Opinion
1:22-cr-162-LG-BWR
11-09-2023
UNITED STATES OF AMERICA v. MARK ROBILLIA
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS
LOUIS GUIROLA, JR., UNITED STATES DISTRICT JUDGE
BEFORE THE COURT is the [44] Motion to Dismiss filed by Defendant, Mark Robillia. This Defendant is charged by indictment for, inter alia, knowingly possessing a firearm while a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(8). Defendant has filed a [44] Motion to Dismiss the indictment, arguing that by applying the recent Supreme Court decision in New York State Rifle & Pistol Assoc., Inc. v. Bruen, 597 U.S. --- (2022), these statutes are unconstitutional. After due consideration of the arguments of counsel, the record, and the applicable law, the Court finds that the Motion should be denied.
Discussion
I. Constitutionality of Section 922(g)(1)
Defendant's Motion rests on the alleged unconstitutionality of section 922(g)(1), which prohibits the possession of a firearm by a person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Section 924(a)(8) then sets a statutory maximum sentence of 15 years' imprisonment for the offense. However, the conduct regulated by these statutes-possession of a firearm by a felon-has been extensively litigated in the federal courts following the release of the Supreme Court's decision in Bruen. As this Court noted in United States v. Schnur, __ F.Supp.3d __, 2023 WL 4881383 (S.D.Miss. July 31, 2023), there is a virtual unanimity in the district courts of the Fifth Circuit upholding section 922(g)(1) in Bruen's wake. In that decision, this Court joined the majority opinion of district courts and found that section 922(g)(1) survives Bruen's textual and historical scrutiny. Id. Defendant has offered no good legal justification for the Court to depart from the considerable precedent cited in Schnur. The Court hereby adopts by reference its opinion in Schnur and denies the pending [44] Motion to Dismiss for the reasons stated therein.
II. Affirmative Defense of Justification
Defendant also alleges in the Motion that he removed a shotgun from the possession of a minor, who he had allegedly seen loading the weapon, believing that the minor's possession posed “a clear and present danger” and that “it was a necessity to take the shot gun from the minor and take it to Robillia's room.” (Id.) (emphasis in original). He cites United States v. Harper, 802 F.2d 115 (5th Cir. 1986), wherein the Fifth Circuit elaborated on “the four elements of the justification defense,” whereby illegal firearm possession may be excused where, inter alia, the “‘defendant was under an unlawful and ‘present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury.'” Id. (quoting United States v. Gant, 691 F.2d 1159, 1162-63 (5th Cir. 1982)).
Although the Fifth Circuit has “recognized ‘justification' as a defense to a felon-in-possession charge,” it has also observed that “courts construe the justification defense ‘very narrowly' and limit its application to the ‘rarest of occasions.'” United States v. Penn, 969 F.3d 450, 455 (5th Cir. 2020). Even then, the justification defense remains an affirmative defense which is not a basis to dismiss the indictment. See United States v. Ortiz, 927 F.3d 868, 878 (5th Cir. 2019) (describing the nature of the justification affirmative defense); United States v. Sisson, 399 U.S. 267, 288 (1970) (“It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses.”) (citing United States v. Fargas, 267 F.Supp. 452, 455 (S.D.N.Y. 1967)). Therefore, to the extent Defendant raises this issue in support of its Motion to Dismiss, the same should be and is hereby denied.
IT IS THEREFORE ORDERED AND ADJUDGED that the [44] Motion to Dismiss filed by Defendant, Mark Robillia, is DENIED.
SO ORDERED AND ADJUDGED.