UNITED STATES OF AMERICA v. MANUEL YOUNG (2024)

ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNT SIX AS UNCONSTITUTIONALLY VAGUE

THIS MATTER is before the Court on Defendant's Motion to Dismiss Count Six as Unconstitutionally Vague and Failing to Allege a Crime (Doc. 61), the United States’ Response in Opposition (Doc. 62), and Defendant's Reply (Doc. 65). Upon review of the pleadings and applicable law, the Court concludes Count Six: (1) is not unconstitutionally vague, and (2) sufficiently alleges a crime. As such, Defendant's motion is DENIED.

BACKGROUND

Mr. Young and two co-Defendants were indicted on a six-count Indictment (Doc. 22) in February 2023. Mr. Young is charged with: (1) conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846; (2) distribution of 40 grams and more of fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2; (3) possession of a firearm by an illegal user and addict, in violation of 18 U.S.C. §§ 922(g)(3) and 924; and (4) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).¹

“UNCONSTITUTIONALLY VAGUE” LEGAL STANDARD

Generally stated, “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). Similarly, an “unconstitutionally vague” law is one that “invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591, 595 (2015); see also United States v. Williams, 553 U.S. 285, 304 (2008) (explaining a statute is unconstitutionally vague when “it authorizes or encourages seriously discriminatory enforcement”).

The standard for striking down an Act of Congress as “unconstitutionally vague” is high. That is because an Act of Congress has “strong presumptive validity.” United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32 (1963).

If a criminal statute is ambiguous, then the rule of lenity requires resolution in the Defendant's favor. See United States v. Richter, 796 F.3d 1173, 1188 (10th Cir. 2015). This rule, is not to be invoked lightly—and it is inapplicable unless there is “grievous ambiguity or uncertainty in the language and structure of the Act.” Huddleston v. United States, 415 U.S. 814, 831 (1974) (cleaned up). When a statute is unambiguous, the rule of lenity has no place. United States v. Husted, 545 F.3d 1240, 1244 n.6 (10th Cir. 2008).

In this case, Count Six alleges a violation of 18 U.S.C. § 924(c)(1)(A)(i). That statute criminalizes possessing and carrying firearms in drug trafficking crimes. Specifically, the statute provides:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm ․

DISCUSSION

Possession of a firearm in furtherance of a drug-trafficking crime requires the Government to establish the Defendant: (1) committed a drug-trafficking crime, (2) possessed a firearm, and (3) possessed the firearm in furtherance of the drug-trafficking crime. See United States v. Avery, 295 F.3d 1158, 1179 (10th Cir. 2002). After reviewing the Indictment and the applicable law, the Court concludes Count Six alleges a crime that is not unconstitutionally vague.

I. Count Six is not Unconstitutionally Vague

Defendant argues that “firearm possession-for-protection meets the ‘during and in relation to’ standard, and what more is required to meet the higher ‘in furtherance of’ standard is undefined and unknowable.” Doc. 61 at 6. In so doing, Defendant claims the “in furtherance of standard” is “void for vagueness.” Id.

The Court disagrees.

Defendant has pointed to no caselaw that has found Section 924(c)(1)(A)(i) to be unconstitutionally vague. Moreover, courts do not demand absolute unambiguity in criminal statutes. Invalidating this statute in the first instance is a major request. And, unsurprisingly, one the Court refuses to take.

First and foremost, the Supreme Court has explained that the current iteration of § 924(c) criminalizes possession, use, and carrying. United States v. O'Brien, 560 U.S. 218, 232 (2010). Simple possession alone, however, is not punished. United States v. Jones, 802 F. App'x 325, 328 (10th Cir. 2020) (unpublished). Instead, the Government must prove the weapon “furthered, promoted, or advanced,” the drug-trafficking crime. Avery, 295 F.3d at 1179; see also United States v. King, 632 F.3d 646, 655 (10th Cir. 2011). In practice, the Government must show “some nexus between the firearm and the underlying drug trafficking crime.” United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007).

Firearms are frequently “tools of the trade,” when it comes to drug-trafficking offenses. United States v. Hall, 473 F.3d 1295, 1304 (10th Cir. 2007). But again, mere presence of a firearm is insufficient. King, 632 F.3d at 655. In furtherance of is “a phrase of general use that naturally connotes more than mere possession.” United States v. Robinson, 435 F.3d 1244, 1250 (10th Cir. 2006).

To this point, just last year the Tenth Circuit explained Section 924(c)(1)(A)(i) “defines two crimes.” United States v. Flores, 2023 U.S. App. LEXIS 21370, at *1 (10th Cir. Aug. 16, 2023) (unpublished). Although an unpublished opinion, the Court reiterated its previous explanation that the statute “defines two crimes.” Id. (citing United States v. Iiland, 254 F.3d 1264, 1274 (10th Cir. 2001) (noting that § 924(c) contains a “during and in relation to” prohibition as well as an “in furtherance” prohibition)). In Iiland, the Court explained: (1) “during and in relation to” means the gun “must facilitate, or have the potential of facilitating, the drug trafficking offense,” whereas (2) “in furtherance of” means a Defendant's possession “furthered, promoted, or advanced” the illegal drug activity. Iiland, 254 F.3d at 1271–74; see also United States v. Basham, 268 F.3d 1199, 1207 (10th Cir. 2001) (same).

Nevertheless, Defendant argues:

[T]he Tenth Circuit's “in furtherance of” factors do not distinguish between the two standards, they do nothing to clarify what more is required to satisfy the “in furtherance of” standard. The approach simply morphs what was “during and in relation to” a drug crime into what is now “in furtherance of” the crime, even though Congress left “during and in relation to” in the statute and separated it from possession.

Doc. 61 at 9–10. This argument—that “the Tenth Circuit's current interpretation of ‘in furtherance of’ adds nothing to ‘during and in relation to,’ and is thus contrary to the expressed intent of Congress”—is substantially the same argument raised by counsel. See Flores, 2023 U.S. App. LEXIS 21370, at *5. And despite the fact Flores is an unpublished opinion, this Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). Here, in particular, the Court relies on an unpublished opinion because the same counsel advanced substantially the same arguments. See Aplt. Opening Br. at 19–28.

Of course, the Court does not rely on an unpublished opinion alone.

The Government argues that the statute is not vague or unclear because a “person of ordinary intelligence can understand the essence of the crime.” Doc. 62 at 7. The Government provides some examples that they contend ordinary people would understand. To these ends, they posit firearm possession can help threaten competitors, protect the product, be traded for drugs, or protect the monetary proceeds. Id. These illustrations are helpful.

On its face, then, this statute prohibits drug traffickers from possessing, using, or carrying a firearm when: (1) engaged in drug trafficking, or (2) furthering the goals ² of drug trafficking.

But the crux of Defendant's argument is that “in furtherance of” is vague or fails to provide a fair warning about what is prohibited (Doc. 61 at 3–11). So, what does “in furtherance of” mean?

When Congress does not define a statutory term, a court must “construe it in accord with its ordinary or natural meaning.” Smith v. United States, 508 U.S. 223, 228 (1993). Sometimes this is referred to as the dictionary definition of a word. See United States v. Roberts, 88 F.3d 872, 877 (10th Cir. 1996). Upon review, “furtherance” has an ordinary meaning of “a helping forward: advancement, promotion.” Webster's New International Unabridged Dictionary 1022 (2d ed. 1959); see also Furtherance, American Heritage Dictionary (1976 ed.) (“[t]he act of furthering, advancing, or helping forward.”). It is quite clear that furthering means helping.

Numerous cases analyzing the statutory phrase “in furtherance of”³ support the Court's plain meaning analysis.

First, the “in furtherance of”⁴ language is also included in 8 U.S.C. § 1324(a)(1)(A)(ii). The Tenth Circuit concluded this phrase was “unambiguous.” United States v. Barajas-Chavez, 162 F.3d 1285, 1288 (10th Cir. 1999) (en banc). In so holding, the Court looked to the ordinary meaning—and cited its dictionary definition. Id.

Next, in United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), the Court determined a murder “in furtherance of” the continuing criminal enterprise need not actually “further the enterprise's goals.” Id. at 1103. All that is required is an “intent to promote” the group's objectives. Id. As applied here to § 924(c), the weapons “furthered, promoted, or advanced,” the drug trafficking crime. Avery, 295 F.3d at 1179. Put another way, the weapons had a sufficient nexus in time and purpose to the drug trafficking enterprise. King, 632 F.3d at 655 (citing Luke-Sanchez, 483 F.3d at 706)

The Court also looked to some out-of-circuit cases. First, the continuing criminal enterprise statute, 21 U.S.C. § 848(e), deploys the “in furtherance of” language. The Second Circuit explained that this language in § 848(e) means “working to promote or advance the interests of a continuing criminal enterprise.” United States v. Aguilar, 585 F.3d 652, 657 (2d Cir. 2009). The Seventh Circuit interpreted the statute in the same way—and refused to find its language unconstitutionally vague. United States v. Cooper, 19 F.3d 1154, 1165 (7th Cir. 1994). Additionally, the Sixth Circuit refused to find the civil disorder statute, 18 U.S.C. § 231(a), unconstitutionally vague despite its use of “in furtherance of” language. United States v. Huff, 630 F. App'x 471, 489 (6th Cir. 2015) (unpublished).

Finally, Fed. R. Evid. 801(d)(2)(E) also uses “in furtherance of.” And there is a plethora of caselaw explaining what this phrase means in the evidentiary coconspirator context. See, e.g., United States v. Sinclair, 109 F.3d 1527, 1534–35 (10th Cir. 1997) (concluding statements intended to “promote” conspiratorial objectives fit the definition); United States v. Rutland, 705 F.3d 1238, 1252–53 (10th Cir. 2013) (explaining statements that “help” a coconspirator are not hearsay); United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986) (finding that “assist[ing]” is also “in furtherance of” a conspiracy).

The statute is not vague or ambiguous—and the rule of lenity does not apply.

II. Count Six Alleges a Crime

Under Tenth Circuit precedent, an indictment is considered sufficient “if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (cleaned up); see Fed. R. Crim. P. 7(c) (outlining the requirements of an indictment).

Here, the Indictment is signed and cites to the statutes. Count Six of the Indictment charges Mr. Young with possession of a firearm in furtherance of a drug trafficking crime as charged in Count 1 (Doc. 22 at 3). A drug trafficking conspiracy is a drug trafficking crime—thus, satisfying the first element of the offense. Fed. R. Crim. P. 7(c); see 10th Cir. Pattern Jury Instr. § 2.45.1 (2021 ed.). The second element—that “the defendant possessed a firearm in furtherance of this crime”—is also sufficiently alleged. Id.

With this in mind, the Court rejects Defendant's argument that Count Six does not allege a crime (Doc. 61 at 13–14; Doc. 65 at 5).

CONCLUSION

For the reasons stated above, Count Six of the Indictment is not vague. The rule of lenity is inapplicable. And the Indictment is sufficient. Defendant's Motion (Doc. 61) is DENIED.

IT IS SO ORDERED.

FOOTNOTES

1.   Although the allegations are listed as numbers 1–4 above, Mr. Young is charged in Counts 1–3 and 6 (Doc. 22).

2.   The Tenth Circuit has provided a non-exhaustive list of factors for determining whether a firearm was used “in furtherance of” a drug trafficking crime, including: (1) the type of drug activity being conducted; (2) accessibility of the firearm; (3) the type of weapon; (4) whether the weapon was stolen; (5) the status of the possession (legitimate or illegal); (6) whether the gun is loaded; (7) the gun's proximity to drugs or drug profits; and (8) the time and circumstances under which the gun was found. United States v. Basham, 268 F.3d 1199, 1207–08 (10th Cir. 2001).

3.   For what it's worth, Congress has employed the phrase “in furtherance of” in 750 statutes. When Congress uses “identical words” in different statutes, they are “presumed to have the same meaning.” IBP, Inc v. Alvarez, 546 U.S. 21, 34 (2005); see also Astrue v. Ratliff, 560 U.S. 586, 591 (2010) (“Where Congress employs identical words and phrases ․ they are presumed to carry the same meaning.”) (cleaned up).

4.   The “in furtherance of” language in the harboring aliens statute is also discussed in United States v. Chavez-Palacios, 30 F.3d 1290 (10th Cir. 1994) and United States v. Perez-Gomez, 638 F.2d 215 (10th Cir. 1981).