September 13, 2018
from the United States District Court for the Western
District of Wisconsin. No. 3:17-cr-00048-001 - James D.
Peterson, Chief Judge.
Flaum, Manion, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
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.
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
On prodding from the police, Cook ultimately produced a small
packet from his groin area containing a half ounce of
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."
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. §
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.
district court subsequently gave the following instruction to
the jury as to who constitutes an "unlawful user"
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.
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