United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
David Lee Thomas is charged in a fourteen-count indictment
with crimes relating to a series of armed robberies. Five
counts of the indictment allege that he committed a series of
robberies in violation of the Hobbs Act, 18 U.S.C. §
1951; five counts allege that he used or carried a
“firearm” in “relation to” or
possessed a “firearm” in “furtherance
of” a crime of violence in violation of 18 U.S.C.
§ 924(c); two counts allege that he committed two
robberies while armed with a “firearm” in
violation of D.C. law, D.C. Code §§ 22-2801,
22-4502; and two counts allege that he possessed a
“firearm” while committing those armed robberies
in violation of D.C. law, D.C. Code § 22-4504(b). In two
motions, Thomas moves to dismiss all but the Hobbs Act counts
of the indictment on the ground that the “weapon”
the Metropolitan Police Department (“MPD”)
recovered “was missing a number of key parts, ”
including its hammer and trigger. Dkt. 39 at 2; see
also Dkt. 22. He argues that a weapon missing these
parts does not satisfy the federal or D.C. statutory
definitions of a “firearm”; that one portion of
the federal statutory definition is unconstitutionally vague;
that the government's contention that the “frame or
receiver” of a gun is the “firearm” for
present purposes constitutes a constructive amendment of the
indictment, in violation of the Fifth Amendment to the U.S.
Constitution; and that, at a minimum, the government must
prove that Thomas knew that a “frame or receiver”
is a “firearm.” See Dkt. 22; Dkt. 39.
For the reasons explained below, the Court will deny both
3, 2018, a grand jury returned a fourteen-count superseding
indictment charging Thomas with crimes relating to a series
of armed robberies. See Dkt. 8. Those charges fall
into three general groups:
Counts One, Three, Five, Nine, and Eleven charge Thomas with
violating the Hobbs Act, 18 U.S.C. § 1951. Dkt. 8 at
1-2, 4-5, 7 (“Hobbs Act counts”). The Hobbs Act
counts are not implicated by the instant motions.
Counts Two, Four, Six, Ten and Twelve charge Thomas with
“Using, Carrying, and Possessing a Firearm During a
Crime of Violence, in violation of Title 18, United States
Code, Sections 924(c)(1)(A).” Id. at 2-8
(“§ 924(c) counts”). Section 924(c)(1)(A)
provides for enhanced penalties for “any person who,
during and in relation to any crime of violence . . . uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm.” 18 U.S.C. § 924(c)(1)(A).
Section 921(a)(3), in turn, defines a “firearm”
(A) any weapon (including a starter gun) which will or is
designed to or may readily be converted to expel a projectile
by the action of an explosive; (B) the frame or receiver of
any such weapon; (C) any firearm muffler or firearm silencer;
or (D) any destructive device. Such term does not include an
Id. § 921(a)(3). The indictment alleges that
Thomas knowingly used, carried “during and in relation
to, ” and possessed “in furtherance of” the
Hobbs Act violations “a firearm, that is, a Firearms
Import and Export Corp. Western Duo .22 caliber
revolver.” Dkt. 8 at 2-8.
Counts Seven and Thirteen charge Thomas with “Armed
Robbery, in violation of Title 22, District of Columbia Code,
Sections 2801, 4502, ” and Counts Eight and Fourteen
charge him with “Possession of a Firearm During Crime
of Violence or Dangerous Offense, in violation of Title 22,
District of Columbia Code, Section 4504(b).”
Id. at 5, 8 (“D.C. Code counts”). The
D.C. Code defines a firearm as “any weapon, regardless
of operability, which will, or is designed or redesigned,
made or remade, readily converted, restored, or repaired, or
is intended to, expel a projectile or projectiles by the
action of an explosive.” D.C. Code. § 22-4501(2A).
The indictment alleges that Thomas stole a cellphone on two
occasions from the same victim, “while armed with a
Firearms Import and Export Corp. Western Duo .22 caliber
revolver, ” and that on both occasions he possessed
“a firearm, that is, a Firearms Import and Export Corp.
Western Duo .22 caliber revolver, while committing the crime
of Armed Robbery.” Dkt. 8 at 5, 8.
nine of the fourteen counts are premised on Thomas's use
or possession of a firearm. The revolver that the MPD
recovered, however, was “missing its hammer, hammer
screw, trigger, cylinder stop, hand, ejector rod housing,
base pin, screw, nut, spring, loading gate detent and spring
and miscellaneous screws.” Dkt. 37 at 61-62 (Apr. 22,
2019 Hrg. Tr.). Thomas has filed two motions focusing on that
first moves to dismiss the § 924(c) counts based on the
missing parts. See Dkt. 22. He argues that the
revolver was not capable of expelling a projectile and was
not, at least at the time the gun was seized, “designed
to” do so. Id. at 2. In his view, this leaves
only one possibility under the relevant statutory text-that
the revolver could “readily” have been
“converted to expel a projectile.” Id.
at 3. But that clause of the statutory definition of
“firearm” is, according to Thomas,
unconstitutionally vague because the statute “provides
no objective criteria to be used in assessing whether a
weapon is ‘readily convertible.'”
Id. at 4-5.
response, the government makes only passing reference to
Thomas's vagueness argument. Dkt. 26 at 9-11. It,
instead, focuses on two other clauses of the statutory
definition. The government first argues that the revolver,
even with the missing parts, is nonetheless “designed
to . . . expel a projectile, ” 18 U.S.C. §
921(a)(3)(A), and, second, argues that it is at least
“the frame or receiver of . . . such [a] weapon,
” id. § 921(a)(3)(B). Dkt. 26 at 4-9.
Under either clause of the statutory definition, according to
the government, the fact that the gun was inoperable is
immaterial. “Because [§] 921(a)(3) is written in
the disjunctive, ” and because a reasonable jury could
find that the “designed to” or “frame or
receiver” clause is satisfied, the government submits
that it need not “demonstrate that” the revolver
“may readily be converted” to expel a projectile.
Dkt. 26 at 11.
Court held a hearing on Thomas's initial motion on April
22, 2019. Dkt. 37 (Apr. 22, 2019 Hrg. Tr.). A week later, the
Court granted Thomas leave to supplement his motion or to
file a further motion relating to the statutory definition of
“firearm.” Thomas took both paths. He
supplemented his motion to dismiss the § 924(c) counts,
Dkt. 40, arguing that the statutory reference to “frame
or receiver” applies only to the frame or receiver of
any “such weapon” and thus does not overcome the
statutory requirements that the “weapon”-at the
time of the crime of violence-must have been capable of
expelling or designed to expel a projectile. He also filed a
second motion to dismiss, this time seeking dismissal of both
the § 924(c) and the D.C. Code counts, arguing that, to
the extent the government contends that use or possession of
the “frame or receiver” of the revolver violated
the relevant statutes, that theory constitutes a constructive
amendment of the superseding indictment in violation of the
Fifth Amendment. Dkt. 39.
Thomas argues that under the reasoning of the Supreme
Court's decision in Staples v. United States,
511 U.S. 600 (1994), the government must at least prove at
trial that Thomas knew that a “frame or receiver”
is a “firearm” for purposes of §
924(c). Id. at 5-6.
motions to dismiss, Dkt. 22 and Dkt. 39, are now before the
Court for decision.
Motion to Dismiss § 924(c) Counts for Failure to State
first motion starts with the undisputed fact that the
revolver at issue here “was missing at least three
parts: the trigger; the hammer; and the cylinder pin, ”
and, on that basis, argues that (1) the gun does not qualify
as a “firearm” within the meaning of §
921(a)(3)'s “will” expel or “is
designed to” expel clauses and, (2) even if the
“readily-converted” clause of the definition
might apply, that clause is unconstitutionally vague. Dkt. 22
at 2-3. Although the statutory definition of a
“firearm” is a question of law, “the
determination of whether a particular weapon fits within the
legal definition of a firearm under that statute is a
question of fact” that is reserved for the jury.
United States v. Yannott, 42 F.3d 999, 1005 (6th Cir.
1994). At trial, the government will bear the burden of
demonstrating beyond a reasonable doubt that the revolver at