Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Redwood

United States District Court, N.D. Illinois, Eastern Division

August 18, 2016



          AMY J. ST. EVE United State District Court Judge

         Defendant Vandetta Redwood has moved to dismiss Count Two of the Indictment. For the following reasons, the Court denies Defendant’s motion.


         On April 28, 2014, a grand jury returned an indictment (the “Indictment”) against Vandetta Redwood (“Defendant”). (R. 1.) Count Two of the Indictment charges Defendant with knowingly possessing a firearm in a “school zone” in violation of 18 U.S.C. § 922(q)(2)(A) and 18 U.S.C § 922(a)(4). (Id.) In support of this charge, the Indictment alleges that Defendant possessed a Smith & Wesson, Model 642 Airweight, .38 special caliber revolver with the serial number CRZ6547. (Id.) Furthermore, the Indictment alleges that Defendant knowingly possessed this firearm within 1, 000 feet of the grounds of both Oliver Wendell Holmes Elementary School and Visitation Catholic School, and that Defendant possessed the firearm in and affecting interstate commerce. (Id.)

         Defendant now moves to dismiss Count Two of the Indictment. Specifically, Defendant challenges Count Two’s sufficiency for a myriad of reasons, each of which the Court addresses below.


         “A party may 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). Federal Rule of Criminal Procedure 12(b)(3)(B) allows a defendant to make a pretrial motion that challenges the sufficiency of the indictment. See United States v. Boender, 691 F.Supp.2d 833, 837 (N.D. Ill. 2010). A defendant may challenge the indictment’s sufficiency by arguing that it fails to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). Federal Rule of Criminal Procedure 7(c)(1) requires an indictment to “be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1).

         When considering a motion to dismiss that challenges the sufficiency of an indictment, courts focus on the allegations of the indictment and must view all allegations as true and in the light most favorable to the government. See United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999); see also United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009). The Seventh Circuit has explained that an indictment is sufficient where it 1) states the elements of the crimes charged, 2) adequately informs the defendant of the nature of the charges brought against her, and 3) enables the defendant to assert the judgment as a bar to future prosecutions for the same offense. See United States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013). “As a general matter, indictments are reviewed on a practical basis and in their entirety, rather than in a hypertechnical manner.” United States v. Cox, 536 F.3d 723, 726 (7th Cir. 2008) (citations omitted). “To successfully challenge the sufficiency of an indictment, a defendant must demonstrate that the indictment did not satisfy one or more of the required elements and that [she] suffered prejudice from the alleged deficiency.” Vaughn, 722 F.3d at 925; see also United States v. Castaldi, 547 F.3d 699, 703 (7th Cir. 2008). A court may dismiss an indictment, or a portion thereof, if its allegations do not state a violation of the governing statute. See United States v. Hollnagel, No. 10 CR 00195, 2011 WL 3664885, at *8 (N.D. Ill. Aug. 19, 2001) (citing United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988)).

         I. Count Two Sufficiently States a Claim

         Defendant seeks to dismiss Count Two on the grounds that it does not sufficiently allege a violation of 18 U.S.C. § 922(q)(2)(A). (R. 47.) Section 922(q)(2)(A) provides that it is a crime “for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate . . . commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C. § 922(q)(2)(A). Section 922(q)(2)(B)(i) explicitly excludes the possession of a firearm on “private property not part of school grounds” from the conduct proscribed under § 922(q)(2)(A). 18 U.S.C. § 922(q)(2)(B)(i). Defendant argues that the offense in question occurred on a sidewalk “immediately adjacent to and abutting a private residence, ” and that the sidewalk qualifies as “private property.” Consequently, Defendant concludes that Count Two of the Indictment fails to state an offense.

         To avoid dismissal, an indictment must “allege that the defendant performed acts which, if proven, constituted a violation of the law that he or she is charged with violating.” United States v. Gimbel, 830 F.2d 621, 624 (7th Cir. 1987). Where an indictment fails to charge a valid statutory violation, a district court may dismiss the indictment “not because the government [can] not prove its case, but because there [is] no case to prove.” Risk, 843 F.2d at 1061. In United States v. Bucey, for example, a criminal appellant challenged the sufficiency of an indictment on the grounds that he was not a “financial institution, ” as alleged by the indictment, and therefore did not violate the pertinent statute, which required financial institutions to file currency transaction reports. United States v. Bucey, 876 F.2d 1297, 1301 (7th Cir. 1989). The Seventh Circuit affirmed the district court’s dismissal of the counts in question after agreeing that the defendant did not qualify as a “financial institution” and, consequently, could not have violated the statutory requirements. Id. at 1306-07.

         “Generally, courts strictly construe criminal statutes against the government and in the defendant’s favor.” United States v. Bhutani, 266 F.3d 661, 666 (7th Cir. 2001). Recognizing, however, § 922(q)(2)(A)’s purpose of “protect[ing] school children from gun-related violence on or near schools, ” the exemption made for firearm possession on private property “must be construed narrowly.” United States v. Campbell, 12 F.3d 147, 148 (8th Cir. 1994) (citing Gun-Free School Zones Act of 1990: Hearing on HR 3537 Before the Subcomm. On Crime of the House Comm. On Judiciary, 101st Cong., 1st Sess. 1 et seq. (1990)).

         The residential sidewalk represents the “quintessential public sidewalk.” United States v. Kokinda, 497 U.S. 720, 727-28, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). “Sidewalks of course are among those areas of public property that have traditionally been held open to the public . . . and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.” United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (emphasis added). Indeed, the Seventh Circuit has identified “the sidewalk and the grass strip beyond the sidewalk” as “public property.” United States v. Kincaid, 212 F.3d 1025, 1027 (7th Cir. 2000). More recently, the Seventh Circuit explicitly noted that a sidewalk, “like a park, ” is clearly a “public forum.” Smith v. Exec. Dir. of Ind. War Mem’ls. Comm’n, 742 F.3d 282, 288 (7th Cir. 2014). Defendant, herself, “acknowledges that sidewalks are historically public property.” (R. 75.) Accordingly, because a sidewalk is a public space, Count Two’s charged conduct does not fall within the “private property” exception of § 922(q)(2)(B)(i).

         Certain opinions that have tangentially addressed the applicability of the “private property” exception in § 922(q)(2)(B)(i) to sidewalks further support this conclusion. The Fifth Circuit, for example, has stated that, even with the “private property” exception, it would be “a federal offense to carry an unloaded firearm…on a public sidewalk in front of one’s residence.” United States v. Lopez, 2 F.3d 1342, 1346 n.4 (5th Cir. 1993), rev’d on other grounds, 514 U.S. 549 (1995) (emphasis added). Also addressing § 922(q)(2)(B)(i), the Eighth Circuit appeared to consider a sidewalk public property when it noted that a defendant stepped “from the sidewalk onto . . . private property.” Campbell, 12 F.3d at 148 (emphasis added).

         Accordingly, Count Two of the Indictment sufficiently alleges an offense. Defendant’s motion to dismiss on the grounds that Count Two fails to state an offense is denied. To the extent Defendant challenges whether the sidewalk at issue was in a school zone, this is an issue of fact for the jury to decide at trial. See Moore, 563 F.3d at 586 (citing United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006)).

         II. Section 922(q)(2)(A) Does Not Violate The ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.