USA v. Pate

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) No. 6:25-cr-03110-MDH-1
)
SHAWN LEON PATE, )
)
)
Defendant. )
REPORT AND RECOMMENDATION
Pending before the Court is Defendant Shawn Leon Pate’s Motion to Dismiss the
Indictment. (Doc. 24). The Government has filed its suggestions in opposition. (Doc. 27). With
leave of Court, the Government filed supplemental suggestions in opposition. (Doc. 34). Mr. Pate
has timely filed replies. (Docs. 35, 36). For the reasons that follow, it is recommended that ruling
on the Motion be DEFERRED.
I. Background
On July 22, 2025, a federal grand jury in the Western District of Missouri returned a one-
count indictment against Mr. Pate, charging him with a violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(8), that is, possession of a firearm while knowing he is an unlawful user of a controlled
substance as defined in 21 U.S.C. § 802. (Doc. 1). Mr. Pate moves to dismiss the indictment,
raising an as-applied Second Amendment challenge to § 922(g)(3). (Doc. 24). He requests an
evidentiary hearing and asks the Court to require the Government to present evidence establishing,
before trial, that Mr. Pate is subject to prosecution under § 922(g)(3). (Doc. 24 at 7). The
Government initially consented to an evidentiary hearing but has since reversed its position. (Doc.
27 at 12; Doc. 34 at 3). The Government now contends that the constitutional question should be
deferred until after a trial on the merits. (Doc. 34 at 2).
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 1 of 8

II. Discussion
On September 30, 2025, Mr. Pate filed the instant Motion to Dismiss the Indictment,
asserting an as-applied challenge to the constitutionality of § 922(g)(3). (Doc. 24). Mr. Pate argues
that prosecuting him under § 922(g)(3) unconstitutionally infringes on his Second Amendment
rights. On November 3, 2025, the Government filed its initial suggestions in opposition, asserting
that, based on the facts known to it, Mr. Pate may be constitutionally prosecuted under § 922(g)(3).
(Doc. 27). The Government set forth many of those facts in its opposition. (Id.). With leave of
Court, the Government filed supplementary suggestions in opposition on November 21, 2025.
(Doc. 34). In its supplement, the Government argues that the constitutional issue should be
reserved until a trial on the merits and declines to present its trial evidence in response to the
Motion to Dismiss. (Id.). Mr. Pate contends that the constitutional question is distinct from the
elements of the charged offense and may be resolved before trial. (Doc. 36). The Court
recommends the District Judge find that resolving the constitutional issue would require judicial
factfinding and therefore defer ruling on the matter until after trial.
A. Legal Standard
Title 18 U.S.C. § 922(g)(3) prohibits firearm possession by anyone “who is an unlawful
user of or addicted to any controlled substance.” However, “disarming all drug users . . . is
inconsistent with the Second Amendment.” United States v. Veasley, 98 F.4th 906, 912 (8th Cir.
2024) (quoting New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 26 (2022)). When an
individual’s conduct is covered by the Second Amendment, it is presumptively constitutional.
Bruen, 597 U.S. at 24. As-applied challenges to § 922(g)(3) asserting that a defendant’s conduct
falls within the protection of the Second Amendment are permitted. United States v. Cooper, 127
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 2 of 8

F.4th 1092, 1094 (8th Cir. 2025); cf. United States v. Perez, 145 F.4th 800, 804 (8th Cir. 2025)
(foreclosing facial challenges to § 922(g)(3)).
An “as-applied challenge” requires the court “to examine a statute based on a defendant’s
individual circumstances.” Veasley, 98 F.4th at 909 (citation omitted). “The as-applied challenger
does not contend that a law is unconstitutional as written[,] but that its application to a particular
person under particular circumstances deprived that person of a constitutional right.” United States
v. Adams, 914 F.3d 602, 605 (8th Cir. 2019) (citation and internal quotations omitted).
In an as-applied challenge, the Bruen analysis proceeds in two steps based on “text and
historical understandings.” Veasley, 98 F.4th at 909 (quoting Bruen, 597 U.S. at 26). The Eighth
Circuit has identified relevant questions for resolving as-applied challenges like the one here. Did
using marijuana make the defendant “act like someone who is ‘both mentally ill and dangerous?’”
Cooper, 127 F.4th at 1096 (quoting Veasley, 98 F.4th at 913). Did the defendant “‘induce terror’?”
Id. (quoting Veasley, 98 F.4th at 918). Did the defendant “‘pose a credible threat to the physical
safety of others’ with a firearm?” Id. (quoting United States v. Rahimi, 602 U.S. 680, 700 (2024));
see also Perez, 145 F. 4th at 806. “Unless one of the answers is yes—or the government identifies
a new analogue,” prosecuting a defendant under § 922(g)(3) may be “[in]consistent with this
Nation’s historical tradition of firearm regulation.” Cooper, 127 F.4th at 1096 (quoting Bruen, 597
U.S. at 17).
Federal Rule of Criminal Procedure 12 governs pretrial motions to dismiss an indictment.
Under this rule, “a party may raise by pretrial motion any defense that ‘the court can determine
without a trial on the merits.’” United States v. Grubb, 135 F.4th 604, 606-07 (8th Cir. 2025)
(quoting Fed. R. Crim. P. 12(b)(1)). “As the Supreme Court has explained, this rule means that a
court may rule on a pretrial motion ‘if trial of the facts surrounding the commission of the alleged
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 3 of 8

offense would be of no assistance in determining the validity of the defense.’” United States v.
Baxter, 127 F.4th 1087, 1090 (8th Cir. 2025) (quoting United States v. Covington, 395 U.S. 57, 60
(1969)). However, the mere existence of factual issues in a pretrial motion does not preclude a
pretrial ruling on the motion. Fed. R. Crim. P. 12(d). “Rather, the rule specifically contemplates
that district courts may sometimes make factual findings when ruling on pretrial motions and
requires that the court ‘state its essential findings on the record.’” Baxter, 127 F.4th at 1090
(quoting Fed. R. Crim. P. 12(d)). “[T]he court must resolve every pretrial motion before trial
‘unless it finds good cause to defer a ruling’ and deferral will not ‘adversely affect a party’s right
to appeal.’” Grubb, 135 F.4th at 607 (quoting Fed. R. Crim. P. 12(d)).
The Eighth Circuit has explained that as-applied motions to dismiss under Bruen may be
resolved pretrial:
If the district court determines that the relevant factual evidence is undisputed in the sense
that it is agreed to by the parties, pretrial resolution may be appropriate because a trial of
the general issue would serve no purpose. Furthermore, pretrial resolution may also be
appropriate if the district court determines that it can decide the legal issues presented
without making any factual findings. If, however, ruling on the as-applied challenge
requires resolving factual issues related to [defendant’s] alleged offense, such as the extent
of his drug use, then resolution of the issue is likely improper before trial.
Baxter, 127 F.4th at 1091 (internal citations omitted). “In considering a motion to dismiss, a district
court may not ‘make factual findings when an issue is inevitably bound up with evidence about
the alleged offense itself.’” Grubb, 135 F.4th at 607 (quoting United States v. Turner, 842 F.3d
602, 605 (8th Cir. 2016)). Further, “the government is not required to present its case in response
to a motion to dismiss, and dismissal is not justified based on ‘the government’s refusal to come
forward with evidence to support its case in the face of a defendant who has presented his own
proof.’” Grubb, 135 F.4th at 607. “To warrant dismissal, it must be clear from the parties’ agreed
representations about the facts surrounding the commission of the alleged offense that a trial of
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 4 of 8

the general issue would serve no purpose.” Id. (quoting United States v. Pope, 613 F.3d 1255, 1261
(10th Cir. 2010)).
B. A trial on the merits is necessary to determine if § 922(g)(3) is constitutional as applied
to Mr. Pate.
Mr. Pate moves to dismiss the indictment charging him with being an unlawful drug user
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3), and raises an as-applied Second
Amendment challenge to the statute. (Doc. 24 at 1). Mr. Pate argues that the facts do not support
a finding that his alleged marijuana use caused him to “1) act like someone who is both mentally
ill and dangerous; or 2) induce terror or pose a credible threat to the physical safety of others with
a firearm” and his prosecution under § 922(g)(3) is in violation of his Second Amendment rights.
(Doc. 24 at 1-2). The Government argues Mr. Pate’s Motion to Dismiss is premature because the
Government need not present its case in response to a pretrial motion. (Doc. 34 at 2-3).
The record is in dispute. The Government put forth, and has not retracted, factual
allegations about Mr. Pate’s alleged offense. (Doc. 27 at 1-6). However, Mr. Pate has not stipulated
to any of those facts. (Docs. 24, 35, 36). “[S]tatements of counsel are not evidence.” United States
v. Boen, 59 F.4th 983, 991 (8th Cir. 2023) (internal citations omitted). Accordingly, there is no
agreed upon set of facts. See Baxter, 127 F.4th at 1091 (holding that pretrial resolution of a
constitutional challenge may be appropriate if all relevant factual evidence is undisputed and
agreed to by the parties). The Government has indicated that it will not present any of its trial
evidence at a pretrial hearing. (Doc. 34 at 2). The Court cannot compel it to do so. Grubb, 135
F.4th at 607 (“[T]he government is not required to present its case in response to a motion to
dismiss.”).
Ruling on the as-applied challenge would require “resolving factual issues related to [Mr.
Pate’s] alleged offense, such as the extent of his drug use,” as well as the events on the day in
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 5 of 8

question. The Court cannot resolve these fact-based inquiries without a sufficient record of
stipulated facts or trial. Baxter, 127 F.4th at 1091. In light of the present record and the absence of
an agreed-upon set of facts, there is good cause to defer ruling on Mr. Pate’s as-applied challenge
until after trial. Fed. R. Crim. P. 12(d); see Grubb, 135 F.4th 607 (“[A] court must resolve every
pretrial motion before trial unless it finds good cause to defer a ruling and deferral will not
adversely affect a party’s right to appeal.”) (internal quotations omitted).
Mr. Pate argues that the constitutional issue is a purely legal one that does not require the
Court to make any factual findings. (Doc. 35 at 4-5). In support, Mr. Pate points out that the
Government has not presented evidence addressing the questions that must be answered to
determine whether Mr. Pate can be constitutionally prosecuted under § 922(g)(3). (Doc. 35 at 11);
see Cooper, 127 F.4th at 1096 (listing questions that must be addressed, such as whether the
defendant induced terror or posed a credible threat to the safety of others) (quoting Veasley, 98
F.4th at 913, 918). But determining whether Mr. Pate “induced terror” or “acted like someone who
is both mentally ill and dangerous” would require the Court to make factual findings regarding the
underlying offense. These are not purely legal questions, and Mr. Pate’s as-applied challenge is
not a purely legal one. Furthermore, although the Government has not presented evidence on those
issues, its failure to do so pretrial does not constitute grounds for dismissal of the indictment. See
Grubb, 135 F.4th at 607 (“[D]ismissal [of an indictment] is not justified based on the government’s
refusal to come forward with evidence to support its case in the face of a defendant who has
presented his own proof.”) (internal quotation omitted).
Ruling on Mr. Pate’s as-applied challenge would require the Court to resolve factual issues
related to the extent of Mr. Pate’s drug use and the events that occurred on the date of the
underlying offense. These facts are inevitably “bound up with evidence about the alleged offense
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 6 of 8

itself.” Turner, 842 F.3d at 605. Therefore, this Court recommends the District Judge find that
ruling on Mr. Pate’s as-applied challenge before trial would be improper.
Numerous district courts within this Circuit have deferred ruling on as-applied challenges
to the constitutionality of § 922(g)(3) until after a trial on the merits. See United States v. Walker,
No. 8:22-CR-291, 2023 WL 3932224 (D. Neb. June 9, 2023); United States v. Striplin, No. 21-
00289-01-CR-W-RK, 2023 WL 4853744 (W.D. Mo. Apr. 25, 2023), report and recommendation
adopted, No. 4:21-CR-00289-RK, 2023 WL 4850753 (W.D. Mo. July 28, 2023); United States v.
Robinson, No. 24-CR-4012-LTS-KEM, 2025 WL 777667 (N.D. Iowa Mar. 11, 2025), report and
recommendation adopted, No. CR24-4012-LTS-KEM, 2025 WL 958167 (N.D. Iowa Mar. 31,
2025); United States v. Frost, No. CR24-3057-LTS, 2025 WL 2590257 (N.D. Iowa Sept. 8, 2025);
United States v. Zapata, No. 3:24-CR-30057-ECS, 2025 WL 270580 (D.S.D. Jan. 15, 2025),
report and recommendation adopted, No. 3:24-CR-30057-ECS, 2025 WL 266779 (D.S.D. Jan.
22, 2025); United States v. Ochoa Moreno, No. 4:24-CR-00141-SMR-HCA-1, 2025 WL 3497996
(S.D. Iowa Dec. 5, 2025).
Accordingly, the Court recommends that the District Judge find that there is good cause to
defer ruling on Mr. Pate’s motion until after trial.
III. Conclusion
For the foregoing reasons, IT IS RECOMMENDED that the District Judge, after making
an independent review of the record and applicable law, DEFER RULING ON Defendant Shawn
Leon Pate’s Motion to Dismiss the Indictment until after trial. (Doc. 24).
Counsel are reminded that each party has fourteen (14) days from the date of receipt of a
copy of this Report and Recommendation within which to file and serve objections. A failure to
file and serve objections by this date shall bar an attack on appeal of the factual findings in the
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 7 of 8

Report and Recommendation that are accepted or adopted by the District Judge, except on the
grounds of plain error or manifest injustice.
Dated this 11th day of December, 2025, at Jefferson City, Missouri.
Willie J. Epps, Jr.
Willie J. Epps, Jr.
Chief United States Magistrate Judge
Case 6:25-cr-03110-MDH Document 37 Filed 12/11/25 Page 8 of 8