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United States v. Bailey

United States District Court, S.D. West Virginia, Bluefield

November 30, 2018

UNITED STATES OF AMERICA
v.
MICHAEL JUSTIN BAILEY and SARAH K. BAILEY

          MEMORANDUM OPINION

          DAVID A. FABER SENIOR UNITED STATES DISTRICT JUDGE.

         On November 19, 2018, the court denied defendants'[1] motion to dismiss Counts One through Four of the Indictment for lack of subject matter jurisdiction. The reasons for that decision follow.

         I. Background

         On May 1, 2018, a federal grand jury returned a seven-count indictment against defendants Michael Justin Bailey and Sarah K. Bailey as follows:

Count One- conspiracy to commit Hobbs Act Robbery, in violation of 18 U.S.C. § 1951;
Count Two- Hobbs Act Robbery on October 26, 2017, in violation of 18 U.S.C. § 1951;
Count Three- Hobbs Act Robbery on November 5, 2017, in violation of 18 U.S.C. § 1951;
Count Four- brandishing a firearm during and in relation to a crime of violence (expressly identified as Hobbs Act Robbery on November 5, 2017), in violation of 18 U.S.C. § 924(c)(1)(A)(ii);
Count Five- felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);[2]
Count Six- unlawful user of controlled substances in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2);[3] and
Count Seven- possessing a stolen firearm on November 5, 2017, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2).

         Defendants are alleged to have conspired to rob, robbed, and brandished firearms while robbing two video poker parlors located within the Southern District of West Virginia. Defendants have moved to dismiss Counts One through Four of the indictment for lack of federal subject matter jurisdiction. Specifically, defendants allege that the regulation and operation of non-payout video poker gaming and parlors are all categorically intrastate activities which do not implicate the Commerce Clause and, therefore, are not offenses arising under the Hobbs Act.

         On November 6, 2018, the court held a hearing on the motion to dismiss and heard from one witness on behalf of the government, Alice Renee Runion, the manager of the poker parlors that were robbed.

         II. ...


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