Petition for Writ of Certiorari — Joshua Michael Faust, Petitioner v. United States

APPENDIX

APPENDIX A:

United States v. Joshua Michael Faust, 6:23-cr-02005-001, (N.D.

Iowa) (criminal proceedings) Report and Recommendation on

Defendant’s Motion to Dismiss entered June 30, 2023. .............. .1

APPENDIX B:

United States v. Joshua Michael Faust, 6:23-cr-02005-001, (N.D.

Iowa) (criminal proceedings) Order on Motion to Dismiss entered

July 19, 2023. .............................................................................. .11

APPENDIX C:

United States v. Joshua Michael Faust, 6:23-cr-02005-001, (N.D.

Iowa) (criminal proceedings) Judgment entered December 21,

2023. ............................................................................................ .14

APPENDIX D:

United States v. Joshua Michael Faust, 24-1042, (8th Cir.) (direct

criminal appeal), Judgment entered January 10, 2025. ............ 21

APPENDIX E:

United States v. Joshua Michael Faust, 24-1042, (8th Cir.) (direct

criminal appeal), Opinion entered January 10, 2025. ............... 23

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

Case No. 23-cr-2005-LTS-MAR

REPORT AND RECOMMENDATION

ON DEFENDANT’S MOTION TO

DISMISS INDICTMENT WITH

PREJUDICE

JOSHUA MICHAEL FAUST,

Defendant.

____________________

I.

INTRODUCTION

On March 22, 2023, the Grand Jury charged Defendant with one count of

Possession of a Firearm by a felon in violation of 18 U.S.C. Sections 922(g)(1) and

924(a)(2). (Doc. 3.) Specifically, the indictment charges, “Defendant was previously

convicted of the following crime punishable by imprisonment for a term exceeding one

year: Theft Second Degree, in the Iowa District Court for Clayton County, on or about

November 12, 2003.” (Id.)

The matter before the Court is Defendant’s Motion to Dismiss Indictment Under

[Rifle & Pistol Association, Inc. v.] Bruen, [142 S. Ct. 2111 (2022)]. (Doc. 21.) The

Government timely filed a resistance. (Doc. 22.) The Honorable Leonard T. Strand,

United States District Court Chief Judge, referred the motion to me for a Report and

Recommendation. I offered to hold a hearing for arguments or to hear evidence, but

counsel for both parties declined. Because of the rapidly shifting law, as discussed below,

I held a status conference to determine whether the parties wished to submit additional

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Appendix A

APP. p. 001

briefing or otherwise supplement the record.

They declined.

The matter is fully

submitted.

For the following reasons, I respectfully recommend that the District Court deny

Defendant’s Motion to Dismiss.

II.

A.

DISCUSSION

The Parties’ Arguments

Defendant argues alternatively that 18 United States Code Section 922(g)(1) is

facially unconstitutional or is unconstitutional as applied to him following the United

States Supreme Court decision in Bruen. (Doc. 21-1 at 2.) Defendant first asserts that

his conduct, possessing a firearm, is protected because he is part of “the people” as that

term is used in the Second Amendment, “A well regulated Militia, being necessary to the

security of a free State, the right of the people to keep and bear Arms, shall not be

infringed.” U.S. Const. amend. II. Defendant argues that felons are not excepted from

the definition of “the people,” unlike illegal aliens under Eighth Circuit precedent.

United States v. Stitladeen, 64 F. 4th 979 (8th Cir. 2023).

Defendant next asserts the Government cannot meet its burden under Bruen to

show Section 922(g)(1)’s prohibition against possession of firearms by felons has “a wellestablished and representative historical analogue.”

142 S. Ct. 2133.

Defendant

acknowledges but dismisses as dicta the warnings from District of Columbia v. Heller (as

echoed in Bruen) that “nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons.” 554 U.S. 570, 626

(2008); Bruen, 142 S. Ct at 2162.

Defendant then recounts certain history from the nation’s founding he believes

shows the prohibition on possession of firearms by enslaved persons, persons subject to

racial or religious discrimination, and those who threatened public safety or who were

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APP. p. 002

disloyal, but does not show that people who had been convicted of felonies were

prohibited from possessing firearms.

Finally, Defendant argues that Section 922(g)(1) is unconstitutional as applied to

him because his only felony conviction is for a nonviolent theft in the second degree in

2003.

In response, the Government points to statements in Heller, Bruen, and McDonald

v. City of Chicago, 561 U.S. 742, 786 (2010) that emphasize the Supreme Court’s

assurances that these recent cases regarding firearm possession do not disturb

“longstanding prohibitions on the possession of firearms by felons.” The Government

points to the Eighth Circuit’s repeated rejection of both facial and as-applied challenges

to Section 922(g)(1)—although all the cited cases predate Bruen, of course.

The Government then argues that the text of the Second Amendment and the

historical regulation of firearms do not prevent legislatures from prohibiting firearms by

felons. The Government points to the Supreme Court’s emphasis in Heller, Bruen and

McDonald that the right to bear arms is limited to law-abiding citizens. The Government

undertakes its own review of the historical regulation of firearms that it believes support

upholding Section 922(g)(1)’s prohibition of possession of firearms by felons. Finally,

the Government asserts that that Defendant’s “as-applied” challenge must fail because he

has not shown, under United States v. Adams, 914 F.3d 602 (8th Cir. 2019), that the

Second Amendment protects his particular conduct and that his prior felony conviction

does not justify regulation of his Second Amendment rights.

III.

DISCUSSION

Despite the reassurances of Heller, McDonald, and Bruen that these decisions

should not cast doubt on such longstanding prohibitions on firearms possession by felons

and other groups, litigants remain determined to exploit the doubt they perceive in the

Supreme Court’s holdings.

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APP. p. 003

After Bruen, the Eighth Circuit has recently held that to resolve Second

Amendment challenges, a court must first ask “whether the firearm regulation at issue

governs conduct that falls within the plain text of the Second Amendment.” Sitladeen,

64 F.4th at 985. If the conduct falls within the plain text, the Government must “‘identify

an American tradition justifying’ the regulation.” Id. (quoting Bruen, 142 S. Ct. at

2138). Even more recently (i.e., after the parties had submitted their briefs) an Eighth

Circuit panel has taken the assurances of Heller, McDonald, and Bruen to heart and

concluded, “Given these assurances by the Supreme Court, and the history that supports

them, we conclude that there is no need for felony-by-felony litigation regarding the

constitutionality of § 922(g)(1).” United States v. Jackson, No. 22-2870, 2023 WL

3769242, at *4 (8th Cir. June 2, 2023). Then, eleven days later, a different panel of the

Eighth Circuit cited Jackson and declined to address an as-applied challenge to Section

922(g)(1) stating:

Cunningham asserts that the Second Amendment guaranteed his right to

possess a firearm, despite his status as a twice-convicted felon, because

neither of his prior offenses qualified as a “violent” offense based on the

elements of the crime. This contention is foreclosed by United States v.

Jackson, No. 22-2870, ––– F.4th ––––, ––––, 2023 WL 3769242, at *4

(8th Cir. June 2, 2023), where we concluded that there is no need for

felony-by-felony determinations regarding the constitutionality of §

922(g)(1) as applied to a particular defendant. The longstanding prohibition

on possession of firearms by felons is constitutional, and the district court

properly denied the motion to dismiss.

United States v. Cunningham, No. 22-1080, 2023 WL 3960829, at *3 (8th Cir. June 13,

2023).

In Jackson, the defendant, who had two felony convictions for the sale of a

controlled substance, challenged the constitutionality of Section 922(g)(1).

After

examining “the nation’s historical tradition of firearms regulation” as required by Bruen,

Jackson held,

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APP. p. 004

In sum, we conclude that legislatures traditionally employed status-based

restrictions to disqualify categories of persons from possessing firearms.

Whether those actions are best characterized as restrictions on persons who

deviated from legal norms or persons who presented an unacceptable risk

of dangerousness, Congress acted within the historical tradition when it

enacted § 922(g)(1) and the prohibition on possession of firearms by felons.

Consistent with the Supreme Court’s assurances that recent decisions on the

Second Amendment cast no doubt on the constitutionality of laws

prohibiting the possession of firearms by felons, we conclude that the statute

is constitutional as applied to Jackson.

2023 WL 3769242, at *5. Although Jackson expressly addressed only an as-applied

challenge, under this reasoning, the analysis of both Defendant’s challenges could end

here. Jackson is the first Eighth Circuit panel to address the second part of the Bruen

test as it relates to Section 922(g)(1).

Although the Jackson defendant apparently raised both facial and as-applied

challenges to Section 922(g) in the district court, Jackson’s holding addresses only the

as-applied

challenge

constitutionality.

and

precludes

any

2023 WL 3769242, at *4.

“felony-by-felony

litigation”

of

its

I conclude this decision is binding,

notwithstanding the possibility of shifting sand in this area of Second Amendment

litigation. 1

Particularly with respect to as-applied challenges, there may be some uncertainty

about the effect of Bruen on preexisting Eighth Circuit precedent. Prior to Jackson, for

example, one district court expressed the possible implications of precedents surviving

Bruen as follows:

1

For example, the Third Circuit recently reversed a decision Jackson relied upon. Range v.

Att’y Gen., 53 F.4th 262, 269 (3d Cir. 2022) (per curiam), vacated, reh'g en banc granted, 56

F.4th 992 (3d Cir. 2023). En banc, the Third Circuit held that a felon convicted of a false

statement on a food stamp application remained one of “the people” protected by the Second

Amendment and Section 922(g)(1) was unconstitutional as applied to him. Range v. Att’y Gen.

U.S. of Am., No. 21-2835, 2023 WL 3833404, at *8 (3d Cir. June 6, 2023)

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APP. p. 005

In at least one respect, Bruen may have abrogated Eighth Circuit precedent.

United States v. Adams placed the burden on the defendant to prove the

Second Amendment protected his conduct, whereas Bruen places the burden

of proof on the Government to show historical evidence supporting the

regulation in question. 142 S. Ct. at 2127. Beyond the placement of the

burden of proof, however, it is not clear whether or to what extent Bruen

abrogated cases like Adams and United States v. Bena. For example,

although Bruen eschewed “two-step” tests insofar as the second step

engages in means-end scrutiny of a firearm regulation, there are nonetheless

still two parts to the Bruen analysis: first, courts must determine whether

“the Second Amendment’s plain text covers an individual’s conduct,” and,

if so, second, the Government must provide historical evidence to show the

regulation is sufficiently analogous to Founding-era restrictions. Bruen,

142 S. Ct. at 2129–30. Apart from who bears the burden of proof, this is

not necessarily different than the two-part test in Adams, 914 F.3d at 605

(although it might be), nor does it necessarily mean the no-set-ofcircumstances standard set forth in Salerno, 481 U.S. at 745, 107 S.Ct.

2095, for facial constitutional challenges never applies to firearms

regulations.

United States v. Hammond, No. 4:22-cr-00177-SHL-HCA, 2023 WL 2319321, at *2

(S.D. Iowa Feb. 15, 2023). Another district court has expressed concerns about the

effect of Bruen on prior Eighth Circuit precedent. See United States v. Lowry, No. 1:22CR-10031-CBK, 2023 WL 3587309 (D.S.D. May 5, 2023), report and recommendation

adopted, 1:22-CR-10031-CBK, 2023 WL 3587292 (D.S.D. May 22, 2023). In Lowry,

a felon made a facial challenge to Section 922(g)(1). Id. Lowry stated,

After Heller and McDonald, federal courts coalesced around a two-step

framework that combined history with means-end scrutiny. The Eighth

Circuit, however, seems to have avoided directly adopting this framework

when addressing constitutional challenges to firearm laws, although it has

applied means-end scrutiny when evaluating the constitutionality of 18

U.S.C. § 922(g)(8).

Id. at *1 (citations omitted.) Lowry continued:

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APP. p. 006

So even if the Supreme Court’s statements are not precedential, the Eighth

Circuit's rulings are. It would require a leap of faith to say that Bruen

overruled the Eighth Circuit’s application of Heller and McDonald’s dicta

when the Bruen Court repeatedly declared that its decision was consistent

with both cases. [The appealants]’s motion should be denied on that basis

alone.

Id. As in Lowry, the Court could deny Defendant’s facial challenge based solely on preBruen precedent.

My concerns are similar to those in Hammond and Lowry and are enhanced by

Chief Judge Smith’s concurrence in Jackson which stated, economically, if not

cryptically, “I concur as to the judgment in Part III and agree that § 922(g)(1) is not

unconstitutional as applied to Jackson and that Heller remains the relevant precedent we

are bound to apply.” Jackson, 2023 WL 3769242, at *8 (Smith, C.J., concurring). This

might echo the concern raised in Lowry. See Lowry, 2023 WL 3587309, at *1. Judge

Stras’s dissent in Cunningham stated, in its entirety, “I dissent. More to come. See

United States v. Jackson, ––– F.4th ––––, 2023 WL 3769242 (8th Cir. 2023).” 2023

WL 3960829, at *4 (Stras, J., dissenting). This dissent is even more cryptic.

Jackson implicitly precludes any facial challenge to Section 922(g)(1) under

Bruen. Jackson does not explain how “the firearm regulation at issue governs conduct

that falls within the plain text of the Second Amendment,” but it does review the history

supporting the limitations on the right to bear arms as required by Bruen. Jackson

concluded that Congress acted in the “historical tradition” when it prohibited possession

of firearms by any felon “[w]hether those actions are best characterized as restrictions on

persons who deviated from legal norms or persons who presented an unacceptable risk

of dangerousness.”

2023 WL 3769242, at *7. Given Jackson’s broad support for

legislative prohibitions against all felons, it is difficult to see how any facial challenge to

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APP. p. 007

the constitutionality of Section 922(g) is viable. Thus, I recommend the Court deny

Defendant’s motion with respect to his facial challenge.

As discussed above, whether any as-applied challenge survives Bruen and Jackson

is not perfectly clear. If pre-Bruen precedent is not cast in doubt (as perhaps Chief Judge

Smith’s concurrence suggested in Jackson) then the prior panel’s decision controls.

District courts in the Eighth Circuit—like this one—are duty bound to follow

precedential decisions of the Eighth Circuit Court of Appeals. See Hood v.

United States, 342 F.3d 861, 864 (8th Cir. 2003) (district courts are “bound

. . . to apply the precedent of [the Eighth] Circuit”) (citing United States v.

Collins, 321 F.3d 691, 698 n.5 (8th Cir. 2003)); Valspar Corp. v. PPG

Indus., Inc., No. 16-cv-1429 (SRN/SER), 2017 WL 3382063, at *3 (D.

Minn. Aug. 4, 2017) (district courts are bound by circuit court decisions

“until and unless the Supreme Court (or the circuit court sitting en banc)

says otherwise,” including even if it appears the circuit court decision

“conflicts with Supreme Court precedent”) (collecting cases); Suiter v.

Gen. Baptist Nursing Home, 2013 WL 656916, at *2 (E.D. Mo. Feb. 22,

2013) (recognizing that “in the absence of clear Supreme Court precedent,

this Court is bound to follow Eighth Circuit precedent”); see also Kohlbeck

v. Wyndham Vacation Resorts, Inc., 7 F.4th 729, 734 (8th Cir. 2021)

(recognizing that “even if the Supreme Court’s more recent decisions call

the precedents treating the requirements of Rule 3(c) as jurisdictional into

doubt, we are bound to follow [Supreme Court precedent] and later

precedents on this issue until the Supreme Court overrules them”) (cleaned

up); United States v. Wade, 792 F. App’x 417 (8th Cir. 2020) (per curiam)

(the Eighth Circuit itself is “bound by a prior panel’s decision” “[e]ven

though there has been recent discussion about the lasting viability [of Eighth

Circuit precedent] in light of recent Supreme Court precedent”); Pereida v.

Barr, 916 F.3d 1128, 1133 (8th Cir. 2019) (Eighth Circuit is “bound by

[circuit] precedent absent en banc reconsideration or a superseding contrary

decision by the Supreme Court regarding this unique situation”). And

particularly applicable here, the Eighth Circuit has recognized the principle

that “where a precedent . . . has direct application in a case, [the court]

should follow it, even if a later decision arguably undermines some of its

reasoning.” Bierman v. Dayton, 900 F.3d 570, 574 (8th Cir. 2018) (citing

Agostini v. Felton, 521 U.S. 203, 237 (1997)).

8

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APP. p. 008

Barakat v. Frontier J. KCMO, LLC, No. 4:21-CV-00934-RK, 2022 WL 3269942, at *3

(W.D. Mo. Aug. 10, 2022).

Perhaps we will learn one day what remains of pre-Bruen precedent in this area,

but Jackson seems to have proceeded on the basis that Bruen superseded prior Eighth

Circuit authority:

In United States v. Adams, we said that a defendant raising an as-applied

challenge to § 922(g)(1) must show “(1) that the Second Amendment

protects his particular conduct, and (2) that his prior felony conviction is

insufficient to justify the challenged regulation of Second Amendment

rights.” 914 F.3d at 605. Jackson argues that his particular conduct of

carrying a concealed weapon was constitutionally protected. We need not

address that question, because we conclude that the prohibition is

constitutional as applied to Jackson regardless of his particular conduct.

Jackson, 2023 WL 3769242, at *7 n.4.

Indeed, the District of Nebraska recently

interpreted Jackson to dispose of claims like the one before this Court:

Thus, Jackson expressly rejected Mr. Hansen’s claim that § 922(g)(1) is

facially unconstitutional under the Bruen framework. And his as-applied

challenge based on the “non-violent” nature of his prior conviction is

likewise foreclosed by Jackson. While Congress could have concluded that

only those convicted of certain “violent” felonies pose an increased threat

of danger when armed, or required an individual assessment of

dangerousness before dispossession, it did not. Instead, Mr. Hansen falls

squarely within the category of persons that Congress dispossessed under §

922(g)(1). See id. at *13. And the Court is not at liberty to override the

statute’s application based on his individual characteristics and

circumstances when the categorical ban was reasonably and lawfully

adopted.

United States v. Hansen, No. 4:18-CR-3140, 2023 WL 4134002, at *7 (D. Neb. June

22, 2023).

Here, Defendant’s as-applied challenge should also be denied under Jackson. In

the case at bar, Defendant’s only argument is that his felony was nonviolent. He has not

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APP. p. 009

attempted to allege “facts about himself and his background that distinguish his

circumstances from those of persons historically barred from Second Amendment

protections.” United States v. Barton, 633 F.3d 168, 174 (3d Cir.2011). Nor has he

attempted to show that he is “no more dangerous than a typical law-abiding citizen.” Id.

It remains unclear after Bruen, Jackson, and pre-Bruen precedent such as United States

v. Adams, 914 F.3d 602 (8th Cir. 2019) what attacks convicted felons can mount to asapplied challenges, if any. In the instant case, the only challenge asserted is foreclosed

by Jackson.

IV.

CONCLUSION

For the reasons set forth above, I respectfully recommend the District Court deny

Defendant’s Motion to Dismiss. (Doc. 21.)

Objections to this Report and Recommendation in accordance with 28 U.S.C. §

636(b)(1) and Fed. R. Crim. P. 59(b) must be filed within fourteen (14) days of the

service of a copy of this Report and Recommendation. Objections must specify the parts

of the Report and Recommendation to which objections are made, as well as the parts of

the record forming the basis for the objections. See Fed. R. Crim. P. 59. Failure to object

to the Report and Recommendation waives the right to de novo review by the district

court of any portion of the Report and Recommendation as well as the right to appeal

from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537 n.5

(8th Cir. 2009).

DONE AND ENTERED at Cedar Rapids, Iowa, this 30th day of June, 2023.

10

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APP. p. 010

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

No. CR23-2005-LTS-MAR

vs.

ORDER

JOSHUA MICHAEL FAUST,

Defendant.

This matter is before me on a Report and Recommendation (R&R) in which the

Honorable Mark A. Roberts, United States Magistrate Judge, recommends that I deny

defendant Joshua Michael Faust’s motion (Doc. 21) to dismiss the indictment under Rifle

& Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Doc. 33. Neither party has filed

objections.

I.

BACKGROUND

On March 22, 2023, the grand jury returned an indictment (Doc. 2) charging Faust

with possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). On May 8, 2023, Faust filed a motion (Doc. 21) to dismiss the indictment

based on Bruen. The Government filed a resistance (Doc. 22) on May 15, 2023. The

next day, Faust filed his notice (Doc. 23) of intent to plead guilty. Judge Roberts held a

plea hearing on May 24, 2023, during which Faust entered his plea of guilty to the

indictment pursuant to a plea agreement. 1 Doc. 26. I accepted the plea on June 9, 2023.

Judge Roberts filed his R&R on Faust’s motion to dismiss on June 30, 2023,

1

The plea agreement provides that Faust’s plea is conditional such that he may withdraw his

plea in the event the court grants his motion to dismiss.

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Appendix B

APP. p. 011

recommending that I deny the motion. Neither party filed objections and the time for

doing so has passed.

II.

APPLICABLE STANDARDS

A district judge must review a magistrate judge’s R&R under the following

standards:

Within fourteen days after being served with a copy, any party may serve

and file written objections to such proposed findings and recommendations

as provided by rules of court. A judge of the court shall make a de novo

determination of those portions of the report or specified proposed findings

or recommendations to which objection is made. A judge of the court may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge may also

receive further evidence or recommit the matter to the magistrate judge with

instructions.

28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to

any portion of an R&R, the district judge must undertake a de novo review of that portion.

Any portions of an R&R to which no objections have been made must be reviewed

under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d

793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court

judge] would only have to review the findings of the magistrate judge for clear error”).

As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” Anderson v. City of

Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co.,

333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under

a more-exacting standard even if no objections are filed:

Any party that desires plenary consideration by the Article III judge of any

issue need only ask. Moreover, while the statute does not require the judge

to review an issue de novo if no objections are filed, it does not preclude

2

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APP. p. 012

further review by the district judge, sua sponte or at the request of a party,

under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

III.

DISCUSSION

Because none of the parties objected to the R&R, I have reviewed it for clear

error. I agree with Judge Roberts’ analysis that a facial or as-applied challenge under

Bruen fails based on United States v. Jackson, 69 F.4th 495 (8th Cir. 2023). Based on

my review of the record, I find no error – clear or otherwise – in Judge Roberts’

recommendation. As such, I adopt the R&R in its entirety.

IV.

CONCLUSION

For the reasons set forth herein:

1.

I accept the Report and Recommendation (Doc. 33) without modification.

See 28 U.S.C. § 636(b)(1).

2.

Pursuant to the Report and Recommendation (Doc. 33), Faust’s motion

(Doc. 21) to dismiss the indictment is denied

IT IS SO ORDERED.

DATED this 19th day of July, 2023.

__________________________

Leonard T. Strand, Chief Judge

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Appendix C

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