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United States v. Thomas

United States District Court, District of Columbia

August 29, 2019

UNITED STATES OF AMERICA,
v.
DAVID LEE THOMAS, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         Defendant 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 motions.

         I. BACKGROUND

         On May 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:

         First, 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.

         Second, 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” as:

(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 antique firearm.

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.

         Third, 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.

         Thus, 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 undisputed fact.

         He 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.

         In 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.

         The 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.

         Finally, 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).[1] Id. at 5-6.

         The two motions to dismiss, Dkt. 22 and Dkt. 39, are now before the Court for decision.

         II. ANALYSIS

         A. Motion to Dismiss § 924(c) Counts for Failure to State an Offense

         Thomas's 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 ...


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