Opinion
No. 7:20-CR-180-D
2024-01-02
UNITED STATES of America v. Maurice HEMINGWAY, Defendant.
Timothy M. Severo, Assistant U.S. Attorney, United States Attorney's Office, Raleigh, NC, for United States of America. Jorgelina E. Araneda, Araneda & Stroud Law Group Immigration & Federal Criminal Defense, Raleigh, NC, Bellonora McCallum, McCallum Law Firm, PLLC, Kinston, NC, for Defendant.
Timothy M. Severo, Assistant U.S. Attorney, United States Attorney's Office, Raleigh, NC, for United States of America.
Jorgelina E. Araneda, Araneda & Stroud Law Group Immigration & Federal Criminal Defense, Raleigh, NC, Bellonora McCallum, McCallum Law Firm, PLLC, Kinston, NC, for Defendant.
ORDER
JAMES C. DEVER III, United States District Judge.
On October 28, 2020, a grand jury indicted Maurice Hemingway ("Hemingway" or "defendant") for possessing with intent to distribute a quantity of cocaine base (crack) (count one), possessing a firearm in furtherance of a drug trafficking crime (count two), and being a felon in possession of a firearm (count three). See [D.E. 1] 1-2. On July 27, 2023, Hemingway pleaded not guilty to all counts [D.E. 124]. On July 28, 2023, Hemingway moved to dismiss count three [D.E. 125] and filed a memorandum in support [D.E. 126] contending that 18 U.S.C. § 922(g)(1) is unconstitutional in light of New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). See [D.E. 126] 1. On July 31, 2023, Hemingway moved to dismiss the entire indictment [D.E. 127] and filed a memorandum in support [D.E. 128] alleging selective prosecution. See [D.E. 128] 1. On September 11, 2023, the government responded in opposition to Hemingway's motion to dismiss count three [D.E. 136]. On September 20, 2023, the government responded in opposition to Hemingway's motion to dismiss the indictment [D.E. 137]. As explained below, the court denies Hemingway's motions to dismiss.
I.
On March 7, 2020, Brunswick County Sherriff's deputies stopped Hemingway's car that Clayton Benton ("Benton") was
driving. See [D.E. 128] 2; [D.E. 90] 4, 77. Hemingway was in the front passenger seat and Samuel Arnett ("Arnett") was in the backseat. See [D.E. 128] 2; [D.E. 90] 9-10, 12, 77. During the traffic stop, Hemingway lied about his name. See [D.E. 90] 9, 15, 63, 77. Officers also saw a set of digital scales next to Benton's leg and a K9 detected narcotics. See id. at 14-15, 25-26, 47, 63-64, 67, 68, 77. During a probable cause search of the vehicle, officers found a nine millimeter Glock handgun underneath Hemingway's seat. See id. at 47, 67. Officers also found that Hemingway possessed more than 25 grams of cocaine base (crack) and a second firearm. See [D.E. 137] 3-4.
At the time of the traffic stop, Hemingway was on federal supervised release. See [D.E. 21] 5. Benton and Arnett both waived their Miranda rights. See [D.E. 137] 4-5. Benton told law enforcement that Hemingway was lying about his identity and that Hemingway and Arnett paid Benton to drive them to Wilmington to sell drugs. See id. Benton also said he witnessed Hemingway and Arnett beat and pistol whip another man, and Benton saw Hemingway and Arnett possess "approximately one ounce of what appeared to be crack cocaine." Id. at 5. Arnett admitted to law enforcement that his fingerprints would be on the firearm found under Hemingway's seat. See id. Arnett also admitted to using the firearm to pistol whip an unknown person in Wilmington. See id. Arnett told law enforcement Hemingway also struck the victim. See id.
II.
The Second Amendment protects an individual's right to keep and bear arms regardless of militia service. See Dist. of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). An individual's Second Amendment right, however, "is not unlimited." Id. at 626, 128 S.Ct. 2783. In Heller, for example, the Supreme Court of the United States deemed "longstanding prohibitions on the possession of firearms by felons" to be "presumptively lawful." Id. at 626-27 & n.26, 128 S.Ct. 2783. In McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Court held that the Second Amendment codified a "fundamental right[]" applicable to the states. McDonald, 561 U.S. at 778, 130 S.Ct. 3020. The Court, however, reaffirmed Heller's assurances that the scope of the Second Amendment right does not "cast doubt on such longstanding regulatory measures as prohibitions on the possession of firearms by felons." Id. at 786, 130 S.Ct. 3020 (quotation omitted).
In light of Heller and McDonald, the United States Court of Appeals for the Fourth Circuit announced a "two-part approach to Second Amendment claims." United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010), abrogated by Bruen, 597 U.S. at 19-24, 142 S.Ct. 2111. At step one, a court decides "whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Id. (quotation omitted). If so, the court proceeds to step two by "applying an appropriate form of means-end scrutiny." Id.
In United States v. Moore, 666 F.3d 313 (4th Cir. 2012), the Fourth Circuit addressed the constitutionality of section 922(g)(1). In Moore, the court applied Heller's "presumptively lawful" language and held that "the Chester analysis is more streamlined when a presumptively lawful regulatory measure [like section 922(g)(1)] is under review." Moore, 666 F.3d at 318. Under the streamlined analysis, section 922(g)(1) must "pass muster under any standard of scrutiny" because it is "presumptively lawful." Chester, 628 F.3d at
679 n.5. Thus, section 922(g)(1) "is constitutionally valid on its face." Moore, 666 F.3d at 319. The court then rejected Moore's as-applied challenge in light of Moore's "extensive and violent criminal history," holding Moore did not "fall within the category of ... law-abiding responsible citizen[]" protected by the Second Amendment Id. at 319-20 (quotation and emphasis omitted); see also United States v. Pruess, 703 F.3d 242, 245-47 (4th Cir. 2012).
Before Bruen, section 922(g)(1) was facially constitutional. To succeed on an as-applied challenge to section 922(g)(1), a defendant "must show that his factual circumstances remove his challenge from the realm of ordinary challenges." Moore, 666 F.3d at 319; see, e.g., Hamilton v. Pallozzi, 848 F.3d 614, 624 (4th Cir. 2017); United States v. Taylor, 594 F. App'x 784, 790 (4th Cir. 2014) (per curiam) (unpublished); United States v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012); United States v. Kline, 494 F. App'x 323, 324-25 (4th Cir. 2012) (per curiam) (unpublished).
Hemingway contends that Bruen rendered section 922(g)(1) unconstitutional. See [D.E. 126] 1-3. The government responds that Moore and its progeny still control because Bruen did not overrule Heller's "presumptively lawful" language on which Moore relied. See [D.E. 136] 5-6.
In Bruen, the Court held that the Fourth Circuit's two-step approach to Second Amendment challenges was "one step too many." Bruen, 597 U.S. at 19, 142 S.Ct. 2111. Instead, the Court held that "[w]hen the Second Amendment's plaintext covers an individual's conduct, the Constitution presumptively protects that conduct." Id. at 24, 142 S.Ct. 2111. The government must then justify its regulation by demonstrating that it comports "with the Nation's historical tradition of firearm regulation." Id.
In Bruen, the Court did not overrule Heller or McDonald. See Bruen, 597 U.S. at 10, 142 S.Ct. 2111 (characterizing the Court's holding as "consistent with Heller and McDonald"). The Court repeatedly held that the Second Amendment's protections apply to "law-abiding citizens." See, e.g., id. at 8-10, 21, 31, 38, 38 n.9, 60, 69, 71, 142 S.Ct. 2111. The Court also invoked some of the "presumptively lawful" firearms regulations from Heller as illustrative and constitutionally permissible. See id. at 30, 142 S.Ct. 2111. Although Bruen overruled Chester's two-part approach, the Court did not address Moore's streamlined approach to section 922(g)(1) challenges. Justice Alito wrote separately to underscore that Bruen's "holding decides nothing about who may lawfully possess a firearm.... Nor have we disturbed anything that we said in Heller or McDonald ..., about restrictions that may be imposed on the possession or carrying of guns." Id. at 72, 142 S.Ct. 2111 (Alito, J., concurring). Justice Kavanaugh, joined by Chief Justice Roberts, also wrote separately to highlight Heller's admonition that "[n]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons." Id. at 81, 142 S.Ct. 2111 (Kavanaugh, J., concurring) (quotation omitted). Accordingly, Bruen did not abrogate Moore and its progeny, given those cases' reliance on Heller's language concerning felons and "law-abiding citizens," which Bruen endorsed. Thus, Moore and Pruess continue to bind this court. See, e.g., United States v. Hill, No. 3:33cr114, 703 F.Supp.3d 729, 737-40 (E.D. Va. Nov. 28, 2023) (unpublished); United States v. Bess, Cr. No. 3:23-06, 699 F.Supp.3d 437, 439-48 (D.S.C. Oct. 25, 2023) (unpublished); United States v. Bynum, No. 5:23-CR-141, 699 F. Supp.3d 418, 420-23 (E.D.N.C. Oct. 24, 2023) (unpublished) (collecting cases); United States v.
Lane, No. 3:23cr62, 689 F.Supp.3d 232, 237-43 & n.8 (E.D. Va. Aug. 31, 2023) (unpublished). But see United States v. Coleman, No. 3:22cr87, 698 F. Supp.3d 851, 855-60 (E.D. Va. Oct. 12, 2023).
Under Moore and Pruess, the court rejects Hemingway's facial Second Amendment challenge to section 922(g)(1). See Pruess, 703 F.3d at 245-47; Moore, 666 F.3d at 319. Moreover, Hemingway is a lifelong violent criminal. See [D.E. 21] 3-6. Accordingly, the court also rejects Hemingway's as-applied challenge to section 922(g)(1). See, e.g., Hamilton, 848 F.3d at 626-27; Smoot, 690 F.3d at 221; Kline, 494 F. App'x at 325; Moore, 666 F.3d at 319-20. Thus, the court denies Hemingway's motion to dismiss count three.
Alternatively, Hemingway's Second Amendment challenge to section 922(g)(1) fails under Bruen. As discussed, in Bruen, the Court held that "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Bruen, 597 U.S. at 24, 142 S.Ct. 2111. "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Id.
The Second Amendment protects "the right of the people to keep and bear Arms." U.S. Const. amend. II. "The people" includes "all members of the political community," Heller, 554 U.S. at 579-80, 128 S.Ct. 2783, which refers to "law-abiding" citizens. Id. at 635, 128 S.Ct. 2783; see Bruen, 597 U.S. at 31-32, 142 S.Ct. 2111 ("It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of 'the people' whom the Second Amendment protects." (emphasis added)). By contrast, section 922(g)(1) prohibits anyone "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" from "possess[ing] in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(1). Thus, Hemingway's conduct was possessing a firearm as a felon. See, e.g., Coleman, 698 F. Supp.3d at 867 n.7. Accordingly, the Second Amendment does not cover Hemingway's conduct because Hemingway is not a lawabiding citizen. See, e.g., Hill, 703 F. Supp.3d at 740-42; Bess, 699 F. Supp.3d at 445-48; Alexander v. United States, Cr. No. 19-20, 2023 WL 6845424, at *8 (D. Md. Oct. 17, 2023) (unpublished) (collecting cases); Lane, 689 F. Supp.3d at 243-49. But see Coleman, 698 F. Supp.3d at 859-67. Thus, the court denies Hemingway's motion to dismiss count three. Because the court concludes the Second Amendment does not cover Hemingway's conduct, the court does not decide whether the government can justify section 922(g)(1) by demonstrating that it comports "with the Nation's historical tradition of firearm regulation." Bruen, 597 U.S. at 24, 142 S.Ct. 2111.
III.
"A selective prosecution claim is an assertion that the prosecutor had brought the charge for reasons forbidden by the Constitution." United States v. Venable, 666 F.3d 893, 900 (4th Cir. 2012) (quotation omitted); see United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). The Fifth Amendment prohibits "the government from deciding to prosecute based on a defendant's race." United States v. Olvis, 97 F.3d 739, 743 (4th Cir. 1996); see Armstrong, 517 U.S. at 464, 116 S.Ct. 1480.
Prosecutions enjoy a "presumption of regularity." Armstrong, 517 U.S. at 464, 116 S.Ct. 1480. To overcome this presumption, "a criminal defendant must present clear evidence" that "the administration of a criminal law is directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive that the system of prosecution amounts to a practical denial of equal protection of the law." Id. at 464-65, 116 S.Ct. 1480 (quotations omitted); see Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
To prove a selective prosecution claim, a "claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose." Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 (quotation omitted); see Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); Venable, 666 F.3d at 900; Olvis, 97 F.3d at 743. "To make this showing, a defendant must establish both (1) that similarly situated individuals of a different race were not prosecuted, and (2) that the decision to prosecute was invidious or in bad faith." Venable, 666 F.3d at 900 (quotation omitted); see Olvis, 97 F.3d at 743.
As for the first prong, "defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them." Olvis, 97 F.3d at 744. Legitimate prosecutorial factors include: (1) a prosecutor's decision to offer immunity to an equally culpable defendant because that defendant chose to cooperate; (2) the strength of the evidence against a particular defendant; (3) the defendant's role in the crime; (4) whether the defendant is being prosecuted by state authorities; (5) the defendant's candor and willingness to plead guilty; (6) the resources required to convict a defendant; (7) the extent of prosecutorial resources; (8) the potential impact of a prosecution on related investigations and prosecutions; and (9) prosecutorial priorities for addressing specific types of illegal conduct. See Venable, 666 F.3d at 901.
Hemingway contends he is similarly situated to Benton and Arnett. See [D.E. 128] 2-3, 5. Hemingway contends he experienced "unjust" disparate treatment because the United States Attorney did not seek a grand jury indictment against Clayton, a white male, but did against Hemingway and Arnett, black males. See id.
Officers found Hemingway in possession of 25 grams of cocaine base (crack) and recovered a handgun from near Hemingway's thighs. See [D.E. 137] 3-4. Hemingway owned the car that law enforcement stopped. See [D.E. 90] 9. By contrast, officers only found a digital scale near Benton. See id. at 25-26. Moreover, Benton and Arnett waived their Miranda rights and cooperated with law enforcement, while Hemingway lied about his identity. See id. at 14-15; [D.E. 137] 4-5. Furthermore, unlike Hemingway, Benton was not on federal supervised release and had no federal convictions. See [D.E. 21] 5; [D.E. 127-3]; [D.E. 137] 8. Thus, Hemingway and Benton are not similarly situated.
Additionally, a grand jury indicted Arnett for different criminal conduct. See [D.E. 127-4]; [D.E. 128] 3. Arnett, also a black man, did not face federal charges concerning the traffic stop that underlies Hemingway's federal charges. See [D.E. 128] 3; [D.E. 137] 8. Accordingly, the court declines to infer that the United States Attorney treated Hemingway differently because of his race. Thus, Hemingway's claim fails. See, e.g., United States v.
Braddock, 410 F. App'x 587, 589 (4th Cir. 2011) (per curiam) (unpublished); Olvis, 97 F.3d at 744-45; Harwell v. United States, Nos. 1:10CV761, 1:04CR354-1, 1:07CR287-1, 2014 WL 684704, at *3 (M.D.N.C. Feb. 21, 2014) (unpublished).
Alternatively, Hemingway cites statistics concerning the share of black men in the general population versus the share of black men who are federal criminal defendants in the United States and the Eastern District of North Carolina. See [D.E. 128] 3-5. Hemingway cites these statistics as evidence both that similarly situated individuals of a different race were not prosecuted and that the decision to prosecute him was invidious or made in bad faith. See id. These statistics, however, "fail[] to identify individuals who were not black and could have been prosecuted for" the same offenses as Hemingway "but were not so prosecuted." Armstrong, 517 U.S. at 468-70, 116 S.Ct. 1480; see United States v. Bass, 536 U.S. 862, 864, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (per curiam) ("[R]aw statistics regarding overall charges say nothing about charges brought against similarly situated defendants."). Hemingway "provides no statistical evidence on the number of blacks who were actually committing [section 924(c)] offenses or whether a greater percentage of whites could have been prosecuted for such crimes." Olvis, 97 F.3d at 745. Thus, Hemingway fails to meet his burden to establish impermissible selective prosecution. See, e.g., United States v. Hare, 820 F.3d 93, 98-100 (4th Cir. 2016); Venable, 666 F.3d at 903; Thompson v. Badgujar, Civ. No. 20-1272, 2023 WL 6381509, at *3-6 (D. Md. Sept. 29, 2023) (unpublished). Accordingly, the court denies Hemingway's motion to dismiss the indictment.
IV.
In sum, the court DENIES defendant's motion to dismiss count three of the indictment [D.E. 125] and DENIES defendant's motion to dismiss the indictment [D.E. 127].
SO ORDERED. This 2nd day of January, 2024.