United States v. Blair Cook
Opinion
*548
A jury convicted Blair Cook of being an unlawful user of a controlled substance (marijuana) in possession of a firearm.
See
I.
On May 25, 2017, officers of the Madison, Wisconsin police department conducted a traffic stop of the car that Cook was driving. When officers approached the car and spoke with Cook, they noticed a strong odor of marijuana emanating from the car. Apart from the possibility that Cook was driving under the influence of marijuana, Cook was also driving on a suspended license and without a license plate on the front of his vehicle, so the officers decided to detain him and ordered him to step out of the vehicle. Officer Matthew Wentzel removed a loaded, .40-caliber Glock Model 23 pistol from a holster under Cook's shoulder. The gun had an extended 22-round capacity magazine with 19 bullets remaining. Cook was transported to the police station for further questioning. During a recorded interview at the station, Cook acknowledged to Wentzel that he had used marijuana almost daily for nearly ten years (since the age of 14), that he did so because marijuana calmed him down, and that he had smoked two "blunts" earlier that day. 1 On prodding from the police, Cook ultimately produced a small packet from his groin area containing a half ounce of marijuana.
Cook had purchased the firearm from Max Creek Outdoors in Oregon, Wisconsin on April 2, 2017. At the time of the purchase, he was required to complete a Firearms Transaction Record Form 4473 promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). On that form, Cook answered "No" to the question, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" Directly under that question the reader of the form was admonished, "Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside."
A grand jury subsequently charged Cook with two offenses: possession of a firearm and ammunition by an "unlawful user" of marijuana, in violation of section 922(g)(3), and making a false statement (that he was not an unlawful user of marijuana) on the ATF form in connection with his purchase of a firearm and ammunition, in violation of
*549 Cook moved to dismiss both counts of the indictment on the ground that the term "unlawful user" of a controlled substance found in sections 922(g)(3) and 924(a)(1)(A) is unconstitutionally vague. The district court denied the motion. R. 21 at 2-3.
The district court subsequently gave the following instruction to the jury as to who constitutes an "unlawful user" of marijuana:
The defendant was an unlawful user of marijuana if he used marijuana on a regular and ongoing basis for a period of time that began before and continued through the date of the charged offense. The government is not required to prove that the defendant was under the influence of marijuana when he filled out the Firearms Transaction Record or when he possessed the firearm. The government is not required to prove that the defendant used marijuana on any particular day, or within a certain number of days of when he committed the charged offenses.
R. 44 at 8; R. 56 at 70-71 (emphasis in original). The defense rejected the government's offer to include an additional sentence in this instruction advising the jury that a one-time use of marijuana is insufficient to render the defendant an "unlawful user" within the meaning of either statute. R. 87 at 17.
Following a one-day trial, a jury convicted Cook on the section 922(g)(3) charge but was unable to reach a verdict on the section 924 charge, which the district court dismissed without prejudice, R. 53. The district court denied Cook's Rule 33 motions for a new trial (R. 73) and ordered Cook to serve a four-year term of probation in lieu of any term of imprisonment (R. 76).
II.
Section 922(g)(3) provides in relevant part that "[i]t shall be unlawful for any person ... who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (
Cook challenges his conviction pursuant to this statute on three grounds: (1) the statute is facially vague as to who constitutes an "unlawful user" of a controlled substance; (2) the statute violates his Second Amendment right to possess a firearm; and (3) the jury instruction defining "unlawful user" was inadequate. For the reasons that follow, we find none of these arguments to be persuasive.
A. Facial vagueness challenge to section 922(g)(3).
Cook contends that section 922(g)(3) is vague on its face, such that his conviction violates the Fifth Amendment's due process clause. The void-for-vagueness doctrine requires that a criminal statute define an offense with sufficient clarity that an ordinary person has fair notice of what conduct is prohibited and so as to avoid arbitrary and discriminatory enforcement.
See
,
e.g.
,
Skilling v. United States
,
The general practice, outside of the First Amendment context,
2
has been to consider the purported vagueness of a statute in light of the facts of the particular case-
i.e.
, as applied-rather than in the abstract.
See
,
e.g.
,
Maynard v. Cartwright
,
Nonetheless, the Supreme Court has on a number of occasions entertained facial challenges to criminal statutes that do not implicate First Amendment concerns.
See
,
e.g.
,
Skilling
, 561 U.S. at 402-14, 130 S.Ct. at 2927-33 (honest services fraud);
City of Chicago v. Morales
,
The statutory prohibition at issue here does not present such concerns. True enough, section 922(g)(3) does implicate Cook's Second Amendment right to possess a gun. But the prohibition is not a strict liability offense requiring no
mens rea
, as in
Colautti
. By virtue of the separate penalties provision found in
*551
Yancey
construes the term "unlawful user," as used in section 922(g)(3), to mean one who regularly or habitually ingests controlled substances in a manner other than as prescribed by a physician.
Cook is thus not in a position to claim that the statute is so indefinite as to inhibit the legitimate exercise of Second Amendment rights. Whatever doubt there might be at the margins as to conduct potentially reached by section 922(g)(3), there can be no doubt as to the core of conduct that the statute (as construed by Yancey ) proscribes: the possession of a firearm by an individual engaged in the regular, non-prescribed use of a controlled substance. Indeed, it would appear that Cook's conduct-possession of a firearm in the midst of a nearly ten-year period of daily marijuana use-epitomizes that core, which may explain why Cook is so keen to challenge the statute on its face rather than as applied.
Cook nonetheless suggests that the Supreme Court's recent decision in
Johnson
authorizes his facial vagueness challenge, regardless of whether the statute is vague as applied to his particular conduct.
Johnson
declared the (now defunct) residual clause of the Armed Career Criminal Act ("ACCA") to be impermissibly vague without requiring the defendant to first show that the clause was vague as applied to him.
In declaring the residual clause to violate the due process clause, the Court expressly rejected the government's contention that an otherwise vague statute is constitutional so long as "there is some conduct that clearly falls within the provision's grasp." Id. at 2561. While acknowledging that statements in some of its opinions could be read to support such a rule, the Court emphasized that its prior holdings squarely contradicted such a practice. Id. at 2560-61. Simply because it is possible to envision some factual scenarios that would violate an ambiguously-worded statute is not enough to rescue that statute from a vagueness challenge, the Court made clear. Id. at 2561.
The Court was also at pains to emphasize, however, that simply because a criminal statute uses qualitative language to articulate a liability standard does not mean that the statute is impermissibly vague, especially when the statute under scrutiny calls upon the court to apply that standard to a concrete set of facts. Id. at 2561 ; see also id. at 2558.
As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as "substantial risk" to real-world conduct; "the law is full of instances where a man's fate depends on his estimating rightly ... some matter of degree," Nash v. United States ,229 U.S. 373 , 377,33 S.Ct. 780 ,57 L.Ed. 1232 (1913). The residual clause, however, requires application of the "serious potential risk" standard to an idealized ordinary *553 case of the crime. Because "the elements necessary to determine the imaginary ideal are uncertain both in nature and degree of effect," this abstract inquiry offers significantly less predictability than one "[t]hat deals with the actual, not with an imaginary condition other than the facts." International Harvester Co. of America v. Kentucky ,234 U.S. 216 , 223,34 S.Ct. 853 ,58 L.Ed. 1284 (1914).
It is not clear how much
Johnson
-and the Court's follow-on decision last term in
Sessions v. Dimaya
, --- U.S. ----,
Cook's appeal, by contrast, presents a much more routine vagueness challenge that highlights some imprecision in the statutory language and posits uncertainty as to whether the statute might apply to certain hypothetical facts. But section 922(g)(3) does not call for the court to engage in any abstract analysis; it calls on the court to apply the statutory prohibition to a defendant's real-world conduct.
See
United States v. Douglas
,
*554
United States v. Larson
,
For these reasons, we are not convinced that Cook is entitled to mount a facial vagueness challenge to section 922(g)(3).
Johnson
did not alter the general rule that a defendant whose conduct is clearly prohibited by a statute cannot be the one to make a facial vagueness challenge.
United States v. Westbrooks
,
Cook's attempt to challenge section 922(g)(3) as facially vague fails for all of the reasons we have discussed, and because he asserts no as-applied challenge to the statute, we reject his contention that the statute is inconsistent with his due process rights.
B. Second Amendment
Cook agrees that
Yancey
forecloses this challenge to section 922(g)(3).
Yancey
, as noted, held that there was a substantial relationship between the government's legitimate interest in preventing violent crime and the statute's ban on gun possession by unlawful drug users.
C. Jury Instruction
Cook argues finally that the district court did not properly instruct the jury as to the elements of his offense. As we noted in our summary of the proceedings below, the court advised the jury that "[t]he defendant was an unlawful user of marijuana if he used marijuana on a regular and ongoing basis for a period of time that began before and continued through the date of the offense." R. 44 at 8; R. 56 at 70-71 (emphasis omitted). The court added that Cook need not have been under the influence of marijuana when he possessed a firearm, nor was the government required to prove that he used marijuana on any particular date or within a specified number of days of the offense. (Recall that Cook had rejected the government's offer to add language that use of marijuana on a single occasion was insufficient to establish unlawful drug use.) Cook contends that the instruction as given was erroneous because (a) it was not grounded in the language of section 922(g)(3) ; (b) it was not consistent with Yancey 's holding as to who constitutes an unlawful drug user; (c) the instruction was internally inconsistent; and (d) it foreclosed the defense from urging the jurors to use their own understanding of "unlawful user" in assessing Cook's conduct. None of these arguments is persuasive.
The instruction was grounded in the language of the statute in that it endeavored, consistent with the case law regarding section 922(g)(3), to define for the jury who constitutes an unlawful drug user. The statute itself does not define "unlawful drug user." As discussed, this court in
Yancey
concluded that an unlawful drug user is one who regularly uses a controlled substance, other than as prescribed by a physician, contemporaneously with possessing a firearm.
*556
that is sufficiently contemporaneous with the possession of a firearm.
See
Nor was the instruction inconsistent with
Yancey
. Cook suggests that
Yancey
defined "unlawful user" of drugs to mean either one who is addicted to controlled substances or one who has simply used them within the past year, and that the reference to "regular and ongoing" drug use in the district court's instruction is both broader than addiction and narrower than use within the past year. But Cook's reading of
Yancey
is not a faithful reading of the court's opinion. The opinion makes clear that section 922(g)(3) requires
regular
or
habitual
drug use,
The instruction was also internally consistent. Cook's contention to the contrary focuses on the fact that the instruction advised the jury, on the one hand, that his marijuana use must have "beg[u]n before and continued through the date of the charged offense" but, on the other hand, that he need not have "used marijuana on any particular day, or within a certain number of days of when he committed the charged offense." These portions of the instruction were not at odds with one another. Consistent with Yancey 's requirement that the defendant's drug use be contemporaneous with his possession of a firearm, the court appropriately advised the jury that Cook's marijuana use must have been "ongoing" at the time he was discovered in possession of a gun. But the requirement that the drug use and firearm possession be contemporaneous does not literally mean that the defendant must have been ingesting (or under the influence of) a controlled substance at the same time as he possessed the gun. The statute, after all, prohibits firearm possession by a drug user , not simply possession during drug use . So long as the defendant was still engaged in the regular use of a drug at the time of his firearm possession, it is not necessary to show that he used the drug on the day of his firearm possession, the day before, or within any particular number of days of the possession. Thus, a person who routinely uses marijuana on weekends may violate section 922(g)(3) by possessing a firearm on a Tuesday or Wednesday, because his possession of the gun is contemporaneous with his ongoing pattern of drug use. The instruction appropriately and coherently advised the jury on these points.
*557 Finally, we are no more persuaded than the district judge was that the instruction should have left it to the jurors to consult their own collective sense of who constitutes an "unlawful user" of marijuana. Yancey establishes the relevant parameters on this point, and the district court was required to convey those parameters to the jury to guide its decisionmaking, which Judge Peterson did admirably.
That said, our holding should not be construed to foreclose alternate versions of the "unlawful user" instruction. The Sixth and Eighth Circuits, for example, have promulgated instructions with slightly different language.
See
MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE EIGHTH CIRCUIT § 6.18.922B, at 291-94 (2017);
United States v. Burchard
,
III.
For all of the foregoing reasons, we AFFIRM Cook's conviction. We commend everyone involved in the briefing and arguing of this case, along with Judge Peterson and Magistrate Judge Crocker for their thorough and careful handling of the case below. Their dedication and hard work have greatly aided this court's deliberation and resolution of the appeal.
"Blunt" is a street term for a cigar from which the tobacco has been removed and replaced with marijuana.
When a statute implicates activities protected by the First Amendment, there is a special concern that free speech and expression not be chilled.
See
Broadrick v. Oklahoma
,
See
,
e.g.
,
United States v. Salerno
,
We recognize that a liability standard turning on the regularity of a particular activity can in some instances present a vagueness problem.
See
Whatley v. Zatecky
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Blair COOK, Defendant-Appellant.
- Cited By
- 11 cases
- Status
- Published