US v. Reed, 95-10076-01.
| Decision Date | 12 April 1996 |
| Docket Number | No. 95-10076-01.,95-10076-01. |
| Citation | 924 F. Supp. 1052 |
| Parties | UNITED STATES of America, Plaintiff, v. Darrick D. REED, Defendant. |
| Court | U.S. District Court — District of Kansas |
Deb Barnett, Asst. U.S. Attorney, Wichita, KS, for plaintiff.
Kurt P. Kerns, The Law Offices of Leslie F. Hulnick, P.A., Wichita, KS, for defendant.
Darrick D. Reed was indicted on six counts of possession of firearms or ammunition by an unlawful user of marijuana in violation of 18 U.S.C. § 922(g)(3), one count of unlawful possession of marijuana in violation of 21 U.S.C. § 844(a), and one count of possession of an unregistered, loaded shotgun with a barrel length of less than 18 inches, in violation of 26 U.S.C. §§ 6851(d) and 5871. Reed has moved to dismiss the counts alleging possession of a firearm or ammunition by an unlawful user of marijuana on the basis that the term unlawful "user" is unconstitutionally vague.1
The United States asserts the following factual basis for the 18 U.S.C. § 922(g)(3) counts:
Count 1. On July 11, 1993, Reed was arrested for outstanding traffic warrants. A search of the automobile Reed was driving revealed a small bag of marijuana and a loaded handgun under the driver's seat.
Count 2. On February 5, 1994, Reed was arrested for driving on a suspended license. A search of the vehicle revealed a loaded handgun.
Count 3. On November 25, 1994, Reed entered an automobile that contained a firearm. He had a bag of marijuana in his coat pocket. Reed told an officer he intended to consume the marijuana.
Counts 5 and 6. On April 2, 1995, Reed had ammunition in his pocket while standing next to a vehicle which contained a loaded handgun.
Count 7. On April 29, 1995, Reed was in the passenger seat of a vehicle when it was stopped by police. A strong odor of marijuana emanated from the car. Marijuana was found in the console and a loaded handgun was found in the area of the front passenger seat.
There is no direct evidence proffered by the government that Reed consumed any marijuana by inhalation at any time. Furthermore, the court must note, with regard to the final § 922(g)(3) count, the record before the court is unclear whether the "strong odor" of marijuana allegedly detected by the police officers refers to the pungent odor naturally exuded by marijuana vegetable matter, or the separate odor of marijuana smoke. Unlike the proffer made as to the other § 922(g)(3) counts, there is no suggestion here that the marijuana located in the car was in a sealed baggie. There is no indication that the police located any residue of smoked marijuana cigarettes or other marijuana paraphernalia from the car.
18 U.S.C. § 922(g)(3) (Supp.1996) provides:
Reed alleges that § 922(g)(3) is unconstitutionally vague as applied to him because "unlawful user," unlike "addicted to," is not defined.2 Reed also alleges that § 922(g)(3) violates the equal protection component of the Fifth Amendment because it discriminates against persons who have unlawfully used marijuana without regard to their present mental status and without any rational basis.
A penal statute is impermissibly vague if the statute either fails to define the offense sufficiently so that "ordinary people can understand what conduct is prohibited," or if it fails to provide "minimal guidelines to govern law enforcement," thereby inviting arbitrary action by the government. Kolender, 461 U.S. at 357, 358, 103 S.Ct. at 1858. See also United States v. Easter, 981 F.2d 1549, 1557 (10th Cir.1992), cert. denied, 508 U.S. 953, 113 S.Ct. 2448, 124 L.Ed.2d 665 (1993). A vague statute offends fundamental notions of fairness by failing to give adequate warning of what is prohibited to persons of ordinary intelligence, and by giving impermissible discretion to governmental authorities to enforce the law arbitrarily and subjectively. See Jane L. v. Bangerter, 61 F.3d 1493, 1500 (10th Cir.1995), pet'n for cert. filed, 64 U.S.L.W. 3561 (Feb. 5, 1996) (quoting Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982)).
At the outset, the court notes it cannot consider Reed's facial challenge to the statute. First, the statute does not threaten to chill constitutionally protected conduct. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). Second, Reed is not bringing a pre-enforcement challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 1192-93, 71 L.Ed.2d 362 (1982). Outside the context of actions protected by the First Amendment, a challenge to a criminal statute on vagueness grounds must be examined in light of the facts of a given case. United States v. Meraz-Valeta, 26 F.3d 992 (10th Cir.1994). Thus, the court will consider the constitutionality of the statute solely as it applies to Reed in the factual context asserted by the government. United States v. Gaudreau, 860 F.2d 357, 360-61 (10th Cir.1988) (); United States v. Ocegueda, 564 F.2d 1363, 1365 (9th Cir.1977).
The starting point is the statutory language. What did Congress mean by the phrase, "is an unlawful user"? This phrase draws meaning from its context, much like the word "use" in 18 U.S.C. § 924(c).3See Bailey v. United States, ___ U.S. ___, ___ - ___, 116 S.Ct. 501, 505-06, 133 L.Ed.2d 472 (1995). Accordingly, the statute and the sentencing scheme must be examined in order to determine the meaning Congress intended for the phrase, "is an unlawful user," and whether the charges against Reed reasonably fall within that meaning. Bailey, ___ U.S. at ___ - ___, 116 S.Ct. at 505-06.
The United States contends 18 U.S.C. § 922(g)(3) requires the government to establish proximity in time between defendant's possession of marijuana and possession of the firearms, which, when coupled with defendant's claim that he is an "addict," is sufficient to bring defendant within the purview of the statute. The government also notes defendant is really raising an issue of proof.
However well taken those points might be, they do not touch upon the central issue the court must address. Simply put, did the statute in question provide sufficient notice to Mr. Reed that he was engaged in criminal behavior?
The United States acknowledges it has no direct evidence Mr. Reed was "using" unlawful drugs at the time of any of his arrests, but seeks to infer "use" from "possession." The only count which ties defendant to any active "use" is count 7, in which the smell of marijuana came from the car.
The government also points to Reed's claim on at least one occasion he was "addicted" to marijuana, or was an "addict," as further support for his being an "unlawful user". We note first Reed is charged not as an "addict," but as an unlawful user. Second, whether Reed is an addict or not is the kind of issue which typically would turn on expert testimony. See United States v. Yarbough, 55 F.3d 280 (7th Cir.1995). Third, wholly apart from defendant's self-diagnosis, there is no indication that Reed has a single conviction for illegal drug use predating any of his arrests in this case.
The charges against Reed are not based on his being a "past user" of marijuana, but on his being a "current user" of marijuana. The United States concedes that the statute covers only persons who used marijuana during the time period the person possessed a firearm, noting that the statute applies to any person who "is an unlawful user" and not "was an unlawful user." In fact, other circuits have held that under 18 U.S.C. § 922(g)(3), or its predecessor, 18 U.S.C. § 922(h)(3), the unlawful use must occur while the accused is the possessor of the firearm, although not necessarily at the same moment. United States v. McIntosh, 23 F.3d 1454, 1458 (8th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 333, 130 L.Ed.2d 291 (1994). See also United States v. Corona, 849 F.2d 562, 567 (11th Cir.1988), cert. denied, 489 U.S. 1084, 109 S.Ct. 1542, 103 L.Ed.2d 846 (1989) (previous statute); Ocegueda, 564 F.2d at 1366 (previous statute).
Section 922(g)(3) is part of comprehensive gun control legislation intended to keep firearms out of the hands of those Congress deem incapable of safely possessing them because of age, criminal background, or incompetence. See Ocegueda, 564 F.2d at 1365 (previous statute). However, a facial examination of the statute provides no time frame in which "use" must occur in order for someone to be an "unlawful user". In other words, the statute does not indicate that point in time when someone who is an unlawful user, and subject to the statute, becomes someone who was an unlawful user, and not subject to the statute.
This court's examination of the case law is of no assistance in finding an appropriate time frame in this case. Here Reed is not charged as an "addict," but only as an "unlawful user." The defendants in McIntosh and Corona were charged as "unlawful users or addicts." McIntosh, 23 F.3d at 1458 (emphasis added); Corona, 849 F.2d at 567 (emphasis added).
It is unclear whether the defendant in Ocegueda was charged as an unlawful user or addict. Ocegueda held that the defendant's prolonged use of heroin, occurring before, during and after the period of gun purchases, presented a situation where the phrase "unlawful user" could not be considered vague, but noted that if...
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U.S. v. Edwards, 98-50320
...and Chapman v. United States, 500 U.S. 453, 467, 114 L. Ed. 2d 524, 111 S. Ct. 1919 (1991)). Edwards relies on United States v. Reed, 924 F. Supp. 1052, 1056 (D. Kan. 1996), rev'd, 114 F.3d 1067, 1070-71 (10th Cir. 1991) and United States v. Weissman, 373 F.2d 799, 803 (9th Cir. 1967). In R......
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U.S. v. Reed, 96-3171
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