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
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 ...