The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court are DEFENDANT'S MOTION TO DISMISS COUNT NINE ON CONSTITUTIONAL GROUNDS PURSUANT TO DISTRICT OF COLUMBIA v. HELLER (Document No. 87), with brief in support (Document No. 88), DEFENDANT'S MOTION TO DISMISS COUNT FOUR AS FAILING TO STATE AN OFFENSE (Document No. 89), and DEFENDANT'S MOTION RE: DUPLICITOUS/MULTIPLICITOUS PLEADINGS (Document No. 108). The government has filed responses in opposition to the motions (Document Nos. 153, 155) and the motions are ripe for disposition.
Factual and Procedural Background
This criminal case arose out of the tragic shooting of FBI special agent Samuel Hicks on November 19, 2008. On that date, Hicks and other law enforcement officers were attempting to execute an arrest warrant for Robert Ralph Korbe at the family home, which he shared with his wife, Christina Korbe ("Defendant" or "Korbe") and their two young children.
On January 8, 2009, the grand jury returned a four-count indictment against Christina Korbe, the sole Defendant in Criminal Action No. 09-05. The indictment charged that she: Count I: with malice aforethought, did kill Samuel Hicks, special agent of the FBI, while he was engaged in his official duties, in violation of 18 U.S.C. §§ 1111 and 1114; Count II: knowingly and by means and use of a deadly or dangerous weapon (a Taurus revolver), did forcibly assault, resist, oppose, impede, intimidate, and interfere with Samuel Hicks, special agent of the FBI, while he was engaged in his official duties, in violation of 18 U.S.C. §§ 111(a)(1) and (b); Count III: knowingly did use and carry and discharge a firearm (a Taurus revolver), during and in relation to a crime of violence, that being the murder and assault of Samuel Hicks as alleged in Counts I and II, and knowingly did possess said firearm in furtherance of said crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and (iii); and Count IV: did aid and abet the possession of a firearm (a Taurus revolver), by a convicted felon, that is, her husband, Robert Ralph Korbe, in that on or about November 19, 2008, Robert Ralph Korbe, after having been convicted of three drug-related felony offenses in state court, did knowingly possess the Taurus revolver, in violation of 18 U.S.C. §§ 2, 922(g)(1) and 924(e).
On March 19, 2009, the government filed a Superseding Indictment that added five additional charges against Korbe, alleging that: Count V: from 1990-2008, she conspired with persons known and unknown to distribute and possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846; Count VI: on November 19, 2008, she knowingly, intentionally and unlawfully possessed with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2; Count VII: on November 19, 2008, she knowingly, intentionally and unlawfully possessed with intent to distribute a quantity of [powder] cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; Count VIII: on November 19, 2008, she knowingly used, carried and discharged a firearm (a Taurus revolver), during and in relation to a drug trafficking crime -- namely, the offenses charged in Counts 5-7, and possessed said firearm in furtherance of said drug trafficking crimes, in violation of 18 U.S.C. §§ 924(c)(1)(A)(I) and (iii); and Count IX: on November 19, 2008, as an unlawful user of a controlled substance -- namely, cocaine and vicodin -- she knowingly possessed in and affecting interstate commerce a firearm (a Taurus revolver), in violation of 18 U.S.C. § 922(g)(3). The Superseding Indictment seeks forfeiture of the Korbe family home, in addition to the forfeiture of the Taurus revolver sought in the original Indictment.
In the pending motions, Defendant argues: (1) that Count IX of the Superseding Indictment should be dismissed because the underlying statute, 18 U.S.C. § 922(g)(3), violates the right to bear arms protected by the Second Amendment to the United States Constitution; (2) that Count IV of the Superseding Indictment should be dismissed for failure to state an offense, in that Robert Korbe's inability to lawfully possess a firearm did not prevent Defendant from lawfully possessing a firearm; and (3) that Counts I, II, and III are multiplicitous, in that they expose her to multiple punishment for essentially the same conduct. The government contends that each of the counts set forth in the Superseding Indictment is proper.
Defendant seeks dismissal of various counts of the Superseding Indictment pursuant to Fed. R. Crim. P. 12(b)(3). In United States v. Kemp, 500 F.3d 257 (3d Cir. 2007), the United States Court of Appeals for the Third Circuit summarized the relevant standard for evaluating the sufficiency of an indictment:
We deem an indictment sufficient so long as it (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution. Moreover, no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.
Id. at 280 (citations and internal quotations omitted). In evaluating a motion to dismiss pursuant to Fed. R. Crim. P. 12(b)(3), courts must accept the factual allegations as true and consider the sufficiency of the indictment as a matter of law. United States v. McGeehan, 584 F.3d 560, 565 (3d Cir. 2009). "The sufficiency of an indictment may be challenged not only on the basis that it fails to charge the essential elements of the statutory offense, but also on the ground that "the specific facts alleged ... fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation." Id. (citation omitted). The Court will address Defendant's challenges to Counts IX, IV and I-III of the Superseding Indictment seriatim.
Count IX charges that it was unlawful for Christina Korbe to possess a firearm due to her alleged unlawful use of controlled substances, namely cocaine and vicodin. Defendant challenges the constitutionality of the underlying statute, 18 U.S.C. § 922(g)(3), which provides:
It shall be unlawful for any person-- . . . (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) . . .to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm ...