United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Chief United States District Judge
criminal case, the defendant, Tory Alexander Thomas, has
moved to dismiss the indictment. For the reasons set forth
below, the motion will be denied.
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
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.
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
court held a hearing on the motion on September 15, 2016. The
motion has been fully briefed and is ripe for review.
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)).
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).
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 ...