United States v. Payne, Case No. 1:19-cr-00109 (TNM)

• Decision Date: 21 June 2019
• Docket Number: Case No. 1:19-cr-00109 (TNM)
• Parties: UNITED STATES of America, v. Zayjuan PAYNE, Defendant.
• Court: U.S. District Court — District of Columbia

382 F.Supp.3d 71

UNITED STATES of America,

v.Zayjuan PAYNE, Defendant.

Case No. 1:19-cr-00109 (TNM)

United States District Court, District of Columbia.

Filed June 19, 2019

Signed June 21, 2019

Andrew Talis Floyd, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

H. Heather Shaner, Law Offices of H. Heather Shaner, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Zayjuan Payne is charged with unlawful possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1), the federal "felon-in-possession" law. He now moves to dismiss the indictment, arguing that because his prior convictions were set aside under the District of Columbia's Youth Rehabilitation Act ("YRA"), the Government cannot show that he has a qualifying predicate felony as required by Section 922(g)(1). The Court agrees. It will therefore grant his motion and dismiss his indictment.

I.

In the early morning hours of a Friday in March, police officers conducted a security sweep of a parking garage near a D.C. night club. ECF No. 1-1 at 1. They noticed an unoccupied car that had a purple (yes, purple) handgun and an extended magazine sticking out of the rear pocket of the driver's seat. Id. Later, they watched three people enter the car and drive away. Id. The police stopped the car. Id. Because they noticed a gun in the car, the officers detained the driver and two passengers, one of whom was Payne. Id. The officers saw the purple handgun and extended magazine were now on the rear floorboard at Payne's feet. Id. Payne was ultimately indicted by a federal grand jury for violating 18 U.S.C. § 922(g)(1). See ECF No. 2.

Section 922 makes it unlawful for "any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1). Congress later narrowed the scope of Section 922 in the Firearms Owners' Protection Act of 1986, 18 U.S.C. § 921(a).

The Act states that what constitutes a "crime punishable by imprisonment for a term exceeding one year" is determined "in accordance with the law of the jurisdiction in which the proceedings were held." Id. § 921(a)(20). But any conviction that "has been expunged, or set aside or for which a person has been pardoned or had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." Id.

Payne has twice been convicted of crimes punishable by imprisonment for a term exceeding one year. See ECF No. 26-2. The first felony conviction was for attempted robbery. See id. at 3. The second was for assault with significant bodily injury. See id. at 6.

But both convictions were ultimately set aside under the YRA, D.C. Code § 24-906. See id. The YRA provides that the sentencing court may, in its discretion, "unconditionally discharge" a youth offender before the end of any sentence imposed. See D.C. Code § 24-906(a), (e). Any such discharge automatically sets aside the offender's underlying conviction. Id.

For each conviction, the Superior Court of the District of Columbia unconditionally discharged Payne from the sentence it imposed before he completed it. See ECF No. 26-2 at 3, 6. Payne's convictions were thereby set aside or expunged.¹ Id. The Superior Court issued an "Order of Discharge and Certificate Setting Aside Conviction" for each expunged felony. Id. These certificates read in relevant part:

• "The offender has successfully completed the conditions of his/her sentence prior to the expiration of the maximum period previously imposed by the Court,"

• "Therefore, it is hereby ORDERED that the offender be unconditionally discharged from the imposed sentence and,"

• "It is further ORDERED that by this discharge the conviction shall be set aside, and the Court shall issue a copy of this order and Certificate to the offender, and all appropriate agencies, pursuant to D.C. Code 24-906(e)."

See id. at 3. The certificates do not mention any firearms prohibitions. See id.

Because his convictions were set aside under the YRA, and because the set-aside certificates did not expressly bar him from possessing a firearm, Payne argues that he cannot be convicted under 18 U.S.C. § 922(g)(1). He has therefore moved to dismiss the indictment against him. See Def.'s Mot. to Dismiss ("Def.'s Mot."), ECF No. 23.

The Government opposes Payne's motion. See Gov't's Resp., ECF No. 27. It argues that, even if the set-aside certificates do not discuss the possession of firearms, Payne "is expressly prohibited from possessing firearms by District of Columbia law, as stated in both the [YRA] and its procedures." Id. at 5. The Government points to Subsection (f) of the YRA, which provides that a "conviction set aside under this section may be used in determining whether a person has been in possession of a firearm in violation of § 22-4503." D.C. Code § 24-906(f)(8). Section 22-4503, in turn, states that "[n]o person shall ... have a firearm in his or her possession ... within the District of Columbia, if the person has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." D.C. Code § 22-4503(a)(1). These laws, the Government argues, expressly prohibit Payne from possessing a firearm. Gov't's Resp. at 5. In the Government's view, he may thus be charged under the federal felon-in-possession law. Id.

The parties submitted briefing on these issues and presented oral arguments before the Court. Payne's Motion to Dismiss is now ripe for review.

II.

Before trial, a criminal defendant may move to dismiss an indictment for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). A claim that a statute named in the indictment does not proscribe the alleged conduct is properly brought through a motion to dismiss. See United States v. Hillie , 289 F. Supp. 3d 188, 193 (D.D.C. 2018).

In ruling on a motion to dismiss, the Court is "limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes."

Id. The Court must presume that the allegations in the indictment are true. United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009). The "operative question" is whether these allegations, if proven, are "sufficient to permit a jury to find that the crimes charged were committed." United States v. Sanford, Ltd. , 859 F. Supp. 2d 102, 107 (D.D.C. 2012).

III.

Even if the factual allegations against Payne are proven true, the expungement of his prior felonies make a conviction under 18 U.S.C. § 922(g) impossible. For this reason, the Court must dismiss the indictment.

Consider first the statutory text. An expunged conviction cannot serve as the basis of a Section 922(g) violation unless the expungement "expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. § 921(a)(20) (emphasis added). The certificates setting aside Payne's convictions say nothing about firearms. See ECF No. 26-2 at 3, 6. The YRA, however, does provide that an expunged conviction may still serve as the basis for a violation of D.C.'s felon-in-possession law. See D.C. Code § 24-906(f)(8). Thus, the issue here is whether it is the certificate, the YRA, or some combination of the two that serves as the "expungement" of a conviction. If it is the first, Payne cannot be convicted under Section 922(g). If it is either of the latter two options, he may be.

Courts are split on this issue. Some believe that Section 921(a)(20) "limits the inquiry to the language of the certificate." United States v. Bost , 87 F.3d 1333, 1335 (D.C. Cir. 1996) (citing examples from the Fifth, Seventh, and Ninth Circuits). Others believe that the "whole of state law must be reviewed in order to determine whether a felon's firearms privileges are restricted." Id. (citing examples from the Fourth, Sixth, and Tenth Circuits).

Bost discussed the two approaches without conclusively adopting either. There, an Ohio defendant was charged with violating Section 922(g). See id. at 1334. The predicate felony was a conviction for kidnapping. Id. But after serving his sentence for that offense, the defendant had his civil rights restored. Id. Ohio issued him a certificate that expressly restored his rights to serve on a jury and "to hold office of honor, trust, or profit." Id. Separately, a statute automatically restored his right to vote. Id.

Bost argued that because the certificate restoring his civil rights placed no restrictions on his right to possess a firearm, he could not be convicted under Section 922(g). See id. The Government urged the Circuit to look past the certificate to Ohio's state law, which "prohibits convicted felons from possessing firearms." Id. at 1335.

The Circuit began by instructing that courts must presume that Congress "says in a statute what it means and means in a statute what it says." Id. (citing Connecticut Nat'l Bank v. Germain , 503 U.S. 249, 252-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ). Thus, if the statutory text is unambiguous, courts need not look any further to identify the intent of Congress. Id. at 1336 (citing Burlington N. R.R. Co. v. Oklahoma Tax Comm'n , 481 U.S. 454, 461, 107 S.Ct. 1855, 95 L.Ed.2d 404 (1987) ). Applying these principles, it found that the text of Section 921(a)(20) "makes it clear" that "a court may look no further than the source of the restoration of [a defendant's] civil rights to see whether his gun-related rights have been restricted." Id.

Because there were two "sources" of the restoration of the defendant's civil rights—the certificate he was issued and a state statute that restored a separate right—the Circuit reviewed both. Id. at 1337. It found that "neither imposed any restriction on his right to possess a gun." Id. It...