USA v. Green

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ORDER & REASONS
Before the Court are two motions filed by defendant Kenneth Green: one to dismiss count
two of the indictment;1 and another to dismiss count three of the indictment.2 The United States
of America (the “government”) responds in opposition,3 and Green replies in further support of
his motions.4 Having considered the parties’ memoranda, the record, and the applicable law, the
Court denies both motions.
I. 	BACKGROUND
On February 6, 2025, Green was indicted on three counts.5 Count one charges Green with
possession with the intent to distribute controlled substances, namely, fentanyl, cocaine, and
marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D).6 Count two
charges Green with possession of a firearm, specifically, a 9mm caliber handgun, in furtherance
of a drug trafficking crime, that is, possession with the intent to distribute controlled substances,
in violation of 18 U.S.C. § 924(c)(1)(A)(i).7 	Count three charges Green with being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8).
1 R. Doc. 39.
2 R. Doc. 40.
3 R. Doc. 42.
4 R. Doc. 51.
5 R. Doc. 1.
6 Id. at 1-2.
7 Id. at 2.
UNITED STATES OF AMERICA
VERSUS
KENNETH GREEN
CRIMINAL ACTION
NO. 25-30
SECTION M
Case 2:25-cr-00030-BWA-DPC Document 52 Filed 10/28/25 Page 1 of 7

2
More precisely, count three charges that Green possessed a 9mm caliber handgun after having
been convicted in Orleans Parish Criminal District Court of possession with intent to distribute
more than 28 grams of a controlled substance, in violation of La. R.S. 40:967(B)(1)(b), which is a
felony punishable by imprisonment for a term exceeding one year.8
Green moves to dismiss counts two and three of the indictment.9 As to count two, Green
argues that there was no violation of § 924(c)(1)(A)(i).10 And, with respect to count three, Green
argues that § 922(g)(1) is unconstitutional on its face and as applied to him.11
II. 	LAW & ANALYSIS
A. Legal Standard
Rule 12(b) of the Federal Rules of Criminal Procedure permits 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). Under this rule, a party may challenge an indictment for failing to state
an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). “The propriety of granting a motion to dismiss an
indictment under [Rule] 12 by pretrial motion is by-and-large contingent upon whether the
infirmity in the prosecution is essentially one of law or involves determinations of fact.” United
States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005) (quotation omitted), abrogated on other
grounds by, United States v. Garcia, 707 F. App’x 231 (5th Cir. 2017). 	A district court can,
generally, consider the motion if it involves a question of law. Id. When a defendant challenges
an indictment for failure to state an offense, the court must “take the allegations of the indictment
as true … to determine whether an offense has been stated.” United States v. Fontenot, 665 F.3d
640, 644 (5th Cir. 2011) (quotation omitted). 	“A defendant may not properly challenge an
8 Id.
9 R. Docs. 39; 40.
10 R. Doc. 39.
11 R. Doc. 40.
Case 2:25-cr-00030-BWA-DPC Document 52 Filed 10/28/25 Page 2 of 7

3
indictment, sufficient on its face, on the ground that the allegations are not supported by adequate
evidence, for an indictment returned by a legally constituted and unbiased grand jury, if valid on
its face, is enough to call for trial of the charge on the merits.” United States v. Mann, 517 F.2d
259, 267 (5th Cir. 1975) (citing Costello v. United States, 350 U.S. 359, 363 (1956)). The district
court may, however, consider the legal sufficiency of the indictment in light of uncontested facts.
Flores, 404 F.3d at 326.
B. Green’s Motion to Dismiss Count Two (R. Doc. 39)
Green seeks dismissal of count two, arguing that there is no proof he possessed a firearm
in furtherance of a drug trafficking crime in violation of § 924(c)(1)(A)(i).12 Specifically, Green
contends that his possession of a firearm was not “in furtherance of” a drug trafficking crime
because the gun was found on the floorboard of his vehicle, where he was asleep at the wheel,
when he was arrested.13 He points out that the drug trafficking charge (count one) “rests solely
[o]n the weight of narcotics [he] is alleged to have possessed, not that he actually engaged in any
narcotics trafficking.”14 Green further reasons that the gun was not found on his person, nor did
he brandish or use it while selling drugs. 15 In sum, Green contends that, because he was asleep at
the time of arrest, he “could not (1) commit a drug trafficking offense or (2) possess a firearm
while furthering a trafficking offense.”16
In opposition, the government argues that Green’s motion should be denied because it “is
predicated on a factual dispute” that must be resolved by the jury.17 The government also argues
that the facts of this case support the allegations contained in count two, namely, that Green
12 R. Doc. 39.
13 R. Doc. 39-1 at 4-6.
14 Id. at 4.
15 Id. at 5-6.
16 Id. at 6.
17 R. Doc. 42 at 4.
Case 2:25-cr-00030-BWA-DPC Document 52 Filed 10/28/25 Page 3 of 7

4
possessed distribution quantities of narcotics and a “firearm was placed directly underneath his
person when he was stopped by officers.” 18 The government observes that another section of this
Court denied a similar motion made by a defendant, finding that “‘whether [the defendant’s]
possession of [a] firearm was ‘in furtherance’ of a drug trafficking crime should be left to the trier
of fact.’”19
Green replies, reiterating the fact that he was asleep at the wheel when arrested
demonstrates that he could not have possessed the firearm in furtherance of a drug trafficking
crime.20 According to Green, given this fact, there is no indication that he possessed the firearm
in furtherance of a drug trafficking crime, and there is no need for the jury to consider count two. 21
Just as two other sections of this Court have noted when considering other similar motions
challenging an identical charge, Green “essentially asks the Court to engage in an analysis of the
facts and law equivalent to a civil motion for summary judgment.” Williams, 2025 WL 637578,
at *2; see also United States v. Bornes, 2025 WL 562761, at *2 (E.D. La. Feb. 20, 2025) (“In this
motion, Defendants invite the Court to engage in what can only be characterized as the criminal
equivalent of the civil motion for summary judgment.”). 	Green outlines the elements of §
924(c)(1)(A)(i), which require the government to prove that: “(1) a drug trafficking crime was
committed; (2) the defendant was in possession of a firearm; and (3) possession of the firearm
furthered the drug trafficking crime.”22 	Green then recounts the factors that courts consider in
analyzing the “in furtherance of” prong, which include: whether there is a connection between the
firearm and the drug trafficking activity, the proximity of the firearm to the contraband, the
18 Id. at 5.
19 Id. (quoting United States v. Williams, 2025 WL 637578, at *3 (E.D. La. Feb. 27, 2025)).
20 R. Doc. 51 at 2-4.
21 Id.
22 R. Doc. 39-1 at 1 (citing United States v. McGinnis, 384 F. App’x 794, 796 (10th Cir. 2010)).
Case 2:25-cr-00030-BWA-DPC Document 52 Filed 10/28/25 Page 4 of 7

5
accessibility of the firearm to the accused, whether the defendant legally possessed the firearm,
the type of drug activity allegedly being conducted, the surrounding circumstances of the firearm
possession, whether the gun was loaded, and the defendant’s subjective intent in possessing the
firearm.23 Next, Green applies these factors to what he sees as the facts of his case, asserting that
he did not possess the gun in furtherance of a drug trafficking crime because, at the time of his
arrest, he was asleep with the gun on the floorboard of the car, not dealing drugs with a gun on his
person.24
Count two of the indictment, which states the basic elements of a violation of §
924(c)(1)(A)(i), is sufficient on its face. 	It clearly alleges that Green possessed a firearm in
furtherance of a drug trafficking crime. Green argues that the charge is not supported by adequate
evidence. A court cannot, under Rule 12, dismiss a count “based on the sufficiency of the evidence
supporting the allegations in the indictment.” Bornes, 2025 WL 562761, at *2 (quotation omitted).
The jury must weigh the evidence. Id. As such, it is not for this Court to consider the merits of
Green’s Rule 12 motion directed to count two. 	Instead, the jury must decide whether Green
possessed the firearm in furtherance of a drug trafficking crime.
C. Green’s Motion to Dismiss Count Three (R. Doc. 40)
Green also seeks dismissal of count three, asserting that § 922(g)(1) is unconstitutional on
its face and as applied to him.25 Green, relying principally on New York State Rifle & Pistol Ass’n
v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), 26 argues
that § 922(g)(1) violates the Second Amendment to the United States Constitution because the
23 Id. at 1-4 (citing United States v. Ceballos-Torres, 218 F.3d 409, 412-13 (5th Cir. 2000); United States v.
Lott, 310 F.3d 1231, 1247-48 (10th Cir. 2002); United States v. Ramirez-Frechel, 23 F.4th 69, 74 & n.1 (1st Cir.
2022)). 24 Id. at 4-6.
25 R. Doc. 40.
26 Green ignores the Supreme Court’s subsequent decision in Rahimi, 602 U.S. 680 (2024), which reversed
the Fifth Circuit’s holding that § 922(g)(8) was facially unconstitutional.
Case 2:25-cr-00030-BWA-DPC Document 52 Filed 10/28/25 Page 5 of 7

6
statute limits the right of a convicted felon to possess a firearm for self-defense and, says Green,
does not have an historical analogue. 27 	The government responds by pointing out that Green’s
argument is foreclosed by recent Fifth Circuit precedent – particularly, United States v. Diaz, 116
F.4th 458, 472 (5th Cir. 2024) (upholding § 922(g)(1) as constitutional because it “is consistent
with this Nation’s historical tradition of firearm regulation”), cert. denied, 415 S. Ct. 2822 (2025),
United States v. Kimble, 142 F.4th 308 (5th Cir. 2025), and United States v. Mancilla, --- F.4th --
-, 2025 WL 2610452 (5th Cir. Sept. 10, 2025).28 Green replies, reasserting that the Supreme Court
has not yet passed on the constitutionality of § 922(g)(1), and that the mere presence of a firearm
does not make him a drug trafficker.29 The government’s position is correct.
In Kimble, the Fifth Circuit affirmed the defendant’s § 922(g)(1) conviction, holding that
“disarming drug traffickers accords with the nation’s history and tradition of firearm regulation.”
142 F.4th at 309. The Kimble court observed that the defendant’s conviction “accord[ed] with the
Second Amendment because Congress can categorically disarm individuals convicted of violent
felonies like drug trafficking,” emphasizing that its “conclusion does not depend on an
individualized assessment that [the defendant] is dangerous.” 	Id. at 318. 	The Fifth Circuit has
applied Kimble in at least two other cases to hold that a defendant with a prior drug trafficking
offense can constitutionally be disarmed under § 922(g)(1). See United States v. Mancilla, 2025
WL 2610452, at *2 (“Under our binding precedent, [the defendant]’s drug-trafficking conviction
establishes his dangerousness.”); United States v. Orozco, 2025 WL 2623429, at *2 (5th Cir. Sept.
11, 2025). Here, the indictment alleges that Green was previously convicted of a drug trafficking
crime.30 Thus, his challenge to count three is foreclosed by Diaz, Kimble, Mancilla, and Orozco.
27 R. Doc. 40-1 at 1-6.
28 R. Doc. 42 at 6-9.
29 R. Doc. 51 at 5-7.
30 R. Doc. 1 at 2.
Case 2:25-cr-00030-BWA-DPC Document 52 Filed 10/28/25 Page 6 of 7

7
III. 	CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Green’s motion to dismiss count two of the indictment (R. Doc. 39)
is DENIED.
IT IS FURTHER ORDERED that Green’s motion to dismiss count three of the indictment
(R. Doc. 40) is DENIED.
New Orleans, Louisiana, this 28 th day of October, 2025.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
Case 2:25-cr-00030-BWA-DPC Document 52 Filed 10/28/25 Page 7 of 7