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United States v. Thomas

United States District Court, W.D. Virginia, Charlottesville Division

October 11, 2016

UNITED STATES OF AMERICA
v.
TORY ALEXANDER THOMAS, Defendant.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge

         In this criminal case, the defendant, Tory Alexander Thomas, has moved to dismiss the indictment. For the reasons set forth below, the motion will be denied.

         Background

         On July 27, 2016, a federal grand jury returned a one-count indictment charging Thomas with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The indictment alleges the § 922(g)(1) offense in the following terms:

On or about May 12, 2016, in the Western Judicial District of Virginia, the defendant, TORY ALEXANDER THOMAS, a/k/a Christopher Nathaniel Newman, who was previously convicted of a crime punishable by a term of imprisonment exceeding one year, did knowingly and intentionally possess a firearm to wit; a Diamondback, .380 caliber handgun, which was shipped or transported in interstate or foreign commerce; all in violation of Title 18, United States Code, Section 922(g)(1).

Dkt. No. 1.

         On August 17, 2016, Thomas moved to dismiss the indictment on two grounds. First, Thomas argues that it improperly pleads, in the disjunctive, that the firearm at issue had been "shipped or transported in interstate or foreign commerce." Id. (emphasis added). Second, Thomas contends that the indictment is defective because it does not identify the precise nature of his prior felony conviction, the date of the conviction, or the court in which he was convicted.

         The court held a hearing on the motion on September 15, 2016. The motion has been fully briefed and is ripe for review.

         Discussion

         "In the federal system, an indictment need merely contain a 'plain, concise, and definite written statement of the essential facts constituting the offense charged.'" United States v. Rendelman. 641 F.3d 36, 43 (4th Cir. 2011) (quoting Fed R. Crim. P. 7(c)(1)). "More specifically, an indictment is legally sufficient (1) if it alleges the essential elements of the offense, that is, it fairly informs the accused of what he is to defend; and (2) if the allegations will enable the accused to plead an acquittal or conviction to bar a future prosecution for the same offense." Id. (citing United States v. Brandon. 298 F.3d 307, 310 (4th Cir. 2002)).

         The specific statute under which Thomas was charged makes it:

unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year[, ] ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1). To sustain a conviction under § 922(g)(1), the government must prove the following elements: (1) that "the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year"; (2) that "the defendant knowingly possessed, transported, shipped, or received, the firearm"; and (3) that "the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence." United States v. Langlev. 62 F.3d 602, 606 (4th Cir. 1995).

         In moving to dismiss the indictment, Thomas first argues that it improperly pleads, in the disjunctive, that he possessed a firearm that had been "shipped or transported in interstate or foreign commerce." Dkt. No. 1 (emphasis added). To support this argument, Thomas cites to Fourth Circuit precedent holding "that 'where a statute is worded in the disjunctive, federal pleading requires the Government to charge in the conjunctive.'" United States v. Montgomery,262 F.3d 233, 242 (4th Cir. 2001) (quoting United States v. Rhynes. 206 F.3d 349, 384 (4th Cir. 1999)). "The purpose behind the disjunctive/conjunctive rule is to avoid uncertainty in charging an offense when the statute enumerates several different ways in which an offense may be committed." United States v. Villalobos, 32 F.Supp.3d 803, 808 (S.D. Tex. 2014): see also The Confiscation Cases, 87 U.S. 92, 104 (1874) (explaining that a disjunctive charge would lack "necessary certainty" and be "wholly insufficient" because "[i]t would not give the accused definite notice of the offence charged" or provide protection against double jeopardy). For instance, the rule has been applied in cases in which a statute prohibited the "use or carry" of a firearm, United States v. Hall. No. 96-4365, 1997 U.S. App. LEXIS 32168, at *9 (4th Cir. Nov. 17, 1997), or made it unlawful for a person to knowingly "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance, " United States v. Arnold. No. 94-5649, 1996 U.S. App. LEXIS 26348, at *4 (4th Cir. Oct. 8, 1996). In those cases, the indictments charged in the ...


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