United States District Court, D. Arizona
AMENDED REPORT AND RECOMMENDATION (AMENDED AS TO
MOTION FOR PRODUCTION OF GRAND JURY TRANSCRIPT DOCKET NUMBER
Honorable Bruce G. Macdonald United States Magistrate Judge.
pending before the Court are Defendant Emilio
Urena-Villa's Motion to Dismiss Indictment [sic] Lack of
Jurisdiction (Doc. 24), Motion for Production of Grand Jury
Transcript (Doc. 25), and Motion to Dismiss (Commerce Clause)
(Doc. 34). The Government has filed its Responses (Docs. 32,
33, 38) and no replies were filed.
is charged with nine (9) counts of knowingly possessing
ammunition, having been convicted of a crime punishable by
imprisonment for a term exceeding one year, that is Burglary
in the First Degree, and Aggravated Assault with a Deadly
Weapon and Discharging a Firearm at a Residential Structure
in violation of Title 18, United States Code, Sections
922(g)(1) and 924(a)(2). Indictment (Doc. 1) at 1. Pursuant
to LRCrim. 5.1, this matter is before Magistrate Judge
Macdonald for a report and recommendation. Oral argument was
heard by Magistrate Judge Macdonald on June 21, 2018. Minute
Entry 6/21/2018 (Doc. 51). The Magistrate Judge recommends
that the District Court, after its independent review, deny
18, 2007, Defendant Emilio Urena-Villa was convicted of a
felony, Case Number CR20061568 in the Arizona Superior Court
for the County of Pima, for Burglary in the First Degree,
Aggravated Assault with a Deadly Weapon, and Discharging a
Firearm at a Residential Structure. Indictment (Doc. 1) at 1.
Subsequently, Mr. Urena-Villa purchased ammunition on nine
(9) separate occasions in 2017. See Id. at 1-5. The
Government asserts that agents obtained receipts and
surveillance footage from a gun store in Tucson, Arizona,
which establish that Mr. Urena-Villa made the purchases on
the dates and in the amounts alleged in the Indictment.
Govt.'s Resp. to Def.'s Mot. to Dismiss the Indict.
for Lack of Jurisdiction (Doc. 32) at 1. The Government
further asserts that “[a] qualified firearms expert
concluded that the ammunition at issue was not manufactured
in Arizona and, therefore, must have travelled in interstate
commerce prior to reaching the gun store.” Id.
at 1-2. A grand jury returned the nine (9) count indictment.
See Indictment (Doc. 1).
Motion to Dismiss for Lack of Jurisdiction
asserts that the Grand Jury lacked jurisdiction to indict,
“because there could be no interstate commerce nexus
that is required by the Commerce Clause and the
statute.” Def.'s Mot. to Dismiss [sic] Lack of
Jurisdiction (Doc. 24) at 1.
basic purpose of the English grand jury was to provide a fair
method for instituting criminal proceedings against persons
believed to have committed crimes.” Costello v.
United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100
L.Ed. 397 (1956). “[I]n this country as in England of
old the grand jury has convened as a body of laymen, free
from technical rules, acting in secret, pledged to indict no
one because of prejudice and to free no one because of
special favor.” Id. Furthermore,
“[u]nlike [a] [c]ourt, whose jurisdiction is predicated
upon a specific case or controversy, the grand jury can
investigate merely on suspicion that the law is being
violated, or even because it wants assurance that it is
not.” United States v. Williams, 504 U.S. 36,
48, 112 S.Ct. 1735, 1742, 118 L.Ed.2d 352 (1992) (quoting
United States v. R. Enterprises, Inc., 498 U.S. 292,
297, 111 S.Ct. 722, 726, 112 L.Ed.2d 795 (1991)) (2d & 3d
alterations in original) (internal quotation marks omitted).
“Only a defect so fundamental that it causes the grand
jury no longer to be a grand jury, or the indictment no
longer to be an indictment, gives rise to the constitutional
right not to be tried.” Midland Asphalt Corp. v.
United States, 489 U.S. 794, 802, 109 S.Ct.
1494, 1500, 103 L.Ed.2d 879 (1989); see also United
States v. Hickey, 367 F.3d 888, 894 (9th Cir. 2004).
“Neither the Fifth Amendment nor any other
constitutional provision prescribes the kind of evidence upon
which grand juries must act.” Costello, 350
U.S. at 361-62, 76 S.Ct. at 408. “An indictment
returned by a legally constituted and unbiased grand jury,
like an information drawn by the prosecutor, if valid on its
face, is enough to call for trial of the charge on the
merits.” Id. at 363, 76 S.Ct. at 409.
Defendant does not allege that the Grand Jury was biased or
otherwise illegally constituted. Defendant takes issue only
with the quality of the evidence presented to the Grand Jury.
Defendant cannot imagine how the Government can claim that
the ammunition purchased was transported to Arizona from
another state or foreign country, “[w]ithout seeing the
ammunition, or its container[.]” Def.'s Mot. to
Dismiss [sic] Lack of Jurisdiction (Doc. 24) at 1-2. There
is, however, no prescription regarding “the kind of
evidence upon which grand juries must act.”
Costello, 350 U.S. at 361-62, 76 S.Ct. at 408. It is
sufficient that the properly convened, unbiased Grand Jury
heard the evidence presented and returned an indictment
against the Defendant. As such, Defendant's Motion to
Dismiss [sic] Lack of Jurisdiction (Doc. 24) must be denied.
Motion to Dismiss Challenging the Constitutionality of the
seeks dismissal of the indictment because Section 922(g)(1),
Title 18 of the United States Code, “is
unconstitutional as it exceeds the powers that are enumerated
to Congress by the United States Constitution.”
Def.'s Mot. to Dismiss (Commerce Clause) (Doc. 34) at 2.
Defendant argues that “Congress [does not have]
authority under the commerce clause to enact legislation
concerning possession of ammunition that does not affect
interstate commerce.” Id. at 5.
Defendant's contention is devoid of merit.
[United States v. Lopez and its progeny, the Supreme
Court delineated ‘three general categories of
regulation in which Congress is authorized to engage under
its commerce power.'” United States v.
Alderman, 565 F.3d 641 (9th Cir. 2009) (quoting
Gonzales v. Raich, 545 U.S. 1, 16, 125 S.Ct. 2195,
162 L.Ed.2d 1 (2005)). These include (1) “the channels
of interstate commerce”; (2) “the
instrumentalities of interstate commerce, and persons or
things in interstate commerce”; and (3)
“activities that substantially affect interstate
commerce.” Gonzales, 545 U.S. at 16-17, 125
S.Ct. at 2205. “The ‘categories have never been
deemed exclusive or mandatory.'” Alderman,
565 F.3d at 646 (quoting United States v. Clark, 435
F.3d 1100, 1116 (9th Cir. 2006)). Furthermore, “[t]he
categories are a guide, not a straitjacket.”
Id. (quoting United States v. Clark, 435
F.3d 1100, 1116 (9th Cir. 2006)).
Supreme Court of the United States has “established
what is now the controlling four-factor test for determining
whether a regulated activity ‘substantially affects
interstate commerce.” United States v. Adams,
343 F.3d 1024, 1028 (9th Cir. 2003) (quoting United
States v. McCoy, 323 F.3d 1114, 1119 (9th Cir. 2003)).
“These considerations are: (1) whether the regulated
activity is commercial/economic in nature; (2) whether an
express jurisdictional element is provided in the statute to
limit its reach; (3) whether Congress made express findings
about the effects of the proscribed activity on interstate
commerce; and (4) whether the link between the prohibited
activity and the effect on commerce is attenuated.”
Id. (citing United States v. Morrison, 529
U.S. 598, 610-12, 120 S.Ct. 1740, 1749-51 (2000)). “The
purpose of a jurisdictional hook is to limit the reach of a
particular statute to a discrete set of cases that
substantially affect interstate commerce.”