USA v. Flying Horse et al

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOSEPH FLYING HORSE,
Defendant.
5:20-CR-50035-JLV-01
REPORT AND RECOMMENDATION
ON MOTIONS TO DISMISS
(DOCS. 297, 301, 316) AND
MOTION TO REMOVE CASE TO
STATE COURT (DOC. 303)
Pending is Defendant’s Eleventh Motion to Dismiss. 	(Doc. 297). 	Mr.
Flying Horse argues that the court lacks subject matter jurisdiction because
once the firearms in question were displayed for sale, Congress’ power to
regulate commerce over the firearms ended. 	In his Twelfth Motion to Dismiss
(Doc. 301), Mr. Flying Horse incorporated the arguments asserted in his
Eleventh Motion to Dismiss and argues that the counts pending against him
should be dismissed because the charges are contrary to the Tenth
Amendment. 	(Doc. 301). 	Defendant’s Thirteenth Motion to Dismiss argues
that the Double Jeopardy Clause of the Fifth Amendment rids of the court of
jurisdiction because the court’s previous Report and Recommendation
references the State of South Dakota, instead of the District of South Dakota.
(Doc. 316). 	Finally, Mr. Flying Horse filed a Motion to Remove Case to State
Court (Doc. 303) on the grounds set forth in his eleventh and twelfth motion to
dismiss. 	The United States opposes the motions. 	(Doc. 320). 	Based on a
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careful consideration of all the pleadings and applicable law, the Court
respectfully makes the following:
RECOMMENDATION
It is respectfully recommended that Defendant’s Motions to Dismiss and
Motion to Remove be denied.
JURISDICTION
Defendant is charged in an Indictment with Possession of a Stolen
Firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) and Possession of a
Firearm While Under Indictment in violation of 18 U.S.C. §§ 922(n) and
924(a)(1)(D). The pending Motions were referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Judge Jeffrey L.
Viken’s Standing Order dated April 1, 2018.
DISCUSSION
1. Eleventh and Twelfth Motions to Dismiss (Docs. 297, 301)
Mr. Flying Horse argues in his eleventh motion to dismiss that the
Commerce Clause of the Constitution limits the court’s jurisdiction.
Specifically, he argues that “Congress’ power to regulate commerce in this
matter, via said firearm, ended when the firearm was displayed (i.e.,
commingled), along with those other items, for sale at the Pawn With Us
pawnshop[.]” 	(Doc. 297 at p. 1). 	In his twelfth motion to dismiss, Mr. Flying
Horse cites Bond v. United States, 564 U.S. 211 (2011) and the Tenth
Amendment as grounds for his motion. 	He relies upon the arguments set forth
in his eleventh motion to dismiss.
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In support of his motions, Mr. Flying Horse quotes portions of several
United States Supreme Court cases. 	(Doc. 297 at p. 2). 	Two of the cases cited
by Mr. Flying Horse involve common carriers and laws applicable to payment of
duties and taxation. 	Wabash R. Co. v. Pearce, 192 U.S. 179 (1904); American
Steel & Wire Co. v. Speed, 192 U.S. 500 (1904). 	Neither case stands for the
proposition that once a firearm is offered for sale by a retailer, the district court
lacks jurisdiction. 	Likewise, Mr. Flying Horse’s reliance on James Clark
Distilling Company v. Western Maryland Railway Co., 242 U.S. 311 (1917) is
also misplaced. 	This prohibition era case involved a distilling company filing
suit to compel common carriers to take shipment of liquors and deliver it to
West Virginia. 	The common carries argued that there was no duty under the
United States law to do so. 	This case likewise does not support Mr. Flying
Horse’s assertion.
Finally, Mr. Flying Horse cites the case of Bond v. United States, 564
U.S. 211 (2011). 	The Bond case has some relevance to his motions. 	However,
Bond only stands for the proposition that a criminal defendant has standing to
bring a Tenth Amendment challenge to a statute that the defendant was
accused of violating. 	The United States Supreme Court remanded the case for
a determination was to whether 18 U.S.C. § 229 was constitutional. 	While Mr.
Flying Horse has established that he has standing to challenge whether 18
U.S.C. §§ 922(j), 924(a)(2), §§ 922(n) and 924(a)(1)(D) are constitutional, he has
failed to provide any valid argument or authority as to how the statutes exceed
Congress’ constitutional authority.
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In addressing a defendant’s commerce clause challenge to a subsection
of 18 U.S.C. §922, the Eighth Circuit held that “[s]ection 922(g) . . . clearly is
tied to interstate commerce.” United States v. Shelton, 66 F.3d 991, 992 (8th
Cir. 1995) (quoting United States v. Rankin, 64 F.3d 338, 339 (8th Cir. 1995)).
Although this case addressed a different subsection of § 922, the
constitutionality analysis would be the same, since (j) and (n) use the same
language that the firearms in question must have been shipped, transported,
or possessed “in or affecting” interstate commerce. 	The Eighth Circuit stated
To satisfy the interstate commerce element of section 922(g), it is
sufficient that there exists “the minimal nexus that the firearm[s]
have been at some time, in interstate commerce.” 	The indictment
to which [the defendant] pleaded guilty charged that he was a
convicted felon and that he “did knowingly possess” four firearms,
“all having been previously transported in interstate commerce
and, as [defendant] pointed out in argument, firearms are no
longer manufactured in Missouri, it is evident that his possession
of there firearms was depended upon interstate commerce. 	Had
these firearms not travelled in interstate commerce, they would
never have come into [defendant’s] possession in Missouri.
Id. at p. 992-993. (internal citations omitted). 	Mr. Flying Horse essentially
argues that when the pawn store placed the firearms for sale in its store, it
nullified the history of the firearm’s travel in interstate commerce. 	His position
is without merit. Instead, the relevant inquiry is whether the firearms had
been, at some time, traveled in interstate commerce. 	The Indictment alleges
the minimal nexus to interstate commerce element.
Therefore, the Court recommends the Defendant’s Eleventh Motion to
Dismiss (Doc. 295) and his Twelfth Motion to Dismiss (Doc. 301) be denied.
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2. Thirteenth Motion to Dismiss (Doc. 316)
In his thirteen motion to dismiss, Mr. Flying Horse argues that Counts I
and Counts V of the Indictment should be dismissed because the Report and
Recommendation filed at Docket 264 states that the offenses occurred in the
State of South Dakota, instead of the District of South Dakota. 	He then argues
that this phrase amounts to an “acquittal” by the court and, therefore, he
cannot be subject to prosecution under the Double Jeopardy Clause. 	(Doc.
316). 	Mr. Flying Horse’s argument is without merit.
First, Mr. Flying Horse’s concern that the court referenced the State of
South Dakota instead of the District of South Dakota is a distinction without a
difference. 	The District of South Dakota encompasses the entire State of South
Dakota; a geographical description of the District’s boundaries. 	Second, the
Indictment charges Mr. Flying Horse with committing the offenses within the
District of South Dakota. 	His case is still pending and there has been no
resolution of the charges; therefore, Double Jeopardy has not attached.
Finally, his conclusion that court has “acquitted” him is unsupported by any of
the pleadings in this case or by any of the authorities he cites.
Therefore, the Court recommends the Defendant’s Thirteenth Motion to
Dismiss (Doc. 316) be denied.
3. Motion to Remove Case to State Court (Doc. 303)
Mr. Flying Horse moved the court to remove Counts I and V of the
Indictment to the State of South Dakota’s Seventh Judicial Circuit Court in
Rapid City on the grounds raised in his Eleventh and Twelfth Motions to
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Dismiss. 	As set forth above, Mr. Flying Horse’s arguments that the court lacks
jurisdiction of the case are without merit. 	Therefore, the court recommends
that the Motion to Remove Case to State Court (Doc. 303) be denied.
CONCLUSION
For the aforementioned reasons, it is respectfully
RECOMMENDED that the Defendant’s Eleventh, Twelfth, and Thirteenth
motions to dismiss be denied.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
District Court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 21st day of October, 2021.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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