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September 12, 2000


The opinion of the court was delivered by: Marrero, District Judge.


Defendant Teddy Bastian is charged in a two count indictment with possession of a firearm which had the serial number obliterated, altered, or removed in violation of 18 U.S.C. § 922(k) ("Count One"), and possession of a firearm while being an unlawful user of a controlled substance, namely cocaine and marijuana, in violation of 18 U.S.C. § 922(g)(3) ("Count Two"). Bastian now moves to dismiss Count Two on the ground that § 922(g)(3) is unconstitutionally vague because it lacks a temporal element. Bastian also moves to dismiss Count One or Count Two on the ground that the two counts are multiplicitous in violation of the Double Jeopardy Clause. Alternatively, Bastian seeks either severance or bifurcation of the two counts for trial. For the reasons discussed below, the motion is denied.


A. Constitutionality of Section 922(g)(3)

Section 922(g)(3) of Title 18 makes it unlawful for any person

who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Under the void for vagueness doctrine, a criminal statute violates the Due Process Clause if it "fails to give persons of ordinary intelligence fair notice that their contemplated conduct is proscribed." Marty's Adult World v. Town of Enfield, 20 F.3d 512, 516 (2d Cir. 1994). A vagueness challenge to a statute may be facial — a claim that the law is invalid in toto, incapable of any valid application — or as-applied. See Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Where the challenged statute implicates no constitutionally protected conduct, a facial vagueness challenge may be upheld only "if the enactment is impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside Hoffman Estates, 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (internal quotations omitted). However, because a person whose conduct is clearly proscribed by a statute cannot complain of the vagueness of the law as applied to others, a court must examine the complainant's conduct in relation to the relevant prohibition before analyzing other hypothetical applications of the law. See id.; Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Consequently, vagueness challenges outside the context of the First Amendment, whether facial or as-applied, cannot succeed except in light of the facts of the case at hand. See United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand); United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975) (same).

Challenges to § 922(g)(3) similar to Bastian's on vagueness grounds have been considered and rejected by several circuit courts, but only in the context of a direct appeal from a trial — after the record has been fully developed. See United States v. Edwards, 182 F.3d 333 (5th Cir. 1999); United States v. Terrell, 172 F.3d 880 (10th Cir. 1999); United States v. Oberlin, 145 F.3d 1343 (9th Cir. 1998). Bastian raises his vagueness challenge in this pretrial motion to dismiss, based on the indictment alone.

In United States v. Reed, a case squarely on point, the Tenth Circuit held that the district court impermissibly determined the constitutionality of § 922(g)(3) on a pre-trial motion to dismiss before the Government had presented any evidence concerning the defendant's conduct. See 114 F.3d 1067, 1070 (10th Cir. 1997). Though the Government made a proffer of its evidence before the district court decided the motion to dismiss, the Tenth Circuit nevertheless concluded that "such a sensitive and fact intensive analysis . . . should be based only on the facts as they emerge at trial." Id. "A proffer," the court observed, "is not evidence, ipso facto." Id.

The Court concurs with the Tenth Circuit's reasoning and conclusion in Reed. Heeding the Supreme Court's admonition that a vagueness challenge to a statute may only be examined in light of the facts of the case at hand, this Court cannot conduct a proper examination of the application of § 922(g)(3) to Bastian's case on the basis of the indictment alone. Accordingly, Bastian's motion is denied without prejudice. Bastian may renew his argument at a later stage of the proceeding, after the Government's evidence pertinent to the issues Bastian raises has been adduced at trial.

B. Multiplicity of the Indictment

Bastian also moves to dismiss either Count One or Count Two on the ground that they are multiplicitous. "An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when, in law and fact, only one crime has been committed." United States v. Chacko, 169 F.3d 140, 145 (2d Cir. 1999). This practice subjects a person to punishment for the same crime more than once, which violates the Double Jeopardy Clause of the Fifth Amendment. See U.S. Const. amend. V; United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

The Second Circuit has employed a three step analysis to determine whether Congress intended to authorize multiple punishments for conduct that violates two statutory provisions. See United States v. Seda, 978 F.2d 779, 780 (2d Cir. 1992); United States v. Maldonado-Rivera, 922 F.2d 934, 981 (2d Cir. 1990). First, the language of the provisions must be analyzed. If the two offenses charged are set forth in separate statutes, or in different sections of one statute, or in different parts of a section, and each clearly authorizes a punishment for the violation of that provision, the court may ordinarily infer that Congress intended to authorize punishment under each provision. Second, the Blockburger "same-elements" test, i.e., whether each provision requires proof of a fact that the other does not, is employed to ascertain whether the inference that Congress intended multiple punishments is reasonable. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). If the ...

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