United States v. Roldan-Marin
| Decision Date | 06 November 2019 |
| Docket Number | CASE NO. 3:19-cr-00044 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JUNIOR EMILIO ROLDAN-MARIN, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO STRIKE OR DISMISS
TABLE OF CONTENTS
I. INTRODUCTION ..................................................................................... 2
II. FINDING OF FACTS ................................................................................. 4
III. ANALYSIS .............................................................................................. 6
IV. RECOMMENDATION AND ORDER ........................................................... 29
I. INTRODUCTION
This matter comes before the Court pursuant to the Motion to Strike or Dismiss Certain Allegations in the Indictment (Dkt. No. 37) and supporting Brief (Dkt. No. 37-1) filed by Junior Emilio Roldan Marin ("Defendant") on August 6, 2019. The Government resisted the motion on August 27, 2019. Dkt. No. 55. This matter was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for report and recommendation by Chief Judge John A. Jarvey on August 19, 2019. Dkt. No. 51. Trial is set for December 16, 2019. Dkt. No. 74.
An evidentiary hearing was held on September 5, 2019 in connection with this motion and Defendant's Motion to Suppress. Dkt. 56. The Government appeared by Assistant U.S. Attorneys Andrea Glasgow and Cliff Cronk. Defendant appeared personally and with his attorney, Assistant Federal Defender Terry L. McAtee. The Court received Government's Exhibit #1 - Trial Court's Trial Information for Defendant's domestic abuse assault conviction, Johnson County Case No. FECR 112728; Government's Exhibit #2 - Waiver of Rights and Plea of Guilty for Defendant's domestic abuse assault conviction, Johnson County Case No. FECR 112728; Government's Exhibit #3 - Order Accepting Guilty Plea & Entering Judgment and Sentence for Defendant's domestic abuse assault conviction, Johnson County Case No. FECR 112728; Government's Exhibit #4 - Johnson County Clerk's Certificate for Defendant's domestic abuse assault conviction, Johnson County Case No. FECR 112728; Government's Exhibit #5 - Officer Jacob Belay's body camera video; Government's Exhibit #6 - Officer Ryan Schnackel's body camera video; and Government's Exhibit #7 - the redacted search warrant and supporting documentation. The Court did not receive any exhibits from Defendant in connection with this motion.
At the hearing, the Court heard arguments from the counsel for the Government and for Defendant. Subsequent to the hearing, the Government submitted a supplemental brief (Dkt. No. 57)on September 6, 2019 and a notice of supplemental authority (Dkt. No. 60) on September 14, 2019. Considering these filings, the Defendant was granted leave to submit further briefing on the issues before the Court on or before September 23, 2019. Dkt. No. 61. Defendant made no further filings as to that matter.
On October 9, 2019, a Second Superseding Indictment was returned. Dkt. No. 63. Defendant was arraigned on the Second Superseding Indictment on October 16, 2019. Dkt. No. 72. Due to the filing of this indictment subsequent to the filing of the instant motion, Defendant was granted leave to submit further briefing on or before October 21, 2019. Id. The Government was granted leave to respond on or before October 28, 2019. Id. Defendant filed his Supplemental Brief in Support of Motion to Strike or Dismiss on October 21, 2019. Dkt. No. 77. The Government filed its Response to Defendant's Supplemental Brief in Support of Motion to Strike or Dismiss on October 24, 2019. Dkt. 81.
On October 21, 2019, the Court ordered the Government to file a response regarding the completeness of Government's Exhibits 1-4, as the exhibits appeared to be missing pages. Dkt. 76. The Government responded the same date and filed as electronic exhibits, complete copies of Government's Exhibits 1-4. Dkt. 78. On October 28, 2019, the Government filed a Motion to Reopen the Record and Offer of Exhibits. Dkt. 85. Defendant did not file a response and on November 6, 2019, the motion was granted, admitting into the evidence for this matter, complete copies of Government's Exhibits 1-4. Dkt. 86. The matter is now fully submitted.
This Magistrate Judge has carefully considered the record evidence, the arguments and statements of counsel and submits the following report. As set forth below, based on the facts presented and applicable law, it is recommended that the motion seeking to strike or dismiss the allegation under 18 U.S.C. § 922(g)(3) as to the facial constitutional challenge be denied and as tothe as applied constitutional challenge be deferred until there is a trial on the merits. It is further recommended that the request in the motion seeking to dismiss the allegation under 18 U.S.C. § 922(g)(9) be denied.
II. FINDINGS OF FACT
Defendant was indicted on May 8, 2019, on one count of being a prohibited person in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3), 922(g)(8), 922(g)(9) and 924(a)(2). Dkt. No. 1. The Indictment charged that Defendant possessed a firearm and ammunition, in and affecting commerce, and that he was prohibited from possessing such firearm and ammunition for:
A Superseding Indictment was filed on August 7, 2019 (Dkt. No. 40) for the same one count "to comply with the recent court decision in United States v. Rehaif, 139 S. Ct. 2191 (2019), reference the defendant's knowledge of his prohibited status." Dkt. No. 43. The count in the superseding indictment charged the same three grounds that Defendant was prohibited from possessing a firearm as the initial indictment - namely, at the time of the possession of the firearm, Defendant:
A Second Superseding Indictment was filed on October 9, 2019 for the same one count, charging that Defendant possessed a firearm and ammunition, in and affecting commerce, and he was prohibited from possessing such firearm and ammunition as follows:
[a]t the time of the offense, the defendant knew he was an unlawful user of and addicted to a controlled substance; knew he had been convicted of a misdemeanor crime of domestic violence; and knew he was subject to a court order issued by the Johnson County, Iowa, District Court, on October 19, 2016, under case number FECR 112728, and issued after a hearing of which he received actual notice, and at which he had an opportunity to participate, restraining him from harassing, stalking, or threatening an intimate partner, restraining him from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner, that by its terms explicitly prohibited the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury, and that included a finding that the defendant was a credible threat to the physical safety of the intimate partner.
Dkt. No. 63. The Government indicated the Second Superseding Indictment Dkt. No. 66. The Court notes, however, the Second Superseding Indictment also includes additional language, alleging Defendant, at the time of the offense, "knew he was an unlawful user of and addicted to a controlled substance." Dkt. No. 63 (emphasis added). The Government did not set forth this additional language, included in the Second Superseding Indictment, as required by Local Rule Criminal Rule 7(b).
Previously, on October 19, 2016, Defendant was convicted in the Iowa District Court in and for Johnson County of violating Iowa Code Sections 708.2A(1) and 708.2A(2)(c). See Government's Exhibits 1, 2 and 3.
III. ANALYSIS
Defendant moves to strike or dismiss the allegation under 18 U.S.C. § 922(g)(3), arguing the phrase "unlawful user of and addicted to a controlled substance" is unconstitutionally vague, both facially and as applied. Dkt. Nos. 37-1 pp. 2-5 and 77 pp. 1-3. In addition, Defendant moves to strike or dismiss the allegation under 18 U.S.C. § 922(g)(9), contending his prior conviction does not qualify as a "misdemeanor crime of domestic violence" because it did not require the use of force necessary under 18 U.S.C. § 921(a)(33). Dkt. 37-1 pp. 5-9.
The Government resists the motion. Dkt. Nos. 55, 57, 60, 81.
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