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United States v. Mohamed Horma

United States District Court, E.D. Virginia, Richmond Division

January 16, 2019




         This matter comes before the Court on Defendant Mohamed Abdellahi Mohamed Horma's Motion to Dismiss Counts Three and Four of the Indictment (the "Second Motion to Dismiss"). (ECF No. 53.) The United States responded, (ECF No. 58), and Horma replied, (ECF No. 59). On November 20, 2018, the Court held an evidentiary hearing and heard arguments on the Second Motion to Dismiss (the "November 2018 Evidentiary Hearing"), during which the parties referred to stipulations and presented exhibits provided to the Court. Each of the parties also filed post-hearing memoranda. (ECF Nos. 72, 73.) The Second Motion to Dismiss is ripe for disposition. For the reasons discussed below, the Court will deny the Second Motion to Dismiss.

         I. Factual Background[1]

         The Court assumes familiarity with its September 4, 2018 Memorandum Opinion and Order ("Horma 7"), (ECF Nos. 45, 46), in which it denied Horma's Motion to Dismiss Counts One Through Four of the Superseding Indictment (the "First Motion to Dismiss"), (ECF No. 14). United States v. Horma ("Horma I"), No. 3:18cr18, 2018 WL 4214136 (E.D. Va. Sept. 4, 2018).

         A. Immigration Background

         Horma, born in Morocco and a citizen of Mauritania, came to the United States on December 29, 2013, [2] at the age of nineteen. He entered on a valid six-month B-l/B-2 tourist visa, which expired on June 28, 2014. On February 4, 2014, more than four months before his tourist visa expired, Horma filed an Application for Asylum (the "Asylum Application") with the United States Citizenship and Immigration Services (the "USCIS"). The USCIS received the Asylum Application on February 13, 2014.

         On April 16, 2014, the Asylum Office Director sent Horma a "Notice of Intent to Deny" (the "NOID"), expressing an intent to deny Horma's Asylum Application and articulating why. On May 13, 2014, Horma, through counsel, submitted a rebuttal responding to the reasons articulated in the NOID for the intended denial, and including additional information. On September 17, 2015, Horma received a Notice to Appear to demonstrate why he should not be removed from the United States. The Notice to Appear included notification to Horma that he was "removable" as a non-citizen who overstayed his tourist (nonimmigrant) visa and remained in the United States "without authorization." (Not. Appear 1, ECF No. 41-4.) The Notice to Appear also ordered Horma to "appear before an immigration judge" to show cause why he should not be removed from the United States, but it did not set a date for Horma's hearing, noting it only as "TBD," or to be determined. (Id.)

         On September 21, 2015, USCIS issued a Referral Notice stating that, "after careful consideration," Horma's Asylum Application was not deemed credible. (Stip. 8; Referral Not. 1.) The Referral Notice also advised Horma that his Asylum Application was referred to an immigration judge who would independently consider it. The Referral Notice stated in bold: "This is not a denial of your asylum application." (Referral Not. 1.) On May 5, 2016, USCIS sent Horma a Notice of Hearing in Removal Proceedings in Immigration Court informing Horma that an immigration judge would hear his matter on March 2, 2021. Nothing in the record suggests that Horma has ever appeared before an immigration judge.

         B. Horma's Work History

         Pursuant to 8 U.S.C. § 1158(d)(2), [3] Horma could not have been granted employment authorization "prior to 180 days after the date of filing" of the Asylum Application. 8 U.S.C. § 1158(d)(2). On September 21, 2015, USCIS notified Horma that he was eligible to apply for work authorization. On March 20, 2015, well after the June 2014 expiration of his tourist visa, USCIS granted Horma work authorization for one year, ending March 19, 2016.

         On July 13, 2016, Horma claimed to work as a driver for Uber and that he previously worked at the "Itialian [sic] Kitchen Restaura[nt]." (Gov't Ex. 14 "District Court of Maryland for Howard County Initial Appearance Questionnaire" 1.) Although it appears Horma never worked for either of these establishments, the evidence shows that he worked in the cigarette wholesale business.[4]

         During the November 2018 Evidentiary Hearing, the United States presented the testimony of Federal Bureau of Investigation forensic accountant Stacy Young, who testified that Horma[5] opened multiple bank accounts between 2014 and 2017.[6] Ms. Young testified that between December 1, 2013 and March 19, 2015 (before Horma received work authorization), Horma deposited $441, 340.82 into these bank accounts. Also, during the period of March 20, 2016 to approximately April 29, 2017, [7] after Horma's work authorization expired, Horma deposited $112, 145.05 into his bank accounts.

         During the same November 2018 Evidentiary Hearing, Lieutenant Bodenhamer of the Henrico Police Department testified to his knowledge of Horma and the businesses with which Horma had associated himself.[8] The evidence shows that Horma considered himself an owner of Tobacco Sahara Corporation because on February 2, 2017, Horma listed himself as the "Company Contact" for Tobacco Sahara Corporation when opening a Sam's Club membership. (Tr. 113; Gov't Ex. 17 1.) Horma possessed and used Sam's Club membership cards in other businesses' names, establishing his association with those businesses as well. (See Gov't Exs. 6b, 6c, 9b.) Lt. Bodenhamer prepared three charts showing specific cigarette purchases Horma made at Sam's Club using the businesses' membership cards. (Id; Tr. 92-94.) Photographic evidence also shows Horma leaving a Sam's Club on September 19, 2016 after purchasing 210 cartons of cigarettes under the business name "Tobacco Shop." (Gov't Ex. 21; Tr. 97.)

         C. A Grand Jury in Howard County, Maryland, Charged Horma with Two Counts; Horma Later Pled Guilty to a Felony

         On July 13, 2016, while Horma's Asylum Application was pending, he was arrested in Howard County, Maryland, and charged with: (1) shipping, importing, selling into or within, or transporting into Maryland cigarettes or other tobacco products on which the tobacco tax had not been paid, in violation of Maryland Tax Code § 13-1015(a)[9] (the "Maryland Tax Statute"); and, (2) unlawful and willing possession, sale, or attempt to sell unstamped or improperly stamped cigarettes, in violation of Maryland Tax Code 13-1014.[10] (Stip. 10; Md. Compl., ECF No. 41-6.) On July 27, 2016, a grand jury in Howard County indicted Horma on both of those charges (the "Maryland Indictment"). On September 2, 2016, Horma was arraigned in the Howard County Court. At the arraignment, the Howard County Court informed Horma of the charges against him and their maximum possible penalties. Just over two months later, on November 15, 2016, Horma pled guilty to felony transportation of untaxed cigarettes, in violation of the Maryland Tax Statute. Horma was sentenced to eleven months' imprisonment, all suspended; a fine of $107, 550, with all but $2, 000 suspended; and two years of unsupervised probation.

         D. Evidence Regarding Firearms[11]

         The evidence shows that, on September 21, 2016, Horma visited Colonial Shooting Academy[12] in Richmond, Virginia. He rented a Ruger SR9C 9mm handgun using a credit card, [13]and then fired the gun at the shooting range. Before Horma left, he returned the gun. Prior to receiving the gun, Colonial Shooting Academy provided Horma with a form that "asked whether he had been convicted of a felony, or if there was any other reason that prohibited him from possessing a firearm, but did not advise him that he could not possess a firearm while under indictment."[14] (2d Mot. Dismiss 3.)

         The evidence also shows that, on November 12, 2016, Horma and another individual, Malik Sidya, traveled to the War Store. During that visit, both men entered the store and Sidya bought a Smith & Wesson M&P 9 mm handgun bearing serial number HVK3499. After the purchase, the men returned to Horma's apartment with the firearm.[15]

         Finally, in November 2016, police executed a search warrant for Horma's residence. During execution of the warrant, police found the Smith & Wesson handgun in Horma's bedroom dresser with papers bearing his name. Horma admitted in a post-Miranda interview that the gun belonged to Sayid "and he didn't trust [Sayid] with the gun, so [Horma] put it in his room." (Tr. 123; see also 2d Mot. Dismiss 4.) Horma also admitted that "he came up with the idea to purchase the firearm," but could not do so himself because "he did not have a 'green card.'"[16] (Id; Tr. 122-23.)

         II. Procedural Background

         A. Horma's First Motion to Dismiss

         On February 20, 2018, a federal grand jury in the Eastern District of Virginia returned a five-count Indictment, (ECF No. 9), and on May 15, 2018, returned a five-count Superseding Indictment, [17] (ECF No. 28). The Superseding Indictment charges Horma as follows:

Count One: Possession of a Firearm by an Illegal Alien, in violation of 18 U.S.C. § 922(g)(5)(A), on September 21, 2016.
Count Two: Possession of a Firearm and Ammunition by an Illegal Alien, in violation of 18 U.S.C. § 922(g)(5)(A), on November 12, 2016.
Count Three: Receipt of a Firearm by a Person Under Indictment, in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D), on September 21, 2016.
Count Four: Receipt of a Firearm by a Person Under Indictment, in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D), on November 12, 2016.
Count Five:[18] False Statements in the Acquisition of a Firearm, and Aiding and Abetting that Crime, in violation of 18 U.S.C. §§ 922(a)(6) and (2), on November 12, 2016.

         On March 27, 2018, Horma moved to dismiss Counts One through Four of the Superseding Indictment in the First Motion to Dismiss. As to Counts One and Two, Horma contended that the charges should be dismissed because he does not qualify as "an alien ... illegally or unlawfully in the United States," as set forth in 18 U.S.C. § 922(g)(5)(A) because he "has only ever been present in the United States on a valid visa, or later under a period of authorized stay due to a pending bona fide asylum application." (1st Mot. Dismiss 1-2, ECF No. 14.) As to Counts Three and Four, Horma argued that the Maryland Indictment could not support a charge under 18 U.S.C. § 922(n) because the crime for which he was under indictment did not constitute "a crime punishable by imprisonment for a term exceeding one year," 18 U.S.C. § 922(n), as that phrase is defined in 18 U.S.C. § 92l(a)(2O). (Id.) Horma argued in the alternative that § 922(n) was void for vagueness and that it amounted to an unconstitutional infringement of his rights under the Second Amendment to the United States Constitution.

         On September 4, 2018, this Court denied the First Motion to Dismiss. The Court concluded that Horma's challenge to Counts One and Two failed because the parties did not brief the proper legal issues or provide determinative factual evidence. Title 18, Section 922(g)(5)(A) prohibits someone who "is illegally or unlawfully in the United States" from possessing a firearm. 18 U.S.C. § 922(g)(5)(A). USCIS policies and provisions distinguish between a person's immigration status and the lawfulness of his or her presence in the United States.

         Because the parties failed to identify this critical distinction, they also neglected to develop the record necessary to make this fact-specific determination. Despite the Court's specific request to identify the date of Horma's work authorization, the parties did not include that information in the record they placed before the Court. The determination of Horma's lawful or unlawful presence turns on that date.

         In Horma I, the Court found that Horma's immigration status became illegal the day after he overstayed his visa. However, the Court declined to determine on that factual record whether Horma was unlawfully present in the United States. 2018 WL 4214136 at *9-*10. The Court decided that if Horma was in illegal immigration status, but had not accrued any unlawful presence, 18 U.S.C. § 922(g)(5)(A) may have been ambiguous as applied to Horma. For that reason, the Court denied without prejudice the First Motion to Dismiss as to Counts One and Two.[19]

         As to the challenges to § 922(n) in Counts Three and Four, Horma's argument that the Maryland Tax Statute does not constitute "a crime punishable by imprisonment for a term exceeding one year," 18 U.S.C. § 922(n), as defined in 18 U.S.C. § 92l(a)(2O), failed. His vagueness challenge to § 922(n) also did not succeed. The Court denied those aspects of Horma's challenge with prejudice. But, given the parties' briefing and relevant precedent from the United States Court of Appeals for the Fourth Circuit, the Court declined to reach Horma's Second Amendment challenge. The Court denied without prejudice that aspect of Horma's First Motion to Dismiss Counts Three and Four under the Second Amendment.[20]

         B. Horma's Second Motion to Dismiss

         On September 13, 2018, the Court held a status hearing, during which the United States orally moved to dismiss Counts One and Two of the Superseding Indictment. The Court granted the motion later that same day. (ECF No. 49.) The Court also set a briefing schedule for the Second Motion to Dismiss. On October 11, 2018, in accordance with the briefing schedule, Horma filed the Second Motion to Dismiss.[21] Horma now challenges only the constitutionality of 18 U.S.C. § 922(n), claiming that it violates the Second Amendment both as applied to him and on its face.

         After an October 18, 2018 Status Conference, the Court scheduled the November 2018 Evidentiary Hearing and granted the United States' oral motion for an extension of time to file its response to the Second Motion to Dismiss. (ECF No. 55.) On October 31, 2018, the United States again asked for additional time to file its response to the Second Motion to Dismiss, (ECF No. 56), and the Court granted the request, (ECF No. 57). On November 5, 2018, the government filed its response to the Second Motion to Dismiss, and on November 9, 2018, Horma replied.

         After the November 2018 Evidentiary Hearing, agreed-upon briefing ensued. On December 14, 2018, Horma filed his Supplemental Post-Hearing Memorandum. On December 28, 2018, the United States filed its Supplemental Post-Hearing Memorandum. The matter is now fully ripe.

         III. ...

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