United States District Court, N.D. Georgia, Atlanta Division
NON-FINAL REPORT AND RECOMMENDATION
K. LARKINS III United States Magistrate Judge.
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
Summary of Charges and Procedural Background
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.[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).
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.
Devin Jackson's Motion to Dismiss Count Four
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.]
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. 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)).
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)).
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)).
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).
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.
Devin Jackson's Motion to Suppress
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 ...