JENNIFER A. DORSEY, United States District Judge

Daniel J. Cowhig, David C. Kiebler, U.S. Attorney's Office - District of Nevada, Las Vegas, NV, for Plaintiff. Keisha K. Matthews, Katie Chadliev, Heidi A. Ojeda, Federal Public Defender, District of Nevada, Las Vegas, NV, for Defendant. Order Overruling Objections, Adopting Reports and Recommendations, and Denying Motions to Dismiss [ECF Nos. 27, 28, 34, 35] JENNIFER A. DORSEY, United States District Judge

Dajuan Gamble is charged with illegally possessing a rifle and a handgun and now moves to dismiss his indictment. He joins a chorus of defendants nationwide challenging the constitutionality of his charging statute, 18 U.S.C. § 922(g)(1), after the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen established a new test to analyze the constitutionality of firearm regulations. He also moves to dismiss the rifle-related portions of his indictment based on the government's failure to collect DNA from that firearm before sending it out for other testing, which precluded the opportunity for DNA testing. The government opposes both motions, asserting that individuals with felony convictions are not protected under the Second Amendment and the government did not act in bad faith when it failed to DNA test the rifle. The magistrate judge recommends that I deny both motions, and after a de novo review, I do.

Background

In September 2022, Gamble was outside the Economy Motel in downtown Las Vegas when he exchanged gunfire with an unknown passenger inside a van. The motel's security system recorded video of the incident, and Las Vegas Metropolitan Police Department (Metro) officers recognized Gamble on the recordings. The security video shows Gamble firing a handgun at the van, entering a motel room, and leaving the same motel room carrying a black bag. Officers received an anonymous tip that Gamble hid the handgun in the boiler room of the motel. With the manager's permission, officers searched the boiler room and found the handgun partially hidden underneath a black bag. Officers noted that the black bag appeared similar to the one that Gamble carried in the security video, but there was no video footage of Gamble accessing the boiler room. Officers obtained a warrant to search the bag and discovered a rifle inside it. Gamble, a previously convicted felon, was indicted on one count of being a felon in possession of a firearm under 18 § U.S.C. § 922(g)(1) and 924(a)(2).

The handgun and its magazine were sent to Metro's laboratory for DNA testing. But the rifle was missing a component part, so it was shipped to a testing facility in Maryland to determine whether it qualified as a firearm under the statute. In accordance with Metro's policy, the rifle could no longer be tested for DNA evidence after it left Metro's laboratory. The black bag was later submitted for DNA testing in response to Gamble's motion to dismiss, but the results were inconclusive.

Gamble brings two motions to dismiss. In the first one, he contends that his charging statute violates his Second Amendment right because the Supreme Court's recent decision in Bruen abrogated prior Ninth Circuit Court of Appeals' jurisprudence that upheld § 922(g)(1) as constitutional. In his second motion, he argues that his due-process rights were violated when Metro destroyed exculpatory DNA evidence on the rifle. Gamble alternatively requests an adverse-inference instruction at trial because the lost DNA evidence prejudices his defense. The government responds, arguing that individuals with felony convictions are not protected under the Second Amendment and § 922(g)(1) satisfies Bruen'stest because the statute is consistent with longstanding tradition. It also avers that it did not act in bad faith when it sent the rifle to Maryland because the exculpatory value of DNA evidence on the rifle is not apparent.

In two separate reports and recommendations, the magistrate judge recommends that I deny both motions because the Ninth Circuit's decision in United States v. Vongxay—the case that deemed § 922(g)(1) constitutionally sound—is still controlling law under Bruen, and the facts of this case do not support a finding that DNA evidence on the rifle is exculpatory. She also recommends that I deny Gamble's request for an adverse-inference instruction at trial because the government's conduct did not prejudice him. Gamble objects to both recommendations, arguing that Vongxay does not pass Bruen'snewly minted historical-tradition test, Metro acted in bad faith because it knew the exculpatory value of the lost DNA evidence, and there is no comparable evidence for Gamble to rely on. But if the case continues to trial, he asserts that an adverse-inference instruction is warranted because he was prejudiced by the loss of any DNA evidence on the rifle.

Discussion

A district court reviews objections to a magistrate judge's proposed findings and recommendations de novo. "The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions." The standard of review applied to the unobjected-to portions of the report and recommendation is left to the district judge's discretion. Local Rule IB 3-2(b) requires de novo consideration only of specific objections. A. § 922(g)(1) satisfies the new test in Bruen , and Gamble's prosecution under that statute does not violate the Second Amendment.

Gamble is not the first defendant to challenge the constitutionality of § 922(g)(1)—the statute criminalizing firearm possession by individuals with felony convictions—after the Supreme Court's decision in Bruen. Bruen established a new test for courts to apply when analyzing Second Amendment challenges. Many courts are now grappling with the legal questions left in Bruen's wake.

The Supreme Court's pre-Bruen decisions established a two-step approach to analyze Second Amendment challenges. Under D.C. v. Heller and McDonald v. City of Chicago, a court asked (1) whether the challenged regulation fell within the scope of the Second Amendment and, if so, (2) what level of scrutiny was required to analyze that regulation. But the Bruen Court found this test to contain "one step too many." Although a court must now stop after step one, it must consider two distinct analytical questions there: whether "the Second Amendment's plain text covers an individual's conduct" and, if so, whether the regulation "is consistent with the nation's historical tradition of firearm regulation." The first question requires "a textual analysis focused on the normal and ordinary meaning of the Second Amendment's language." The second demands a historical assessment in which a court looks to the historical record to determine how the Second Amendment was interpreted around the time of ratification up through the 19th century.

1. Bruen did not abrogate Vongxay .

Gamble argues in his motion to dismiss that Bruen's new test abrogated all prior Ninth Circuit Second Amendment decisions—including Vongxay, a decision that upheld the constitutionality of § 922(g)(1). In her report and recommendation, the magistrate judge found that Vongxay was not abrogated by Bruen; rather, Vongxay is consistent with all three Supreme Court holdings in Heller, McDonald, and Bruen. She explained that Vongxay performed the textual and historical-tradition analysis required by the new one-step test, which confirmed § 922(g)(1)'s constitutionality.

Gamble objects to the magistrate judge's finding, arguing that Vongxay is not controlling law. He theorizes that the Ninth Circuit's recent decision in Teter v. Lopez demonstrates this circuit's intention to abrogate its earlier Second Amendment jurisprudence. Gamble explains that the Teter court found that two Ninth Circuit cases were abrogated by Bruen—United States v. Chovan, which challenged the constitutionality of a ban on domestic-violence misdemeanants' firearm possession; and Fyock v. Sunnyvale, which challenged city ordinances restricting large-capacity magazines—the court is poised to abrogate other Second Amendment decisions. But the Chovan and Fyock courts could not or did not establish a longstanding historical tradition that would justify the firearm prohibitions they were evaluating. And because Bruen requires a textual and historical-tradition test, it follows that these two cases would be abrogated by Bruen. So Teter at most signals the Ninth Circuit's intention to abrogate Second Amendment precedent that can't pass Bruen's textual and historical-tradition test.

The magistrate judge found that Vongxay does pass that test. She reasoned that "the plain text of the Second Amendment does not reach protection of a felon's firearm possession," and prohibiting gun possession by felons "is consistent with the Nation's historical regulations of firearms." Gamble objects to that finding. He argues that the Vongxay court "vacillated on the underlying historical question," which signifies its indecision on the matter. He also contends that Vongxay's historical analysis is too thin to satisfy the new Bruen test, for Bruen requires a "firm historical tradition of distinctly similar gun regulations."

Gamble overstates the similarity that Bruen demands. The Court in Bruen recognized that, although a court should not uphold every modern law that has a remote historical counterpart, it is also not necessary that the government find a "historical twin" to a modern-day law. "So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster."

The Vongxay court did examine the text of the Second Amendment and the historical tradition of restricting felons' gun rights. The court found that "denying felons the right to bear arms is consistent with the explicit purpose of the Second Amendment." It also identified analogous historical regulations that excluded felons from militias and the right to bear arms. Because the Vongxay court performed a historical-tradition analysis and concluded that history supports gun-possession limits on felons, I find that Vongxay is consistent with Bruen and remains controlling law.

2. § 922(g)(1) satisfies Bruen's new test and remains constitutional.

Even if Vongxay's analysis is too thin to render it controlling law post Bruen, its conclusion that § 922(g)(1) passes constitutional muster remains sound under the new test. Gamble objects to the magistrate judge's finding that the statute satisfies the first part of the Bruen test. He contends that the Second Amendment protects "the right of the people to keep and bear [a]rms," and individuals with felony convictions are still included in "the people" the founders intended to protect. The magistrate judge emphasized the Supreme Court's use of the phrase "law-abiding citizen" in Heller, McDonald, and Bruen and opined that it signified a limitation on Bruen'sholding and the Second Amendment more broadly. Gamble objects that "law-abiding citizen" is just dicta in Heller.

The High Court's statement in Heller that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons" was more than mere dicta as it was incorporated into the Court's analysis of "the historical understanding of the scope of the right" and its "limitations." Justice Kavanaugh's concurrence in Bruen also emphasized that the "Second Amendment allows a variety of gun regulations," quoting this very same sentence from Heller as support. So Bruen does not contradict Heller on the issue of felon-gun possession; rather it reinforces Heller'sconclusion that individuals with felony convictions fall outside the scope of the Second Amendment's protections.

Gamble then objects to the magistrate judge's conclusion that § 922(g)(1)passes the second part of the Bruen test because there is a longstanding history and tradition of limiting gun possession by felons, arguing that the first such restriction was only imposed in the 20th century, so it is not a longstanding tradition. He also contends that the magistrate judge erroneously relied on historical evidence of gun-restriction proposals that never became law.

While it is true that restrictions on felons' gun rights that most closely resemble § 922(g)(1)didn't emerge until the early 20th century, it is not necessary that § 922(g)(1)have a historical twin, just that there is an analogous precursor. And here, there is evidence of limitations on the gun rights of suspect or dangerous individuals that pre-dates our nation's founding. Although historical records from that period can be vague or sparse, a majority of courts have found a history and tradition of limiting the gun rights of individuals who stray from the law or legal norms. Because individuals with felony convictions fall into this category, § 922(g)(1)is consistent with that longstanding historical tradition.

In sum, I find that Vongxay remains controlling law and binds me to conclude that § 922(g)(1)and Gamble's prosecution under that statute are constitutional. But even if Bruen abrogated that Ninth Circuit authority, Gamble's challenge fails because § 922(g)(1)passes both prongs of Bruen's test. So I overrule Gamble's objections, adopt the magistrate judge's recommendation, and deny Gamble's motion to dismiss his indictment based on an alleged Second Amendment violation.

B. Gamble's spoliation argument does not merit dismissal because the exculpatory value of DNA evidence on the rifle was not apparent.

Gamble brings a second motion to dismiss in which he argues that the portion of his firearm charge related to the rifle should be dismissed based on spoliation of evidence. Gamble theorizes that Metro knew that there was potential exculpatory DNA evidence on the black bag and rifle because it only sent the pistol and its magazine for testing, even though police found the rifle and handgun at the same time and in the same place. He argues that there is no comparable evidence because Metro sent the rifle out to a testing facility in Maryland to determine whether it could be classified as a firearm, so the rifle can no longer be submitted for DNA testing in accordance with Metro's protocol. The magistrate judge recommends that I reject Gamble's spoliation argument, reasoning that Metro had no affirmative duty to conduct DNA testing because the facts do not support the finding that the rifle and black bag contained exculpatory evidence. Gamble objects that the government knew the exculpatory value of the DNA evidence on the rifle because an officer applying for a warrant to retrieve Gamble's DNA hoped to compare it against "any and all firearms," and this admission establishes Metro's bad faith.

1. A spoliation dismissal requires knowledge of the exculpatory value of lost evidence.

The due-process clause requires the government to preserve evidence "that might be expected to play a significant role in the suspect's defense." "The government violates a defendant's due process rights when it destroys potentially exculpatory evidence in bad faith." The "presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed." And "[b]ad faith requires more than mere negligence or recklessness." When deciding whether to dismiss a defendant's indictment based on lost or destroyed evidence, the court must view the evidence in the light most favorable to the government.

2. The exculpatory value of rifle DNA is not apparent.

That a DNA test on the rifle would have been exculpatory for Gamble was—and remains—not apparent. Evidence is exculpatory when it tends "to establish a criminal defendant's innocence," and "[f]or evidence to be materially exculpatory, its exculpatory nature must be apparent." But the exculpatory value of evidence "is not 'apparent' when the evidence merely 'could have' exculpated the defendant." And here, DNA evidence from the rifle merely could have exculpated Gamble.

There are four likely outcomes of a DNA swab of a firearm: (1) the defendant's DNA is found on the gun; (2) only someone else's DNA is found; (3) no DNA is found; or (4) there's a mix of DNA, and just who it belongs to can't be determined. Because any one of these results could be expected from a DNA test of the rifle, at best, Gamble could get lucky with scenario 2 or 3. But even that would merely mean that Gamble didn't leave DNA on the rifle, not that he never possessed it. So, at best, that favorable result only "could have" exculpated Gamble. Also possible is scenario 1, which would have further incriminated him. Similar considerations caused the Ninth Circuit to find in U.S. v. Drake that a lost digital-surveillance video did not violate a robbery defendant's due-process rights because "it [wa]s possible that [the video] would have further incriminated" the defendant.

DNA testing of the black bag in which the rifle was found portends the more likely result. It found a mixture of DNA from five individuals, at least two of whom were male. Since the profiles were so mixed, "no additional conclusions [could] be made." Because the exculpatory value of any DNA testing of the rifle is not apparent, the government did not act in bad faith when it sent the rifle to Maryland for other testing, thus foreclosing Gamble's chance to have the rifle DNA tested. So I overrule Gamble's objection and deny his motion to dismiss based on spoliation.

C. An adverse jury instruction is not warranted.

Gamble alternatively moves for an adverse-inference instruction at trial, arguing that whether his DNA was on the rifle goes to an essential issue of the case. The magistrate judge recommends that I deny that request, too, because the factors required for a remedial jury instruction balance in favor of the government. Gamble objects that the factors balance in his favor because there is no substitute for DNA evidence on the rifle.

A court must weigh "the quality of the Government's conduct against the degree of prejudice to the accused" to determine whether to provide a remedial jury instruction. When evaluating the government's conduct, a court must ask if (1) the evidence was lost or destroyed while in the government's custody, (2) the government disregarded the defendant's interests, (3) the government was negligent in failing to adhere to established and reasonable standards of care for police and prosecutorial functions, (4) the acts were deliberate, whether they were taken in good faith or with reasonable justification, and (5) the government attorneys prosecuting the case participated in the loss or destruction of the evidence. When evaluating prejudice to the defendant, a court must consider (1) the centrality and importance of the evidence in establishing motive, intent, or elements of the crime; (2) the reliability of any secondary evidence; (3) the defendant's loss of any factual inferences; and (4) the effect on the jury from the absence of evidence, including speculation and bias. In the end, "the government bears the burden of justifying its conduct."

An adverse jury instruction is not warranted here because the quality of the government's conduct outweighs any prejudice to Gamble. Gamble argues that the government disregarded his interests when it sent the rifle for testing before his counsel had the opportunity to view it. The government responds that the parties arranged a viewing after the rifle returned from Maryland, but Gamble's counsel was a no-show. Although the rifle was in the government's control when it was sent to Maryland for testing—precluding any further opportunity for DNA testing in accordance with Metro's policy—the prejudice to Gamble is limited. The absence of DNA evidence does not establish an element of a crime in the same way that the presence of DNA might. And as exemplified by the DNA results from the bag, the factual inferences that may be gained from unidentifiable DNA on the rifle are not apparent. So I adopt the magistrate judge's recommendation and deny Gamble's request for a remedial jury instruction.

Conclusion

IT IS THEREFORE ORDERED that Gamble's objections [ECF Nos. 38, 39] are OVERRULED, the magistrate judge's recommendations [ECF Nos. 34, 35] are ADOPTED, and Gamble's motions to dismiss [ECF Nos. 27, 28] are DENIED.

REPORT AND RECOMMENDATION

Re: Motion to Dismiss (ECF No. 27) ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE

I. Introduction and Summary.

Pending before the Court is the Motion to Dismiss a one count indictment charging Defendant with violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant argues the United States Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen renders unconstitutional the bar to firearm possession by felons found in § 922(g)(1). Defendant contends he is among the "people" entitled to own firearms under the Second Amendment irrespective of his prior felony convictions. Defendant submits that when the Bruen test for determining whether a statutory firearm restriction impermissibly burdens Second Amendment rights is applied to § 922(g)(1), the statute fails that test.

The United States responds to Defendant's Motion by first describing Defendant's long criminal history involving drug offenses, accessory to murder, prohibited ownership of firearms, prohibited use of firearms, and possession of stolen property. The government then argues neither Bruen nor holdings in Bruen's predecessor U.S. Supreme Court decisions render § 922(g)(1) unconstitutional. Simply stated, the government submits the Second Amendment does not protect a felon's right to possess a firearm. The government quotes the Supreme Court holding in Heller as establishing that Second Amendment rights do not undermine "longstanding prohibitions on the possession of firearms by felons . . . ." The government cites the 2010 Supreme Court decision in McDonald, reiterating the 2008 Heller decision, in which the Court stated that its "holding did not cast doubt on such longstanding regulatory measures as 'prohibition on the possession of firearms by felons . . . .' " The government also points to enumerable decisions inside and outside of the Ninth Circuit in which federal courts have determined 18 U.S.C. § 922(g)(1) is constitutional.

II. Discussion

A. The Heller, McDonald, and Bruen Decisions .

The Second Amendment states: "A well regulated Militia, being necessary to the security of a free States, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. AMEND. II. In Heller, the Supreme Court found the Second Amendment "confers an individual right to keep and bear arms . . . the core lawful purpose [of which] is self-defense." However, the Heller Court made clear that this right "is not unlimited." Heller refers to "law-abiding citizens" and "law abiding responsible citizens" when addressing to whom its holding applies. The Court further stated:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken

to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[]

In 2010, the Supreme Court issued the McDonald decision holding the Second Amendment applies to the states as well as federal government. With respect to this case, the Court stated:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. . . . We repeat those assurances here.[]

In 2022, the Supreme Court issued Bruen that stuck down a New York City licensing scheme in which applications for concealed carry permits could be denied based on an inability to prove "proper cause" to carry a handgun in public. The Bruen Court stated:

In . . . Heller . . . and McDonald . . . we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to

carry a handgun for self-defense outside the home.[]

New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.[]

[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States' "shall-issue" licensing regimes, under which a general desire for self-defense is sufficient to obtain a [permit]. . . . Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry. . . . Heller, 554 U.S. [at] 635 . Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens."[]

B. United States v . Vongxay Was Not Abrogated by Heller, McDonald, or Bruen .

Defendant argues the holding in Bruen "abrogate[d] all prior Ninth Circuit decisions—indeed, all federal court of appeals decisions everywhere—about firearms restrictions," including United States v. Vongxay. The government submits the Justices' "statements in Bruen . . . confirm that it is not 'clearly irreconcilable' with Vongxay."

The U.S. District Court for the District of Nevada is bound by Ninth Circuit precedent unless that precedent is "effectively overruled," which occurs when "the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority." "The clearly irreconcilable requirement is a high standard." "[I]t is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent."

As other district courts in the Ninth Circuit have found, this Court finds Vongxay is not clearly irreconcilable with Heller, McDonald or Bruen as nothing in these opinions "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." There is nothing in these opinions that is irreconcilable with finding 18 U.S.C. § 922(g)(1) is constitutional—the holding adopted in Vongxay.

The analysis scheme adopted by Bruen requires the determination of whether the plain text of the Second Amendment covers the conduct at issue—here, a felon's right to possess a firearm. The Supreme Court decisions in Heller and McDonald unmistakably portend, the plain text of the Second Amendment does not reach protection of a felon's firearm possession. The Bruen decision confirms this interpretation of the Amendment through Justices Kavanaugh and Alito's adoption of Heller and McDonald's language signaling what the Court would hold if presented with a § 922(g)(1) challenge. Nonetheless, even if the language in Heller, adopted by McDonald and Bruen, was misinterpreted by the Ninth Circuit in Vongxay, the court justified the statute by demonstrating "it is consistent with the Nation's historical tradition of firearm regulation."

While it is true the court in Vongxay did not explicitly discuss whether the plain text of the Second Amendment reaches felons in possession, the court performed the second part of the Bruen test, which was done to demonstrate § 922(g)(1) is consistent with the Nation's historical regulations of firearms. The court in Vongxay noted "no court that has examined Heller has found 18 U.S.C. § 922(g)(1) constitutionally suspect." The court discussed that prohibiting felons from bearing arms is "consistent with the explicit purpose of the Second Amendment to maintain 'the security of a free State.' " And, the court stated:

We observe that most scholars of the Second Amendment agree that the right to bear arms was "inextricably . . . tied to" the concept of a "virtuous citizen[ry]" that would protect society through "defensive use of arms against criminals, oppressive officials, and foreign enemies alike," and that "the right to bear arms does not preclude laws disarming the unvirtuous citizens (i.e. criminal) . . . ."[]

C. 18 U.S.C. § 922(g)(1) is Not Unconstitutional.

Defendant contends his indictment for unlawful possession of a firearm must be dismissed because he is one of the "people" covered by the Second Amendment, and 18 U.S.C. § 922(g)(1) impermissibly infringes on this constitutional right. In contrast, three Supreme Court decisions regarding Second Amendment rights, Heller, McDonald, and Bruen, state that nothing about these decisions is meant to be interpreted as undermining the longstanding prohibitions on the possession of firearms by felons. The Ninth Circuit decision in Vongxay reached this same conclusion albeit based solely on Heller, which was later adopted by McDonald and Bruen. Vongxay was affirmed in 2016, after the 2010 McDonald decision, at which time the Ninth Circuit stated: "Our decision in Vongxay forecloses . . . [the defendant's] argument, and we accordingly affirm the district court's denial of . . . [the defendant's] motion to dismiss the indictment" under 18 U.S.C. § 922(g)(1). In 2023, the Eastern District of California cited Heller as "affirm[ing] . . . the constitutionality of 'longstanding prohibitions on the possession of firearms by felons" and stated "[t]he [Supreme] Court did not hold otherwise in Bruen." In addition to these cases, there are numerous others federal court decisions rejecting constitutional challenges to § 922(g) before and after Bruen.

Ultimately, the government correctly argues the plain text of the Second Amendment does not protect gun possession by felons; however, even if it does, § 922(g)(1) is consistent with the Nation's historical tradition of firearms regulation. First, the government points to the Crimes Act of 1790 §§ 3 and 8-10, 1 Stat. 113-14 in which serious offenses of murder and robbery were punishable by death. The government makes the logical argument that given such punishment, it was unnecessary to adopt "a collateral consequence" of forfeiting the right to gun ownerships. The government then looks to the reasoning in Heller in which the Supreme Court rejected the notion that the Second Amendment ever reached the right to "keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Heller Court also stated, "[f]or example, the majority of 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

The government submits history demonstrates "gun rights of certain groups have been categorically limited to promote public safety." The government points the Court to the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, in which the report stated: "citizens have a personal right to bear arms unless for crimes committed, or real danger of public injury." The government goes on to cite a similar amendment offered by Samuel Adams to the Massachusetts convention to ratify the U.S. Constitution, and a Seventh Circuit case stating "[m]any of the states, who own constitutions entitled citizens to be armed, did not extend this right to persons convicted of crime." Finally, the government points out that conviction of a crime has led to curtailment of other rights including the fundamental right to vote, the right to serve on a jury, and the right to hold public office. Based on the foregoing, the Court finds the government has met its burden to justify 18 U.S.C. § 922(g)(1) it is consistent with the Nation's historical tradition of firearm regulation and there is not unconstitutional. The conduct with which Defendant is charged falls outside the Second Amendment's unqualified command.

III. Conclusion

Based on (1) the totality of the information presented, (2) the consistent statements by the Supreme Court that its decisions in Heller, McDonald, and Bruen did not alter the longstanding prohibition against felons possessing firearms, and (3) the Heller, McDonald, and Bruen did not abrogate the Ninth Circuit's holding in Vongxay, the Court finds 18 U.S.C. § 922(g)(1), and by extension § 924(a)(2), are not unconstitutional burdens on Defendant's Second Amendment rights.

IV. Recommendation

IT IS THEREFORE RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 27) be DENIED.

NOTICE

Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

REPORT AND RECOMMENDATION

Re: Motion to Dismiss for Spoliation of Evidence (ECF No. 28) ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE

I. Introduction and Summary.

This matter comes before the Court on Defendant's Motion to Dismiss that part of the one count indictment filed against him alleging felon in possession of a firearm—a rifle. It is not disputed that Defendant is a convicted felon and that a rifle was recovered by Las Vegas Metropolitan Police Department ("Metro" or the "LVMPD") on September 1, 2022—the date of the alleged offense. Plaintiff claims Metro failed to swab a black bag, as well as the rifle and magazines found inside the bag, for DNA or fingerprints thus destroying "potentially useful evidence" in violation of Defendant's due process rights. If his Motion to Dismiss for Spoliation is denied, Defendant asks the Court to issue an adverse jury instruction because the United States was obligated to collect and preserve "forensic evidence and make it available" to Defendant upon his request, which the government failed to do. After balancing the government's conduct against the degree of prejudice to Defendant, Defendant concludes an adverse inference instruction is warranted.

The government responds that in the absence of bad faith the charge alleging felon in possession of the rifle cannot be dismissed. The government argues Defendant "cannot demonstrate" that either the original decisions "not to submit the rifle for testing" or the subsequent handling of the rifle "was the result of 'official animus' toward him by the government." The government also submits Defendant cannot show "the evidence was potentially exculpatory and material."

With respect to the requested remedial jury instruction, the government argues there is nothing demonstrating Defendant's DNA was on the rifle when it was gathered as evidence and, therefore, there is nothing to support the conclusion that evidence was lost or destroyed. The government argues that if the rifle is tested now, and no DNA matching Defendant's DNA is found or too many DNA contributors are found to "make a meaningful comparison," Defendant is "in no better position" than he is without testing because "[t]he absence of trace DNA does not show that a person did not touch an object." The government argues if Defendant's DNA is found on the rifle, this is not exculpatory and places Defendant in a "considerably worse position." The government further asserts the outcome of any DNA testing is speculative defeating Defendant's arguments; the presence of trace DNA matching Defendant's DNA is not central to the case; and the absence of DNA evidence favors Defendant as he can argue at trial that there is no DNA evidence connecting him to the rifle. The government concludes the balancing test shows the remedial instruction requested by Defendant is not warranted.

II. Discussion

A. Summary of the Law.

Due process requires the government to preserve evidence "that might be expected to play a significant role in a suspect's defense." To demonstrate the "destruction of evidence . . . rise[s] to the level of a constitutional violation, a party must make two showings." First, the defendant must show "the government acted in bad faith, the presence of absence of which 'turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was destroyed.' " Second, the defendant must also show the missing evidence was "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means."

A finding of bad faith requires the defendant to demonstrate "more than mere negligence or recklessness." Absent bad faith by law enforcement, the "failure to preserve potentially useful evidence does not constitute a denial of due process of law." "[R]equiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." In order to meet this standard, the "exculpatory nature [of the evidence] must be apparent." "[T]he fact that the evidence may have proven exculpatory . . . does not render it per se material." In fact, critical to this case, "[t]he mere failure to preserve evidence which could have been subjected to tests which might have exonerated the defendant does not constitute a due process violation."

In Nicolaas v. Pace, the Western District of Washington considered a 42 U.S.C. § 1983 claim alleging the defendants violated the plaintiff's "constitutional rights by not sooner obtaining the DNA tests that exonerated him." Although a motion for summary judgment was pending, the court framed the issue as a pure legal one: "Whether there is any constitutional requirement for police officers to conduct or commission tests on DNA they extract from suspects." Noting that neither the defendant nor his counsel ever asked for DNA tests on the stolen property at issue, and that there is a limited Due Process right to obtain DNA tests post-conviction, the court stated it was "aware of no authority establishing a constitutional right to access to DNA evidence before trial." The court further found "no court has entertained the notion that police must test DNA evidence. Police may conduct DNA tests . . . [and i]f the tests results are exculpatory, a prosecutor has a constitutional obligation" under Brady v. Maryland. However, "[n]either Brady nor any other precedent of which the court is aware requires DNA tests." The court cited to United States v. Tadros, a Seventh Circuit decision, stating the court "rejected the notion that a defendant can require the government to investigate a case as the defendant prefers." Finally the Western District of Washington stated that where police choose "in bad faith not to perform DNA tests that they believed would be exculpatory, the court might inquire more deeply into what the Constitution requires."

In U.S. v. Drake, the Ninth Circuit addressed, inter alia, a Speedy Trial Act motion and failure to maintain and produce alleged exculpatory evidence. In that case, the defendant allegedly robbed a minimart captured on video. When the officer tried to obtain a copy of the video, they received a "floppy disc containing fourteen" still images. Thirty days after the original recording of the robbery, the system at the minimart automatically deleted the video, which was permanently lost. The Ninth Circuit found the defendant did not demonstrate the video had "exculpatory value that was apparent before the evidence was destroyed." The court stated "[t]he exculpatory value of an item of evidence is not 'apparent' when the evidence merely 'could have' exculpated the defendant." Similar to the government's argument in this case, the court stated "[t]he digital recording of the robbery . . . was far from clearly exculpatory; indeed, it is possible that it would have further incriminated" the defendant.

B. Failure To Test The Rifle In The Black Bag Resting On Top Of The Pistol Found In The Economy Hotel Boiler Room At The Time Of Defendant's Arrest Does Not Violate Defendant's Due Process Rights.

There is no factual dispute that surveillance photographs attached to the Declaration of Warrant/Summons (Exhibit A to Defendant's Motion) show Defendant carrying a black bag on September 1, 2022 at approximately 5:21:30 p.m. outside rooms located at the Economy Hotel on East Freemont Street in Las Vegas, Nevada. There is also no dispute that after Metro was called because of a shooting at the hotel, and after a warrant was issued, a pistol and black bag, sitting on top of the pistol, containing a rifle, magazines, and ammunition were collected from the floor of the hotel's boiler room. The government does not dispute that a decision was made not to submit the rifle for DNA testing. Defendant does not contend he requested access to the bag and rifle to perform his own DNA tests.

The government explains that when the rifle was found it "was missing the dust cover, a piece that encloses part of the operating mechanism of the rifle" creating the question of "whether the rifle was a firearm" as defined by 18 U.S.C. § 921(a)(3). In January 2023 ATF took possession of the rifle so that an ATF certified firearms examiner could determine whether the rifle qualified as a "firearm" under the statute. It was after the rifle was shipped in January 2023 that counsel for Defendant first inquired into the possibility of DNA testing on that firearm. However, after the rifle left the LVMPD laboratory it "could no longer be tested consistent with" LVMPD laboratory protocols. The government states that while Defendant never sought to test the rifle or bag, the government is treating Defendant's instant Motion as such a request, and has submitted the black bag for DNA testing and comparison.

Although Defendant argues he did not need to make a request for testing to establish the government's appreciation of its evidentiary value, Defendant cites no authority establishing LVMPD's affirmative obligation to conduct DNA testing in the absence of apparent exculpatory evidence. In Youngblood, the Supreme Court stated that "police do not have a constitutional duty to perform any particular tests." Defendant fails to address that his alleged due process violation is based on "potentially useful evidence"; that is, what DNA testing could or might show—an insufficient basis to establish the violation he proffers. If the rifle was tested and the evidence was exculpatory, there is no dispute that the government would be required to turn that evidence over to Defendant. However, the government is not required to test evidence when the facts and circumstance do not support the apparent exculpatory nature of the evidence.

The facts do not support the finding that the rifle or black bag in which the rifle was found contained apparent exculpatory evidence. Indeed, the evidence Metro had at the time of Defendant's arrest, and through the date of this Order, includes a series of pictures showing, over a short period of time, Defendant carrying a black bag down the outdoor corridor of the Economy Hotel, Defendant with a pistol in the same hallway, Defendant shooting a pistol from the same hallway, and a black bag on top of a pistol in the boiler room of the hotel. This evidence supports the inference that DNA testing was substantially unlikely to yield exculpatory evidence. This evidence does not support the conclusion that there was apparent exculpatory evidence on the rifle inside the black bag. Defendant seeks to impose an affirmative duty to conduct DNA tests despite the lack of apparent exculpatory evidence on the rifle or black bag (which is now being tested). Nothing about the conduct of the LVMPD demonstrates officers acted in bad faith when they did not swab the rifle for DNA. There is no evidence supporting the conclusion Metro was motivated by "official animus" towards Defendant or made "a conscious effort to suppress exculpatory evidence" that apparently existed. There is a clear difference between Defendant's contention of evidentiary value and that "no more can be said than . . . [the rifle] could have been subjected to tests, the results of which might have exonerated the [D]efendant."

Based on the foregoing, the Court finds the facts do not support a recommendation to dismiss Defendant's charge of possession of a rifle based on spoliation of evidence.

C. After Balancing The Quality Of Government Conduct Against Prejudice To Defendant The Court Finds An Adverse Jury Instruction Is Not Warranted.

When deciding whether a remedial jury instruction should be given the Court balances the quality of the government's conduct against prejudice to Defendant. The Court evaluates government conduct by determining whether (1) the evidence was lost or destroyed while in the government's custody, (2) the government acted in disregard for the interest of the accused, (3) the government was negligent in failing to adhere to established and reasonable standards of care for police and prosecutorial functions, (4) the acts were deliberate and, if so, were they done in good faith or with reasonable justification, and (5) government attorneys prosecuting the case participated in the events leading to the loss or destruction of evidence. When evaluating prejudice to the defendant, the Court considers: "the centrality of the evidence to the case and its importance in establishing the elements of the crime or the motive or intent of the defendant; the probative value and reliability of the secondary or substitute evidence; the nature and probable weight of the factual inferences or other demonstrations and kinds of proof allegedly lost to the accused; [and] the probable effect on the jury from absence of the evidence . . . ."

Defendant's Motion and Reply offer relatively little analysis of the balancing test described above. While Defendant requested the outcome of DNA testing by the government under Federal Rule of Criminal Procedure 16(a)(1)(E), this argument ignores that there was no obligation to conduct such tests in the absence of apparent exculpatory evidence. And, Defendant does not argue he sought access to the rifle so he could conduct his own DNA tests at any time after his indictment in November 2022. Defendant also does not dispute the black bag is currently being DNA tested. Thus, until the results from the DNA tests on the black bag are available, there is nothing for the government to produce under Rule 16(a)(1)(E).

Further, the government contends DNA evidence is not central to its case-in-chief at trial. Indeed, as discussed above, no evidence exists demonstrating Defendant's DNA is on the rifle he is currently charged with possessing, so it would be impossible for the government to use this information in its case-in-chief. Further, if Defendant's DNA was on the rifle it would not be material to his defense. The absence of DNA evidence tying Defendant to the rifle is available to Defendant in preparation for his defense. Once the DNA testing on the black bag is concluded, Defendant will receive the results and can determine whether it is helpful to his defense.

After presenting his argument under Fed. R. Crim. P. 16(a)(1)(E), Defendant turns to the standard established by case law for assessing whether an adverse inference is properly given.

1. The black bag and rifle were in LVMPD's custody until January 2023 when they were shipped to ATF for purposes of determining whether the rifle is a "firearm" as defined by federal statute. The rifle and bag remain with the ATF. At the government's request, the black bag is being DNA tested for comparison to Defendant's DNA; however, results of these tests were not available as of the government's filing its Response to Defendant's Motion. The government concedes meaningful results from DNA testing on the rifle are unlikely.

In his Reply, Defendant contends for the first time that DNA evidence was destroyed because the label on the evidence bag for the rifle, ammunition, and rifle magazine were in LVMPD's possession as of September 1, 2022, but the evidence bag was not sealed until November 9, 2022. Defendant is not charged with possession of ammunition or magazines. Thus, the Court sets aside this portion of Defendant's argument. Defendant also argues a negative test on the rifle would bolster his defense that he did not possess the rifle. This is true, but there is no evidence any DNA was on the rifle. Further, Defendant is able to argue no testing was done on the rifle by Metro and that there is no DNA evidence tying him to this firearm. Moreover, what evidence there is indicates it is doubtful that DNA testing of the rifle would produce exculpatory evidence. Finally, there is also no evidence that DNA on the black bag was destroyed as this piece of evidence is presently being tested. Thus, while this factor does not entirely favor the government, the totality of events are insufficient to warrant issuing a remedial jury instruction.

2. The Court finds there is no evidence supporting the contention that the government acted with disregard for Defendant's interest. The government played no role in the handling of the rifle or black bag while it was in LVMPD's possession. The government did ship the rifle to the ATF to determine if the rifle qualifies as a firearm. The government is testing the bag for DNA comparison. If the rifle does not qualify as a firearm, the charge pertaining to Defendant's possession of the rifle will presumably be dropped. These governmental acts are contrary to Defendant's contention of disregard for his interest.

3. Defendant does not present argument that the government was negligent in failing to adhere to established and reasonable standards of care for police and prosecutorial functions. Defendant offers nothing showing the government was responsible for or played any role in how evidence was handled by Metro. To the extent Metro's alleged failure to seal the evidence bag was a failure to adhere to standards of care, there is nothing demonstrating this destroyed exculpatory evidence. To the extent the government directed the shipping of the rifle to ATF it did so to determine if Defendant is properly charged. The government is currently testing the black bag for DNA the outcome of which, if it is exculpatory, will further undermine Defendant's argument.

4. There is no evidence that any act by the government about which Defendant complains was for the purpose of disadvantaging Defendant. Indeed, Defendant says nothing about the way the black bag was handled while in police custody and says nothing to demonstrate Metro's failure to seal the evidence bag containing the rifle was purposeful. There is no evidence the government was involved in any events involving the rifle or black bag while they were in Metro's custody. The government did ship the rifle to the ATF to determine if the rifle is a firearm. There is no basis under any argument presented to find this act was done other than in good faith. The government is testing the black bag for DNA comparison evidence consistent with the conclusion that the government is acting in good faith.

5. While in Metro's custody, the evidence bag containing the rifle was not sealed between September 1, and November 9, 2022. Metro also dropped the rifle on the floor when preparing to ship it to ATF. There is no evidence whatsoever that the government participated in these events or that these events were done for the purpose of prejudicing Defendant.

Looking next to whether Defendant was prejudiced, he repeats the argument that DNA testing is central to his defense. This necessarily requires the unsupported conclusion that testing results would have helped exonerate Defendant when, in fact, the available evidence is to the contrary. The absence of DNA evidence allows Defendant to argue there is insufficient evidence to demonstrate beyond a reasonable doubt he possessed the rifle. Further, whether Defendant's DNA is or is not discovered on the black bag will be disclosed once the results are in. If the evidence is favorable to Defendant he will undoubtedly use this in his defense. If the result of DNA testing on the bag is unfavorable to Defendant prejudice is substantially diminished. Whether the jury is more persuaded by circumstantial evidence than the absence of DNA evidence on the rifle, and potentially the bag, is within the jury's common province.

The Court finds the record does not support a finding that the government's conduct in this case was such that prejudice to Defendant requires remediation through an adverse inference instruction to the jury.

III. Recommendation

IT IS THEREFORE RECOMMENDED that Defendant's Motion to Dismiss for Spoliation of Evidence (ECF No. 28) be DENIED.

NOTICE

Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).