United States v. Gamble

Full title: United States of America, Plaintiff v. Dajuan Lamar Gamble, Defendant

Court: United States District Court, District of Nevada

Date published: Oct 4, 2023

697 F. Supp. 3d 1045 (D. Nev. 2023)

Opinion

Case No. 2:22-cr-00267-JAD-EJY

2023-10-04

UNITED STATES of America, Plaintiff v. Dajuan Lamar GAMBLE, Defendant

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.

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.¹

1 I find that these motions are suitable for disposition without oral argument. See L.R. 78-1.

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.² The motel's security system recorded video of the incident, and Las Vegas Metropolitan Police Department (Metro) officers recognized Gamble on the recordings.³ 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.⁴ Officers received an anonymous tip that Gamble hid the handgun in the boiler room of the motel.⁵ With the manager's permission, officers searched the boiler room and found the handgun partially hidden underneath a black bag.⁶ 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.⁷ Officers obtained a warrant to search the bag and discovered a rifle inside it.⁸ 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).⁹

2 ECF No. 1 at 3.

3 Id. at 4.

4 Id. at 4-5.

5 Id. at 4.

6 Id. at 4-5.

7 Id. at 5.

8 Id.

9 ECF No. 14.

The handgun and its magazine were sent to Metro's laboratory for DNA testing.¹⁰ 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.¹¹ In accordance with Metro's policy, the rifle could no longer be tested for DNA evidence after it left Metro's laboratory.¹² The black bag was later submitted for DNA testing in response to Gamble's motion to dismiss, but the results were inconclusive.¹³

10 ECF No. 1 at 6.

11 ECF No. 31 at 7.

12 Id.

13 ECF No. 31 at 11; ECF No. 48-1 at 2.

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.¹⁴ In his second motion, he argues that his due-process rights were violated when Metro destroyed exculpatory DNA evidence on the rifle.¹⁵ Gamble alternatively requests an adverse-inference instruction at trial because the lost DNA evidence prejudices his defense.¹⁶ 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.¹⁷ 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.¹⁸

14 ECF No. 27 at 2.

15 ECF No. 28 at 4.

16 Id. at 7.

17 ECF No. 30 at 9, 14.

18 ECF No. 31 at 11.

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,¹⁹ and the facts of this case do not support a finding that DNA evidence on the rifle is exculpatory.²⁰ 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.²¹ Gamble objects to both recommendations, arguing that Vongxay does not pass Bruen'snewly minted historical-tradition test,²² 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.²³ 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.²⁴

19 ECF No. 34 at 5.

20 ECF No. 35 at 6.

21 Id. at 8.

22 ECF No. 38 at 2.

23 ECF No. 39 at 3-4.

24 Id. at 4.

Discussion

A district court reviews objections to a magistrate judge's proposed findings and recommendations de novo.²⁵ "The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions."²⁶ The standard of review applied to the unobjected-to portions of the report and recommendation is left to the district judge's discretion.²⁷ Local Rule IB 3-2(b) requires de novo consideration only of specific objections.²⁸ A. § 922(g)(1) satisfies the new test in Bruen , and Gamble's prosecution under that statute does not violate the Second Amendment.

25 Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(B); Local Rule IB 3-2(b) (requiring a district judge to review de novo only the portions of a report and recommendation addressing a case-dispositive issue that a party objects to).

26 United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003).

27 Id.

28 See Nevada L.R. IB 3-2(b) (requiring de novo consideration of specific objections only).

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.²⁹ 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.

29 New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).

The Supreme Court's pre-Bruen decisions established a two-step approach to analyze Second Amendment challenges.³⁰ 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.³¹ But the Bruen Court found this test to contain "one step too many."³² 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."³³ The first question requires "a textual analysis focused on the normal and ordinary meaning of the Second Amendment's language."³⁴ 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.³⁵

30 D.C. v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

31 Bruen, 142 S. Ct. at 2126.

32 Id. at 2127.

33 Id. at 2126 (cleaned up).

34 Id. at 2127 (quoting Heller, 554 U.S. at 576-577, 578, 128 S.Ct. 2783).

35 Id. (citing D.C. v. Heller, 554 U.S. at 605, 128 S.Ct. 2783).

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,³⁶ a decision that upheld the constitutionality of § 922(g)(1).³⁷ 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.³⁸ 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.³⁹

36 United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010).

37 ECF No. 27 at 4.

38 ECF No. 35 at 5-7.

39 Id. at 6-7.

Gamble objects to the magistrate judge's finding, arguing that Vongxay is not controlling law.⁴⁰ He theorizes that the Ninth Circuit's recent decision in Teter v. Lopez ⁴¹ demonstrates this circuit's intention to abrogate its earlier Second Amendment jurisprudence.⁴² 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;⁴³ and Fyock v. Sunnyvale, which challenged city ordinances restricting large-capacity magazines⁴⁴—the court is poised to abrogate other Second Amendment decisions.⁴⁵ 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.⁴⁶ 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.

40 ECF No. 38 at 2.

41 Teter v. Lopez, 76 F.4th 938 (9th Cir. 2023).

42 ECF No. 38 at 2-3.

43 United States v. Chovan, 735 F.3d 1127, 1137 (9th Cir. 2013), abrogated by Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387.

44 Fyock v. Sunnyvale, 779 F.3d 991, 997 (9th Cir. 2015), abrogated by Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387.

45 ECF No. 38 at 2-3 (citing Teter, 76 F.4th at 947).

46 Teter, 76 F.4th at 947, 950.

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."⁴⁷ Gamble objects to that finding. He argues that the Vongxay court "vacillated on the underlying historical question," which signifies its indecision on the matter.⁴⁸ 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."⁴⁹

47 ECF No. 34 at 6.

48 ECF No. 38 at 5.

49 Id.

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.⁵⁰ "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."⁵¹

50 Bruen, 142 S. Ct. at 2133 (original emphasis).

51 Id.

The Vongxay court did examine the text of the Second Amendment and the historical tradition of restricting felons' gun rights.⁵² The court found that "denying felons the right to bear arms is consistent with the explicit purpose of the Second Amendment."⁵³ It also identified analogous historical regulations that excluded felons from militias and the right to bear arms.⁵⁴ 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.

52 Vongxay, 594 F.3d at 1117-18 (cleaned up).

53 Id. at 1117.

54 Id. at 1117-18.

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.⁵⁵ 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.⁵⁶ 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.⁵⁷ Gamble objects that "law-abiding citizen" is just dicta in Heller.⁵⁸

55 ECF No 38 at 4-5.

56 ECF No. 27 at 6.

57 ECF No. 35 at 4.

58 ECF No. 38 at 4-5.

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."⁵⁹ 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.⁶⁰ 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.⁶¹

59 Heller, 554 U.S. at 625-26, 128 S.Ct. 2783.

60 Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (citing Heller, 554 U.S. at 636, 128 S.Ct. 2783).

61 The majority in Bruen concluded that its holding was "in keeping with Heller." Bruen, 142 S. Ct. at 2126.

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.⁶² He also contends that the magistrate judge erroneously relied on historical evidence of gun-restriction proposals that never became law.⁶³

62 ECF No. 38 at 6; ECF No. 27 at 11.

63 ECF No. 38 at 6-7.

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,⁶⁴ 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.⁶⁵ 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.⁶⁶ Because individuals with felony convictions fall into this category, § 922(g)(1)is consistent with that longstanding historical tradition.

64 The Federal Firearms Act of 1938 restricted those convicted of a crime from possessing firearms. It was amended in 1961 to specifically restrict the gun rights of individuals with felony convictions. See Pub. L. No. 87-342, 75 Stat. 757 (repealed) (The "Act is amended by deleting the words 'crime of violence' . . . and inserting . . . 'crime punishable by imprisonment for a term exceeding one year.' ").

65 Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, Law & Contemp. Probs. 55, 72 (2017) (recounting that 1637 Massachusetts Colony law required named individuals who "seduced & led [others] into dangerous errors" to turn in their weapons and firearms, and a Pennsylvania law enacted in the 1770's forbid individuals from possessing guns if they "refused to swear loyalty to the new American government"); Michael A. Bellesiles, Gun Laws in Early America: The Regulation of Firearms Ownership, 1607-1794, 16 Law & Hist. Rev. 567, 578 (1998) (noting that firearm restrictions were often predicated on racist ideologies that viewed people of color as suspect, like colonial-Virgina's prohibition on indigenous-firearm ownership).

66 United States v. Jackson, 69 F.4th 495 (8th Cir. 2023) (finding under a Bruen analysis that § 922(g)(1) is consistent with this nation's historical tradition of firearm regulation); United States v. Charles, 633 F. Supp. 3d 874 (W.D. Tex. 2022); United States v. Ingram, 623 F. Supp. 3d 660 (D.S.C. 2022); United States v. Young, 639 F. Supp. 3d 515 (W.D. Pa. 2022); United States v. Butts, 637 F. Supp. 3d 1134 (D. Mont. 2022); contra Range v. Att'y Gen. United States of Am., 69 F.4th 96, 104 (3d Cir. 2023) (holding that § 922(g)(1)was unconstitutional as narrowly applied to a defendant convicted of a misdemeanor punishable by up to five years in prison).

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.⁶⁷ 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.⁶⁸ 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.⁶⁹ 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.⁷⁰ 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.⁷¹

67 ECF No. 28.

68 ECF No. 39 at 3-4.

69 Id. at 4; see also ECF No. 28 at 4, 7. The government contends that the rifle was missing its dust cover—a piece of the rifle that protects the inside mechanisms from debris—and missing this component could raise issues of whether the rifle is considered a firearm within the meaning of 18 U.S.C. § 921(a)(3).

70 ECF No. 35 at 6.

71 ECF No. 39 at 3 (original emphasis).

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."⁷² "The government violates a defendant's due process rights when it destroys potentially exculpatory evidence in bad faith."⁷³ 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."⁷⁴ And "[b]ad faith requires more than mere negligence or recklessness."⁷⁵ 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.⁷⁶

72 California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

73 United States v. Ubaldo, 859 F.3d 690, 703 (9th Cir. 2017).

74 Id. (quoting United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993)).

75 United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011) (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)).

76 Ubaldo, 859 F.3d at 703.

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,"⁷⁷ and "[f]or evidence to be materially exculpatory, its exculpatory nature must be apparent."⁷⁸ But the exculpatory value of evidence "is not 'apparent' when the evidence merely 'could have' exculpated the defendant."⁷⁹ And here, DNA evidence from the rifle merely could have exculpated Gamble.

77 Black's Law Dictionary (11th ed. 2019).

78 Sivilla, 714 F.3d at 1172.

79 United States v. Drake, 543 F.3d 1080, 1090 (9th Cir. 2008) (quoting Youngblood, 488 U.S. at 56, 109 S.Ct. 333).

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.⁸⁰

80 Id. at 1090.

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.⁸¹ Since the profiles were so mixed, "no additional conclusions [could] be made."⁸² 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.

81 ECF No. 31 at 11; ECF No. 48-1.

82 ECF No. 48-1.

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.⁸³ 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.⁸⁴ Gamble objects that the factors balance in his favor because there is no substitute for DNA evidence on the rifle.⁸⁵

83 ECF No. 39 at 4.

84 ECF No. 35 at 8.

85 ECF No. 39 at 4.

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.⁸⁶ 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.⁸⁷ 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.⁸⁸ In the end, "the government bears the burden of justifying its conduct."⁸⁹

86 Sivilla, 714 F.3d at 1173 (quoting United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir. 1979)).

87 Id.

88 Id. at 1173-74.

89 Id. at 1173.

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.⁹⁰ The government responds that the parties arranged a viewing after the rifle returned from Maryland, but Gamble's counsel was a no-show.⁹¹ 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.⁹² 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.

90 ECF No. 44 at 3.

91 ECF No. 49 at 4-5.

92 See supra at p. 1056.

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).⁹³ Defendant argues the United States Supreme Court decision in New York State Rifle & Pistol Association, Inc. v. Bruen ⁹⁴ renders unconstitutional the bar to firearm possession by felons found in § 922(g)(1).⁹⁵ Defendant contends he is among the "people" entitled to own firearms under the Second Amendment irrespective of his prior felony convictions.⁹⁶ 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.⁹⁷

93 ECF No. 27. The Court notes that 18 U.S.C. § 924(a)(2) is mentioned only once in Defendant's Motion to Dismiss. Id. at 2. Defendant offers no argument contending this statute is unconstitutional. Further, § 924 of the United States Code is not cited at all in Defendant's Reply. ECF No. 33.

94 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022).

95 ECF No. 27 at 5.

96 Id. at 6-7.

97 Id. at 8-20.

The United States⁹⁸ 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.⁹⁹ The government then argues neither Bruen nor holdings in Bruen's predecessor U.S. Supreme Court decisions¹⁰⁰ 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 . . . ."¹⁰¹ 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 . . . .' "¹⁰² 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.¹⁰³

98 Hereinafter the "government."

99 ECF No. 30 at 5-6.

100 Id. at 7-12; the predecessor cases include McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), and District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

101 ECF No. 30 at 9, citing Heller, 554 U.S. at 626, 128 S.Ct. 2783.

102 Id. at 10 citing McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (internal citation omitted).

103 See citations at ECF No. 30 at 13.

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."¹⁰⁴ However, the Heller Court made clear that this right "is not unlimited."¹⁰⁵ Heller refers to "law-abiding citizens" and "law abiding responsible citizens" when addressing to whom its holding applies.¹⁰⁶ The Court further stated:

104 Heller, 554 U.S. at 622, 630, 128 S.Ct. 2783.

105 Id. at 626, 128 S.Ct. 2783.

106 Id. at 625, 128 S.Ct. 2783 stating: "[f]or most of our history . . . the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens"; and id. at 635, 128 S.Ct. 2783 noting: the Second Amendment protects "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

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.[¹⁰⁷]

107 Id. at 626-27, 128 S.Ct. 2783 (emphasis added).

In 2010, the Supreme Court issued the McDonald decision holding the Second Amendment applies to the states as well as federal government.¹⁰⁸ With respect to this case, the Court stated:

108 McDonald, 561 U.S. at 750, 130 S.Ct. 3020 ("We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States.").

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.[¹⁰⁹]

109 Id. at 786, 130 S.Ct. 3020 (emphasis added) (internal citations and quote marks from Heller omitted).

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.¹¹⁰ The Bruen Court stated:

110 Bruen rejected the two step approach adopted by the Ninth Circuit, and other federal appellate courts, for evaluating whether a statute impermissibly burdens Second Amendment rights. Bruen, 142 S.Ct. at 2125. The Bruen Court adopted a new legal test explaining that "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation . . . the government must demonstrate that the regulation is consistent with the Nation's historical tradition of firearm regulation." Id. 2126. After the government makes that showing a court may "conclude that the individual's conduct falls outside the Second Amendment's unqualified command." Id. at 2126, 2130 (internal quote marks and citation omitted). To carry its burden, the government must point to "historical precedent from before, during, and after the founding [that] evinces a comparable tradition of regulation." Id. at 2131-32 (internal quotation marks omitted). However, "even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster." Id. at 2118. The core question is whether the challenged law and proffered analogues are "relevantly similar." Id. at 2132 (internal citation omitted). The government need not identify a "historical twin"; rather, a "well-established and representative historical analogue" suffices. Id. at 2133 (emphasis in original).

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.[¹¹¹]

The Court then held:

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.[¹¹²]

A review of the Bruen Court decision shows it used the phrase "law-abiding citizen" on numerous occasions signaling a clear limitation on its holding. For example, the Supreme Court in Bruen: (i) stated Heller and McDonald "recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizens to possess a handgun in the home for self-defense"¹¹³; (ii) concluded the right to possess a handgun outside the home extended to "ordinary, law-abiding citizens"¹¹⁴; (iii) instructed courts to consider "how and why . . . regulations burden a law-abiding citizen's right to armed self-defense"¹¹⁵; (iv) described petitioners as "two ordinary, law-abiding, adult citizens"¹¹⁶; (v) noted there is no historical traditional "limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense"¹¹⁷; (iv) concluded historical analogues advanced by New York fail because "none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose"¹¹⁸; (vii) found no historical record requiring "law-abiding, responsible citizens" to demonstrate a need to obtain a license to carry¹¹⁹; and (viii) held New York law violates the Second Amendment because it "prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms."¹²⁰ Writing for the Court, Justice Thomas also stated:

[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."[¹²¹]

The Court further stated: "[T]he Second Amendment is neither a regulatory straightjacket nor a regulatory blank check."¹²² In his concurring opinion, Justice Kavanaugh reiterated the language from Heller in which Justice Scalia stated: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . ."¹²³

111 Id. at 2122 (emphasis added).

112 Id. at 2156 (emphasis added).

113 Id. at 2122.

114 Id.

115 Id. at 2133.

116 Id. at 2134.

117 Id. at 2138.

118 Id. at 2150.

119 Id. at 2156.

120 Id.

121 Id. at 2138 n.9 (brackets in original, some internal citations and quote marks omitted).

122 Id. at 2133 (majority opinion); 2162 (Kavanaugh, J., Concurring).

123 Id. at 2162 (Kavanaugh J. Concurring) citing Heller, 554 U.S. at 626-27 and n.26, 128 S.Ct. 2783 (citations and quote marks omitted), and McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (plurality opinion). See also Justice Alito's concurring opinion in which he states "[n]or have we disturbed anything that we said in Heller or McDonald . . . ." Id. at 2157 (Alito, J., Concurring) (citation omitted).
Further, to the extent that the above cited statements by the Supreme Court are considered dicta, this Court finds the repeated dicta is of significant importance as strongly demonstrating the likelihood of the Court's future holding. United States v. Montero-Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (quoting Zal v. Steppe, 968 F.2d 924, 935 (9th Cir. 1992)) (Noonan, J., Concurring and Dissenting) ("Supreme Court dicta have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold," and courts can "not blandly shrug them off because they were not a holding.").

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.¹²⁴ The government submits the Justices' "statements in Bruen . . . confirm that it is not 'clearly irreconcilable' with Vongxay."¹²⁵

124 594 F.3d 1111 (9th Cir. 2010); ECF No. 27 at 4.

125 ECF No. 30 at 12.

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."¹²⁶ "The clearly irreconcilable requirement is a high standard."¹²⁷ "[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."¹²⁸

126 Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

127 Close v. Sotheby's, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018) (internal citation and quote marks omitted).

128 Id. (internal citation and quote marks omitted).

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."¹²⁹ 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.¹³⁰

129 Heller, 554 U.S. at 626, 128 S.Ct. 2783; Bruen, 142 S.Ct. at 2162 (Kavanaugh, J., Concurring). See also McDonald, 561 U.S. at 786, 130 S.Ct. 3020.

130 Vongxay, 594 F.3d at 1116 ("[o]ur examination . . . of historical gun restrictions . . . lends credence to the post-Heller viability" of the previous determination that 18 U.S.C. § 922(g)(1) does not violate the Second Amendment) (citation omitted).

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.¹³¹ 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.¹³² 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.¹³³ 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."¹³⁴

131 See n.18.

132 Heller, 554 U.S. at 626; McDonald, 561 U.S. at 786, 130 S.Ct. 3020.

133 See n.31.

134 Bruen, 142 S.Ct. at 2126.

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."¹³⁵ 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.' "¹³⁶ And, the court stated:

135 Vongxay, 594 F.3d at 1117 (citations omitted).

136 Id. quoting U.S. CONST. AMEND. II.

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) . . . ."[¹³⁷]

The District Court of Idaho observed that "[a]t least five justices indicated their explicit intent contrary" to Defendant's argument that Bruen overruled Vongxay.¹³⁸ The Idaho court also noted the Ninth Circuit's "reasoning in Vongxay" adopts a two step approach "consistent with the critical second prong" of the Bruen test.¹³⁹ That court went on to state "[m]ore importantly, Bruen's reasoning is not clearly irreconcilable with the reasoning in Vongxay and Heller."¹⁴⁰ The Districts of Montana and Nevada agree that Bruen did not overrule Vongxay.¹⁴¹ These decisions, along with the discussion in Vongxay summarized above, confirm the holding in Vongxay is not clearly irreconcilable with and, therefore, was not abrogated by Bruen.

137 Vongxay, 594 F.3d at 1118 (quoting Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp. Probs. 143, 146 (1986)); and Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461, 480 (1995).

138 United States v. Siddoway, Case No. 1:21-cr-00205-BLW, 2022 WL 4482739, at *1 (D. Idaho Sept. 27, 2022).

139 Id. at *2.

140 Id. See also United States v. Chatman, Case Nos. 22-cr-00453-CRB-1, 14-cr-00552-CRB-1, 2023 WL 3509699 (N.D. Cal. May 16, 2023); United States v. Davis, Case No. 1:21-cr-00206-ADA-BAM-1, 2023 WL 2505039, at **3-4 (E.D. Cal. Mar. 14, 2023).

141 See United States v. Butts, 637 F.Supp.3d 1134, 1138-39 (D. Mt. 2022) citing Siddoway, 2022 WL 4482739, at *2; United States v. Martinez, Case No. 2:21-cr-00219-APG-DJA, 2023 WL 3687726, at *3 (D. Nev. May 22, 2023) ("Even before Bruen, the Ninth Circuit examined the historical tradition of gun regulation to conclude that Section 922(g)(1) is consistent with the Second Amendment. See Vongxay, 594 F.3d at 1116-18. This Court finds that Bruen is not clearly irreconcilable with the reasoning in Heller or Vongxay.") (Internal citation altered).

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.¹⁴² 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.¹⁴³ The Ninth Circuit decision in Vongxay reached this same conclusion albeit based solely on Heller, which was later adopted by McDonald and Bruen.¹⁴⁴ 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).¹⁴⁵ 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."¹⁴⁶ In addition to these cases, there are numerous others federal court decisions rejecting constitutional challenges to § 922(g) before and after Bruen.¹⁴⁷

142 As stated above, other than one mention of 18 U.S.C. § 924(a)(2) under which Defendant is also charged, Defendant offers no analysis of this statute under any Supreme Court decision. See ECF No. 267, generally.

143 See n.37.

144 Id.; Vongxay, 594 F.3d at 1116.

145 United States v. Phillips, 827 F.3d 1171, 1174 (9th Cir. 2016).

146 United States v. Guthery, Case No. 2:22-cr-00173-KJM, 2023 WL 2696824, at *4 (E.D. Cal. Mar. 29, 2023). See also Davis, 2023 WL 2505039, at **3-4.

147 Martinez, 2023 WL 3687726, at *3; United States v. Isaac, Case No. 5:22-cr-117-LCB-HNJ-1, 2023 WL 1415597 (N. D. Ala. Jan. 31, 2023); United States v. Gray, Case No. 22-cr-00247-CNS, 2022 WL 16855696 (D. Colo. Nov. 10, 2022); United States v. Young, 639 F.Supp.3d 515 (W.D. Pa. 2022); Butts, 637 F.Supp.3d at 1138-39; Siddoway, 2022 WL 4482739; United States v. Minter, 635 F.Supp.3d 352 (M.D. Pa. 2022); United States v. Delpriore, 634 F.Supp.3d 654 (D. Alaska 2022); United States v. Charles, 633 F.Supp.3d 874 (W.D. Tex. 2022); United States v. Campbell, Case No. CR-22-cr-138, 2022 WL 17492255 (W.D. Okla. Sept. 27, 2022); United States v. Perez, Case No. 3:21-cr-508, 2022 WL 17484969 (S.D. Cal. Sept. 26, 2022); United States v. Collette, 630 F.Supp.3d 841 (W.D. Tex. 2022); United States v. Cockerham, Case No. 5:21-cr-6, 2022 WL 4229314 (S.D. Miss. Sept. 13, 2022); United States v. Doty, Case No. 5:21-cr-21, 2022 WL 17492260 (N.D. W. Va. Sept. 9, 2022); United States v. Burrell, Case No. 3:21-cr-20395, 2022 WL 4096865 (E.D. Mich. Sept. 7, 2022); United States v. Nevens, Case No. 2:19-cr-774, 2022 WL 17492196 (C.D. Cal. Aug. 15, 2022); United States v. Ramos, Case No. 2:21-cr-395, 2022 WL 17491967 (C.D. Cal. Aug. 5, 2022); United States v. Hill, 629 F.Supp.3d 1027 (S.D. Cal. 2022); United States v. Ingram, 623 F.Supp.3d 660 (D.S.C. 2022). Most recently the Southern District of Florida also considered the issue finding that "every federal judge who has considered this question since Bruen has upheld the continued validity of § 922(g)(1)." United States v. Meyer, Case No. 22-10012-CR, 2023 WL 3318492, at *1 (S.D. Fla. May 9, 2023) (emphasis in original).

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.¹⁴⁸ 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.¹⁴⁹ 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."¹⁵⁰ 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."¹⁵¹

148 ECF No. 30 at 14.

149 Id. at 15.

150 Heller, 554 U.S. at 626, 128 S.Ct. 2783 citing Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333.

151 Id. citing State v. Chandler, 5 La. Ann. 489, 489-490 (1850); Nunn v. State, 1 Ga. 243, 251 (1846); 2 Kent *340, n.2; The American Students' Blackstone 84, n.11 (G. Chase ed. 1884).

The government submits history demonstrates "gun rights of certain groups have been categorically limited to promote public safety."¹⁵² 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."¹⁵³ 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."¹⁵⁴ 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.¹⁵⁵ 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.

152 ECF No. 30 at 15 citing: "Thomas M. Cooley's 1868 treatise, which Heller described as 'massively popular,' 554 U.S. at 616, 128 S.Ct. 2783, explained that some classes of people were 'almost universally excluded' from exercising certain civic rights, including 'the idiot, the lunatic, and the felon, on obvious grounds.' Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, 29 (1st ed. 1868) (emphasis added [by the government]). The Second Amendment incorporates 'a common-law tradition that permits restrictions directed at citizens who are not law-abiding and responsible' and 'does not preclude laws disarming the unvirtuous (i.e. criminals).' United States v. Bena, 664 F.3d 1180, 1183-84 (8th Cir. 2011) (quoting Don B. Kates, Jr., The Second Amendment: A Dialogue, Law & Contemp. Probs., Winter 1986 at 146 (1986)); see also United States v. Rene E., 583 F.3d 8, 15-16 (1st Cir. 2009) ('Perhaps the most accurate way to describe the dominant understanding of the right to bear arms in the Founding era is as a civic right . . . limited to those members of the polity who were deemed capable of exercising it in a virtuous manner.' (quoting Saul Cornell, 'Don't Know Much About History:' The Current Crisis in Second Amendment Scholarship, 29 N. Ky. L. Rev. 657, 679 (2002))."

153 ECF No. 30 at 17 citing, 2 Bernard Schwartz, The Bill of Rights: A Documentary History, 662, 665 (1971) (emphasis removed).

154 Id. citing Schwartz, The Bill of Rights at 674-75, 681; United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc).

155 Id. at 17 citing Richardson v. Ramirez, 418 U.S. 24, 56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); 28 U.S.C. § 1865(b)(5); and Spencer v. Kemna, 523 U.S. 1, 8-9, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

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.¹⁵⁶ 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.¹⁵⁷ 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.¹⁵⁸ If his Motion to Dismiss for Spoliation is denied, Defendant asks the Court to issue an adverse jury instruction because the United States¹⁵⁹ was obligated to collect and preserve "forensic evidence and make it available" to Defendant upon his request, which the government failed to do.¹⁶⁰ After balancing the government's conduct against the degree of prejudice to Defendant, Defendant concludes an adverse inference instruction is warranted.¹⁶¹

156 ECF Nos. 14 and 28. The indictment also alleges Defendant unlawfully possessed a handgun, a charge Defendant does not seek to dismiss. Id.

157 Id.

158 ECF No. 28 at 4-6.

159 The United States Government is referred to herein as the "government."

160 ECF No. 28 at 7-8.

161 Id. at 8-9.

The government responds that in the absence of bad faith the charge alleging felon in possession of the rifle cannot be dismissed.¹⁶² 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."¹⁶³ The government also submits Defendant cannot show "the evidence was potentially exculpatory and material."¹⁶⁴

162 ECF No. 31 at 8.

163 Id. at 11.

164 Id.

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.¹⁶⁵ 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."¹⁶⁶ The government argues if Defendant's DNA is found on the rifle, this is not exculpatory and places Defendant in a "considerably worse position."¹⁶⁷ 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.¹⁶⁸ The government concludes the balancing test shows the remedial instruction requested by Defendant is not warranted.¹⁶⁹

165 Id. at 12.

166 Id.

167 Id. at 12-13.

168 Id. at 13.

169 Id.

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."¹⁷⁰ To demonstrate the "destruction of evidence . . . rise[s] to the level of a constitutional violation, a party must make two showings."¹⁷¹ 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.' "¹⁷² 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."¹⁷³

170 California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).

171 U.S. v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013).

172 Id. citing United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993) citing Arizona v. Youngblood, 488 U.S. 51, 56-57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

173 Id. citing Trombetta, 467 U.S. at 489, 104 S.Ct. 2528; Cooper, 983 F.2d at 931 (internal quote marks omitted).

A finding of bad faith requires the defendant to demonstrate "more than mere negligence or recklessness."¹⁷⁴ Absent bad faith by law enforcement, the "failure to preserve potentially useful evidence does not constitute a denial of due process of law."¹⁷⁵ "[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."¹⁷⁶ In order to meet this standard, the "exculpatory nature [of the evidence] must be apparent."¹⁷⁷ "[T]he fact that the evidence may have proven exculpatory . . . does not render it per se material."¹⁷⁸ 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."¹⁷⁹

174 United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011).

175 Phillips v. Woodford, 267 F.3d 966, 986-87 (9th Cir. 2001) quoting Youngblood, 488 U.S. at 58, 109 S.Ct. 333.

176 Youngblood, 488 U.S. at 58, 109 S.Ct. 333.

177 Sivilla, 714 F.3d at 1172 citing United States v. Del Toro-Barboza, 673 F.3d 1136, 1149 (9th Cir. 2012).

178 United States v. Martinez-Martinez, 369 F.3d 1076, 1087 (9th Cir. 2004). See also Portee v. Alvarado, Case No. C 08-3566 RS, 2011 WL 4079055, at *2 N.D. Cal. Sept. 13, 2011 citing Youngblood, 488 U.S. at 57, 109 S.Ct. 333. ("The exculpatory value of the evidence must be 'apparent'; the possibility that evidence could have exculpated a defendant if preserved and tested is insufficient to satisfy the standard of constitutional materiality in Trombetta.").

179 United States v. Hernandez, 109 F.3d 1450, 1455 (9th Cir. 1997) ("[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") citing Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 and Mitchell v. Goldsmith, 878 F.2d 319, 321 (9th Cir. 1989).

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."¹⁸⁰ 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."¹⁸¹ 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."¹⁸² 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.¹⁸³ However, "[n]either Brady nor any other precedent of which the court is aware requires DNA tests."¹⁸⁴ 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."¹⁸⁵ 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."¹⁸⁶

180 Nicolaas v. Pace, Case No. C12-1357RAJ, 2013 WL 4519603, at *2 (W.D. Wash. Aug. 26, 2013).

181 Id. at *3.

182 Id. (citations omitted).

183 Id. citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (emphasis in original).

184 Id.

185 Id. citing United States v. Tadros, 310 F.3d 999, 1005 (9th Cir. 2002) (stating "Brady prohibits suppression of evidence, it does not require the government to act as a private investigator and valet for the defendant, gathering evidence and delivering it to opposing counsel."). See also Miller v. Vasquez, 868 F.2d 1116, 1119 (9th Cir. 1989), in which police failed to collect evidence of a potential sexual assault despite the victim telling investigating officers, hours after the assault, there was a blood stain on her jacket. The victim subsequently washed the jacket destroying the evidence. Id. at 1117. The Ninth Circuit stated the defendant had not "cited a case, nor have we found one, which holds that the due process clause is violated when the police fail to gather potentially exculpatory evidence. On the contrary, the cases we discovered hold to the contrary." Id. at 1119. After discussing the Supreme Court's then-recent decision in Youngblood, the court noted, as in Youngblood, "the evidence which the police failed to gather was only potentially exculpatory." Id. at 1120.

186 Id. at 4 citing Youngblood, 488 U.S. at 58, 109 S.Ct. 333.

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.¹⁸⁷ In that case, the defendant allegedly robbed a minimart captured on video.¹⁸⁸ When the officer tried to obtain a copy of the video, they received a "floppy disc containing fourteen" still images.¹⁸⁹ Thirty days after the original recording of the robbery, the system at the minimart automatically deleted the video, which was permanently lost.¹⁹⁰ The Ninth Circuit found the defendant did not demonstrate the video had "exculpatory value that was apparent before the evidence was destroyed."¹⁹¹ The court stated "[t]he exculpatory value of an item of evidence is not 'apparent' when the evidence merely 'could have' exculpated the defendant."¹⁹² 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.¹⁹³

187 543 F.3d 1080 (9th Cir. 2008).

188 Id. at 1083.

189 Id.

190 Id.

191 Id. at 1089.

192 Id. (emphasis in original).

193 Id. at 1090. The court also held comparable evidence was available in the form of still photographs. Id.

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.¹⁹⁴

194 As discussed below, the black bag in which the rifle was found is currently undergoing DNA testing.

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.¹⁹⁵ 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.¹⁹⁶ The government does not dispute that a decision was made not to submit the rifle for DNA testing.¹⁹⁷ Defendant does not contend he requested access to the bag and rifle to perform his own DNA tests.¹⁹⁸

195 ECF No. 28-2 at 41-42.

196 ECF No. 28 at 2 ("[a]pproximately 10 minutes after the shooting, surveillance video showed . . . [Defendant] leaving unit 114 of the Economy Hotel with a black bag . . ."); id. at 3 (discussing the discovery of the "black bag sitting on top of the pistol inside the boiler room . . . [with] the barrel of the rifle poking out of the . . . bag"); id. (discussing Metro obtaining a phone warrant and collecting evidence including the pistol and black bag). See also ECF No. 31 at 3.

197 ECF No. 31 at 5. Defendant is not charged with possession of ammunition or magazines; thus, whether these items were test for DNA evidence is not at issue. ECF No. 14.

198 See ECF No. 28 at 4:1-2 ("[t]he undersigned attorney inquired about the absence of forensic evidence for the rifle").

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).¹⁹⁹ 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.²⁰⁰ 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.²⁰¹ However, after the rifle left the LVMPD laboratory it "could no longer be tested consistent with" LVMPD laboratory protocols.²⁰² 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.²⁰³

199 ECF No. 31 at 4.

200 Id. at 7.

201 Id.

202 Id.

203 Id. at 7-8, 13. The government admits DNA testing on the rifle is unlikely to yield any reliable results. Id. at 7 n.2.

Although Defendant argues he did not need to make a request for testing to establish the government's appreciation of its evidentiary value,²⁰⁴ 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."²⁰⁵ 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.²⁰⁶ 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.²⁰⁷

204 ECF No. 32 at 3.

205 Youngblood, 488 U.S. at 59, 109 S.Ct. 333.

206 Id. at 57, 109 S.Ct. 333; Nicolaas, 2013 WL 4519603 at *3; Martinez-Martinez, 369 F.3d at 1087.

207 Martinez-Martinez, 369 F.3d at 1087 ("[T]he fact that the evidence may have proven exculpatory . . . does not render it per se material."). Portee, 2011 WL 4079055 at *2 citing Youngblood, 488 U.S. at 57, 109 S.Ct. 333. ("The exculpatory value of the evidence must be 'apparent'; the possibility that evidence could have exculpated a defendant if preserved and tested is insufficient to satisfy the standard of constitutional materiality in Trombetta.").

The facts do not support the finding that the rifle or black bag in which the rifle was found contained apparent exculpatory evidence.²⁰⁸ 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.²⁰⁹ This evidence supports the inference that DNA testing was substantially unlikely to yield exculpatory evidence.²¹⁰ 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.²¹¹ 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."²¹²

208 See ECF No. 28-2.

209 Id.

210 Id.

211 Trombetta, 467 U.S. at 488, 104 S.Ct. 2528. The Court notes that in Defendant's Reply he points to the evidence bag containing the rifle. ECF No. 32 at 3. Defendant points to the writing on the front of the bag and that the bag not sealed for approximately two months while in LVMPD custody. Id. Defendant's raises arguments relating to the writing on the evidence bag for the first time in his Reply brief. Compare ECF Nos. 28 and 32. Defendant says, in Reply, the markings on the evidence bag ("*DNA*") demonstrates Metro knew the "rifle had evidentiary value." The Court does not need to consider an argument raised for the first time in a reply brief. U.S. v. Mathur, Case No. 2:11-cr-00312-MMD-PAL, 2012 WL 4742833, at *15 (D. Nev. Sept. 13, 2012); Acacia Corporate Management, LLC v. U.S., Case No. CIV F-07-1129 AWI GSA, 2010 WL 3766706, at *2 (E.D. Cal. Sept. 21, 2012). Indeed, all Defendant says in his moving papers is "[t]he fact the black bag, rifle, and rifle magazine were collected as evidence demonstrates the government was keenly aware of their evidentiary value back on September 1, 2022." ECF No. 28 at 8. Defendant does not address the fact that the pistol was DNA tested while the evidence bag containing the pistol does not bear the "*DNA*" marking to which Defendant points thus undermining Defendant's contention that marking on an evidence bag demonstrates Metro believed there was "apparent exculpatory" evidence on the rifle. Defendant does not address the government's argument that the absence of his DNA on the rifle does not mean Defendant did not touch the rifle. Defendant argues all the government has with respect to his possession of the rifle is "highly circumstantial." ECF No. 32 at 4. The totality of the evidence discussed by Defendant does not demonstrate "official animus" toward Defendant or a "conscious effort" to suppress exculpatory evidence that was apparent. Knowledge of evidence that may have value is not enough to demonstrate bad faith. Drake, 543 F.3d at 1089. There must be apparent exculpatory evidentiary value that was lost or destroyed in order to establish bad faith. Martinez-Martinez, 369 F.3d at 1087; Uvari, 2020 WL 7873067, at *3 ("For evidence to be materially exculpatory, its exculpatory nature must be apparent.") (emphasis added; citations omitted); Sivilla, 714 F.3d at 1172 citing United States v. Del Toro-Barboza, 673 F.3d 1136, 1149 (9th Cir. 2012); Portee, 2011 WL 4079055 at *2 citing Youngblood, 488 U.S. at 57, 109 S.Ct. 333; Hernandez, 109 F.3d at 1455 ("The 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.") (citations omitted).

212 Youngblood, 488 U.S. at 57, 109 S.Ct. 333.

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.²¹³

213 The Court notes that to warrant "an evidentiary hearing, a defendant must make a colorable showing that the government destroyed evidence to prevent the disclosure of favorable evidence to the defense, or that the exculpatory value of the evidence was apparent." United States v. Uvari, Case No. 2:18-cr-00253-APG-NJK, 2020 WL 7873067, at *4 (D. Nev. Nov. 17, 2020). Because the Court finds neither the destruction of favorable evidence nor the existence of evidence of apparent exculpatory value, the Court finds no evidentiary hearing is required. Further, because the Court finds no bad faith, it does not discuss the possibility of comparable evidence. Nonetheless, the Court notes the black bag has been submitted for DNA testing (ECF No. 31 at 8) and substantial video/photographic footage, the authenticity of which has not been challenged, is available to Defendant.

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.²¹⁴ 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.²¹⁵ 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 . . . ."²¹⁶

214 Sivilla, 714 F.3d at 1174 citing United States v. Loud Hawk, 628 F.2d 1139, 1152 (9th Cir.) (en banc) rev'd on other grounds U.S. v. W.R. Grace, 526 F.3d 499, 502 (9th Cir. 2008).

215 Id. at 1173 citing id.

216 Id.

Defendant's Motion and Reply offer relatively little analysis of the balancing test described above.²¹⁷ While Defendant requested the outcome of DNA testing by the government under Federal Rule of Criminal Procedure 16(a)(1)(E),²¹⁸ 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 2022.²¹⁹ Defendant also does not dispute the black bag is currently being DNA tested.²²⁰ 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).

217 ECF Nos. 28 at 8-9; 32 at 7-8.

218 ECF No. 28 at 7.

219 Defendant says only that he "inquired about the absence of any forensic evidence for the rifle . . . and the black bag . . . ." ECF No. 28 at 4.

220 ECF No. 31 at 8.

Further, the government contends DNA evidence is not central to its case-in-chief at trial.²²¹ 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.

221 Id. at 13.

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.²²²

222 ECF No. 28 at 7-9.

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.²²³ The rifle and bag remain with the ATF.²²⁴ 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.²²⁵ The government concedes meaningful results from DNA testing on the rifle are unlikely.²²⁶

223 ECF No. 31 at 7.

224 Id. at 8.

225 Id.

226 Id. at 7 n.2.

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, 2022.²²⁷ Defendant is not charged with possession of ammunition or magazines.²²⁸ 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.²²⁹ 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.²³⁰ 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.

227 ECF No. 32 at 5.

228 ECF No. 14.

229 ECF No. 32 at 8.

230 ECF No. 31 at 2-4; United States v. Perez, Case No. 21-50166, 2023 WL 4491751, at *3 (9th Cir. July 12, 2021) (recognizing neither the government nor law enforcement played a role in the loss of evidence, the court nonetheless considered prejudice to the defendant finding it was doubtful the evidence lost would have been exculpatory); Uvari, 2020 WL 7873067, at *5 (analyzing a request for 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.²³¹ 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.

231 Uvari, 2020 WL 7873067, at *5; U.S. v. Hylton, Case No. 2:17-cr-00086-HDM-NJK, 2020 WL 4516914, at *5 (D. Nev. Apr. 22, 2020).

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.²³² 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.

232 Hylton, 2020 WL 4516914, at *5.

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.²³³ 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.²³⁴

233 Id.; Perez, 2023 WL 4491751, at *3.

234 Hylton, 2020 WL 4516914, at *5; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (it is within the province of the jury "to resolve conflicts . . . , . . . weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.").

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).