USA v. R. Pope

• Decision Date: 23 July 2010
• Docket Number: No. 09-4150.,09-4150.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark R. POPE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

613 F.3d 1255

UNITED STATES of America, Plaintiff-Appellee,

v.Mark R. POPE, Defendant-Appellant.

No. 09-4150.

United States Court of Appeals,Tenth Circuit.

July 23, 2010.

Parker Douglas, Assistant Federal Defender (Steven B. Killpack, Federal Defender, with him on the briefs), Salt Lake City, UT, for Defendant-Appellant.

Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (Brett L. Tolman, United States Attorney, and Diana Hagen and Carol A. Dain, Assistant United States Attorneys, District of Utah; and Lanny A. Breuer, Assistant Attorney General, and Gary G. Grindler, Deputy Assistant Attorney General, Washington, D.C., with her on the brief), for Plaintiff-Appellee.

Before TACHA and GORSUCH, Circuit Judges, and STAMP, Senior District Judge. ^*

GORSUCH, Circuit Judge.

This case began when a grand jury indicted Mark Pope for violating 18 U.S.C. § 922(g)(9). That statute makes it a federal felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun. In response to the indictment, Mr. Pope filed a motion to dismiss. While he admitted to being previously convicted of a domestic violence crime, and to possessing a gun, Mr. Pope pressed an affirmative defense that, he said, precluded his conviction. Because he possessed the gun in question only on the property where he was living and only to protect himself, others, or his property, he argued that the application of § 922(g)(9) to him would violate the Second Amendment. While the statute may be constitutional as applied to other situations, it is, he submitted, unconstitutional as applied to the facts of his case.

The district court denied Mr. Pope's motion to dismiss and today we affirm that decision. We do so without passing, one way or the other, on Mr. Pope's Second Amendment defense because an antecedent procedural problem lurks here. All the material facts on which Mr. Pope's motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope's guilt or innocence. Under these circumstances, Fed.R.Crim.P. 12(b)(2) and our precedent preclude the resolution of Mr. Pope's as-applied constitutional challenge before trial.

I

The indictment in this case is a model of Spartan prose. Count I, the only portion of the indictment still at issue, alleges simply that “[o]n or about August 14, 2007, in the Central Division of the District of Utah, Mark R. Pope, the defendant herein, having been convicted in any court of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(33), did knowingly possess in and affecting interstate commerce a firearm, that is, a .22 caliber High Standard revolver; all in violation of 18 U.S.C. § 922(g)(9).” R. Vol. I at 8-9.

In response to this charge, Mr. Pope filed a motion to dismiss arguing that § 922(g)(9) is unconstitutional as applied to him. Mr. Pope's motion sought to rely on the Supreme Court's decision in District of Columbia v. Heller, --- U.S. ----, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and its recognition of the Second Amendment's individual right to bear arms. See also McDonald v. City of Chicago, Illinois, --- U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). Mr. Pope readily acknowledged Heller's dictum that its recognition of an individual right was not meant to upset “longstanding prohibitions on the possession of firearms by felons.” Id. at 2816-17; see also McDonald, 130 S.Ct. at 3047; United States v. McCane, 573 F.3d 1037, 1047 (10th Cir.2009). But, while felons may be barred from possessing firearms, Mr. Pope argued, the Second Amendment is violated when misdemeanants are prevented from possessing firearms purely for the “protection of self, property and home.” R. Vol. I at 23. See generally In re United States, 578 F.3d 1195 (10th Cir.2009) (Murphy, J., dissenting); McCane, 573 F.3d at 1047-50 (Tymkovich, J., concurring); United States v. Skoien, 614 F.3d 638, 2010 WL 2735747 (7th Cir.2010) (en banc).

And this, he submitted, describes his situation exactly. While the indictment was silent about the reason for his possession, Mr. Pope provided an evidentiary proffer in an effort to fill the void. In his proffer, Mr. Pope claimed that, while he was living with friends, he and one of his dogs were attacked by a neighbor's dogs. In response, he walked to the neighbor's house carrying the handle of an ax (though, he stressed, without the blade) and confronted her. After the confrontation, the neighbor called the police to report the incident. When officers arrived at the home where Mr. Pope was living, they found him in the front yard with a pistol in his front pocket. Mr. Pope claimed the gun belonged to his wife and, consistent with Heller's recognition that “the need for defense of self, family, and property is most acute” in “the home,” 128 S.Ct. at 2817, he claimed that he had taken possession of his wife's gun for exactly these reasons. In these circumstances, he contended, any conviction under § 922(g)(9) would be unconstitutional and so the indictment against him had to be dismissed.

Opposing Mr. Pope's motion, the government argued that, as a general rule, motions to dismiss seeking to test the legal adequacy of an indictment must be analyzed solely on the basis of the factual allegations contained in the indictment. And, the government emphasized, none of the facts essential to Mr. Pope's as-applied constitutional challenge could be found in the indictment. The government acknowledged that an exception to the general rule against resort to facts outside the indictment exists when the motion is based on agreed facts, the government offers no objection to the consideration of those facts, and the motion is capable of resolution as a matter of law. But, the government argued, this particular exception “is inapplicable here.” R. Vol. I at 29. Indeed, the government proceeded to argue that the facts surrounding Mr. Pope's offense were very different from those he described. At trial, the government said it would show that (1) Mr. Pope was never attacked by the neighbor's dogs, and (2) Mr. Pope threatened the neighbor that, if he ever saw her dogs outside her yard, he would kill both them and her. And, the government seemed to suggest, if the district court did venture outside the indictment to consider the facts likely to be adduced at trial, these same facts would preclude the conclusion that § 922(g)(9) is unconstitutional as applied to this case because they show Mr. Pope wasn't seeking simply to protect “self, property, and home.” R. Vol. I at 23.

The district court took the parties' dispute under advisement and soon issued a succinct order stating that “the Court hereby adopts the position of the United States and denies the Defendant's Motion to Dismiss.” R. Vol. I at 49. From this, we understand the district court to have adopted both (1) the government's position that the motion wasn't ripe for resolution before trial, because deciding it would require resort to disputed facts outside the indictment; and (2) the government's apparent additional view that, even if the motion could be resolved before trial, it would have to be decided against Mr. Pope on the merits.

After the district court's ruling, Mr. Pope opted to plead guilty and was sentenced. In agreeing to plead guilty, however, he reserved his right to appeal the district court's denial of his pre-plea motion to dismiss. Mr. Pope now exercises that reserved right before us.

II

We affirm. We do so not on the merits of the constitutional question but because we agree that Mr. Pope's motion to dismiss could not be appropriately resolved before trial. In reaching this holding, we first outline the legal principles that govern our analysis before turning to their application in this case.

A

The Federal Rules of Criminal Procedure encourage the pretrial resolution of a number of important, and even some potentially dispositive, matters. So, for example, parties must raise certain arguments before trial-such as those seeking the suppression of the evidence on which the prosecution relies-or risk waiving them. See Fed.R.Crim.P. 12(b)(3), (e). Other issues may be addressed by pretrial motion at a party's election. See Fed.R.Crim.P. 12(b)(2). But still other matters may not be raised by pretrial motion at all. Id.

With respect to this final category, Rule 12 authorizes the district court to resolve before trial only those motions “that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2) (emphasis added). In a criminal case, the “general issue” is “defined as evidence relevant to the question of guilt or innocence.” United States v. Yakou, 428 F.3d 241, 246 (D.C.Cir.2005) (quotation marks omitted). Thus, the Supreme Court has instructed, Rule 12 permits pretrial resolution of a motion to dismiss the indictment only when “trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); see also United States v. Knox, 396 U.S. 77, 83, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); United States v. Mandujano, 425 U.S. 564, 585 n. 1, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976) (Brennan, J., concurring). If contested facts surrounding the commission of the offense would be of any assistance in determining the validity of the motion, Rule 12 doesn't authorize its disposition before trial.

The reasons that have been offered for this longstanding rule are many and various. See 1A Charles A. Wright & Andrew D. Leipold, Federal Practice and Procedure § 190, at 385 (4th ed. 2008) (“With slight alteration [Rule 12(b)(2) ] has remained unchanged since the Rules were first adopted”); id. at 442 n. 7 (discussing alteration of language in 1975). Perhaps most prominent...