United States v. Thomas

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 17-194 (RDM)

DAVID LEE THOMAS,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant David Lee Thomas is charged in a fourteen-count indictment with crimes

relating to a series of armed robberies. Five counts of the indictment allege that he committed a

series of robberies in violation of the Hobbs Act, 18 U.S.C. § 1951; five counts allege that he

used or carried a “firearm” in “relation to” or possessed a “firearm” in “furtherance of” a crime

of violence in violation of 18 U.S.C. § 924(c); two counts allege that he committed two robberies

while armed with a “firearm” in violation of D.C. law, D.C. Code §§ 22-2801, 22-4502; and two

counts allege that he possessed a “firearm” while committing those armed robberies in violation

of D.C. law, D.C. Code § 22-4504(b). In two motions, Thomas moves to dismiss all but the

Hobbs Act counts of the indictment on the ground that the “weapon” the Metropolitan Police

Department (“MPD”) recovered “was missing a number of key parts,” including its hammer and

trigger. Dkt. 39 at 2; see also Dkt. 22. He argues that a weapon missing these parts does not

satisfy the federal or D.C. statutory definitions of a “firearm”; that one portion of the federal

statutory definition is unconstitutionally vague; that the government’s contention that the “frame

or receiver” of a gun is the “firearm” for present purposes constitutes a constructive amendment

of the indictment, in violation of the Fifth Amendment to the U.S. Constitution; and that, at a minimum, the government must prove that Thomas knew that a “frame or receiver” is a

“firearm.” See Dkt. 22; Dkt. 39. For the reasons explained below, the Court will deny both

motions.

I. BACKGROUND

On May 3, 2018, a grand jury returned a fourteen-count superseding indictment charging

Thomas with crimes relating to a series of armed robberies. See Dkt. 8. Those charges fall into

three general groups:

First, Counts One, Three, Five, Nine, and Eleven charge Thomas with violating the

Hobbs Act, 18 U.S.C. § 1951. Dkt. 8 at 1–2, 4–5, 7 (“Hobbs Act counts”). The Hobbs Act

counts are not implicated by the instant motions.

Second, Counts Two, Four, Six, Ten and Twelve charge Thomas with “Using, Carrying,

and Possessing a Firearm During a Crime of Violence, in violation of Title 18, United States

Code, Sections 924(c)(1)(A).” Id. at 2–8 (“§ 924(c) counts”). Section 924(c)(1)(A) provides for

enhanced penalties for “any person who, during and in relation to any crime of violence . . . uses

or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C.

§ 924(c)(1)(A). Section 921(a)(3), in turn, defines a “firearm” as:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

Id. § 921(a)(3). The indictment alleges that Thomas knowingly used, carried “during and in

relation to,” and possessed “in furtherance of” the Hobbs Act violations “a firearm, that is, a

Firearms Import and Export Corp. Western Duo .22 caliber revolver.” Dkt. 8 at 2–8.

2 Third, Counts Seven and Thirteen charge Thomas with “Armed Robbery, in violation of

Title 22, District of Columbia Code, Sections 2801, 4502,” and Counts Eight and Fourteen

charge him with “Possession of a Firearm During Crime of Violence or Dangerous Offense, in

violation of Title 22, District of Columbia Code, Section 4504(b).” Id. at 5, 8 (“D.C. Code

counts”). The D.C. Code defines a firearm as “any weapon, regardless of operability, which

will, or is designed or redesigned, made or remade, readily converted, restored, or repaired, or is

intended to, expel a projectile or projectiles by the action of an explosive.” D.C. Code. § 22-

4501(2A). The indictment alleges that Thomas stole a cellphone on two occasions from the

same victim, “while armed with a Firearms Import and Export Corp. Western Duo .22 caliber

revolver,” and that on both occasions he possessed “a firearm, that is, a Firearms Import and

Export Corp. Western Duo .22 caliber revolver, while committing the crime of Armed Robbery.”

Dkt. 8 at 5, 8.

Thus, nine of the fourteen counts are premised on Thomas’s use or possession of a

firearm. The revolver that the MPD recovered, however, was “missing its hammer, hammer

screw, trigger, cylinder stop, hand, ejector rod housing, base pin, screw, nut, spring, loading gate

detent and spring and miscellaneous screws.” Dkt. 37 at 61–62 (Apr. 22, 2019 Hrg. Tr.).

Thomas has filed two motions focusing on that undisputed fact.

He first moves to dismiss the § 924(c) counts based on the missing parts. See Dkt. 22.

He argues that the revolver was not capable of expelling a projectile and was not, at least at the

time the gun was seized, “designed to” do so. Id. at 2. In his view, this leaves only one

possibility under the relevant statutory text—that the revolver could “readily” have been

“converted to expel a projectile.” Id. at 3. But that clause of the statutory definition of “firearm”

3 is, according to Thomas, unconstitutionally vague because the statute “provides no objective

criteria to be used in assessing whether a weapon is ‘readily convertible.’” Id. at 4–5.

In response, the government makes only passing reference to Thomas’s vagueness

argument. Dkt. 26 at 9–11. It, instead, focuses on two other clauses of the statutory definition.

The government first argues that the revolver, even with the missing parts, is nonetheless

“designed to . . . expel a projectile,” 18 U.S.C. § 921(a)(3)(A), and, second, argues that it is at

least “the frame or receiver of . . . such [a] weapon,” id. § 921(a)(3)(B). Dkt. 26 at 4–9. Under

either clause of the statutory definition, according to the government, the fact that the gun was

inoperable is immaterial. “Because [§] 921(a)(3) is written in the disjunctive,” and because a

reasonable jury could find that the “designed to” or “frame or receiver” clause is satisfied, the

government submits that it need not “demonstrate that” the revolver “may readily be converted”

to expel a projectile. Dkt. 26 at 11.

The Court held a hearing on Thomas’s initial motion on April 22, 2019. Dkt. 37 (Apr.

22, 2019 Hrg. Tr.). A week later, the Court granted Thomas leave to supplement his motion or

to file a further motion relating to the statutory definition of “firearm.” Thomas took both paths.

He supplemented his motion to dismiss the § 924(c) counts, Dkt. 40, arguing that the statutory

reference to “frame or receiver” applies only to the frame or receiver of any “such weapon” and

thus does not overcome the statutory requirements that the “weapon”—at the time of the crime

of violence—must have been capable of expelling or designed to expel a projectile. He also filed

a second motion to dismiss, this time seeking dismissal of both the § 924(c) and the D.C. Code

counts, arguing that, to the extent the government contends that use or possession of the “frame

or receiver” of the revolver violated the relevant statutes, that theory constitutes a constructive

amendment of the superseding indictment in violation of the Fifth Amendment. Dkt. 39.

4 Finally, Thomas argues that under the reasoning of the Supreme Court’s decision in Staples v.

United States, 511 U.S. 600 (1994), the government must at least prove at trial that Thomas

knew that a “frame or receiver” is a “firearm” for purposes of § 924(c).1 Id. at 5–6.

The two motions to dismiss, Dkt. 22 and Dkt. 39, are now before the Court for decision.

II. ANALYSIS

A. Motion to Dismiss § 924(c) Counts for Failure to State an Offense

Thomas’s first motion starts with the undisputed fact that the revolver at issue here “was

missing at least three parts: the trigger; the hammer; and the cylinder pin,” and, on that basis,

argues that (1) the gun does not qualify as a “firearm” within the meaning of § 921(a)(3)’s “will”

expel or “is designed to” expel clauses and, (2) even if the “readily-converted” clause of the

definition might apply, that clause is unconstitutionally vague. Dkt. 22 at 2–3. Although the

statutory definition of a “firearm” is a question of law, “the determination of whether a particular

weapon fits within the legal definition of a firearm under that statute is a question of fact” that is

reserved for the jury. United States v. Yannott, 42 F.3d 999, 1005 (6th Cir. 1994). At trial, the

government will bear the burden of demonstrating beyond a reasonable doubt that the revolver at

issue meets the statutory definition of a “firearm” under 18 U.S.C. § 921(a)(3). At this stage, the

Court need only—and should only—evaluate whether the indictment “fail[s] to state an offense.”

Fed. R. Crim. P. 12(b)(3)(B)(v).

The Court’s role in considering a motion to dismiss an indictment for failure to state an

offense pursuant to Rule 12(b)(3)(B)(v) is a narrow one. The Court “‘is limited to reviewing the

1 Because this final contention does not provide a basis for the pretrial dismissal of the indictment, and because the Court has yet to consider how to instruct the jury or whether the evidence, which has not yet been presented, is (or will be) sufficient to sustain a conviction, the Court will deny this portion of Thomas’s motion, without prejudice, as premature.

5 face of the indictment and, more specifically the language used to charge the crimes.’” United

States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (quoting United States v. Sharpe, 438 F.3d

1257, 1263 (11th Cir. 2006) (emphasis in original)). It “must ‘presume the allegations of [the]

indictment to be true.’” Id. (quoting United States v. Fiander, 547 F.3d 1036, 1041 n. 3 (9th Cir.

2008) (internal citation and quotation marks omitted)). And, it must refrain from assessing the

sufficiency of the evidence, which has not yet been presented. Id.

Measured against this standard, Thomas confronts a substantial hurdle. Each of the

§ 924(c) counts allege that Thomas “did unlawfully and knowingly use, and carry during and in

relation to, and possess in furtherance of, a crime of violence, for which he may be prosecuted in

a court of the United States, a firearm, that is, a Firearms Import and Export Corp. Western Duo

.22 caliber revolver.” Dkt. 8 at 2–4, 6–8. That language tracks the text of 18 U.S.C. § 924(c),

which is all that is required at this early stage of the proceeding. The question whether the

government can prove its case as charged—absent a legal defect in the indictment—is a question

of fact for the jury.

In an effort to bring his argument within the scope of Rule 12(b)(3)(B)(v), Thomas

constructs a three-part syllogism. First, he posits that an essential element of a violation of

§ 924(c) is that the defendant use or possess a “firearm” in furtherance of a crime of violence.

Dkt. 22. That premise is undisputed. Second, he posits that the only portion of the definition of

“firearm” that is even arguably applicable here asks whether the weapon at issue “may readily be

converted to expel a projectile.” Id. This second premise, according to Thomas, follows from

the definition of “firearm” contained in 18 U.S.C. § 921(a)(3), which provides:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or

6 firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

18 U.S.C. § 921(a)(3). In his view, the revolver at issue is not a weapon that “will . . . expel a

projectile” because it is inoperable, and it is not a weapon “which . . . is designed to” do so

because, even if originally designed to fire a bullet, the statutory definition is cast in the present

tense, and the revolver is not, at present, designed to fire a bullet. Dkt. 22 at 1–2. This, then,

leaves only the third possibility—that the revolver might “readily be converted to expel a

projectile.” Id. at 3. Finally, he posits that a charge that is founded on the “readily-converted”

clause fails to state an offense because that portion of the definition is unconstitutionally vague.

Id.

For present purposes, the Court can limit its analysis to the second of these premises and

need not consider, at least at this stage of the proceeding, whether the statute’s “readily-

converted” clause is unconstitutionally vague. If the government decides to press that theory of

the case at the trial, the Court can decide whether to instruct the jury on that clause of the

definition or whether to limit the jury instructions to the other, independently sufficient portions

of the statutory definition. With that limitation, and even accepting the government’s concession

that the revolver was inoperable (thus going beyond the face of the indictment), see United States

v. Yakou, 428 F.3d 241, 246–47 (D.C. Cir. 2005) (noting that in the absence of an objection by

the government, district courts may consider uncontested facts for purposes of a pretrial motion

to dismiss an indictment), the Court concludes that the indictment does state an offense.

1. Section 921(a)(3)(A)

Thomas’s first contention is that, in its present state, the revolver “will [not] expel a

projectile” because it lacks a trigger and hammer. Dkt. 22 at 2. That fact is undisputed: the

government’s expert testified that, when he first examined the revolver, “[i]t was inoperable.”

7 Dkt. 37 at 64 (Apr. 22, 2019 Hrg. Tr.). The statutory definition, however, is not limited to

weapons that “will” expel a projectile; it also includes weapons “designed” to do so. 18 U.S.C.

§ 921(a)(3)(A). But this alternative does not help the government, according to Thomas,

because, in his view, a gun originally “designed to” expel a projectile “is” no longer designed to

do so if the weapon is inoperable due to the absence of essential components (or, presumably,

damage to those components). Dkt. 22 at 2. This reading of the statute, in essence, requires the

Court to conclude that design and operability run hand-in-glove. Because such a reading would

be at odds with the plain language of the statute and the overwhelming weight of precedent, the

Court declines to do so.

Thomas’s argument fails, in the first instance, because it reads the phrase “is designed to”

out of the statute. That result is at odds with the maxim that courts must “presume that Congress

did not ‘include words’ [in a statute] ‘that have no effect.’” Mercy Hosp., Inc. v. Azar, 891 F.3d

1062, 1068 (D.C. Cir. 2018) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 176–77 (2012)). Nor is it difficult to read § 921(a)(3) to give

independent meaning to the phrases “will expel” and “designed to expel.” Most notably, the

phrase “designed to” broadens § 921(a)(3)’s reach beyond those weapons that “will” expel a

projectile: A weapon can be “designed to” expel a projectile, even if it is inoperable. The word

“design,” in this context, means to “create, fashion … or construct according to a plan.”

Webster’s New International Dictionary 611 (3d ed. 1993). Contrary to Thomas’s contention,

nothing in that definition, nor ordinary usage of the word, suggests that the “design” or “plan”

for a thing changes merely because that thing is inoperable. The Titanic was, after all,

“designed” to be unsinkable.

8 Every circuit to consider the question has come to the same conclusion: an inoperable

weapon that “will” not expel a projectile—like the revolver here—still falls within the statutory

definition of a firearm if it is “designed” to do so. See, e.g., United States v. Dotson, 712 F.3d

369, 370–72 (7th Cir. 2013); United States v. Davis, 668 F.3d 576, 578 (8th Cir. 2012); United

States v. Rivera, 415 F.3d 284, 286 (2d Cir. 2005); United States v. Yannott, 42 F.3d 999, 1006

(6th Cir. 1994); United States v. Ruiz, 986 F.2d 905, 910 (5th Cir. 1993); United States v. York,

830 F.2d 885, 891 (8th Cir. 1987). Courts have come to this conclusion, for instance, where a

gun’s “firing pin was broken” and its “firing-pin channel was peened,” Rivera, 415 F.3d at 285;

the “hammer was filed down,” Ruiz, 986 F.2d at 910; the “firing pin” was “broken”, Yannott, 42

F.3d at 1006; the firing pin was missing and the cylinder did not line up with the gun’s barrel,

York, 830 F.2d at 891; the trigger was missing, Davis, 668 F.3d at 576; and the gun “was

inoperable because of ‘significant damage, missing/broken parts, and extensive corrosion,’”

Dotson, 712 F.3d at 370. The D.C. Circuit, moreover, has held that § 921(a)(3) includes guns

that are inoperable and, in doing so, has cited with approval the Eighth Circuit’s observation in

York, that “it is enough that the ‘weapon . . . is designed to . . . expel a projectile by the action of

an explosive,’” 830 F.3d at 891. See United States v. Gwyn, 481 F.3d 849, 855 (D.C. Cir. 2007)

(citing York); United States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989) (same).

The relevant point is perhaps best made by use of an analogy. To borrow one from the

Seventh Circuit, “a defect in [the] … maintenance” of an airplane “that prevents it from flying

does not alter its design.” Dotson, 712 F.3d at 371. Or, to borrow an analogy from the

government’s expert witness, an automobile that is missing its “tires and rims . . . doesn’t cease

to be an automobile. It doesn’t cease to be designed to travel down a roadway and [to] transport

individuals or cargo down that roadway. It is merely temporarily prevented from doing its

9 primary reason for being.” Dkt. 37 at 63 (Apr. 22, 2019 Hrg. Tr.). Likewise here: a revolver

may still be “designed” to expel a projectile even though, due to the removal of certain

components, it can no longer do so.

Thomas takes issue with this distinction between the design and operation of a weapon

and argues that, once the essential components of a firearm are removed, the weapon no longer

falls within § 921(a)(3)’s “designed to” clause. Dkt. 22 at 2. For support, he points to two

precedents. In the first, United States v. Counce, the Eighth Circuit observed that the “operation

of a weapon may be relevant to whether it is designed to expel a projectile by the action of an

explosive.” 445 F.3d 1016, 1018 (8th Cir. 2006). In the second, United States v. Wada, the

U.S. District Court for the District of Oregon held that the phrase “‘is designed to,’” must “be

given [its] ordinary meaning, and further opined that, as a matter of common usage, “‘is designed

to’ does not mean ‘was designed to.’” 323 F. Supp. 2d 1079, 1082 (D. Or. 2004) (internal

citations omitted).

Neither decision supports Thomas’s argument. Counce merely holds that operability is

one of many relevant factors a jury might consider, but it is not determinative. 445 F.3d at 1018.

Indeed, consistent with the weight of precedent, Counce recognizes that Ҥ 921(a)(3) does not

require a firearm to be operable.” Id. This Court agrees with both aspects of the Eighth Circuit’s

decision—operability is relevant, but a weapon that is inoperable may, nonetheless, be “designed

to expel a projectile.” Wada, in turn, merely supports the proposition that a weapon that

undergoes a fundamental transformation—beyond merely missing several essential parts—may

take on a new design. In Wada, the defendant had modified previously-functional weapons, by

“cutting a slot out of the barrel,” and sold them as “dewatted firearm-ornaments” to purchasers in

Japan. 323 F. Supp. 2d at 1081. Wada does not hold that an inoperable gun, or a gun that is

10 missing certain essential components, is no longer “designed to expel a projectile.” Rather, it

holds that a gun might be so fundamentally altered or redesigned that it is no longer a gun.

To be sure, the meaning of “designed to” in § 921(a)(3) is not necessarily the same as

“originally designed for,” a phrase used elsewhere in the statute. See 18 U.S.C. § 921(a)(4).

But, something more than inoperability is needed to render a firearm originally “designed to”

expel a projectile into one that no longer is “designed to” do so. A gun turned into a “cigarette

lighter,” Dotson, 712 F.3d at 371, for example, might no longer be “designed to” expel a

projectile. It is possible, moreover, that a gun missing so many parts that it no longer resembles

a gun might no longer be “designed to” expel a projectile. See id. at 372. Whether the revolver

at issue here has reached that point, however, is “a question of fact,” Davis, 668 F.3d at 577, for

the jury and is not a question suitable for resolution on a pretrial motion to dismiss the

indictment for “failure to state an offense,” Fed. R. Crim. P. 12(b)(3)(B)(v).

The Court, accordingly, concludes that, even though the revolver at issue here “was

missing at least three parts,” Dkt. 22 at 2, the indictment is legally sufficient and “state[s] an

offense” under 18 U.S.C. § 924(c).2 The question whether the government can prove the

necessary elements of the offense—including the use or possession of a “firearm”—is one for the

jury.

2 Although Thomas does not seek dismissal of the D.C. Code counts in his first motion, the statutory definitions are sufficiently alike that the Court’s principal conclusions apply under both regimes. D.C. Code. § 22-4501(2A) defines a firearm as: “any weapon, regardless of operability, which will, or is designed or redesigned, made or remade, readily converted, restored, or repaired, or is intended to, expel a projectile or projectiles by the action of an explosive.” (emphasis added).

11 2. Section 921(a)(3)(B)

Although unnecessary in light of the Court’s conclusion that the § 924(c) counts state an

offense based on the “design” of the weapon, the government makes a second argument, which

is also sufficient to avoid dismissal of the § 924(c) counts. Under this alternative approach, the

government contends that its concession that the revolver at issue was missing its trigger, the

hammer, and cylinder pin does not render the indictment deficient because the statutory

definition of “firearm” includes “the frame or receiver of any such weapon,” 18 U.S.C.

§ 921(a)(3)(B), and the revolver that the MPD seized included the weapon’s “frame or receiver,”

see Dkt. 26. Thomas remains free to argue otherwise at trial. But, for purposes of his motion to

dismiss the § 924(c) counts of the indictment, the Court agrees that nothing in the indictment or

in the government’s concession warrants dismissal.

Section 921(a)(3)(B) defines a firearm as “the frame or receiver of any such weapon.”

The statute does not define the phrase “frame or receiver.” The governing regulations, however,

are clear: The frame or receiver of a gun is “[t]hat part of a firearm which provides housing for

the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its

forward portion to receive the barrel.” 27 C.F.R. § 478.11. As the government’s expert witness

from the Bureau of Alcohol, Tobacco, Firearms and Explosives testified at the hearing on

Thomas’s motion to dismiss, “the frame or receiver is the central part of the firearm,” as it

“houses the firing components and the hammer” and is the “core component of the firearm that

all the other parts are attached to.” Dkt. 37 at 55–56 (Apr. 22, 2019 Hrg. Tr.).

For present purposes, Thomas does not dispute that the revolver recovered by the MPD

included its “frame or receiver.” Instead, he argues that more is required to meet the statutory

definition of a “firearm” because the statute refers to “the frame or receiver” of “any such

12 weapon,” 18 U.S.C. § 921(a)(3)(B) (emphasis added), and “such weapon” must refer to the

proceeding statutory definition. Dkt. 40 at 2 (quoting 18 U.S.C. § 921(a)(3)(A)(emphasis

added)). In other words, on Thomas’s view, the “frame or receiver” clause must be read as

follows: “the frame or receiver of any . . . weapon” that “will or is designed to . . . expel a

projectile.”3 Because the government concedes that the revolver is inoperable, neither of those

clauses applies, according to Thomas, and thus, under his reasoning, the “frame or receiver”

clause also does not apply. Id. That contention fails on multiple levels.

As an initial matter, as previously explained, even an inoperable gun may be “designed to

expel” a projectile. Accordingly, even by Thomas’s own logic, the “frame or receiver” clause

may apply. But, even putting that aside, Thomas’s construction of the statute does not withstand

scrutiny. To read “any such weapon” in § 921(a)(3)(B) to incorporate all of the requirements of

§ 921(a)(3)(A) would render § 921(a)(3)(B) meaningless. Accordingly, Thomas’s argument,

once again, runs headlong into “one of the most basic interpretive canons”—that is, “that ‘[a]

statute should be construed so that effect is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant.’” Corley v. United States, 556 U.S. 303, 314

(2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). Thomas’s theory also twists the

statutory definition beyond comprehension: Under his theory, Congress included the “frame or

receiver” of a weapon—which is, by definition, inoperable—in the statutory definition, but did

so only for those frames or receivers that are part of an operable weapon. The Court rejects this

mind-bending reading of the statute.

3 The Court can leave the “readily converted to expel” clause, which the government mentions only in passing, for present purposes, to the side.

13 Because it is uncontested that the revolver here contained the “frame or receiver” and

because the Court concludes that a “frame or receiver,” standing alone, qualifies as a “firearm”

within the meaning of the statute, the indictment states an offense even if the government relies

exclusively on § 921(a)(3)(B).

B. Motion to Dismiss § 924(c) and D.C. Code Counts Under the Fifth Amendment

After the government indicated that it may rely on the “frame or receiver” clause in

presenting its case to the jury, Thomas filed a second motion. Dkt. 39. That motion argues that

the indictment refers to “a Western Duo .22 Caliber Revolver,” and not the “frame or receiver”

of such a weapon, and that the government’s “frame or receiver” argument, therefore, constitutes

a constructive amendment to the indictment in violation of the Fifth Amendment. Id. at 1.

Unlike Thomas’s earlier motion, this motion seeks dismissal of both the § 924(c) counts and the

D.C. Code counts. This motion fails as a matter of both procedure and substance.

The motion fails as a matter of procedure because the possibility that the government

might present evidence and arguments to the jury that deviate from the indictment does not

provide a basis to dismiss all or portions of the indictment, as Thomas proposes. Such a

deviation might provide grounds to preclude the government from offering that evidence or

argument at trial, or it might provide grounds for setting aside a verdict premised on a

constructive amendment to the indictment. As Thomas himself puts it, “the basis for [his]

motion is that the [g]overnment will seek to present evidence at trial that constructively amends

the” indictment “returned by the Grand Jury.” Dkt. 39 at 1 (emphasis added). But where a

defendant’s challenge turns on what will—or will not—occur at a “trial on the merits,” a

threshold motion to dismiss the indictment is premature. Fed. R. Crim. P. 12(b)(1). As a result,

Thomas’s challenge is not to the indictment but, rather, to the evidence and arguments that the

14 government might present. That theory of constructive amendment, which is all that Thomas

presses, is therefore premature.4

Considered at this early stage of the proceeding, without the benefit of actual evidence

and argument, Thomas’s argument is also unpersuasive. Thomas is correct that, under the Fifth

Amendment, a defendant may not be “deprived of his right to have all charges screened by the

grand jury.” United States v. Lemire, 720 F.2d 1327, 1345 (D.C. Cir. 1983). There are however

“two kinds of erroneous departure from the original indictment of a grand jury, each with its own

standards governing prejudice.” Gaither v. United States, 413 F.2d 1061, 1071 (D.C. Cir. 1969).

As the D.C. Circuit has explained, “[a]n amendment of the indictment occurs when the charging

terms of the indictment are altered, either literally or in effect, by prosecutor or court after the

grand jury has last passed upon them.” United States v. Mangieri, 694 F.2d 1270, 1277 (D.C.

Cir. 1982) (quoting Gaither, 413 F.2d at 1071). In contrast, “[a] variance occurs when the

charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts

materially different from those alleged in the indictment.” Id. Because “a variance does not call

for dismissal of the indictment except upon a showing of prejudice,” Gaither, 413 F.2d at 1072,

and because the Court cannot find any evidence of prejudice on the present record, Thomas is

4 Given this conclusion, the Court further holds that Thomas has not—and cannot—satisfy the standard for the production of grand jury minutes pursuant to Fed. R. Crim. P. 6(e)(3)(E)(ii). See Dkt. 39 at 7. “While there is some small disagreement among courts regarding what precise standard a defendant must meet in order to gain disclosure of grand jury materials under Rule 6(e)(3)(E)(ii), most courts have held that the appropriate standard is that of ‘particularized need,’ borrowed from the standard under the case law applying Rule 6(e)(3)(E)(i).” United States v. Naegele, 474 F. Supp. 2d 9, 10 (D.D.C. 2007). Criminal defendants, moreover, have only “rare[ly]” satisfied this test. Id. Here, Thomas merely speculates that the grand jurors were kept in the dark about the fact that the revolver was inoperable and would not have indicted Thomas had the prosecutors revealed the actual facts to them. More is needed to invoke Rule 6(e)(3)(E)(ii). See id. (citing cases).

15 limited—at least for now—to arguing that the government seeks constructively to amend the

indictment.

The D.C. Circuit has explained that “[t]o distinguish between a constructive amendment

and a variance,” the Court should look to “the elements of the offense, the allegations of the

indictment, and the nature of the evidence.” Mangieri, 694 F.2d at 1277 (citation and quotation

marks omitted). Again, however, the Court cannot apply this test without reviewing the actual

evidence the government will proffer and that the Court will admit. Nor can the Court conclude

on the present record that the government’s “frame or receiver” theory would depart from the

allegations contained in the indictment. The Supreme Court’s decision in Stirone v. United

States, 361 U.S. 212 (1960), is instructive on this latter point. In that case, a grand jury returned

an indictment charging Stirone with using his “influential union position” for “extortion.” Id. at

213–14. The indictment alleged that Stirone’s extortion affected a victim’s ability to move

“supplies and materials (sand) . . . in interstate commerce between various points in the United

States.” Id. at 213. The victim intended to use the sand to make concrete for a steel-processing

plant. Id. At trial, the judge instructed the jury that Stirone could be found guilty of “affecting

interstate commerce” by finding either that “(1) sand used to make the concrete ‘had been

shipped from another state into Pennsylvania’ or (2) ‘[the victim’s] concrete was used for

constructing a mill which would manufacture articles of steel to be shipped in interstate

commerce.” Id. at 214. The Supreme Court reversed the conviction, holding that the “grand jury

which found this indictment was satisfied to charge that Stirone’s conduct interfered with

interstate importation of sand,” but not steel, and “neither this nor any other court can know that

the grand jury would have been willing to charge that Stirone’s conduct would interfere with

interstate exportation of steel from a mill later to be built with [the victim’s] concrete.” Id. at

16 217. The Court concluded that the deviation in the government’s “evidence had ‘amended’ the

indictment by broadening the possible bases for conviction from that which appeared in the

indictment.” United States v. Miller, 471 U.S. 130, 138 (1985) (summarizing Stirone).

Here, in contrast, the § 924(c) counts of the indictment charge Thomas with committing a

series of robberies while armed with “a firearm, that is a Firearms Import and Export Corp.

revolver.” See, e.g., Dkt. 8 at 2. Because the statutory definition of “firearm” includes a weapon

that “will” expel a projectile, a weapon that is “designed” to do so, and “the frame or receiver of

any such weapon,” 18 U.S.C. § 921(a)(3), this language is best construed to include the

allegation that Thomas committed the robberies while armed with “the frame or receiver” of a

gun. In other words, unlike in Stirone, this is not a case in which the government seeks to offer

evidence that deviates from what the indictment alleges.

Thomas’s sole retort posits that the next clause of each of the § 924(c) counts negates that

construction by adding, “that is, a Firearms Import and Export Corp. Western Duo .22 caliber

revolver.” Dkt. 39. Although his contention is not unreasonable, it is also not persuasive. The

reference to the particular model revolver at issue does not speak to which clause of § 921(a)(3)

the grand jury meant to invoke but, rather, adds clarity by naming the model and type of gun that

Thomas allegedly used. He did not use a Smith & Wesson or a Glock; he did not use a rifle or a

semiautomatic handgun; he used a Firearms Import and Export Corp. Western Duo .22 caliber

revolver. Indeed, the only way to avoid that reading of the “that is” clause is to argue that it

limits the reach of the indictment to Thomas’s use of a complete Firearms Import and Export

Corp. revolver, with all of its essential parts. But, if that were right, the same argument that

Thomas presses with respect to the “frame or receiver” clause of the definition would apply as

well to the “designed to” clause, which, as discussed above, includes firearms that are missing

17 essential parts. At least at this early stage of the proceeding, therefore, the Court cannot agree

with that reading of the indictment and the prevailing precedent regarding constructive

amendments. Those courts that have considered similar questions have reached similar

conclusions. See United States v. Hill, 835 F.3d 796, 798 (8th Cir. 2016) (finding no

constructive amendment even though the indictment charged defendant with possession of

“ammunition, as defined by Title 18, United States Code, Section 921(17)(A), that is, 23 live

rounds of Federal brand 9-millimeter Luger ammunition,” but proof at trial was limited to

possession of “propellent powder”); United States v. Blair, 189 Fed. Appx. 231, 233 (4th Cir.

2006) (rejecting the defendant’s argument that an indictment had been constructively amended

because the indictment referred only to “ammunition” and not to the component parts of that

ammunition).

This, then, leaves Thomas’s contention that “under the D.C. Code, a ‘frame or receiver’

is not a firearm.” Dkt. 39 at 4. Thomas might be on firmer ground in arguing that the

government’s reliance on a “frame or receiver” theory in support of the D.C. Code counts would

constitute a constructive amendment of the indictment for two reasons. First, two of the D.C.

Code counts do not refer to a “firearm” and, instead, refer only to “a Firearms Import and Export

Corp. Western Duo .22 caliber revolver.” Dkt. 8 at 5 (count seven), 8 (count thirteen). Second,

the two D.C. Code counts that do use the word “firearm,” id. at 5 (count eight), 8 (count

fourteen), do not clearly incorporate the “frame or receiver” clause of the definition because that

element is missing from the D.C. Code definition of “firearm.” Rather, the D.C. Code defines a

“firearm” to mean

any weapon, regardless of operability, which will, or is designed or redesigned, made or remade, readily converted, restored, or repaired, or is intended to, expel a projectile or projectiles by the action of an explosive. The term “firearm” shall not include: (A) A destructive device as that term is defined in § 7-2501.01(7);

18 (B) A device used exclusively for line throwing, signaling, or safety, and required or recommended by the Coast Guard or Interstate Commerce Commission; or (C) A device used exclusively for firing explosive rivets, stud cartridges, or similar industrial ammunition and incapable for use as a weapon.

D.C. Code § 22-4501. A “destructive device,” in turn, is defined in D.C. Code § 7-

2501.01(7)(B) to mean a “device by whatever name known which will, or is designed or

redesigned, or may be readily converted or restored to expel a projectile by the action of an

explosive or other propellant through a small bore barrel, except a shotgun.” In short, the

statutory definition is expansive, but, unlike its federal counterpart, the definition makes no

reference to the “frame or receiver” of the weapon.

The problem Thomas faces, however, is that there is no reason to believe that the

government will seek to prove the D.C. Code counts based on a “frame or receiver” theory.

Rather, in responding to Thomas’s constructive amendment motion, the government explains at

length that, in its view, the revolver at issue is “designed,” “made,” and “intended” to expel a

projectile, and thus qualifies as a “firearm” for purposes of D.C. law. Dkt. 43 at 4 (quoting D.C.

Code § 22-4501). None of these definitional theories implicates the “frame or receiver” theory

that Thomas challenges in his second motion, and thus, at least on the present record, his

constructive amendment argument has no bearing on the D.C. Code counts.

The Court, accordingly, holds that Thomas’s constructive amendment argument is, at

best, premature. Thomas may, if appropriate, raise the issue at a later stage of the proceeding,

when the Court can consider the contention in light of the evidence and arguments the

government seeks to present at trial and the jury instruction the parties propose.

19 CONCLUSION

For the reasons explained above, the Court concludes that Defendant’s motion to dismiss

counts as void for vagueness, Dkt. 22, and motion to dismiss counts as constructively amending

the indictment, Dkt. 39, are hereby DENIED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: August 29, 2019