Background
Police officers attempted to stop a reported stolen vehicle, but the vehicle sped away. Officers later found it parked in an alley and saw Boru Wako, Jr., in the driver’s seat reaching toward the driver’s-door storage area. Wako fled on foot when he saw the officers. After an unsuccessful pursuit, officers returned to the vehicle and found a handgun in the driver’s-side door and a machete on the driver’s seat. Testing identified Wako’s DNA on the handgun’s barrel.
A federal jury convicted Wako of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and illegally receiving a firearm while under indictment under 18 U.S.C. § 922(n). Before trial, Wako brought an as-applied Second Amendment challenge to § 922(g)(1) and facial and as-applied challenges to § 922(n). The district court rejected the § 922(g)(1) and facial § 922(n) challenges but held the as-applied § 922(n) challenge in abeyance pending development of the facts at trial. It did not revisit that challenge after the verdict and sentenced Wako to 84 months in prison followed by three years of supervised release.
The Court’s Holding
The Eighth Circuit upheld the rejection of Wako’s as-applied challenge to § 922(g)(1). Under circuit precedent, the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen and United States v. Rahimi did not require the district court to conduct an individualized, felony-by-felony inquiry into whether § 922(g)(1) constitutionally applied to Wako.
The court reversed the denial of Wako’s motion to dismiss the § 922(n) count insofar as it rested on his as-applied challenge. Although the district court properly deferred that challenge until trial because it depended on facts reserved for the jury, it erred by failing to decide the challenge after trial. Because the resulting record lacked the findings required for appellate review under Federal Rule of Criminal Procedure 12(d), the Eighth Circuit remanded for further proceedings without deciding the constitutional merits. It did not reach Wako’s evidentiary, sufficiency-of-the-evidence, or sentencing arguments.
Key Takeaways
- Eighth Circuit precedent forecloses individualized, felony-by-felony Second Amendment challenges to § 922(g)(1).
- A district court may defer an as-applied constitutional challenge when resolving it requires facts bound up with the alleged offense, but it must return to the issue after the jury resolves those facts.
- The remand does not establish that § 922(n) is unconstitutional as applied to Wako; it requires the district court to conduct the omitted analysis and make the necessary findings.
Why It Matters
The decision underscores that deferring a fact-dependent constitutional challenge does not dispose of it. When a district court holds such a motion in abeyance until trial, Rule 12(d) requires the court to complete its analysis and state the essential findings needed for appellate review.
The opinion also preserves the Eighth Circuit’s existing treatment of § 922(g)(1) while leaving unresolved how § 922(n)’s restriction on receiving firearms while under indictment applies to Wako’s particular circumstances.