                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                                         PUBLISH
                                                                                   JUN 2 1997
                       UNITED STATES COURT OF APPEALS
                                                                             PATRICK FISHER
                                                                                       Clerk
                                    TENTH CIRCUIT




 UNITED STATES OF AMERICA,

        Plaintiff-Appellant,
                                                               No. 96-3171
 v.

 DERRICK D. REED,

        Defendant-Appellee.




            APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
                          (D.C. No. 95-10076-01)



Lanny D. Welch, Assistant U.S. Attorney, Wichita, Kansas (Jackie N. Williams, United
States Attorney for the District of Kansas, and Lisa Simotas, Attorney, Department of Justice,
Washington, D.C., with him on the brief), for Plaintiff-Appellant.

Kurt P. Kerns (Aronda Strutt Kerns, with him on the brief), Wichita, Kansas, for Defendant-
Appellee.


Before PORFILIO, HOLLOWAY and ANDERSON, Circuit Judges.


HOLLOWAY, Circuit Judge.


       This is an appeal by the government under 18 U.S.C. § 3731 from the district court’s
order dismissing five counts of an eight-count indictment. The counts challenged in the

defendant’s motion to dismiss were based on 18 U.S.C. § 922(g), which provides, in

pertinent part:

       It shall be unlawful for any person -- . . . (3) who is an unlawful user of or
       addicted to any controlled substance (as defined in section 102 of the
       Controlled Substances Act (21 U.S.C. 802)) . . . to . . . possess in or affecting
       commerce, any firearm or ammunition . . . .

Each of these counts alleged that Reed had possessed a weapon (or in one count,

ammunition) and that he “is an unlawful user of a controlled substance, that is Marijuana, a

Schedule I controlled substance . . . .”

       The district court determined that the statute, as applied to the government’s proffer

of evidence concerning five of the six counts based upon that statute, was unconstitutionally

vague. United States v. Reed, 924 F. Supp. 1052 (D. Kan. 1996). We conclude that the

district court erred in treating defendant’s motion to dismiss as an “as applied” challenge

when the motion clearly raised only an invalid facial attack. We also conclude that the

district court erred in using the government’s mere proffer of evidence as a foundation on

which the application of the statute could be analyzed and the vagueness challenge could be

determined. Accordingly, we reverse, but without prejudice to defendant’s right to raise a

vagueness challenge at the proper time.




                                              2
                                              I

       Defendant Reed was indicted on eight counts. Counts 1, 2, 3, 5, 6, and 7 of the

Indictment alleged violations of 18 U.S.C. § 922(g), as noted above. Defendant moved to

dismiss these counts on the basis that the statute was unconstitutionally vague. The motion

clearly raised only a facial challenge to the statute, and of course at that stage of the

proceedings defendant was not able as a practical matter to attack the statute in any other

way. Although under no obligation to do so, the government in its written response to the

defendant’s motion set out a summary of the facts it expected to be able to prove at trial.

App. at 12-14. The following recitation is based on the government’s submission to the

district court.

       On July 11, 1993, defendant was pulled over on a traffic stop. The officer determined

that an arrest warrant based on unpaid traffic fines was outstanding and arrested defendant.

A search of the car revealed a small baggie of marijuana and a loaded pistol under the

driver’s seat. Count 1 alleged that defendant, a user of unlawful drugs, was in possession of

a firearm in violation of section 922(g) based on this incident.

       On February 5, 1994, defendant was arrested after a routine traffic stop because his

license had been suspended. A loaded pistol was found in the car. This incident was the

basis of Count 2, which also alleged a violation of section 922(g).

       On November 25, 1994, an officer writing parking tickets observed a pistol on the

floorboard of a parked car. Because transporting a gun in this manner violated a city


                                              3
ordinance, the officer watched the car. Defendant was arrested when he entered the car. In

the subsequent search, the officer found a baggie of marijuana in defendant’s pocket. This

incident formed the basis of Count 3, another alleged violation of section 922(g).

       Count 4 was a simple possession of marijuana charge, which was not a subject of the

motion to dismiss. While being chased by officers, on January 15, 1995, defendant allegedly

threw a baggie of marijuana from the window of a car.

       On April 2, 1995, the police received a “suspicious person” phone call naming

defendant. On arriving at the scene, officers found defendant standing next to a car.

Defendant had ammunition on his person, and a loaded gun was seen in plain view in the car.

This arrest led to Counts 5 and 6, alleging separate violations of section 922(g) for the gun

and the ammunition.

       On April 29, 1995, defendant was in the front passenger seat of a car which also

contained several other persons when the police stopped the car. The officer reported

smelling a strong odor of marijuana. Some marijuana was found in the console between the

front seats, and a loaded gun was found in the front seat passenger area. Count 7, based on

this arrest, was the only count subject to the motion to dismiss which the district judge

refused to dismiss. Count 8, not subject to the motion to dismiss, charged the possession of

a sawed-off shotgun in May 1995.




                                             4
                                              II

       In his analysis of the motion to dismiss, the district judge first noted that the

defendant’s vagueness challenge was to be examined in light of the particular facts, there

being no First Amendment implication in the statutory prohibition. 924 F. Supp. at 1054

(citing United States v. Meraz-Valeta, 26 F.3d 992 (10th Cir. 1994)). The central question,

the judge reasoned, was whether the statute provided sufficient notice to Reed that he was

engaged in criminal behavior. The government conceded below, as it does on appeal, that

there must be some proximity in time between drug use and weapon possession. The statute

prohibits possession of a weapon by one who “is” a user, not one who “was” a user. Yet, the

district judge reasoned, the statute on its face provides no guidance as to how nearly

contemporaneous the two elements must be. As the court put it, “The statute does not

indicate that point in time when someone who is an unlawful user, and subject to the statute,

becomes someone who was an unlawful user, and not subject to the statute.” 924 F. Supp.

at 1055.

       To determine if defendant had sufficient notice for the statute to pass muster, the court

considered the six challenged counts in three groups. The court concluded that Count 7

passed constitutional muster, because the allegations indicated that the government might be

able to prove contemporaneous marijuana use and possession of a gun. Id. at 1056. In

Counts 1 and 3, the court noted, defendant was alleged to have simultaneously possessed

marijuana and weapons, although there was no indication of contemporaneous use of the


                                               5
marijuana. Finally, the judge noted that in Counts 2, 5, and 6, defendant allegedly possessed

a firearm or ammunition, but there was no indication of either possession or use of marijuana

at the time of those arrests.

       As to Counts 1 and 3, the court determined that Congress could have outlawed mere

possession but chose not to do so. The judge found that mere possession did not establish

a time frame for usage, and thus that it would have been impossible for defendant to know

whether or not his conduct was prohibited. Accordingly, the judge held that the statute was

fatally vague as to those counts. The other three counts arose from arrests for possession of

a weapon with no concurrent possession of marijuana. For the same reasons that concurrent

possession was insufficient to determine a time frame for usage, the statute was held to be

unconstitutionally vague as to these counts.

                                               III

       The doctrine of vagueness arises from principles of due process.

               It is a basic principle of due process that an enactment is void for
       vagueness if its prohibitions are not clearly defined. Vague laws offend
       several important values. First, because we assume that man is free to steer
       between lawful and unlawful conduct, we insist that laws give the person of
       ordinary intelligence a reasonable opportunity to know what is prohibited, so
       that he may act accordingly. Vague laws may trap the innocent by not
       providing fair warning. Second, if arbitrary and discriminatory enforcement
       is to be prevented, laws must provide explicit standards for those who apply
       them. A vague law impermissibly delegates basic policy matters to policemen,
       judges, and juries for resolution on an ad hoc and subjective basis, with the
       attendant dangers of arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).


                                               6
       Notwithstanding the important values protected by the vagueness doctrine, as the

district judge correctly recognized the doctrine’s application is limited when invoked in a

context such as this which does not implicate First Amendment values. A vagueness

challenge in this context cannot be aimed at the statute on its face but must be limited to the

application of the statute to the particular conduct charged. See, e.g., United States v. Powell,

423 U.S. 87, 92 (1975); United States v. Mazurie, 419 U.S. 544, 550 (1975); United States

v. Ocegueda, 564 F.2d 1363, 1365 (9th Cir. 1977) (applying the rule to the predecessor of

section 922(g)).1 We think the district judge’s attempt to apply the statute to the facts of this

case within the strictures of the vagueness doctrine suffered from a fundamental flaw,

however.

       We hold that it was error to consider the challenge at the preliminary stage of the

proceedings, as was done here. We recognize that it was the government’s considered

decision to submit a proffer of its evidence rather than simply urging the court to reject what

was, in the beginning, clearly an invalid facial challenge. We are also mindful that Reed’s

counsel has never taken any issue with the government’s proffer. It is understandable then,

that the judge took the government’s submission as establishing what were essentially

undisputed facts. Nevertheless, the government’s proffer was merely that, and in summary

form as well. We conclude that such a sensitive and fact intensive analysis as that



       This is so except in those rare instances where a legislature has enacted a statute
       1

which is so totally vague as to “proscribe[] no comprehensible course of conduct at all.”
United States v. Powell, 423 U.S. 87, 92 (1975).

                                               7
undertaken by the district court should be based only on the facts as they emerge at trial.

       An examination of the government’s written and oral submissions in the court below

provide one illustration of the importance of this principle. In oral argument in the district

court, the government stated that defendant Reed had, at the time of his arrest on the incident

charged in Count 3, told the arresting officer that he had intended to go home and smoke the

marijuana which had been found in his possession. The government’s written submission

had made no mention of this evidence. We as the reviewing court have no way to determine

whether this statement would ultimately be admissible at trial. Thus, the crucial factual

context against which the statute is to be judged is not entirely certain. And we believe that

this single instance is not an isolated problem but rather is indicative of the faulty premise

on which the district court’s analysis was built.2 A proffer is not evidence, ipso facto.

Although the defendant did not dispute any elements of the government’s proffer, neither did

he stipulate to any facts, as far as the record reveals. The government’s evidence at trial may

provide more or less to support the inference that the government must rely on -- that Reed

not only possessed marijuana on several occasions but that he also used it. Similarly, the

evidence actually admitted at trial may also provide a more certain framework for the district

court to consider a construction of the statute which would satisfy the judge’s quite valid


       2
        One other example of the inherent uncertainty of what the evidence at trial actually
might be appears. In his opinion, the district judge makes reference to a statement allegedly
made by the defendant at some time that he was addicted to marijuana. 924 F.Supp at 1055.
The judge never ruled whether evidence of this statement would be admissible, and the
record discloses nothing at all about the circumstance of the alleged statement.

                                              8
concern that “the statute provides no time frame in which <use’ must occur in order for

someone to be an <unlawful user.’” 924 F. Supp. at 1055.

       That is to say, the district judge evidently concluded that even if some “use” of

marijuana could be inferred from defendant’s possession of the drug on the occasions

charged, the application of the statute to the defendant is still less than ideally clear, because

of the undefined term “user” and in light of the government’s quite reasonable concession

that the term must connote some temporal element. We must caution, however, that on

remand the proper way to deal with this problem is to consider whether the statute is

susceptible of a construction which would avoid the vagueness problem, rather than to

declare the statute void as to defendant. See Screws v. United States, 325 U.S. 91, 98, 103-04

(1945) (plurality opinion). We think it apparent that section 922(g) may be susceptible of

such a construction, as has been held. United States v. Ocegueda, 564 F.2d at 1365-66

(predecessor statute). We mention this because on remand the district court may be required

to undertake this task in connection with a motion for a judgment of acquittal or in deciding

upon proper instructions to be given to the jury. We express no opinion on how the statute

should be construed. We believe that, consistent with our views expressed herein, it is

necessary that the evidence in the case be presented before the task of statutory construction

can be properly completed.

       The order of the district court is REVERSED and the case is REMANDED for

further proceedings in conformity with the views expressed herein.


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