United States District Court, D. Arizona
K. Jorgenson, United States District Judge.
January 18, 2019, Magistrate Judge Leslie A. Bowman issued a
Report and Recommendation (“R&R”) (Doc. 62)
in which she recommended that the Motion to Dismiss
Indictment (Doc. 47) filed by Jerry Quinlan Huerta
("Huerta") be denied. Huerta has filed an objection
(Doc. 67) and the government has filed a response (Doc. 70).
standard of review that is applied to a magistrate
judge's report and recommendation is dependent upon
whether a party files objections - the Court need not review
portions of a report to which a party does not object.
Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466,
472-73, 88 L.Ed.2d 435 (1985). However, the Court must
“determine de novo any part of the magistrate
judge's disposition that has been properly objected to.
The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instruction.”
Fed.R.Civ.P. 72(b)(3); see also 288 U.S.C. §
636(b)(1) (“A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
and Recommendation - Factual Background
asserts the R&R fails to make factual findings
surrounding the prior Pima County offense details and fails
to consider the evidence submitted by Huerta regarding those
circumstances. Huerta asserts he played a minor role in a
nonviolent offense motivated by political beliefs, as
detailed in the Pima County Presentence Report
(“PSR”). The Court accepts this fact for purposes
of this Order as summarized by Huerta.
also asserts the R&R incorrectly states Huerta filed
liens against people's homes. Rather, he asserts he was
acting as an unauthorized notary and signed the homemade
liens drawn up by his codefendant Whalen, while codefendant
Stultz signed the liens. The liens were openly mailed to the
affected parties and notices were published in the newspaper.
Further, Huerta asserts the authorities were on notice as to
who filed the liens and why. However, Huerta and the
codefendants took such actions in concert. The Court accepts
Huerta's objection as placing the statement in the
R&R into context.
disputes the R&R's reference to him as a fugitive. He
asserts that, in the context of 18 U.S.C. § 922,
“fugitive” carries a specific meaning
inapplicable to Huerta, who is not accused of leaving the
state of Arizona during this time. The Court acknowledges
that the term fugitive may carry a specific meaning in
different contexts. See e.g. United States v.
Durcan, 539 F.2d 29, 31 (9th Cir. 1976) (The term
“fugitive from justice” is defined in 18 U.S.C. s
921(a)(15) as “any person who has fled from any State
to avoid prosecution for a crime . . .”); Man-Seok
Choe v. Torres, 525 F.3d 733, 741 (9th Cir. 2008).
However, the R&R does not track the language of §
922 (i.e., fugitive from justice) and does not designate a
specific meaning of the use of the word
“fugitive.” Here, Huerta failed to appear for his
scheduled sentencing and was not arrested on an outstanding
warrant for over 20 years. The Court accepts the
R&R's use of “fugitive” as it is
generally defined. See Fugitive, Black's Law
Dictionary (10th ed. 2014) (“Someone who flees or
escapes; a refugee.”).
also objects to the R&R stating that his felonies caused
emotional distress to his victims. However, one victim
described emotional distress, while another described mild
further objects to the R&R for failing to fully consider
the circumstances of the nonviolent, non-serious nature of
Huerta's convictions and for giving insufficient weight
to the testimony regarding his nonviolent nature and good
acts. However, a review of the R&R indicates the
magistrate judge considered the circumstances of the
convictions and gave appropriate weight to the applicable
testimony in light of Ninth Circuit authority.
for Huerta acknowledges that his assertion that 18 U.S.C.
§ 922(g)(1) unconstitutionally burdens his right under
the Second Amendment to keep and bear arms, as applied to
Huerta, might be viewed as foreclosed based on Ninth Circuit
precedent, but Huerta argues the Ninth Circuit precedent is
incorrect and should be reconsidered. Specifically, Huerta
asserts the Ninth Circuit precedent does not foreclose the
argument that there are constitutional limits on
Congress's ability to define “any old crime”
as a felony justifying a permanent ban on a person's
Second Amendment rights. United States v. Phillips,
827 F.3d 1171, 1176 (9th Cir. 2016).
the Ninth Circuit has determined that § 922(g)(1) does
not violate the Second Amendment as it applies to convicted
felons because “felons are categorically different from
the individuals who have a fundamental right to bear
arms.” United States v. Vongxay, 594
F.3d 1111, 1115 (9th Cir. 2010). In fact, the court has
specifically stated that dismissal of a felon in possession
indictment on Second Amendment grounds is foreclosed by its
precedent.” Phillips, 827 F.3d at 1173;
see also Michaels v. Sessions, 700 Fed.Appx. 757
(9th Cir. 2017). The R&R does recognize that
Phillips notes that it remained to be seen if a
minor offense (e.g., stealing a lollipop) could serve as a
basis under § 922(g)(1) to ban a person for the rest of
his life from ever possessing a firearm. 827 F.3d at 1176 n.
5. However, as stated by the magistrate judge:
Even if the Ninth Circuit were to permit such a challenge,
Mr. Huerta would not prevail. The Court in Phillips
made clear that a crime does not have to be violent to
support a ban on firearms possession. Mr. Huerta's felony
convictions, unlike the misprision of a felony in
Phillips, involved victims, including government
officials and law enforcement officers, (Ex. 13), making them
more serious than the Phillips conviction.
R&R (Doc. 62, p. 5). Although Huerta argues the
magistrate judge should have conducted an intermediate
scrutiny analysis to determine whether Huerta's prior
conviction supports a firearm ban, the Court agrees with the
magistrate judge that Ninth Circuit forecloses that scrutiny.
The Court finds the note in Phillips does not
require strict scrutiny of every offense that was not a
felony at the time of the adoption of the Second
Amendment.See e.g. Michaels, 700 Fed.Appx.
at *758 (determining challenge was foreclosed without
conducting intermediate scrutiny). Rather, “[t]hough
the Phillips court noted that there may be some
‘good reasons to be skeptical about the correctness of
the current framework of analyzing the Second Amendment
rights of [all] felons,' it concluded that it was bound
by Heller and Vongxay and upheld the
defendant's § 922(g)(1) conviction.”
Michaels v. Lynch, No. 216CV00578JADPAL, 2017 WL
388807, at *3 (D. Nev. Jan. 26, 2017). Moreover, it appears
the Ninth Circuit has determined in a case that involved
non-violent offenses and fraudulent ...