Searching over 5,500,000 cases.


searching
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. Cook

United States Court of Appeals, Seventh Circuit

January 28, 2019

United States of America, Plaintiff-Appellee,
v.
Blair Cook, Defendant-Appellant.

          Argued September 13, 2018

          Appeal from the United States District Court for the Western District of Wisconsin. No. 3:17-cr-00048-001 - James D. Peterson, Chief Judge.

          Before Flaum, Manion, and ROVNER, Circuit Judges.

          ROVNER, Circuit Judge.

         A jury convicted Blair Cook of being an unlawful user of a controlled substance (marijuana) in possession of a firearm. See 18 U.S.C. § 922(g)(3). Cook appeals his conviction, contending that the statute underlying his conviction is facially vague, that it improperly limits his Second Amendment right to possess a firearm, and that the district court did not properly instruct the jury as to who constitutes an unlawful user of a controlled substance. We affirm Cook's conviction.

         I.

         On May 25, 2017, officers of the Madison, Wisconsin police department conducted a traffic stop of the car that Cook was driving. When officers approached the car and spoke with Cook, they noticed a strong odor of marijuana emanating from the car. Apart from the possibility that Cook was driving under the influence of marijuana, Cook was also driving on a suspended license and without a license plate on the front of his vehicle, so the officers decided to detain him and ordered him to step out of the vehicle. Officer Matthew Wentzel removed a loaded, .40-caliber Glock Model 23 pistol from a holster under Cook's shoulder. The gun had an extended 22-round capacity magazine with 19 bullets remaining. Cook was transported to the police station for further questioning. During a recorded interview at the station, Cook acknowledged to Wentzel that he had used marijuana almost daily for nearly ten years (since the age of 14), that he did so because marijuana calmed him down, and that he had smoked two "blunts" earlier that day[1] On prodding from the police, Cook ultimately produced a small packet from his groin area containing a half ounce of marijuana.

         Cook had purchased the firearm from Max Creek Outdoors in Oregon, Wisconsin on April 2, 2017. At the time of the purchase, he was required to complete a Firearms Transaction Record Form 4473 promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). On that form, Cook answered "No" to the question, "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" Directly under that question the reader of the form was admonished, "Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medical or recreational purposes in the state where you reside."

         A grand jury subsequently charged Cook with two offenses: possession of a firearm and ammunition by an "unlawful user" of marijuana, in violation of section 922(g)(3), and making a false statement (that he was not an unlawful user of marijuana) on the ATF form in connection with his purchase of a firearm and ammunition, in violation of 18 U.S.C. § 924(a)(1)(A).

         Cook moved to dismiss both counts of the indictment on the ground that the term "unlawful user" of a controlled substance found in sections 922(g)(3) and 924(a)(1)(A) is unconstitutionally vague. The district court denied the motion. R. 21 at 2-3.

         The district court subsequently gave the following instruction to the jury as to who constitutes an "unlawful user" of marijuana:

The defendant was an unlawful user of marijuana if he used marijuana on a regular and ongoing basis for a period of time that began before and continued through the date of the charged offense. The government is not required to prove that the defendant was under the influence of marijuana when he filled out the Firearms Transaction Record or when he possessed the firearm. The government is not required to prove that the defendant used marijuana on any particular day, or within a certain number of days of when he committed the charged offenses.

R. 44 at 8; R. 56 at 70-71 (emphasis in original). The defense rejected the government's offer to include an additional sentence in this instruction advising the jury that a one-time use of marijuana is insufficient to render the defendant an "unlawful user" within the meaning of either statute. R. 87 at 17.

         Following a one-day trial, a jury convicted Cook on the section 922(g)(3) charge but was unable to reach a verdict on the section 924 charge, which the district court dismissed without prejudice, R. 53. The district court denied Cook's Rule 33 motions for a new trial (R. 73) and ordered ...


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.