The opinion of the court was delivered by: Chief Judge Kane
On April 14, 2011, a grand jury returned a four count indictment against Defendant charging him with: (1) Possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), in Count 1; (2) Trespassing at the Allenwood Federal Correctional Complex, in violation of 18 U.S.C. § 1793, in Count 2; (3) Possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g), in Count 3; and (4) Possession of firearms and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g), in Count 4. Currently pending before the Court is Defendant's motion to dismiss Counts 1, 3 and 4 of the indictment. (Doc. No. 32.) For the reasons stated more fully herein, the Court will deny Defendant's motion.
"An indictment is an accusation only, and its purpose is to identify the defendant's alleged offense . . . and fully inform the accused of the nature of the charges so as to enable him to prepare any defense he might have." United States v. Stansfield, 171 F.3d 806, 812 (3d Cir. 1999) (quotations and citations omitted). A defendant, however, may move to dismiss an indictment based on defects in the indictment, lack of jurisdiction, or failure to charge an offense. Fed. R. Crim. P. 12(b)(3)(B). When deciding a motion to dismiss, the Court must consider the entire indictment, taking the allegations contained therein as true. United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002). The indictment is not sufficient where it merely alleges the essential elements of the offense. Id. Rather, it must include specific facts that satisfy the elements charged. Id. If the specific allegations contained in the indictment are insufficient to sustain a conviction for the offense charged, the Court must grant the motion to dismiss. United States v. Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004). However, "[i]t is well-settled that a court may not dismiss an indictment on a determination of facts that should have been developed at trial." United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006) (quotations and citations omitted). An indictment is generally considered sufficient under Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure where 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." United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989) (quotations and citations omitted).
Defendant's motion to dismiss concerns each of the three counts in the indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). (Doc. No. 32.) First, Defendant claims Counts 3 and 4 are duplicitous because they charge Defendant with both unlawful possession of a firearm and unlawful possession of ammunition in a single count. (Id. ¶ 6.) Next, Defendant argues that all three counts charging violations of 18 U.S.C. § 922(g) are multiplicitous because they charge the same offense in multiple counts. (Id. ¶ 7.) Finally, Defendant raises constitutional challenges to 18 U.S.C. § 922(g) as a matter of law and as applied to him. (Id. ¶¶ 9-11.) The Court will address these arguments seriatim.
Defendant first argues that Counts 3 and 4 of the indictment must be dismissed because those counts charge Defendant with possession of both firearms and ammunition, and that the counts are, therefore, duplicitous. Duplicity is the "joining in a single count of two or more distinct and separate offenses." United States v. Starks, 515 F.2d 112, 116-17 (3d Cir. 1975). Duplicity in charging raises the potential of serious prejudice to defendants, and is therefore barred. Id. In the present matter, however, Counts 3 and 4 are not duplicitous. The United States Court of Appeals for the Third Circuit has held that the "possession of both a firearm and ammunition, seized at the same time in the same location, supports only one conviction and sentence under § 922(g)(1)." United States v. Tann, 577 F.3d 533, 537 (3d Cir. 2009). Because the conduct charged in Counts 3 and 4 of the indictment each give rise to only one "unit of prosecution," see id., Counts 3 and 4 each state only one offense. Accordingly, the Court cannot grant the motion to dismiss on the basis of duplicity.*fn1
Defendant next contends that Counts 1, 3, and 4 of the indictment must be dismissed as multiplicitous. "A multiplicious indictment charges the same offense in two or more counts and may lead to multiple sentences for a single violation, a result prohibited by the Double Jeopardy Clause." Soto v. United States, 313 F. App'x 496, 499 (3d Cir. 2008) (quoting United States v. Pollen, 978 F.2d 78, 83 (3d Cir. 1992)). Defendant notes that he was charged with the same offense, violation of 18 U.S.C. § 922(g), in Counts 1, 3, and 4 of the indictment. He further correctly notes that simultaneous possession of multiple firearms or pieces of ammunition does not give rise to a separate offense for each firearm or piece of ammunition possessed. See United States v. Tann, 577 F.3d 533, 535 (3d Cir. 2009); see also United States v. Marino, 682 F.2d 449 (3d Cir.1982) (simultaneous possession of pistol seized from bedroom nightstand and two rifles discovered in nearby closet during same search constituted single offense).
This rule does not, however, foreclose multiple convictions for possession of multiple firearms where the firearms in question were "seized in different locations or if they were acquired in separate transactions." United States v. Santiago, 387 F. App'x 223, 228 (3d Cir. 2010); see also United States v. Verrecchia, 196 F.3d 294, 298 (1st Cir. 1999) (concluding that the government properly charged the defendant with two counts of possessing a firearm in violation of 18 U.S.C.S. § 922(g)(1) where twenty-three guns were recovered from the same defendant in two separate locations).*fn2 In the present matter, Defendant was charged in Count 1 with possession of "a rifle, further description unknown" at the Allenwood Federal Correctional Complex in White Deer Township in Union County, Pennsylvania on December 2, 2010. (Doc. No. 1 at 1.) He was charged in Count 3 with possession of a bolt action Yoere Kufstein rifle in Delaware Township, Northumberland County, Pennsylvania on December 8, 2010. (Id. at 2.)
And he was charged in Count 4 with possession of a .308 caliber Remington Model 700 bolt action rifle, a .357 caliber Llama Comanche III revolver, and a .12 gauge single shot break action shotgun in the Borough of Watsontown, Northumberland County, Pennsylvania on December 8, 2010. (Id. at 3.) Accordingly, because the allegations contained in the indictment do not foreclose a jury finding that the firearms in question were separately stored or acquired, the Court cannot conclude that Counts 1, 3, and 4 of the indictment are multiplicitous.*fn3
C. Constitutional Challenges
Finally, Defendant raises two constitutional challenges to 18 U.S.C. § 922(g). (Doc. No. 32 ¶¶ 9-11.) First, he contends that 18 U.S.C. § 922(g) exceeds Congress's authority under Commerce Clause. Second, he claims that 18 U.S.C. § 922(g) violates the Second Amendment, both as a ...