UNITED STATES OF AMERICA v. TESLUACH GATKUOTH (2024)

FINDINGS AND RECOMMENDATION

This matter is before the Court on Defendant's Motion for Dismissal. (Filing No. 108.) Defendant is proceeding pro se in this case.

For the reasons explained below, the undersigned will recommend that the Motion be denied.

BACKGROUND

On April 8, 2022, Omaha Police Officer Jordan Vander Zwaag (“Officer Vander Zwaag”), along with his partner, Omaha Police Officer Adam Barcal (“Officer Barcal”), were on patrol in a marked cruiser just north of 26th and Patrick Avenue, in Omaha, Nebraska. The officers observed a silver Lexus fail to make a complete stop at a stop sign and decided to conduct a traffic stop. After the cruiser's emergency lights were activated, the Lexus did not immediately stop, and the officers observed the Lexus again fail to stop at a stop sign. The Lexus ultimately came to a stop near the intersection of North 26th and Blondo Street in Omaha, Nebraska.

When the Lexus stopped, the driver's door opened, and Defendant exited the driver's door and ran westbound. Officer Vander Zwaag chased Defendant, who ran through the open front door of a residence located at 2603 Blondo Street. Defendant ran down the stairs of the residence into a bedroom and shut the bedroom door. Officer Vander Zwaag chased Defendant into the house.

Officer Vander Zwaag drew his gun and directed Defendant to exit the bedroom. Around this time, a child yelled to officers from the bedroom that Defendant had put something in his room. After a few commands to exit the bedroom, Defendant exited the bedroom and got on the ground with his hands out. Defendant was placed under arrest and taken to a police cruiser. A criminal history check revealed that Defendant had previously been convicted of felony robbery, for which he served several years in prison—beginning in 2015. Two fentanyl pills were found in Defendant's pocket. Defendant also had two active warrants out for his arrest. Officers located a loaded Taurus 9mm handgun in the hamper of the bedroom where Defendant was found.

Defendant was charged in state court with felony charges of possessing a defaced firearm, possession of a controlled substance, and possession of a firearm by a prohibited person. The Omaha City Attorney's Office also charged Defendant in a criminal complaint with five municipal code and misdemeanor violations, which included obstruction of administration of law, trespass, resisting arrest, carrying a concealed weapon, and possession of an unregistered firearm. On May 17, 2022, Defendant was indicted federally for one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Filing No. 1.) The state court felony charges were dismissed after Defendant was indicted in this case. On May 20, 2022, Defendant plead guilty to carrying a concealed weapon—1st offense, a misdemeanor offense, in the County Court of Douglas County, Case No. CR22-6069. The other charges in the misdemeanor criminal complaint were dismissed.

Defendant subsequently filed a Motion to Suppress (Filing No. 38; Filing No. 61) in this case. An evidentiary hearing was held regarding the motion on June 16, 2023. (Filing No. 80.) On August 14, 2023, the undersigned entered a Findings and Recommendation, recommending that the Motion to Suppress be denied. (Filing No. 87.) United States District Court Judge Brian Buescher adopted the Findings and Recommendation on September 19, 2023. (Filing No. 91.)

On December 18, 2023, the undersigned held an evidentiary hearing regarding Defendant's request to proceed without counsel in this case. (Filing No. 100; Filing No. 103.) The undersigned concluded that Defendant had knowingly and intelligently waived his right to counsel and elected to proceed pro se. (Filing No. 103.) At the hearing, Defendant made an oral request for additional time to file a motion to dismiss based on jurisdictional issues only, which the Court granted. (Filing No. 103; Filing No. 118.) Defendant filed the instant Motion for Dismissal on January 18, 2024. (Filing No. 108.)

DISCUSSION

Defendant has moved the Court to dismiss this action. Defendant's arguments are difficult to decipher because he listed issues in his motion, but then argued additional matters in his brief. Liberally construing his arguments, it appears Defendant contends that the indictment should be dismissed because (1) this Court lacks jurisdiction or standing; (2) he has been improperly subjected to both state and federal charges; and (3) the statute under which he is charged violates the Second Amendment, both facially and as applied to him.¹ Each of Defendant's arguments are without merit.

1. Jurisdiction & Standing

Defendant has been charged with a violation of 18 U.S.C. § 922(g)(1), making it a crime for anyone who has been convicted in any court of a crime punishable by imprisonment for a term exceeding on year to “ship or transport in interstate ․ commerce, or possess in or affecting commerce, any firearm.” 18 U.S.C. § 922(g)(1). Defendant seems to argue the indictment should be dismissed because Congress does not have power under the Commerce Clause to regulate mere possession of a firearm, and that he did not personally transport the firearm in interstate commerce. However, “[t]o satisfy the interstate commerce element of section 922(g), it is sufficient that there exists ‘the minimal nexus that the firearm[s] have been, at some time, in interstate commerce.” United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (quoting Scarborough v. United States 431 U.S. 563, 575 (1977)).

Defendant is charged with possessing a “Taurus G3 9mm handgun which had been shipped and transported in interstate commerce.” (Filing No. 1.) Defendant appears to contend that the government cannot prove he transported the firearm in interstate commerce, which is an element of the offense that the government must prove at trial. However, a grand jury determined there was sufficient probable cause to indict Defendant for this offense. “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.” Costello v. United States, 350 U.S. 359 (1956). Thus, the question of whether the evidence supports that the handgun was shipped and transported in interstate commerce must be left to the jury. “A court cannot dismiss a facially valid indictment because it weighed the evidence supporting a probable cause finding and concluded the indictment is supported by incompetent or insufficient proof.” United States v. Zuniga, No. 4:07CR3156, 2008 WL 2184118, at *4 (D. Neb. May 23, 2008).

Also, pursuant to 18 U.S.C. § 3231, federal courts have jurisdiction over “all offenses against the laws of the United States.” 18 U.S.C. § 3231. Defendant has been charged with a criminal offense against the United States. At the time of the alleged offense, Defendant was located within the United States. Further, the crime occurred in the State of Nebraska, thus giving this federal court jurisdiction over the matter. See U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes ․ shall be held in the State where the ․ Crimes shall have been committed.”). See also 18 U.S.C. § 3232; Fed. R. Crim. Proc. 18. Therefore, Defendant's arguments based on lack of jurisdiction fail.²

2. Dual Sovereigns

Defendant contends his constitutional rights were violated because he was charged both federally and by the state for the same conduct. However, under the “dual sovereignty” doctrine, “a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.” Gamble v. United States, 139 S. Ct. 1960, 1964 (2019). “Or the reverse may happen.” Id. “[A] crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.” Id. at 1967. Only where a “state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution,” does dual prosecution by dual sovereigns constitute double jeopardy. Bartkus v. Illinois, 359 U.S. 121, 124 (1959).

Defendant's rights were not violated because he faced both state and federal charges. Nor is there evidence that Nebraska was acting as a tool for the federal government when it prosecuted Defendant for the misdemeanor of carrying a concealed weapon. The state misdemeanor charges were pending at the time Defendant was indicted in this case. Defendant plead guilty to the state misdemeanor charge on May 20, 2022. Nebraska's prosecution was not a sham to cover for a federal prosecution. The state charges, which were misdemeanors and initiated first, were brought based on evidence that Defendant violated Nebraska state law.

3. Second Amendment

Defendant requests that the Court notify the Attorney General that 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment. In support of this proposition, Defendant cites to 28 U.S.C. § 2403 and Federal Rule of Civil Procedure 5.1. However, § 2403 applies to cases in which the United States is not a party, which is not the situation here. 28 U.S.C. § 2403. Further, Rule 5.1 is a civil rule of procedure, which does not apply to this criminal proceeding. Fed. R. Civ. P. 5.1. Therefore, the undersigned will recommend that Defendant's request that the Court notify the Attorney General regarding the issue of constitutionality be denied.

Defendant also argues this case must be dismissed because 18 U.S.C. § 922(g)(1) is unconstitutional under the Second Amendment, both on its face and as-applied to him. Defendant seemingly contends that § 922(g)(1) is unconstitutional following the Supreme Court's ruling in New York State Rifle and Pistol Association, Inc. v. Bruen, 142 S.Ct. 2111 (2022). However, the Eighth Circuit Court of Appeals has rejected this argument. See United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023) (finding that § 922(g)(1) is facially constitutional); United States v. Jackson, 69 F.4th 495, 502 (8th Cir. 2023) (cutting off as-applied challenges to § 922(g)(1)); United States v. Doss, No. 22-3662, 2023 WL 8299064, at *1 (8th Cir. Dec. 1, 2023) (citing Jackson and Cunningham, and concluding the defendant's as-applied and facial challenges to § 922(g)(1) were foreclosed)).

Accordingly,

IT IS HEREBY RECOMMENDED to United States District Court Judge Brian Buescher that Defendant's Motion for Dismissal (Filing No. 108) be denied.

Dated this 6th day of March, 2024.

ADMONITION

Pursuant to NECrimR 59.2, any objection to this Findings and Recommendation shall be filed within fourteen (14) days after being served with a copy of this Findings and Recommendation. Failure to timely object may constitute a waiver of any such objection. The brief in support of any objection shall be filed at the time of filing such objection. Failure to file a brief in support of any objection may be deemed an abandonment of the objection.

FOOTNOTES

1.   Defendant's Second Amendment challenge was primarily set forth in a supplemental brief Defendant submitted following the expiration of the briefing deadline. (Filing No. 117.) Defendant's argument pertaining to the Second Amendment exceeds the scope of this Court's order which only authorized Defendant to file a motion regarding jurisdictional issues. However, due to the quickly evolving nature of the Second Amendment issue raised, as well as the fact that Defendant touched on the Second Amendment in his initial brief, and the government addressed the Second Amendment issue in its brief in opposition to Defendant's Motion for Dismissal, the undersigned will consider Defendant's Second Amendment argument at this time.

2.   Defendant argues in his brief there is not Article III standing for the Court to hear this matter. Article III of the Constitution provides that federal courts have jurisdiction over cases and controversies arising under the laws of the United States. Defendant is charged with a federal crime. The cases Defendant cites, and the arguments he makes, pertain to civil, not criminal, cases. Therefore, Defendant's standing argument lacks merit.

Susan M. Bazis United States Magistrate Judge