UNITED STATES v. BRENNAN (2024)

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Defendant Charles Brennan is charged by superseding indictment with seven counts: three counts of distribution of a controlled substance, a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); one count of possession with intent to distribute a controlled substance, a violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); one count of use of a firearm during and in relation to and possession of a firearm in furtherance of a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A) (Count Three); one count of possession of a firearm with an obliterated serial number, a violation of 18 U.S.C. § 922(k) (Count Six); and one count of possession of firearms in furtherance of a drug trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A) (Count Seven). See Dkt. No. 56 (the “Indictment”). Presently before the Court is Defendant's omnibus pretrial motion pursuant to Rule 12 of the Federal Rules of Criminal Procedure to (i) dismiss the three firearm counts for failure to state an offense, and (ii) suppress any evidence obtained from electronic devices seized from Defendant's home. Dkt. Nos. 54-55, 64-65 (the “Motion”).¹ The Government submitted responsive papers in opposition and Defendant submitted reply papers in further support. Dkt. Nos. 66-67.

For the reasons set forth below, Defendant's Motion is denied.

II. BACKGROUND

The following facts are drawn from the Indictment, as amplified by certain additional materials, and are assumed to be true for purposes of ruling on the Motion. See United States v. Goldberg, 756 F.2d 949, 950 (2d Cir. 1985).

In 2022, Defendant distributed methamphetamine to a confidential source on July 25, August 2, and September 7. Dkt. No. 56 at 1-2; Dkt. No. 66 at 38, ¶¶ 8-14.² On August 2, in addition to methamphetamine, Defendant also distributed a firearm to the confidential source. Dkt. No. 56 at 2; Dkt. No. 66 at 40, ¶¶ 11-13.

On September 13, 2022, state and federal investigators executed a search warrant at Defendant's Saratoga County residence. Dkt. No. 54-2 at 2, ¶ 1. During their search, investigators located, inter alia, eight firearms (one with an obliterated serial number), thousands of rounds of ammunition, drugs and drug paraphernalia, and 17 electronic devices. Id. at ¶ 2; Dkt. No. 66 at 81, ¶ 3. Later the same day, Defendant was charged in a one-count complaint with possession of a defaced firearm, a violation of 18 U.S.C. § 922(k). Dkt. No. 1.

On October 18, 2022, the Government applied for, and United States Magistrate Judge Daniel J. Stewart issued, a search warrant authorizing the search of the 17 electronic devices already in the Government's custody. Dkt. No. 66 at 30-79. The next day, a federal agent transferred 12 of the electronic devices to a United States Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) office in Syracuse, New York for pre-review processing. Id. at 83, ¶ 7. The agent began reviewing the remaining five devices herself. Id. On or about October 26, 2022, this agent and a colleague with specialized training identified an image depicting child pornography within one of the devices. Id. at 83, ¶ 10. Because child pornography was beyond the scope of the October 18 search warrant, the Government ceased all processing and review of the 17 electronic devices. Id. at 83, ¶¶ 10-11.

On October 31, 2022, the Government applied for, and Judge Stewart issued, a further search warrant authorizing the search of the 17 electronic devices in the Government's custody for violations relating to child pornography. Id. at 84, ¶ 12. On or about November 1, 2022, 10 of the 12 electronic devices at the ATF's Syracuse office were sent to a United States Homeland Security Investigations office in Buffalo, New York, for pre-review processing. Id. at 84, ¶ 13. Pre-review processing for all devices with recoverable electronically stored information (“ESI”) finished by or about March 2024. Dkt. No. 54-1 at 7, ¶ 24; Dkt. No. 55 at 74-93; Dkt No. 66 at 83, ¶¶ 7-14.

In January 2024, a grand jury returned a six-count indictment against Defendant. Dkt. No. 35. In May 2024, a grand jury returned the seven-count superseding Indictment against Defendant. Dkt. No. 56. As relevant to the firearm counts challenged by Defendant's Motion, Count Three of the Indictment, under Section 924(c)(1)(A), reads in pertinent part:

On or about August 2, 2022, in Saratoga County in the Northern District of New York, the defendant, CHARLES BRENNAN, during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States, that is Distribution of a Controlled Substance, in violation of Title 21, United States Code, Section 841(a)(1), knowingly used and carried a firearm, that is a 7.62 caliber Riley Defense RAK 47 rifle bearing serial number B27875, and in furtherance of such crime possessed such firearm, in violation of Title 18, United States Code, Section 924(c)(1)(A).

Id. at 2. Count Six, under Section 922(k), reads in pertinent part:

On or about September 13, 2022, in Saratoga County in the Northern District of New York, the defendant, CHARLES BRENNAN, knowingly possessed a firearm that had been shipped and transported in interstate commerce, that is a .40 caliber Beretta semiautomatic pistol, model 96D, which had the manufacturer's serial number removed, obliterated, and altered, knowing that the serial number had been removed, obliterated, and altered, in violation of 18 U.S.C. § 922(k).

Id. at 3. And Count Seven, also under Section 924(c)(1)(A), reads in pertinent part:

On or about September 13, 2022, in Saratoga County in the Northern District of New York, the defendant, CHARLES BRENNAN, in furtherance of a drug trafficking crime for which he may be prosecuted in a court of the United States, that is, Possession with Intent to Distribute a Controlled Substance, in violation of 21 U.S.C. § 841(a)(1), knowingly possessed firearms, that is: [table detailing eight firearms] all in violation of Title 18, United States Code, Section 924(c)(1)(A).

Id. at 3-4.

III. STANDARD OF REVIEW

Rule 12(b)(1) allows a party to raise by pretrial motion “any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Such pre-trial motions include a motion asserting a “defect in the indictment” such as “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v); accord United States v. Black, No. 06-cr-1079, 2007 WL 683996, at *1 & n.4 (S.D.N.Y. Mar. 6, 2007). “The dismissal of an indictment is an ‘extraordinary remedy’ reserved only for extremely limited circumstances implicating fundamental rights.” United States v. Espinoza, 442 F. Supp. 3d 596, 603 (S.D.N.Y. 2020) (quoting United States v. Bustos De La Pava, 268 F.3d 157, 165 (2d Cir. 2001)). In evaluating a motion to dismiss an indictment under Rule 12(b), courts generally “ ‘accept[ ] as true all of the allegations of the indictment.’ ” United States v. Greenberg, No. 21-cr-92, 2022 WL 827304, at *1 (S.D.N.Y. Mar. 9, 2022) (quoting Goldberg, 756 F.2d at 950). A defendant may also move pursuant to Rule 12(b) for the suppression of evidence. Fed. R. Crim. P. 12(b)(3)(C); see also Fed. R. Crim. P. 41(h).

IV. DISCUSSION

Defendant broadly argues that (i) 18 U.S.C. § 924(c)(1)(A) is unconstitutional, facially and as applied to him, in light of the Supreme Court's ruling in New York Rifle & Pistol Assn. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022); (ii) 18 U.S.C. § 922(k) is unconstitutional, facially and as applied to him, in light of Bruen; and (iii) certain unidentified evidence collected from the 17 electronic devices should be suppressed. See generally Dkt. Nos. 54-3, 64, 67. The Court analyzes each argument in turn.

A. Second Amendment Precedent

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court found that “the Second Amendment confer[s] an individual right to keep and bear arms,” id. at 595, 128 S.Ct. 2783, and held that “the District[ of Columbia]’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” Id. at 635, 128 S.Ct. 2783. The Court went on to state that, “[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” Id.

Thereafter, in McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court held that this individual Second Amendment right applies to state and local governments through the Fourteenth Amendment and invalidated a set of municipal laws that banned handguns in the home. Id. at 750, 767-68, 130 S.Ct. 3020. Specifically, the Supreme Court identified its “central holding in Heller: that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home,” and went on to “hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.” Id. at 780, 791, 130 S.Ct. 3020.

Although both Heller and McDonald invalidated laws that banned handguns in the home, the Supreme Court made clear that the Second Amendment right is not unlimited and various regulatory measures remained constitutionally permissible. See, e.g., Heller, 554 U.S. at 626, 128 S.Ct. 2783 (“Like most rights, the right secured by the Second Amendment is not unlimited.”); McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (“We made it clear in Heller that our holding did not cast doubt on [numerous] longstanding regulatory measures ․ We repeat those assurances here.”) (citing Heller, 554 U.S. at 626-27, 128 S.Ct. 2783).

Following Heller and McDonald, the Second Circuit addressed whether Section 922(c) violates the Second Amendment. United States v. Bryant, 711 F.3d 364 (2d Cir. 2013) (per curiam). After carefully examining the limitations set forth in Heller and McDonald, a unanimous panel held “that the Second Amendment does not safeguard the unlawful purpose of possessing a firearm in furtherance of drug trafficking” and found 18 U.S.C. 924(c) constitutional as applied to a criminal defendant who possessed a firearm in his home in furtherance of drug trafficking. Id. at 365-66 (emphasis in original); see also id. at 369 (“ ‘the central holding in Heller’ was ‘that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably self-defense within the home.’ ”) (quoting McDonald, 561 U.S. at 780, 130 S.Ct. 3020) (emphasis in original). In reaching this conclusion, the Second Circuit reasoned that once the defendant engaged in drug trafficking “he was no longer a law-abiding citizen using the firearm for a lawful purpose, and his conviction for possession of a firearm under these circumstances does not burden his Second Amendment right to bear arms.” Id. at 370.

Nearly a decade later, in Bruen, the Supreme Court considered the validity of New York's licensing regime for carrying a handgun in public under the Second Amendment. The Supreme Court held, “consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” 597 U.S. at 10, 142 S.Ct. 2111. As a result, the Supreme Court found New York's licensing regime unconstitutional because the program required individuals to demonstrate “a special need for self-defense” before New York would provide a public-carry license. Id. at 11, 142 S.Ct. 2111.

In Bruen, the Supreme Court also set forth the following framework to determine whether a government regulation of firearms violates the Second Amendment:

In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the [G]overnment may not simply posit that the regulation promotes an important interest.[3] Rather, the [G]overnment must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's “unqualified command.”

Id. at 24, 142 S.Ct. 2111 (citation omitted). The Second Circuit subsequently noted that, “[l]ike the Fifth, Eighth, and Eleventh Circuits, we read Bruen as setting out a two-step framework, with the first step based on text and the second step based on history.” Antonyuk, 89 F.4th at 298; see also United States v. Rahimi, 602 U.S. 680, 743–45, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024) (Jackson, J., concurring).

Most recently, the Supreme Court applied Bruen in Rahimi, and found constitutional a federal statute that criminalized firearm possession. Specifically, the Supreme Court determined that:

When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation's firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, [18 U.S.C. §] 922(g)(8) fits comfortably within this tradition.

Rahimi, 602 U.S. at 690, 144 S.Ct. 1889. In the course of its decision, the Supreme Court also provided the following guidance related to the Bruen framework:

[S]ome courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.”

Id. at 692, 144 S.Ct. 1889 (alterations in original) (citations omitted).

B. Constitutionality of 18 U.S.C. § 924(c)(1)(A)

1. Statutory language

As for Count Three and Count Seven under 18 U.S.C. § 924(c)(1)(A), the statute reads in pertinent part:

[A]ny person who, during and in relation to any ․ drug trafficking crime ․ 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, shall, in addition to the punishment provided for such ․ drug trafficking crime ․ be sentenced[, inter alia,] to a term of imprisonment of not less than 5 years.

2. Defendant's facial challenge

“To prevail on a facial challenge, the [challenger] must ‘establish that no set of circumstances exists under which the [challenged] Act would be valid.’ In other words, the plaintiff must show that the statute is unconstitutional in all of its applications.” Cmty. Hous. Improvement Program v. City of New York, 59 F.4th 540, 548 (2d Cir. 2023) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). “For this reason, facial challenges are ‘the most difficult to mount successfully.’ ” Antonyuk, 89 F.4th at 314 (alteration in original) (quoting City of Los Angeles v. Patel, 576 U.S. 409, 415, 135 S.Ct. 2443, 192 L.Ed.2d 435 (2015)). Finally, the Supreme Court has instructed that, in the context of facial challenges, “ ‘[w]hen legislation and the Constitution brush up against each other, [a court's] task is to seek harmony, not to manufacturer conflict.’ ” Rahimi, 602 U.S. at 701, 144 S.Ct. 1889 (alterations in original) (citations omitted).

Defendant argues that the Second Circuit's determination in Bryant, which upheld the constitutionality of Section 924(c)(1) under the Second Amendment, “is no longer good law following Bruen” and this Court must instead apply the two-step framework set forth in Bruen. Dkt. No. 54-3 at 11-12. Defendant then argues that Section 924(c)(1)(A) is unconstitutional under Bruen because (i) the Second Amendment's plain text purportedly covers Defendant's conduct; and (ii) there is no historical tradition of regulating the use or possession of firearms in connection with drug trafficking offenses. Id.; Dkt. No. 64 at 2. In opposition, the Government argues that Bryant continues to apply even after Bruen, and therefore Bryant forecloses Defendant's challenge to the validity of Section 922(g)(1). Dkt. No. 66 at 13-15. The Government further argues that Section 924(c)(1)(A) is constitutional under both steps of Bruen. Id. at 15-16.

As an initial matter, the Court finds that Bryant remains good law following Bruen. Foremost, and despite Defendant's assertion to the contrary, the Court notes that Bryant did not rely upon the prior two-step framework abrogated by Bruen. Bryant, 711 F.3d at 368-70; see also United States v. Mingues, No. 23-cr-81, 2023 WL 9604697, at *5 & n.7 (N.D.N.Y. Dec. 23, 2023). The Second Circuit also did not identify Bryant among the precedent abrogated by Bruen during its recent and extensive examination of Second Amendment jurisprudence. See Antonyuk, 89 F.4th at 294-305.⁴ In addition, while Antonyuk addressed different issues than those presented here, the decision nonetheless cited to Bryant for support. Id. at 313 n.20.

Further, numerous district courts within the Second Circuit have already examined Bryant post-Bruen and similarly confirmed that the precedent remains good law.⁵ See United States v. Golston, No. 23-cr-362, 2024 WL 149603, at *5 (S.D.N.Y. Jan. 12, 2024) (“Far from undermining Bryant, Bruen reaffirmed that the Second Amendment protects ‘the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense.’ ”) (emphasis in original) (quoting Bruen, 597 U.S. at 8-9, 142 S.Ct. 2111); United States v. Gonzalez, No. 23-cv-18, 2024 WL 96517, at *6 (S.D.N.Y. Jan. 4, 2024) (“Bruen does nothing to undermine Bryant’s holding as to the constitutionality of Section 924(c) as applied to [defendant]’s conduct, a drug trafficking crime.”); Mingues, 2023 WL 9604697, at *5 (“At bottom, given ․Bryant’s reliance on reasoning from Heller and McDonald and Bruen’s unflagging reaffirmance of those decisions, it is clear that Bruen did not overrule ․Bryant.”).

Finally, and consistent with Bryant’s continued viability, multiple Courts of Appeals have also rejected constitutional challenges to Section 924(c) following Bruen. See United States v. Lopez, No. 22-13036, 2024 WL 2032792 (11th Cir. May 7, 2024); United States v. Ruiz, No. 23-10406, 2024 WL 1134725 (5th Cir. Mar. 15, 2024); United States v. Cash, No. 22-2713, 2023 WL 6532644 (3d Cir. Oct. 6, 2023); United States v. Burgess, Nos. 22-1110/22-1112, 2023 WL 179886 (6th Cir. Jan. 13, 2023); In re Terry, No. 22-13615-C, 2022 WL 20033240 (11th Cir. Nov. 14, 2022). In contrast, Defendant has not cited any persuasive authority holding otherwise, nor has the Court itself identified any such authority.

In sum, the Court finds that Bryant remains good law and that Section 924(c) is facially constitutional with respect to the Second Amendment.⁶ Even if Bryant was no longer binding, the Court finds Section 924(c)(1) facially constitutional under Bruen’s two-step framework. This framework requires a court to first “interpret[ ] the plain text of the Amendment as historically understood” before then “determining whether the challenged law is consistent with this Nation's historical tradition of firearms regulation, as ‘that delimits the outer bounds of the right to keep and bear arms.’ ” Antonyuk, 89 F.4th at 300 (quoting Bruen, 597 U.S. at 19, 142 S.Ct. 2111).

As to step one,⁷ Defendant argues that “its obvious [sic] the statute proscribes an individual's Second Amendment right to possess a firearm.” Dkt. No. 54-3 at 12. Such an argument dramatically oversimplifies the text of the Second Amendment, as explicated by the Supreme Court. In Bruen, the Court stated:

Having made the constitutional standard endorsed in Heller more explicit, we now apply that standard to [the challenged statute]. It is undisputed that petitioners [ ]—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. We therefore turn to whether the plain text of the Second Amendment protects [petitioners’] proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does.

Bruen, 597 U.S. at 31-32, 142 S.Ct. 2111 (citations omitted). Here, Defendant is (allegedly) not a law-abiding citizen, suggesting that he, unlike the “ordinary, law-abiding citizens” at issue in Bruen—as well as in Heller ⁸ and McDonald, see Bruen, 597 U.S. at 8-10, 142 S.Ct. 2111—is not part of “the people” whom the Second Amendment protects.

Nonetheless assuming Defendant is, or remains, part of “the people” whom the Second Amendment protects,⁹ the Court finds that at least one of the firearms he possessed is not a weapon “ ‘in common use’ today for self-defense.” Bruen, 597 U.S. at 32, 142 S.Ct. 2111 (citations omitted). As discussed in more detail below, see Section IV.C.2, infra, handguns with obliterated serial numbers are not “in common use.” See also United States v. Marzzarella, 614 F.3d 85, 99 (3d Cir. 2010), abrogated on other grounds by Bruen, 597 U.S. 1, 142 S.Ct. 2111 (“[W]e, like the District Court, cannot conceive of a lawful purpose for which a person would prefer an unmarked firearm ․”). Further, the Court finds that the eight firearms at issue here—consisting of four rifles, three shotguns, and a handgun with an obliterated serial number—do not, in combination, constitute firearms “in common use” for self-defense. Dkt. No. 56 at 3-4; see also Heller, 554 U.S. at 595, 128 S.Ct. 2783 (“[W]e do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”) (emphasis in original).

Even if all eight firearms together were “in common use” today for self-defense, Defendant's alleged conduct is fatal to his Second Amendment claim. Defendant is alleged to have knowingly used and carried a firearm during and in relation to a drug trafficking crime in Count Three, and to have knowingly possessed firearms in furtherance of a drug trafficking crime in Count Seven. Such conduct is entirely distinguishable from “carrying handguns publicly for self-defense,” the conduct at issue in Bruen, 597 U.S. at 32, 142 S.Ct. 2111, or “possess[ing] a handgun in the home for the purpose of self-defense,” the conduct at issue in McDonald, 561 U.S. at 791, 130 S.Ct. 3020, and Heller, 554 U.S. at 628, 128 S.Ct. 2783.

Indeed, as the Supreme Court has repeatedly made clear, “the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626, 128 S.Ct. 2783; see also McDonald, 561 U.S. at 786, 130 S.Ct. 3020; Bruen, 597 U.S. at 21, 142 S.Ct. 2111; Rahimi, 602 U.S. at 690, 144 S.Ct. 1889. Accordingly, the Court finds that the Second Amendment does not protect the illegal “course of conduct” in which Defendant allegedly engaged. Bruen, 597 U.S. at 32, 142 S.Ct. 2111; Golston, 2024 WL 149603, at *5 (“Nothing in the Supreme Court's decision [in Bruen] suggests that the Second Amendment confers a right to possess a gun during the commission of a crime. Further, nothing in the Amendment's ‘plain text’ ‘presumptively protects [such] conduct.’ ”) (quoting Bruen, 597 U.S. at 24, 142 S.Ct. 2111).

Moreover, the Court finds that the Government has satisfied its burden to establish that Section 924(c)(1)(a) is “relevantly similar,” Rahimi, 602 U.S. at 691–93, 144 S.Ct. 1889, to the Nation's “historical tradition of firearm regulation,” Bruen, 597 U.S. at 34, 142 S.Ct. 2111. See Dkt. No. 66 at 15-16. Indeed, “[f]rom Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626, 128 S.Ct. 2783 (citations omitted); McDonald, 561 U.S. at 786, 130 S.Ct. 3020 (citing Heller, 554 U.S. at 626-27, 128 S.Ct. 2783); Bruen, 597 U.S. at 21, 142 S.Ct. 2111 (citing Heller, 554 U.S. at 626-27, 128 S.Ct. 2783); Rahimi, 602 U.S. at 691, 144 S.Ct. 1889 (citing Heller, 554 U.S. at 626-27, 128 S.Ct. 2783); see also Bruen, 597 U.S. at 38, 142 S.Ct. 2111 (“Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms.”); Rahimi, 602 U.S. at 691, 144 S.Ct. 1889 (“At the founding, the bearing of arms was subject to regulations ranging from rules about firearm storage to restrictions on gun use by drunken New Year's Eve revelers.”). Accordingly, the Court also finds Section 924(c)(1)(A) facially constitutional under the second step of the Bruen framework.

3. Defendant's as applied challenge

“An as applied challenge ‘requires an analysis of the facts of a particular case to determine whether the application of a statute, even one constitutional on its face, deprived the [challenger] to whom it was applied of a protected right.’ ” Goe v. Zucker, 43 F.4th 19, 30 (2d Cir. 2022) (quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006)).

Defendant's as applied challenge to the alleged firearm sale at issue in Count Three is that (i) the sale “was the product of law enforcement enticement through a solicitous confidential information [sic];” (ii) was not “accompanied by a contemporaneous drug transaction,” and (iii) Defendant did not in any way use the firearm “directly as part of the sale.” Dkt. No. 54-3 at 12-13. As to the firearms at issue in Count Seven, the Defendant argues that “there will be no evidence that the Defendant ever possessed any of the identified firearms as part of any of the controlled buys at issue in this case” and that four of the eight firearms were not his. Dkt. No. 64 at 2-4; Dkt. No. 67 at 3-4. The Government primarily argues in opposition that Defendant's alleged conduct under both counts is prohibited by Section 924(c) and not protected by the Second Amendment. Dkt. No. 66 at 16-19.

To the extent Defendant has raised facts particular to him, the Court finds both counts constitutional as applied to Defendant. As to Count Three, Defendant has not shown how the Government's use of a confidential informant here is somehow unique in a way that is constitutionally impermissible under the Second Amendment. Further, the Defendant allegedly sold both a firearm and drugs on August 2, 2022, following an earlier drug sale to the same buyer on July 25 and in advance of a subsequent drug sale to the same buyer on September 7. Dkt. No. 56 at 1-2; Dkt. No. 54-1 at 18, ¶¶ 8-14; see, e.g., United States v. Bailey, 882 F.3d 716, 717 (7th Cir. 2018) (“Because it was the opportunity to purchase a firearm that brought the informant to [defendant] and made possible the secondary sale of marijuana to the informant, the facts support the finding that [defendant]’s possession of the weapon furthered the marijuana sale.”).

The Court also finds that Count Seven is constitutional as applied to Defendant. Defendant's argument that four of the firearms taken from his home purportedly belonged to other people is unpersuasive. Even if true, Defendant nonetheless retained possession of these four firearms for unidentified reasons and, at least as to one, for an extensive period of time. The summary of Defendant's Mirandized statements that he submits in support of the Motion indicate that a friend of his (who “died in Atlanta” approximately “three years ago”) left the firearm with an obliterated serial number in Defendant's possession “approximately 10 years ago.” Dkt. No. 54-2 at 3, ¶¶ 3, 7. The summary further indicates that Defendant “recently” fired this firearm on at least two separate occasions, one when “it malfunctioned”—following which he “took it apart, cleaned it and replaced the spring”—and then a second when he fired it “just to make sure the spring worked.” Id. at ¶ 7. As to the three other firearms, Defendant contends in his Motion that they were left by a neighbor, at some point, but does not explain why he did not return the firearms, nor why the neighbor—who apparently “stopped speaking to the defendant because he believed the defendant was involved in [drug] dealing,” Dkt. No. 64 at 3—did not retrieve them himself. Nonetheless, even assuming the Government cannot prove that Defendant possessed four of the eight firearms in Count Seven, Section 924(c) would still be constitutional as applied because of the four remaining firearms. See Lopez, 2024 WL 2032792, at *3 (finding that a defendant convicted under Section 924(c) of possessing a single firearm in furtherance of a drug trafficking crime “was not using the firearm as a law-abiding citizen, so we conclude that the statute is not unconstitutional as applied to him”).

Defendant also acknowledges that he sold drugs, including from his home, and that he kept both firearms and drugs in his bedroom. Dkt. No. 54-2 at 3, ¶¶ 9, 11-14, 17; see, e.g., United States v. Snow, 462 F.3d 55, 62 (2d Cir. 2006) (stating that for purposes of Section 924(c)(1)(A), “the ultimate question is whether the firearm afforded some advantage (actual or potential, real or contingent) relevant to the vicissitudes of drug trafficking”) (quotation omitted); United States v. Lewter, 402 F.3d 319, 322 (2d Cir. 2005) (“Possession of a firearm to defend a drug stash clearly furthers the crime of possession with intent to distribute the contents of that stash.”).

In sum, Defendant's alleged illegal conduct here is not constitutionally protected and falls squarely within the reach of Section 924(c)(1)(A). Bryant, 711 F.3d at 365-66 (“[T]he Second Amendment does not safeguard the unlawful purpose of possessing a firearm in furtherance of drug trafficking.”). Accordingly, the Motion's as applied challenge is denied. Accord Gonzalez, 2024 WL 96517, at *7 (denying as applied challenge to Section 924(c)(1)(A)); Mingues, 2023 WL 9604697, at *6-7 (denying as applied challenge to Section 924(c)(1)(A)).

C. Constitutionality of 18 U.S.C. § 922(k)

1. Statutory language

As for Count Six under 18 U.S.C. § 922(k), the statute reads as follows:

It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

2. Defendant's facial challenge

Defendant asserts that Section 922(k) is no longer constitutional following Bruen. Dkt. No. 54-3 at 5-11. Under the Bruen framework, he argues that (i) Section 922(k) prohibits conduct protected by the plain text of the Second Amendment, and (ii) “there was not distinctly similar law [sic] in place at the time the Second Amendment was ratified.” Id. at 6; see also Dkt. No. 67. In opposition, the Government argues that Section 922(k) is constitutional under both steps of Bruen. Dkt. No. 66 at 11-13, 15-16.

The Court agrees with the Government. For purposes of applying step one of Bruen to Count Six, the Court assumes Defendant to be part of “the people.”¹⁰ The Court finds, however, that a firearm with an obliterated serial number “ ‘is not in common use’ today for self-defense,’ ” and that possessing such an unlawful firearm is not protected by the Second Amendment. Bruen, 597 U.S. at 32, 142 S.Ct. 2111. As the Supreme Court has made clear, the Second Amendment “extends only to certain types of weapons” and “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Heller, 554 U.S. at 623, 625, 128 S.Ct. 2783 (citation omitted). Similarly, a “gun with an obliterated serial number is not a gun ‘typically used by law-abiding people for law-abiding purposes,’ but rather is useful for conducting criminal activity.” United States v. Dixson, No. 21-cr-0054, 2023 WL 7102115, at *3 (E.D. Mo. Oct. 26, 2023) (citation omitted) (finding Section 922(k) constitutional under Bruen and denying motion to dismiss indictment); United States v. Reyna, No. 21-cr-41, 2022 WL 17714376, at *5 (N.D. Ind. Dec. 15, 2022) (“Law-abiding citizens don't typically possess firearms with obliterated serial numbers for lawful purposes.”) (finding Section 922(k) constitutional under Bruen and denying motion to dismiss indictment); see also United States v. Avila, 672 F. Supp. 3d 1137, 1143 (D. Colo. 2023) (“Reason and the experience of law enforcement counsel that obliterating a firearm's serial number serves another purpose [instead of self-defense]: making the identity of a person who possesses a particular firearm more difficult to determine. This feature makes firearms with obliterated serial numbers useful for criminal activity ․”) (citation omitted) (finding Section 922(k) constitutional under Bruen and denying motion to dismiss indictment).

The Court finds Section 922(k) constitutional under the first prong of Bruen, because the statute regulates conduct that does not implicate the plain text of the Second Amendment. Many other courts have reached the same conclusion. See, e.g., United States v. Gomez, No. 23-cr-107, Dkt. No. 56, slip op. at 13 (N.D.N.Y. Oct. 31, 2023) (“the conduct that § 922(k) regulates—possession of a gun without a serial number—is outside the scope of the Second Amendment.”); United States v. Alberts, No. 23-cr-131, 2024 WL 1486145, at *4 (D. Mont. Apr. 5, 2024) (“[Section] 922(k) is constitutional at Bruen step 1 because the plain text of the Second Amendment does not protect the prohibited conduct—possessing a firearm with an obliterated serial number.”); United States v. Trujillo, 670 F. Supp. 3d 1235, 1241 (D.N.M. 2023) (“[Section] 922(k) does not burden conduct protected by the Second Amendment's text.”), appeal dismissed, No. 23-2080, 2023 WL 5093358 (10th Cir. Aug. 9, 2023); United States v. Serrano, 651 F. Supp. 3d 1192, 1210 (S.D. Cal. 2023) (“The Court finds that the Second Amendment's plain text does not cover the conduct regulated by § 922(k).”); United States v. Dixson, 2023 WL 7416327, at *4 (E.D.Mo. Aug. 30, 2023) (“[T]he plain text of the Second Amendment does not cover conduct regulated by § Section 922(k).”); United States v. Bradley, No. 22-cr-00098, 2023 WL 2621352, at *3 (S.D.W. Va. Mar 23, 2023) (“Because § 922(k) regulates a class of guns defined solely by a nonfunctional characteristic, the regulation is outside the scope or text of the Second Amendment.”) (quotation omitted); United States v. Holton, 639 F. Supp. 3d 704, 710 (N.D. Tex. 2022) (“This Court does not believe that a law requiring serial numbers on firearms infringes on the right to keep and bear arms.”); Reyna, 2022 WL 17714376, at *5 (“[Section] 922(k)’s regulated conduct is outside the scope of the Second Amendment ․”); United States v. Tita, No. 21-cr-0334, 2022 WL 17850250, at *7 (D. Md. Dec. 22, 2022) (“This Court finds the conduct outlined in 18 U.S.C. § 922(k) is not protected by the Second Amendment ․”).¹¹

Even if there was a Second Amendment right to possess the unlawful firearms proscribed by Section 922(k), the Court finds that the Government has satisfied its burden to establish that Section 922(k) is “relevantly similar,” Rahimi, 602 U.S. at 692, 144 S.Ct. 1889, to the Nation's “historical tradition of firearm regulation,” Bruen, 597 U.S. at 34, 142 S.Ct. 2111. See Dkt. No. 66 at 15-16. As the Supreme Court has detailed: “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right․” Heller, 554 U.S. at 625, 128 S.Ct. 2783 (emphasis added) (citation omitted); see also id. at 627, 128 S.Ct. 2783 (stating that limitation of the Second Amendment “is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ”) (citing 4 W. Blackstone, Commentaries on the Laws of England 148-149 (1769); additional citations omitted); Rahimi, 602 U.S. at 689–91, 144 S.Ct. 1889 (same), at 697, 144 S.Ct. 1889 (describing the “ ‘going armed’ laws, a particular subset of the ancient common-law prohibition on affrays” as prohibiting, inter alia, “dangerous or unusual weapons”) (citing 4 Blackstone 145, 149; additional citations omitted).

The Court also finds Section 922(k) facially constitutional under the second step of the Bruen framework, and again joins many other courts in doing so.¹² See, e.g., Gomez, slip op. at 13 (“Even if the Second Amendment covered conduct that § 922(k) regulates, which it does not, the Government has presented sufficient evidence to demonstrate that § 922(k) is consistent with this Nation's historical tradition of firearm regulation.”); Trujillo, 670 F. Supp. 3d at 1242 (“Even if § 922(k) did proscribe protected conduct, the United States has identified numerous historical analogues that demonstrate Section 922(k) is ‘consistent with this Nation's historical tradition of firearm regulation.’ ”) (quoting Bruen, 597 U.S. at 17, 142 S.Ct. 2111); Holton, 639 F. Supp. 3d at 711 (“And even if § 922(k) did infringe on such rights, the Government has identified relevant historical analogues to meet its burden under Bruen.”); see also United States v. Trujillo, No. 23-2080, 2023 WL 5093358, at *2 & n.1 (10th Cir. Aug. 9, 2023) (“The bottom line is that § Section 922(k) has not been deemed unconstitutional ․ No circuit court has found § 922(k) unconstitutional since Bruen, and the majority of district courts that have addressed the issue have concluded that § 922(k) satisfies the Bruen test.”).

3. Defendant's as applied challenge

Defendant's as applied challenge to Count Six is that Government can only prove that he possessed a firearm with an obliterated serial number, not that he obliterated the serial number, nor that he used the firearm in any way. Dkt. No. 54-3 at 11. The Government argues that Defendant's perfunctory challenge has no merit, as his allegedly knowing possession falls within the scope of Section 922(k) and is not constitutionally protected. Dkt. No. 66 at 16-17.

The Court agrees with the Government. Defendant's four sentences of argument ¹³ do not demonstrate how the particular facts of this case establish that he was deprived of “a protected right.” Goe, 43 F.4th at 30 (citation omitted); see also Mingues, 2023 WL 9604697, at *6-7; Golston, 2024 WL 149603, at *4 n.5. As discussed previously, the Second Amendment right is not “unlimited” and has never been “a right to keep and carry any weapon whatsoever.” Heller, 554 U.S. at 626, 128 S.Ct. 2783; see also McDonald, 561 U.S. at 786, 130 S.Ct. 3020; Bruen, 597 U.S. at 21, 142 S.Ct. 2111; Rahimi, 602 U.S. at 689, 144 S.Ct. 1889.

Accordingly, the Motion's as applied challenge to Section 922(k) is denied.

D. Suppression

In the final two paragraphs of the Motion, Defendant argues that any evidence obtained from the 17 electronic devices seized from his home should be suppressed.¹⁴ Dkt. No. 54-3 at 13-14. Defendant does not argue that the seizure of the electronic devices was untimely or otherwise unconstitutional.¹⁵ Rather, he argues that the Government did not “copy or extract” all 17 devices within the 14-day period(s) the Government had to execute the October 18 and 31 search warrants. As a result, he says, any resulting evidence should be suppressed pursuant to Rule 41 of the Federal Rules of Criminal Procedure. In opposition, the Government argues, inter alia, that because the search warrants were timely executed, Rule 41 permits the subsequent copying or extraction of the seized devices. Dkt. No. 66 at 20-22.

The Court agrees with the Government. Rule 41(e)(2)(B) expressly provides that “[t]he time for executing the warrant ․ refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.” Fed. R. Crim. P. 41(e)(2)(B) (emphasis added). The corresponding advisory committee notes provide further clarity:

Computers and other electronic storage media commonly contain such large amounts of information that it is often impractical for law enforcement to review all of the information during execution of the warrant at the search location. This rule [Rule 41(e)(2)] acknowledges the need for a two-step process: officers may seize or copy the entire storage medium and review it later to determine what electronically stored information falls within the scope of the warrant.

․

In addition to addressing the two-step process inherent in searches for electronically stored information, the Rule limits the 10 [now 14] ․ day execution period to the actual execution of the warrant and the on-site activity. While consideration was given to a presumptive national or uniform time period within which any subsequent off-site copying or review of the media or electronically stored information would take place, the practical reality is that there is no basis for a “one size fits all” presumptive period. A substantial amount of time can be involved in the forensic imaging and review of information. This is due to the sheer size of the storage capacity of media, difficulties created by encryption and booby traps, and the workload of the computer labs.

Fed. R. Crim. P. 41(e)(2) advisory committee note to 2009 amendment (emphasis added).

Defendant does not contest that the Government timely seized the 17 electronic devices pursuant to lawful search warrants. He cites no legal authority for his assertion that the Government was required to copy or extract all 17 electronic devices concurrently with the execution of those search warrants, and Rule 41(e)(2)(B) expressly provides otherwise. Moreover, Defendant fails to address the weight of authority contrary to his position. See, e.g., United States v. Estime, No. 19-cr-711, 2020 WL 6075554, at *13 (S.D.N.Y. Oct. 14, 2020) (“The majority of courts that have considered the issue agree that, consistent with the language of Fed. R. Crim. P. 41(e)(2)(B) and the advisory committee's notes, the Government does not need to copy the entire storage medium or review the ESI in order to execute a search warrant for ESI.”) (collecting cases).

Because Defendant has not established that the Government violated Rule 41, his request to suppress evidence is denied.¹⁶

V. CONCLUSION

Accordingly, the Court hereby

ORDERS that Defendant's Motion, Dkt. No. 54, is DENIED; and the Court further

ORDERS that the Clerk serve a copy of this Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

FOOTNOTES

1.   The Motion mistakenly refers to Count Five (possession with intent to distribute a controlled substance) instead of Count Six (possession of a firearm with an obliterated serial number) but only makes arguments concerning the latter. See, e.g., Dkt. No. 54-3 at 11 (“Count Five infringes on the Defendant's Second Amendment right to possess the subject firearm and should be dismissed ․”).

2.   Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not the documents’ internal pagination.

3.   The Supreme Court noted in Bruen that following Heller and McDonald, the Courts of Appeals had utilized a two-step “framework for analyzing Second Amendment challenges that combines history with means-end scrutiny,” but the high court “decline[d] to adopt that two-part approach.” Id. at 17, 142 S.Ct. 2111; see also Antonyuk v. Chiumento, 89 F.4th 271, 297-98 (2d Cir. 2023).

4.   The Supreme Court recently directed the Second Circuit to reconsider Antonyuk in light of Rahimi. Antonyuk v. James, ––– U.S. ––––, 144 S.Ct. 2709, 219 L.Ed.2d 1315 (2024). This Court has not identified anything within Rahimi that would abrogate Bryant, nor the narrow propositions for which Antonyuk is cited herein. See United States v. Herriott, No. 23-cr-37, 2024 WL 3103275, at *2 n.1 (N.D. Ind. June 24, 2024) (“If anything, Rahimi can be seen as a softening of the approach to the Second Amendment taken in Bruen.”).

5.   This Court has also recently examined, in detail, the continued viability of earlier Second Circuit precedent following Bruen. See United States v. Brundige, No. 23-cr-187, Dkt. No. 24, slip op. at 6-10 (N.D.N.Y. Jan. 4, 2024). While the criminal statute and Second Circuit precedent at issue in that decision are different than those here, see United States v. Bogle, 717 F.3d 281 (2d Cir. 2013), this Court's reasoning as to the precedent's continued viability remains generally applicable.

6.   In addressing the as applied challenge raised in Bryant, the Second Circuit found that the defendant's possession of a firearm in connection with drug trafficking rendered Section 924(c)(1) constitutional “under these circumstances.” Bryant, 711 F.3d at 370. Accordingly, because there are at least some circumstances under which Section 924(c)(1) is valid, Defendant's facial challenge necessarily fails. Rahimi, 602 U.S. at 701–03, 144 S.Ct. 1889; see also Mingues, 2023 WL 9604697, at *3 n.4.

7.   The Court has not identified a discussion within the majority opinion in Rahimi that would provide further guidance as to the application of the first step of the Bruen framework. The Court has also not identified such guidance within the Second Circuit's prior extensive opinion in Antonyuk. 89 F.4th at 300 (“We focus here on the history-and-tradition prong.”). Accordingly, the Court bases its analysis primarily on Bruen.

8.   Heller’s resolution “assum[ed] that Heller is not disqualified from the exercise of Second Amendment rights,” seemingly in reference to his felony history and mental health status. Heller, 554 U.S. at 635, 631, 128 S.Ct. 2783. In light of the current limited record, the Court does not address the effect of such statuses, if any, within its analysis of “the people.”

9.   In one of the five concurrences in Rahimi, Justice Jackson identified a non-exhaustive list of “unresolved questions” following Bruen, including “[w]ho is protected by the Second Amendment, from a historical perspective?” 602 U.S. at 745, 144 S.Ct. 1889 (Jackson, J., concurring); see also Antonyuk, 89 F.4th at 312-13 (“Though the Supreme Court has suggested that ‘law-abiding,’ ‘responsible,’ and/or ‘ordinary’ individuals are protected by the Second Amendment, it is far from clear whether these adjectives describe individuals who stand outside the Second Amendment or instead those who may be disarmed consistent with that Amendment.”) (emphasis in original) (citations omitted).

10.   See nn.7-9, supra. The Court also assumes, without deciding, that the facial constitutionality of the statute at issue in Count Six will be determined without reference to the other allegations in the Indictment. Because these other allegations are considered to be true for purposes of the Motion, considering them would suggest that Defendant is not an “ordinary, law-abiding” citizen and thus not part of “the people.” Goldberg, 756 F.2d at 950; Bruen, 597 U.S. at 31-32, 142 S.Ct. 2111.

11.   Given the Supreme Court's recent decision in Rahimi, the Court finds distinguishable the authority upon which Defendant relies regarding Bruen’s first prong. Compare United States v. Price, 635 F. Supp. 3d 455, 460 (S.D.W. Va. 2022), with Rahimi, 602 U.S. at 701–03, 144 S.Ct. 1889.

12.   The Court considers the discussion of Bruen’s second prong in Price unpersuasive in light of more recent guidance from the Supreme Court. Compare Price, 635 F. Supp. 3d at 460-64, with Rahimi, 602 U.S. at 691–93, 144 S.Ct. 1889.

13.   To the extent Defendant's as applied arguments regarding Count Seven are also applicable to Count Six, they fail for the same reasons previously detailed. See Section IV.B.3, supra.

14.   Given Defendant's argument is regarding “at least 15 if not 16” of the devices, Dkt. No. 54-3 at 14, and “no less than 15” of the devices, Dkt. No. 54-1 at 7, ¶¶ 22-24, the Court addresses all 17 electronic devices for the avoidance of doubt.

15.   To the extent the Motion could be read to raise a Fourth Amendment argument, such an argument would fail. See United States v. Johnson, 93 F.4th 605, 616 (2d. Cir. 2024); see also Dkt. No. 66 at 22-27.

16.   Defendant requested an evidentiary hearing on his suppression claim. Dkt. No. 54 at 1. The Government in its opposition argues that because Defendant “failed to demonstrate a factual dispute associated with his suppression claim,” his request for an evidentiary hearing on this issue should be denied. Dkt. No. 66 at 27. Defendant did not respond to this argument. See generally Dkt. No. 67. The Court finds that because there is no factual dispute, and Defendant's suppression claim fails as a matter of law, an evidentiary hearing is not warranted. See United States v. LaPorta, 46 F.3d 152, 160 (2d Cir. 1994) (finding that “[w]ithout disputed facts, no hearing [i]s necessary”); United States v. Sosa, 379 F. Supp. 3d 217, at 223 (S.D.N.Y. 2019); see also N.D.N.Y. L.R. Crim. P. 12.1(e). Defendant also requested oral argument on his constitutional claims. Dkt. No. 54 at 1. For similar reasons, the Court declines to exercise its discretion to grant oral argument on these claims. N.D.N.Y. L.R. Crim. P. 12.1(a).

Anne M. Nardacci, United States District Judge: