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.
I. MOTION TO DISMISS
A. Constitutionality of Section 922(g)(3)
Bastian argues that § 922(g)(3) is unconstitutionally vague
because it fails to designate a time frame concerning when the
individual must use the controlled substance in connection with
the possession of a firearm. He contends that the statute
does not clearly distinguish between a past unlawful user of a
controlled substance and a current unlawful user of a controlled
substance. Bastian claims that the indictment does not specify
when he used the cocaine he allegedly possessed, and that because
no time frame for usage is offered, the statute as applied is
unconstitutionally vague. See Memorandum in Support of Motion
to Dismiss at 2.
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
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
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 Blockburger test is satisfied, the court may presume
that multiple punishments are authorized. Finally, this
presumption is tested against the legislative history of the
applicable provisions to ensure there is no indication of a
contrary congressional intent.
Here, the provisions at issue are set forth in two different
subsections of the same statute and Congress has expressly
authorized a distinct punishment for each — a five year maximum
term of imprisonment for violation of § 922(k), see
18 U.S.C. § 924(a)(1)(B), and a ten year maximum for § 922(g), see id. §
Furthermore, each of the two counts charged against Bastian
requires proof of a fact that the other does not. With respect to
Count One, the Government must prove that Bastian knew that the
handgun allegedly in his possession had a defaced serial number.
This requirement is not an element of Count Two. With respect to
Count Two, the Government must establish that Bastian was an
unlawful user of a controlled substance. This proof is not an
element of Count One. Thus, on the charges here, the
Blockburger test is satisfied.
The foregoing analysis supports a reasonable inference that
Congress intended to authorize separate punishments under the two
provisions of § 922 at issue. Accordingly, the Court presumes
that multiple punishments are authorized and proceeds to test the
presumption against the legislative history of the provisions of
the statute to determine whether there is any indication of a
contrary legislative intent. The Court has found, and Bastian has
offered, nothing in the legislative history of either subsection
which would suggest that Congress intended to preclude multiple
punishments for the offenses here. Where the legislative history
offers no guidance, the reviewing court should conclude that
Congress intended to authorize multiple punishments. See United
States v. Nakashian, 820 F.2d 549, 551 (2d Cir. 1987) (citing
Albernaz v. United States, 450 U.S. 333, 336-42, 101 S.Ct.
1137, 67 L.Ed.2d 275 (1981)); United States v. Marrale,
695 F.2d 658, 662 (2d Cir. 1982); cf. United States v. Zhang,
833 F. Supp. 1010, 1019 (S.D.N.Y. 1993) (where Blockburger test is
satisfied, defendant bears burden of showing that legislative
history reflects intent to preclude multiple punishments).
Bastian maintains that, despite the Blockburger analysis,
"`Congress, by rooting all the offenses in a single legislative
enactment, and by including all the offenses in subsections of
the same statute,
signaled that it did not intend multiple punishments for the
possession of a single weapon.'" Mem. in Supp. at 6 (emphasis in
original) (quoting United States v. Munoz-Romo, 989 F.2d 757,
759 (5th Cir. 1993)). He argues that this case is analogous to
several cases in which various circuit courts have held that
indictments charging violations of two or more subsections of §
922(g) were multiplicitous, even though the Blockburger test
was satisfied. See United States v. Dunford, 148 F.3d 385, 388
(4th Cir. 1998); United States v. Johnson, 130 F.3d 1420, 1425
(10th Cir. 1997); United States v. Munoz-Romo, 989 F.2d 757,
759 (5th Cir. 1993); United States v. Winchester, 916 F.2d 601,
605-06 (11th Cir. 1990); but see United States v. Peterson,
867 F.2d 1110, 1115 (8th Cir. 1989) (convictions under §§ 922(g)(1)
and (g)(3) for same act of possession did not violate the Double
Jeopardy Clause), abrogated on other grounds, Horton v.
California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112
The above cases are, as noted by the Government,
distinguishable on the ground that they involved charges under
different subparts of subsection 922(g), rather than, as here,
different subsections of § 922. Indeed, in United States v.
Mansolo, the Fifth Circuit held that a defendant could be tried
and convicted, consistent with double jeopardy principles, for
both possession of a stolen firearm in violation of § 922(j) and
possession of a firearm with an obliterated serial number in
violation of § 922(k), based on his possession of a single gun on
one occasion. See 129 F.3d 749 (5th Cir. 1997). The court
expressly held that its decision in Munoz-Romo, relied on by
Bastian, was not controlling because Munoz-Romo involved
different subparts of a single subsection of § 922, rather than
two subsections of § 922. The distinction between the instant
case and those cited by Bastian is buttressed by a closer
examination of the language and distinct purposes served by the
various statutory provisions at issue.
Section 922(g) makes it unlawful for a person who fits within
the definition of any one of nine specified classes to possess a
firearm or ammunition. Thus, the statute prohibits firearm
possession by, for example, convicted felons, fugitives, unlawful
users of drugs, adjudicated "mental defectives," and illegal
aliens. While the prohibited conduct is the possession of any
firearm or ammunition, the statute applies only to members of
classes specified in the statute. The nine classes of people
barred from firearm possession by § 922(g) are comprised of
persons who, by reason of their status, Congress considers too
dangerous to possess guns. To establish the crime, both elements
are prerequisites, but it is the conduct — firearm possession —
that Congress targeted. If multiple prosecutions were permitted
under various subparts of § 922(g) for the possession of a single
firearm on one occasion, it would effectively criminalize
membership in the class itself. Nothing in the statute, however,
suggests that Congress sought to punish persons by reason of
their legal status alone.
Section 922(k) seeks to achieve entirely different ends. It
makes it unlawful for any person to knowingly possess a firearm
which has had its serial number defaced. Such a gun poses a
special threat to the community because its chain of custody,
often essential in solving crimes, is virtually impossible to
establish. Thus, it is the obliteration of serial numbers
Congress targeted in § 922(k), not solely the possession of the
With these enactments, Congress has established that an illicit
drug user who possesses a firearm is culpable, and that any
person who knowingly possesses a firearm with a defaced serial
number is also culpable. It follows, without offending the
prohibition against double jeopardy, that an illicit drug user
who knowingly possesses a firearm with a defaced serial number
may be deemed more culpable, and subject to multiple punishment,
such person has committed not one but two distinct offenses.
II. SEVERANCE OF INDICTMENT
Fed.R.Crim.P. 8(a) provides that two or more offenses may be
charged in the same indictment if the offenses "are of the same
or similar character or are based on the same transaction or on
two or more acts or transactions connected together or
constituting parts of a common scheme or plan." Rule 8 "reflects
a policy determination that gains in trial efficiency outweigh
the recognized prejudice that accrues to the accused." United
States v. Turoff, 853 F.2d 1037, 1042 (2d Cir. 1988); accord
United States v. Orena, 986 F.2d 628, 631 (2d Cir. 1993)
(Government may properly employ joint trials "as a means of
economizing judicial and other resources", and comply with its
due process obligations).
Notwithstanding proper joinder, counts charged in the same
indictment may be severed, under Fed.R.Crim.P. 14, if joinder
presents a risk of prejudice. Given the balance struck by Rule 8,
which "authorizes some prejudice" against the defendant, a
defendant who seeks separate trials under Rule 14 carries a heavy
burden of showing that joinder will result in "substantial
prejudice." Turoff, 853 F.2d at 1043; accord United States v.
Cervone, 907 F.2d 332, 341 (2d Cir. 1990) (defendant must show
he was so severely prejudiced by spillover evidence that joint
trial constituted a miscarriage of justice).
The two counts charged against Bastian are properly joined
under Rule 8(a), as both charges arise out of a single event and
require much of the same evidence. Bastian's allegations of
prejudice are insufficient to overcome his heavy burden. Evidence
of Bastian's drug use would not necessarily suggest to a jury
that he has a propensity to possess a firearm with a defaced
serial number. In any event, a proper limiting instruction will
safeguard Bastian's right to a fair trial, as juries are presumed
to follow such instructions. See Zafiro v. United States,
506 U.S. 534, 540-41, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Neither
severance nor bifurcation is necessary for Bastian to receive a
fair trial on both counts.
Bastian's motion to dismiss Count Two of the indictment, or, in
the alternative, for an order granting a severance of Counts One
and Two, is denied. The parties are reminded that the final
pre-trial conference is scheduled for 16 October 2000 at 4:30 PM.
© 1992-2003 VersusLaw Inc.