United States v. Call

874 F. Supp. 2d 969, 2012 U.S. Dist. LEXIS 79080, 2012 WL 2061405
CourtDistrict Court, D. Nevada
DecidedJune 7, 2012
DocketCase No. 2:12-cr-00163-LDG-CWH
StatusPublished
Cited by2 cases

This text of 874 F. Supp. 2d 969 (United States v. Call) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Call, 874 F. Supp. 2d 969, 2012 U.S. Dist. LEXIS 79080, 2012 WL 2061405 (D. Nev. 2012).

Opinion

ORDER

Motion to Prohibit the Defendant From Possessing Firearms and Ammunition—# 37

GEORGE FOLEY, JR., United States Magistrate Judge.

This matter is before the Court on the Government’s Motion to Prohibit the Defendant from Possessing Firearms and Ammunition (# 37), filed on May 21, 2012; Defendant’s Opposition to the Government’s Motion to Prohibit the Defendant from Possessing Firearms and Ammunition (# 38), filed on May 23, 2012; and the Government’s Reply [in support of] Motion to Prohibit the Defendant from Possessing Firearms and Ammunition (# 41), filed on May 30, 2012.

BACKGROUND

Defendant Jonathan Call was initially charged in a criminal complaint, filed on August 25, 2011, with a conspiracy to defraud the United States Government in violation of 18 U.S.C. § 371 and embezzlement of public property in violation of 18 U.S.C. § 641. Complaint (#2). The complaint alleged that Mr. Call is the operator of a business known as Citadel Gun & Safe. It further alleged that Mr. Call had received and sold, or offered to sale, stolen United States military equipment including military-specification body armor plates, interceptor vests, military-specification infrared strobe lights, a chemical warfare suit, military strength laser pointers, M-192 Heavy Weapons mounts, boxes of Meals Ready to Eat (“MRE’s”), and night vision goggles. The complaint also alleged that Mr. Call or Citadel Gun & Safe was in possession of a large number of firearms, although there was no allegation that any of the firearms were stolen or illegal. Mr. Call made his initial appearance before the Court on the criminal complaint on September 21, 2011. At that time the Court scheduled a preliminary hearing and imposed conditions of pretrial release on Mr. Call which included the standard condition that Defendant not violate any federal, state or local law while on release. Defendant’s Appearance Bond and Order Setting Conditions of Release (# U).

On September 28, 2011, the Government filed a petition for action on conditions of pretrial release which requested that the following conditions be added to Defendant’s conditions of release:

1. Pretrial Services Supervision.
2. Refrain from the use or possession of a firearm, destructive device or other dangerous weapon.
3. Surrender all firearms, destructive devices or other dangerous weapons to a third party within 72 hours.
4. Defendant is restricted from the sale of firearms in a personal or business capacity, however, may continue to sell firearms parts and accessories in Citadel Gun & Safe.
[972]*972 Petition for Action on Conditions of Pretrial Release (#15, #16).

The Court conducted a hearing on the petition on October 6, 2011. The Court granted the petition by adding the condition that Defendant refrain from possessing firearms, destructive devices or other dangerous weapons, with the exception that Defendant was allowed to keep three identified firearms at his residence for the protection of himself and his family. The Court further ordered that Defendant surrender all other firearms to a third party within 72 hours and prohibited Defendant from selling firearms in a personal or business capacity, but permitted him to sell his existing firearms on consignment so long as the seller’s (consignee’s) name was provided to pretrial services. Amended Appearance Bond and Order Setting Conditions of Pretrial Release (#21), filed October 6, 2011. Although the conditions proposed in the Petition (# 15, # 16) provided that Defendant “may continue to sell firearms parts and accessories in Citadel Gun & Safe,” this limitation was not included in the Amended Appearance Bond and Order Setting Conditions of Release (#21). This was an oversight by the Court and was not an intentional rejection of that limitation. The petition and order did not expressly address the sale of ammunition. The Court is informed Citadel Gun & Safe continued to sell ammunition after entry of the order on October 6, 2011.1

Mr. Call was indicted on May 9, 2012 on two counts of theft of government property having a value in excess of $1,000.00 in violation of 18 U.S.C. § 641 and 18 U.S.C. § 2. Indictment (# SO). A person convicted for a violation of § 641 may be imprisoned for not more than 10 years. 18 U.S.C. § 922(n) makes it “unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Based on this statute and the indictment, the Government requests that Mr. Call’s conditions of pre-trial release be modified to prohibit him from possessing any firearms or ammunition. The Government’s motion includes the three firearms that Mr. Call has been authorized to keep for home protection as well as ammunition for those firearms. The Government also asserts that Mr. Call cannot work in or operate a store that sells ammunition without violating § 922(n).

DISCUSSION

1. Defendant’s Possession of Three Firearms for Self Defense Purposes.

18 U.S.C. § 922(n) does not make it unlawful for a person under indictment to possess firearms or ammunition that he received prior to the indictment. See United States v. Laurent, 861 F.Supp.2d 71, 81 (E.D.N.Y.2011) (“By its own terms, § 922(n) does not prohibit possession of a weapon by someone under indictment, but only shipping, transportation or receipt.”) Id. at 85. To prove a violation of § 922(n), “the government is required to demonstrate that the defendant received the weapon after indictment.” Id. at 81. See also United States v. Adams, 2011 WL 1475978 (S.D.Ala.2011) (dismissing an indictment under § 922(n) that charged only possession). Prior to indictment, the Court authorized Mr. Call to keep three identified firearms at home [973]*973for defense of himself and his family. Amended Appearance Bond and Order Setting Conditions of Pretrial Release (#21). There is no allegation that Mr. Call has engaged in any conduct that would now justify an order prohibiting him from possessing the firearms or ammunition for those firearms. The Court therefore denies the Government’s motion to the extent it seeks to prohibit Mr. Call from possessing the three firearms that the Court previously authorized him to keep.

2. Whether § 922(n) Prohibits Mr. Call From Working in a Business that Sells Ammunition.

The next issue is whether 18 U.S.C. § 922(n) prohibits Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
874 F. Supp. 2d 969, 2012 U.S. Dist. LEXIS 79080, 2012 WL 2061405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-call-nvd-2012.