April 22, 2004
ROBIN AUSTIN, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (F-6858-01) (Hon. Noel Anketell Kramer, Motions Judge) (Hon. Maurice A. Ross, Trial Judge)
Before Steadman, Reid and Washington, Associate Judges.
Argued March 9, 2004
Appellant, Robin Austin, pled guilty to one count of carrying a pistol without a license in violation of D.C. Code § 22-3204(a) (1981) (recodified and referred to herein as § 22-4504(a) (2001)), conditioned on her ability to appeal the trial court's denial of her pretrial motion to dismiss the indictment on constitutional grounds. That appeal is now before us. We affirm.
Appellant's principal overall assertion on appeal is that this court in Sandidge v. United States erroneously held that the Second Amendment bestows only a collective, rather than an individual, right to bear arms. 520 A.2d 1057 (D.C.), cert. denied 484 U.S. 868 (1987). However, as appellant correctly acknowledges, this argument can be addressed only by the en banc court; this panel is bound by Sandidge. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971); see also Barron v. United States, 818 A.2d 987, 994 n.7 (D.C. 2003) (recognizing that the panel was foreclosed from revisiting Sandidge).
Appellant also acknowledges that its related appellate issues based on constitutional principles of due process and equal protection are closely intertwined with the Second Amendment issue and in a general sense might best be resolved in the overall context of an en banc hearing. This court, however, denied appellant's petition for an initial hearing en banc. We therefore address here appellant's arguments, as we understand them, which can fairly be considered independent of the Sandidge challenge, that is, arguments pursuant to which this panel could reverse appellant's conviction even though Sandidge controls. *fn1
Appellant's first such argument is that due process is violated because the United States is enforcing a statute, D.C. Code § 22-4504(a), that the executive branch believes is unconstitutional as violative of the Second Amendment. Appellant bases this contention on a memorandum issued by the Attorney General on November 9, 2001. The memorandum refers to a recent opinion by the Fifth *fn2 Circuit, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), asserting that the Second Amendment protects the private right of individuals to possess and bear firearms, subject to reasonable restrictions, and sets forth the Attorney General's *fn3 view that the Emerson decision and the balance it strikes generally reflects the correct understanding of the Second Amendment. The government, however, responds that appellant's premise is flawed because the government's present position is that D.C. Code § 22-4504(a) is not unconstitutional either facially or as applied to this particular defendant. We see no basis in this record to dispute the *fn4 government's assertion, a fact that segues into appellant's second argument.
Appellant asserts alternatively that the government's position results in uneven enforcement of the statute, in that individuals whom the government deems not to be "unfit" to possess firearms are not subjected to prosecution under the statute. The government responds that appellant is incorrect and that the *fn5 government, in fact, prosecutes all violators of the statute under normal prosecutorial standards. Appellant's argument, essentially one of equal protection, *fn6 was never squarely presented to nor ruled upon by the trial court. See Miller v. Avirom, 127 U.S. App. D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967) (arguments not presented to the trial court will be spurned on appeal); Thorne v. United States, 582 A.2d 964, 965 (D.C. 1990) (a "party who neglects to seek a ruling on his motion fails to preserve the issue for appeal"). In any event, the record before us is quite insufficient to provide any factual basis for such an argument by appellant. See Fedorov v. United States, 600 A.2d 370, 377 (D.C. 1991) (en banc) ("A party who charges discriminatory application of prosecutorial discretion to pretrial diversion carries a heavy burden of proof. . . [T]he defendant must make a prima facie showing that: '(1) others similarly situated were not prosecuted, and (2) the selective prosecution being complained of was improperly motivated, i.e., it was based on an impermissible consideration such as race or on a desire to prevent the exercise of constitutional rights'") (citations omitted).
Appellant's conviction is hereby Affirmed.