to search Defendant's apartment based on this information.(Id. at 2.)ECPO officers executed the warrant at approximately 5:30 am on April 17, 2019.(Id.;ECF No. 1at 1.)ECPO officers discovered 100 grams of marijuana in a rear bedroom, as well as drug paraphernalia and heroin packaged for distribution inside a hallway closet and other common areas.(ECF No. 67at 2.)ECPO officers discovered Defendant in his bedroom at the front of the apartment.(Id.)Within Defendant's bedroom, the ECPO officers located a safe openable via electronic keypad or key.(Id.)The ECPO officers asked Defendant for the code to open the safe, but Defendant provided a wrong code.(Id.)The ECPO officers located the key to the safe on top of a dresser in Defendant's bedroom and opened the safe using the key.(Id.)

Inside the safe, the ECPO officers found, among other things, “(i) a Smith & WessonS.D. 40-Model handgun, bearing serial No. FYZ9742, which was loaded with 13 .40-caliber hollow point bullets in the magazine; (ii) three .40-caliber ballpoint rounds; (iii) a packaged toothbrush . . . and (iv) numerous empty glassine envelopes.”(Id.;ECF No. 1at 1.)The firearm and ammunition were manufactured outside New Jersey.(ECF No. 67at 3;ECF No. 1at 1.)ECPO officers also recovered from elsewhere in Defendant's bedroom, “(i)[Defendant]'s birth certificate; (ii) various other paperwork bearing [Defendant]'s name; (iii) $2,970 in cash; and (iv)[Defendant]'s cell phone.”(Id. at 3.)During a recorded call from jail, Defendant allegedly recounted the police raid on his apartment earlier that day and stated, “I had my f*****g gun in my safe.”(Id. at 2-3.)

B.Procedural History

The Complaint was filed on April 24, 2019.(ECF No. 1.)Defendant was arrested on April 29, 2019.(ECF No. 5.)The Indictment was filed on July 21, 2020.(ECF No. 30.)Defendant was arraigned on August 6, 2020.(ECF No. 33.)

On January 31, 2024, Defendant filed various pre-trial motions before the Court.(ECF No. 62.)Defendant filed the present Motion to Dismiss the Indictment on February 6, 2024.(ECF No. 63.)The Government filed an Opposition to the pre-trial motions, and the Motion to Dismiss, on February 15, 2024.(ECF No. 67.)Defendant filed a reply for the Motion to Dismiss on April 18, 2024.(ECF No. 81.)Defendant filed a supplemental letter regarding an additional authority on May 11, 2024.(ECF No. 86.)Defendant filed a further response in support of the Motion on June 25, 2024.(ECF No. 90.)The Government filed supplemental letters for the Motion to Dismiss on July 1, 2024 and July 2, 2024 highlighting new authorities.(ECF Nos. 91, 92.)

Defendant filed a Motion for Sanctions on April 7, 2024 requesting the exclusion of a jailhouse phone recording and a hearing on the parameters for cross-examination of Defendant.(ECF No. 80.)The Government filed an Opposition on April 18, 2024.(ECF No. 82.)Defendant filed a reply on April 22, 2024.(ECF No. 83.)

The Court held oral argument on all pending motions on July 3, 2024.(ECF No. 94.)On July 8, 2024, the Court entered an order granting in part, denying in part, and reserving in part, Defendant's pre-trial motions, Motion to Dismiss, and Motion for Sanctions.(ECF No. 95.)

II.Legal Standard

A defendant may bring a motion to dismiss counts in the indictment under Federal Rule of Criminal Procedure 12. Fed. R Crim. P. 12(b)(1);United States v. Boone, No. 22-233, 2024 WL 965146, at *2(D.N.J.Mar. 6, 2024).

When raising a facial constitutional challenge to a statute, the moving party must show the law “‘could never be applied in a valid manner[,]' and as such, must be struck down in its entirety.”Boone, 2024 WL 965146, at *2(quotingMembers of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 797-98(1984)).“A [moving party] asserting a facial challenge ‘seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.'”Green Party of Pa. v. Aichele, 89 F.Supp.3d 723, 737(E.D. Pa.2015)(quotingCity of Chicago v. Morales, 527 U.S. 41, 55 n.22(1999)).Therefore, the moving party must meet the “particularly demanding” standard of showing there is “‘no set of circumstances' that exists under which the statute at issue would be valid.”Green Party of Pa., 89 F.Supp.3d at 737(quotingHeffner v. Murphy, 745 F.3d 56, 65(3d Cir.2014)).

An as-applied challenge “does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right.”Miller v. Sessions, 356 F.Supp.3d 472, 480(E.D. Pa.2019)(quotingUnited States v. Mitchell, 652 F.3d 387, 405(3d Cir.2011)).In the Third Circuit, courts now engage in a two-step analysis of as-applied challenges based on the Second Amendment.The Court will first decide whether “the Second Amendment's plain text covers an individual's conduct.”United States v. Dorsey, No. 23-2125, 2024 WL 3196742, at *3(3d Cir.June 24, 2024).Courts often divide this first step into two parts, evaluating first whether the Second Amendment applies to the person, and then whether the Second Amendment covers the conduct in question.SeeUnited States v. Hedgepeth, No. 22-377, 2023 WL 7167138, at *4(E.D. Pa.Oct. 31, 2023)(separately evaluating the issue of whether the Second Amendment covered defendant as a person from the issue of whether the Second Amendment covered the conduct);United States v. Jenkins, No. 23-088, 2023 WL 6534200, at *16(E.D. Pa.Oct. 6, 2023)(same);United States v. Perez, No. 22-55, 2024 WL 579115, at *2(D. Del.Feb. 13, 2024)(same).If the moving party makes this showing, the Government must then “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”Dorsey, 2024 WL 3196742, at *2(quotingN.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 19(2022)).

III.Decision

A.Facial Challenge

Defendant raises both an as-applied and facial challenge to the Indictment based on the Second Amendment.(ECF No. 63-1 at 2.)

The Government asserts Defendant's facial challenge to § 922(g)(1) should fail, as there are clearly circumstances where § 922(g)(1) would be constitutional, particularly for the most violent felonies such as first-degree murder.(ECF No. 67at 10-11.)

Defendant's facial challenge to the constitutionality of § 922(g)(1) fails because courts have clearly found there are circumstances where the application of the statute is constitutional.For a facial challenge to succeed, the moving party must show the law “‘could never be applied in a valid manner[,]' and as such, must be struck down in its entirety.”Boone, 2024 WL 965146, at *2(quotingMembers of City Council of L.A., 466 U.S at 797-98).The Supreme Court has stated that the “the right secured by the Second Amendment is not unlimited,” and has held that its opinion in Heller should not be taken “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”District of Columbia v. Heller, 554 U.S. 570, 626-27(2008).This language is “not dicta.”United States v. Barton, 633 F.3d 168, 171(3d Cir.2011)(quotingUnited States v. Rozier, 598 F.3d 768, 771 n.6(...