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United States v. Foster

United States District Court, W.D. Kentucky, Louisville Division

November 21, 2018

JUVON FOSTER, Defendant.


          DAVID J. HALE, JUDGE

         Defendant Juvon Foster has moved the Court to dismiss the Indictment against him. (Docket No. 36) Foster contends that the relevant statute is ambiguous as to whether the remaining charged offense is a substantive offense and that the ambiguity should be resolved in his favor. (Id.) The United States maintains that the statutory language unambiguously creates a substantive offense. (D.N. 40) Having carefully considered the parties' oral argument and briefing on this issue, the Court will deny Foster's motion to dismiss.

         I. BACKGROUND

         Foster was originally charged with two counts: theft of a firearm under 18 U.S.C. § 924(1) (Count I) and possession of a firearm by a prohibited person under §§ 922(g)(1) and 924(a)(2) (Count II). (D.N. 1, PageID # 5) The government filed a motion in limine to prevent Foster from arguing that he was not a convicted felon at the time of his alleged possession of the firearm. (D.N. 24) After discussion with the Court and defense counsel, the government determined that it was appropriate to dismiss the felon-in-possession charge, and the Court granted the United States' motion to dismiss Count II. (D.N. 34; D.N. 41) The remaining count is the subject of Foster's motion to dismiss. (D.N. 36)

         II. STANDARD

         Though Foster cites no rule in support of his motion to dismiss, the Court construes the motion as one made pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B)(v). Under that rule, a criminal defendant may move to dismiss an indictment that “fail[s] to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Anderson, 605 F.3d 404, 411 (6th Cir. 2010) (alteration in original) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'” Hamling, 418 U.S. at 117 (quoting United States v. Carll, 105 U.S. 611, 612 (1882)). Here, Foster argues that § 924(1) is merely a penalty enhancement and thus does not set forth the elements of any offense. (D.N. 39, PageID # 93)

         III. ANALYSIS

         Foster's principal argument is that 18 U.S.C. § 924(1) is so ambiguous as to require the Court to apply the rule of lenity. (D.N. 39, PageID # 91-97) Under that rule, the Court must resolve any ambiguity in a criminal statute in favor of the defendant. United States v. Santos, 553 U.S. 507, 513 (2008). The rule of lenity embodies “the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain.” Id. However, “[t]he simple existence of some statutory ambiguity . . . is not sufficient to warrant application of th[e] rule, for most statutes are ambiguous to some degree.” Muscarello v. United States, 524 U.S. 125, 138 (1998); see also Smith v. United States, 508 U.S. 223, 239 (1993) (“The mere possibility of articulating a narrower construction . . . does not by itself make the rule of lenity applicable.”). Rather, “[t]o invoke the rule, [the Court] must conclude that there is a grievous ambiguity or uncertainty in the statute.” Muscarello, 524 U.S. at 138-39 (citation omitted). The rule thus applies only when there is such grievous ambiguity that after considering all available sources, “the Court must simply guess as to what Congress intended.” United States v. Morales, 687 F.3d 697, 701 (2012) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). The Sixth Circuit has referred to the rule of lenity as “a tiebreaker of last resort.” Id. (quoting United States v. Canal Barge Co., 631 F.3d 347, 353 (6th Cir. 2011)).

         When interpreting a statute, the Court “looks ‘first and foremost' to the text of the statute.” United States v. Ables, 167 F.3d 1021, 1028 (6th Cir. 1999) (quoting United States v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994)). Section 924(1) reads: “A person who steals any firearm which is moving as, or is a part of, or which has moved in, interstate or foreign commerce shall be imprisoned for not more than 10 years, fined under this title, or both.” According to Foster, § 924(1) “is ambiguous as to whether it is stating an offense, ” and the Court should resolve this doubt in his favor. (Id., PageID # 91) The Court disagrees.

         Foster first points to the title of § 924-“Penalties”-as evidence that § 924(1) is merely a penalty enhancement to be applied in conjunction with another federal offense. (D.N. 36, PageID # 86-87; D.N. 39, PageID # 92) The title of a statutory section “cannot limit the plain meaning of the text, ” however. United States v. Michael, 882 F.3d 624, 629 (6th Cir. 2018) (quoting Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529 (1947)). The Court thus gives it little weight.

         Foster next asserts that “[e]ach of the subsections in § 924, other than (1), requires the commission of an offense to trigger the § 924 penalty” (D.N. 39, PageID # 92), and he concludes that “§ 924 is a penalties section only and requires a violation of an additional and otherwise detailed statute.” (Id., PageID # 93) Although most § 924 provisions do refer to other statutory offenses, the fact that some do not undercuts Foster's argument. See, e.g., 18 U.S.C. §§ 924(b), (g)(3), (m). “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acted intentionally and purposely in the disparate inclusion or exclusion.” United States v. Satterwhite, 893 F.3d 352, 358 (6th Cir. 2018) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). The Court thus presumes that Congress acted intentionally when it omitted an associated offense from some § 924 sections: if Congress had intended every provision in § 924 to be a penalty enhancement for a particular statutory offense, it could have included a reference to such an offense with every provision.

         This conclusion is bolstered by another subsection of the same statute: § 924(m). While Foster characterizes § 924(1) as “stand[ing] alone in not requiring a violation of any other criminal statute” (D.N. 39, PageID # 93), § 924(m) is similar. It reads: “A person who steals any firearm from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall be fined under this title, imprisoned not more than 10 years, or both.” Both § 924(1) and § 924(m) include “steals any firearm” as the criminal conduct; both include the same penalty of “fined under this title, imprisoned not more than 10 years, or both”; and neither contains any reference to § 922 or any other statute.[1]

         In light of these similarities, it is noteworthy that the Sixth Circuit has affirmed convictions under § 924(m), including as a standalone offense. See, e.g., United States v. McCarty, 645 Fed.Appx. 367, 367 (6th Cir. 2016) (“Xavier Velvie McCarty appeals the sentence imposed after he was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and theft of firearms from a licensed dealer, in violation of 18 U.S.C. § 924(m).”); United States v. Sweet, 776 F.3d 447, 448 (6th Cir. 2015) (“Sweet and Cook each pled guilty to two counts of theft of firearms from a licensed dealer, in violation of 18 U.S.C. § 924(m).”). The Court likewise finds it significant that at least one circuit court of appeals has considered and upheld convictions under § 924(1). See, e.g., United States v. Warner, 820 F.3d 678, 680 (4th Cir. 2016) (“[A] federal grand jury returned an indictment against Warner, charging him with stealing a firearm that had moved in interstate commerce and aiding and abetting the same, in violation of 18 U.S.C. §[] 924(1) . . . .”); United States v. Harrison, 568 Fed.Appx. 236 (4th Cir. 2014) (affirming a 24-month sentence for a conviction under § 924(1) only). Moreover, the United States Sentencing Guidelines clearly contemplate that both § 924(1) and § 924(m) will be treated as substantive offenses. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(4)(A) (referring to 18 U.S.C. §§ 924(1) and (m) as “offenses involving a stolen firearm or stolen ammunition”).

         Moving beyond the text of the statute, Foster argues that if the statutory language “is not unambiguous on its face, a court looks to the legislative history and the statutory scheme.” (D.N. 39, PageID # 94) While it is true that the Court should consider the legislative history to interpret an ambiguous statute, the Court does not find § 924(1) to have the requisite ambiguity. See In re Danny's Markets, Inc., 266 F.3d 523, 525 (6th Cir. 2001) (quoting United States v. Markwood, 48 F.3d 969, 975 n.7 (6th Cir. 1995)). In any event, Foster admits that “there is very little legislative history pertaining to § 924(1), ” as Congress included no commentary ...

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