United States v. Powell

• Decision Date: 16 June 2020
• Docket Number: Criminal No. 3:18cr154 (DJN)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Brandon Andrea POWELL, Defendant.

467 F.Supp.3d 360

UNITED STATES of America,
v.
Brandon Andrea POWELL, Defendant.

Criminal No. 3:18cr154 (DJN)

United States District Court, E.D. Virginia, Richmond Division.

Signed June 16, 2020

467 F.Supp.3d 362

Michael C. Moore, Kenneth R. Simon, Jr., Richard D. Cooke, United States Attorney's Office, Richmond, VA, for United States of America.

MEMORANDUM OPINION

David J. Novak, United States District Judge

This matter comes before the Court on Defendant's Motion for Judgment of Acquittal (ECF No. 124), in which Defendant challenges his four convictions for making a False Statement in Connection with the Acquisition of a Firearm in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). Defendant's Motion principally challenges the sufficiency of the evidence by alleging that his confession lacked sufficient corroboration as required by the Fourth Circuit's decision in United States v. Rodriguez-Soriano , 931 F.3d 281 (4th Cir. 2019). Defendant

467 F.Supp.3d 363

also asserts that ATF Form 4473 is fundamentally ambiguous. And during the briefing on this motion, an additional issue arose about the sufficiency of the evidence for Defendant's conviction on Count Five. For the reasons that follow, as well as those cited during oral argument on June 12, 2020, the Court hereby GRANTS Defendant's Motion.

I. Factual Background

Defendant appears before the Court as a highly decorated Iraq war veteran, having served two tours of duty. His first tour of duty was particularly perilous, as he served as a combat engineer responsible for clearing roadside bombs for main supply routes. (Tr.¹ 249:4-17.) During this tour, Defendant participated in roughly 200 combat missions. (Tr. 250:20-22.) The Government's mental health expert, Dr. Evan Nelson, described Defendant's military service during his first tour of duty as "very harrowing, involving literally clearing bombs." (Tr. 337:9-10.) Defendant's second deployment to Iraq from 2008-2009 presented less danger, as it did not involve combat. (Tr. 255:18-256:22.)

Sadly, Defendant's heroic military service resulted in Post-Traumatic Stress Syndrome ("PTSD"), as described by experts for both the defense (Dr. Michael Lynch) and the Government (Dr. Evan Nelson). (Tr. 247-59, 336-37, 369-70.) Indeed, the United States Government — the very same government that prosecutes him — discharged him with a fifty percent disability due to the PTSD with an additional twenty percent disability for orthopedic injuries related to his service. (Tr. 258:15-16.) As a result of the PTSD, Defendant suffers from a pervasive depression disorder, which causes him to be chronically unhappy and which interfered with his marriage and social functioning. (Tr. 247:22-24, 259:2-22, 337:23-338:24). Defendant self-medicated with alcohol. (Tr. 258:23-259:1, 275:5-23.)²

Both experts also found Defendant to be intellectually deficient and possessing a low IQ. (Tr. 266:22-23, 365:25-366:13.) Indeed, Dr. Nelson bluntly described Defendant as "not a rocket scientist." (Tr. 366:13.) Dr. Lynch also believed that Defendant had "his toes in the water" as to the autism spectrum, but Dr. Nelson testified that he lacked sufficient information from Defendant's family to determine whether Defendant was autistic. (Tr. 270:18-19, 345:12-346:10.) Regardless of the existence of autism, Defendant possesses a visual processing disorder. (Tr. 267:20.)³ And Defendant's PTSD exacerbated his pre-existing developmental disorders. (Tr. 279:14.) In short, by the time of the firearms purchases at issue, Defendant suffered from significant mental health issues that can be traced to his exceptional military service.

Following his discharge from active duty, Defendant continued to serve in the National Guard as a staff sergeant (Tr. 310:19), while also working as an aide for a nonverbal, autistic child. (Tr. 263:24-25.) As a staff sergeant, Defendant served as a squad leader. (Tr. 310:22.) His superior

467 F.Supp.3d 364

officer, Captain Matthew Henry, chronicled Defendant's many awards (seventeen national awards and three state awards) and described Defendant as being "highly decorated amongst his peers." (Tr. 313-18.)

The charges at issue arise from Defendant's purchase of six firearms from three different federally licensed firearms dealers on four different occasions. The Government argued that Defendant conspired with Trenton "Kirk" Pointer to purchase the firearms by serving as a straw purchaser for Pointer and then lying on the ATF Form 4473 for each of the sales by identifying himself as the actual buyer, when instead the firearms were for Pointer. (Tr. 412-13.) A review of the evidence presented reveals that the only evidence supporting the Government's theory came from Defendant's recorded statement to ATF agents roughly eighteen months after the purchases. Defense counsel countered with an argument that any inaccuracies on the forms resulted from innocent mistakes by Defendant. (Tr. 421.)

The Government began its case with the testimony of representatives from the three firearms dealers. Christopher Presnell first testified that he worked as a sales associate for Town Police Supply Company in Richmond, Virginia. (Tr. 125:15-126:2.) This location operates roughly a mile from Defendant's residence. (Tr. 209:17.) Presnell testified about Defendant's purchase of a Taurus 9 mm pistol, model PT111G2, on August 19,2015. (Tr. 129:14, 135:10-11.) Although Presnell had no independent recollection of the sale (Tr. 139:11), he was able to testify about the transaction from the forms related to the sale. (Gov't Ex. 1A-C.)

The relevant question for ATF Form 4473 provides in Question 11a:

Are you the actual transferee/buyer of the firearm(s) listed on this form? Warning: you are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearms to you. (See Instructions for Question 11a.) Exception: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11a and may proceed to question 11b.

(Gov't Ex. 1A at 1.) The instructions for Question 11a further explain:

Question 11a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner ). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer "NO" to question 11a. The licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown goes to buy a firearm with his own money to give to Mr. Black as a present, Mr. Brown is the actual transferee/buyer of the firearm and should answer "YES" to question 11a. However, you may not transfer a firearm to any person you know or have reasonable care to believe is prohibited under 18 U.S.C. § 922(g), (n), or (x). Please note: EXCEPTION: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11a and may proceed to question 11b.

(Gov't Ex. 1A at 4.) (bold, italics and capitalization in original). Defendant checked the box for Yes, thereby indicating that he was the actual buyer of the firearm and that he was not purchasing the firearm as

467 F.Supp.3d 365

a gift. (Gov't Ex. 1A at 1.) Presnell sold the firearm to Defendant after a NICS background check approved Defendant as a buyer. (Tr. 130:15-131:17.) Presnell acknowledged that had Defendant purchased the firearm as a gift for a third party, he would constitute an actual buyer under the terms of the form. (Tr. 145:3.)

Presnell also indicated that Defendant made an error when completing ATF Form 4473 by checking NO for Question 12, thereby indicating that he was an alien. (Gov't Ex. 1A at 1; Tr. 146:13-19.) Presnell knew that Defendant was a citizen, because he showed Presnell his voter's identification card. (Gov't Ex. 1B; Tr. 147:5-14.) Therefore, Presnell directed Defendant to correct the form, which Defendant then initialed. (Tr. 146:24-147:4.)

Presnell also testified that another form introduced as Government's Exhibit IB asked if Defendant had purchased a firearm from the store within the last five days. (Gov't Ex. 1B.) Defendant answered that he had not after being asked by Presnell. (Tr. 134:4-8.) The receipt for the sale (Gov't Ex. 1C) cited a sales price of $199 with a $2 fee for the background check. (Tr. 135:16-17.) When asked if Town Police Supply offered a military discount, Presnell stated that: "We do for certain manufacturers of firearms, yes, sir." (Tr. 135:20-21.) Presnell could not recall for certain if the military discount was offered for Taurus firearms at the time of the purchase. (Tr. 137:9-14.) He did testify, however, that it was possible that a military discount was given to Defendant via a manager's override. (Tr. 138:1-5.)

The Government next called Justin Pennington as a witness. Pennington works at the Bob Moates Sport Shop in Midlothian, Virginia. (Tr. 150:2.) This store operates roughly a half mile from Defendant's residence. (Tr. 209:20-21.) Although he had no independent recollection of the sale (Tr. 156:10), Pennington sold two Taurus 9 mm firearms, both model number PT111G2, to Defendant on August 21, 2015 — two days after Defendant had made the purchase from Town Police Supply Company. (Gov't Ex. 2A; Tr. 150-52.) Again, Defendant indicated that he was the actual purchaser of the firearm in Question 11a. (Gov't Ex. 2A at 1; Tr. 152:14-15.) Pennington sold the firearm to Defendant after the NICS background reported that Defendant was approved for the purchase. (Tr. 154:1-6.) And as with the first purchase, Defendant again wrongly answered Question 12 about being an alien and he had...