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United States v. Jackson

United States District Court, N.D. Georgia, Atlanta Division

September 5, 2018

UNITED STATES OF AMERICA,
v.
DEVIN VAN JACKSON 3

          NON-FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III United States Magistrate Judge.

         This report and recommendation addresses the following pending motions filed on behalf of Defendant Devin Van Jackson (“Devin Jackson”): his Motion to Dismiss Count Four [Doc. 88], and his “Motion to Suppress the Fruit of the Search Warrant of His Abode and Any and All Statements Due to Fourth and Fifth Amendment Violations” [Doc. 89]. For the following reasons, the Court RECOMMENDS that the motions be DENIED.

         I. Summary of Charges and Procedural Background

         On March 27, 2018, a federal grand jury seated in the Northern District of Georgia returned a twelve-count superseding indictment against Devin Jackson and four other defendants: Forrest Eugene Mays, Ryan Michael Jackson (“Ryan Jackson”), Keenan Justin Jackson (“Keenan Jackson”), and Keith Garett Shelton.[1][Doc. 31.] Devin Jackson is charged in Counts One through Four of the superseding indictment. Specifically, in Count One, he, Mays, Ryan Jackson, and Keenan Jackson, are charged with conspiracy distribute and possess with intent to distribute controlled substances, namely, cocaine, marijuana, and alprazolam (known commercially as Xanax), in violation of 21 U.S.C. §§ 841(a)(1) and 846. In Count Two, the same defendants are charged with possession with intent distribute cocaine, marijuana, and alprazolam in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 841(b)(1)(E)(2), as well as 18 U.S.C. § 2. In Count Three, they are charged with possession of at least one firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. Finally, in Count Four, Devin Jackson is singly charged with possession of a firearm and ammunition while being an unlawful user of a controlled substance, namely marijuana, in violation of 18 U.S.C. § 922(g)(3).

         Devin Jackson has moved to dismiss Count Four on the basis that 18 U.S.C. § 922(g)(3) is unconstitutionally vague. [Doc. 88.] He has also moved to suppress the search of his residence and subsequent statements he made to law enforcement on the grounds that the search warrant affidavit for the search of the residence failed to establish probable cause. [Doc. 89.] The government opposes both motions. [Docs. 92, 101.] Devin Jackson has not filed any reply, and time for filing reply briefs has expired; accordingly, the motions are now ripe for resolution.

         II. Devin Jackson's Motion to Dismiss Count Four

         In Count Four, Devin Jackson is charged with possession of a firearm “while being an unlawful user of a controlled substance, ” in violation of 18 U.S.C. § 922(g)(3), which makes it unlawful for any person “who is an unlawful user of or addicted to any controlled substance . . . to possess in or affecting commerce, any firearm or ammunition[.]” Devin Jackson urges the Court to dismiss Count Four on the grounds that § 922(g)(3) is unconstitutionally vague in violation of the due process clauses of the Fifth and Fourteenth Amendments. [Doc. 88.] Specifically, he argues that the term “unlawful user” is undefined and, therefore, fails to provide fair notice of what conduct is prohibited by the statute; as such, he maintains, § 922(g)(3) is unconstitutionally vague. [Id. at 2-3.] He further argues that § 922(g)(3) is unconstitutionally vague as applied to him because the charge appears to be based on his confession that he “previously used controlled substances, without any indication of when that prior use was in relation to his possession of a firearm, how often it occurred, and if his use was ongoing.” [Id. at 3.]

         “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983) (collecting cases). Importantly, for present purposes, “[e]xcept where First Amendment rights are involved, vagueness challenges must be evaluated in the light of the facts of the case at hand.” United States v. Marte, 356 F.3d 1336, 1342 (11th Cir. 2004) (quoting United States v. Fisher, 289 F.3d 1329, 1333 (11th Cir. 2002)); see also United States v. Jernigan, No. 1:14-cr-24-AT-JFK, 2015 WL 1781747, at *2 (N.D.Ga. Apr. 10, 2015), adopted, Id. at *1. Thus, the Court must evaluate any vagueness challenge as an as-applied challenge.[2] In other words, the issue before the Court is whether the language of § 922(g)(3) gave Devin Jackson “‘fair notice' that his conduct was criminal.” United States v. Mozie, 752 F.3d 1271, 1282-83 (11th Cir. 2014) (citing United States v. Williams, 553 U.S. 285, 304 (2008)).

         Because Devin Jackson's vagueness challenge must proceed on an as-applied basis, his motion to dismiss is procedurally premature and should be denied without prejudice. Federal Rule of Criminal Procedure 12(b)(1) authorizes criminal defendants to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” “A motion is capable of pretrial determination ‘if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity' of the motion.” United States v. Turner, 842 F.3d 602, 604-05 (8th Cir. 2016) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). In contrast, “a court may not dismiss an indictment . . . on a determination of facts that should have been developed at trial.” United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) (quoting United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir. 1987)).

         To resolve the present void-for-vagueness challenge at the present juncture, the Court would have to either make fact findings relating to the charged conduct prior to trial, or, alternatively, employ some sort of procedural mechanism similar to summary judgment, where the Court would view the facts in the light most favorable to one of the parties. The Court is not authorized to do either of those things. As just discussed, this Court may not dismiss an indictment based on a determination of facts that should be developed at trial. Likewise, the Eleventh Circuit has held that “[t]here is no summary judgment procedure in criminal cases.” United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004) (citing United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992)).

         Accordingly, the procedurally proper approach is for Devin Jackson to raise his vagueness challenge after the close of the government's case on a Rule 29 motion for judgment of acquittal. See, e.g., Mozie, 752 F.3d at 1280 (considering void-for-vagueness challenge raised in motion for judgment of acquittal); United States v. Graves, No. 1:13-CR-417-WSD-JSA, 2014 WL 2589428, at *10 (N.D.Ga. June 9, 2014), adopted, id. at *5 (deferring as-applied challenge to federal anti-kidnapping statute until after close of government's case-in-chief and “full resolution of the facts”). Indeed, courts across the country have held that resolution of a pretrial void-for-vagueness challenges to § 922(g)(3) should be deferred until trial. See, e.g., Turner, 842 F.3d at 605 (holding that a trial on the merits was needed to decide the motion to dismiss, and district court erred by ruling on it prior presentation of facts at trial); United States v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997) (holding that it was error for district court to consider as-applied vagueness challenge to § 922(g)(3) prior to trial); United States v. Westley, No. 3:17-cr-171 (MPS), 2018 WL 18362912, at *3 (D. Conn. April 17, 2018) (deferring as-applied challenge to § 922(g)(3) until trial); United States v. Nguyen, No. 13-CR-6044L, 2014 WL 1512030, at *15 (W.D.N.Y. Apr. 7, 2014), report and recommendation adopted, 2014 WL 1795045 (W.D.N.Y. May 6, 2014) (same); United States v. Bastian, 112 F.Supp.2d 378, 380 (S.D.N.Y. 2000) (same).

         For these reasons, the Court concludes that it would be premature to entertain an as-applied vagueness challenge to § 922(g)(3) before trial. Accordingly, it is recommended that Devin Jackson's motion to dismiss be denied without prejudice to renew the challenge following the presentation of the government's evidence at trial.

         III. Devin Jackson's Motion to Suppress

          Devin Jackson separately moves to suppress evidence that the government seized pursuant to a search warrant for Devin Jackson's residence at 2327 Jones Road, Atlanta, Georgia (the “Jones Road Residence”), as well as any statements that he made that “were the result of the faulty warrant.” [Doc. 89 at 1-3.] He argues that the affidavit supporting the search warrant did not adequately summarize the affiant's experience ...


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