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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Emilio Urena-Villa,

Defendant. 

No. CR-17-01860-TUC-CKJ (BGM) 

 AMENDED 

REPORT AND RECOMMENDATION 

(amended as to Motion for Production of 

Grand Jury Transcript Docket Number 

only) 

 Currently pending before the Court are Defendant Emilio Urena-Villa’s Motion to 

Dismiss Indictment [sic] Lack of Jurisdiction (Doc. 24), Motion for Production of Grand 

Jury Transcript (Doc. 25), and Motion to Dismiss (Commerce Clause) (Doc. 34). The 

Government has filed its Responses (Docs. 32, 33, 38) and no replies were filed. 

 Defendant is charged with nine (9) counts of knowingly possessing ammunition, 

having been convicted of a crime punishable by imprisonment for a term exceeding one 

year, that is Burglary in the First Degree, and Aggravated Assault with a Deadly Weapon 

and Discharging a Firearm at a Residential Structure in violation of Title 18, United 

States Code, Sections 922(g)(1) and 924(a)(2). Indictment (Doc. 1) at 1. Pursuant to 

LRCrim. 5.1, this matter is before Magistrate Judge Macdonald for a report and 

recommendation. Oral argument was heard by Magistrate Judge Macdonald on June 21, 

2018. Minute Entry 6/21/2018 (Doc. 51). The Magistrate Judge recommends that the 

District Court, after its independent review, deny Defendant’s motions. 
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I. FACTUAL BACKGROUND 

 On June 18, 2007, Defendant Emilio Urena-Villa was convicted of a felony, Case 

Number CR20061568 in the Arizona Superior Court for the County of Pima, for Burglary 

in the First Degree, Aggravated Assault with a Deadly Weapon, and Discharging a 

Firearm at a Residential Structure. Indictment (Doc. 1) at 1. Subsequently, Mr. UrenaVilla purchased ammunition on nine (9) separate occasions in 2017. See id. at 1–5. The 

Government asserts that agents obtained receipts and surveillance footage from a gun 

store in Tucson, Arizona, which establish that Mr. Urena-Villa made the purchases on the 

dates and in the amounts alleged in the Indictment. Govt.’s Resp. to Def.’s Mot. to 

Dismiss the Indict. for Lack of Jurisdiction (Doc. 32) at 1. The Government further 

asserts that “[a] qualified firearms expert concluded that the ammunition at issue was not 

manufactured in Arizona and, therefore, must have travelled in interstate commerce prior 

to reaching the gun store.” Id. at 1–2. A grand jury returned the nine (9) count 

indictment. See Indictment (Doc. 1). 

II. ANALYSIS 

A. Motion to Dismiss for Lack of Jurisdiction

 Defendant asserts that the Grand Jury lacked jurisdiction to indict, “because there 

could be no interstate commerce nexus that is required by the Commerce Clause and the 

statute.” Def.’s Mot. to Dismiss [sic] Lack of Jurisdiction (Doc. 24) at 1. 

 “The basic purpose of the English grand jury was to provide a fair method for 

instituting criminal proceedings against persons believed to have committed crimes.” 

Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956). 

“[I]n this country as in England of old the grand jury has convened as a body of laymen, 

free from technical rules, acting in secret, pledged to indict no one because of prejudice 

and to free no one because of special favor.” Id. Furthermore, “[u]nlike [a] [c]ourt, 

whose jurisdiction is predicated upon a specific case or controversy, the grand jury can 
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investigate merely on suspicion that the law is being violated, or even because it wants 

assurance that it is not.” United States v. Williams, 504 U.S. 36, 48, 112 S.Ct. 1735, 

1742, 118 L.Ed.2d 352 (1992) (quoting United States v. R. Enterprises, Inc., 498 U.S. 

292, 297, 111 S.Ct. 722, 726, 112 L.Ed.2d 795 (1991)) (2d & 3d alterations in original) 

(internal quotation marks omitted). “Only a defect so fundamental that it causes the 

grand jury no longer to be a grand jury, or the indictment no longer to be an indictment, 

gives rise to the constitutional right not to be tried.” Midland Asphalt Corp. v. United 

States, 489 U.S. 794, 802, 109 S.Ct. 1494, 1500, 103 L.Ed.2d 879 (1989); see also United 

States v. Hickey, 367 F.3d 888, 894 (9th Cir. 2004). “Neither the Fifth Amendment nor 

any other constitutional provision prescribes the kind of evidence upon which grand 

juries must act.” Costello, 350 U.S. at 361–62, 76 S.Ct. at 408. “An indictment returned 

by a legally constituted and unbiased grand jury, like an information drawn by the 

prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” Id.

at 363, 76 S.Ct. at 409. 

 Here, Defendant does not allege that the Grand Jury was biased or otherwise 

illegally constituted. Defendant takes issue only with the quality of the evidence 

presented to the Grand Jury. Defendant cannot imagine how the Government can claim 

that the ammunition purchased was transported to Arizona from another state or foreign 

country, “[w]ithout seeing the ammunition, or its container[.]” Def.’s Mot. to Dismiss 

[sic] Lack of Jurisdiction (Doc. 24) at 1–2. There is, however, no prescription regarding 

“the kind of evidence upon which grand juries must act.” Costello, 350 U.S. at 361–62, 

76 S.Ct. at 408. It is sufficient that the properly convened, unbiased Grand Jury heard the 

evidence presented and returned an indictment against the Defendant. As such, 

Defendant’s Motion to Dismiss [sic] Lack of Jurisdiction (Doc. 24) must be denied. 

B. Motion to Dismiss Challenging the Constitutionality of the Commerce 

Clause

 Defendant seeks dismissal of the indictment because Section 922(g)(1), Title 18 of 

the United States Code, “is unconstitutional as it exceeds the powers that are enumerated 

to Congress by the United States Constitution.” Def.’s Mot. to Dismiss (Commerce 
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Clause) (Doc. 34) at 2. Defendant argues that “Congress [does not have] authority under 

the commerce clause to enact legislation concerning possession of ammunition that does 

not affect interstate commerce.” Id. at 5. Defendant’s contention is devoid of merit. 

 “In [United States v. Lopez1

] and its progeny, the Supreme Court delineated ‘three 

general categories of regulation in which Congress is authorized to engage under its 

commerce power.’” United States v. Alderman, 565 F.3d 641 (9th Cir. 2009) (quoting 

Gonzales v. Raich, 545 U.S. 1, 16, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005)). These include 

(1) “the channels of interstate commerce”; (2) “the instrumentalities of interstate 

commerce, and persons or things in interstate commerce”; and (3) “activities that 

substantially affect interstate commerce.” Gonzales, 545 U.S. at 16–17, 125 S.Ct. at 

2205. “The ‘categories have never been deemed exclusive or mandatory.’” Alderman, 

565 F.3d at 646 (quoting United States v. Clark, 435 F.3d 1100, 1116 (9th Cir. 2006)). 

Furthermore, “[t]he categories are a guide, not a straitjacket.” Id. (quoting United States 

v. Clark, 435 F.3d 1100, 1116 (9th Cir. 2006)). 

 The Supreme Court of the United States has “established what is now the 

controlling four-factor test for determining whether a regulated activity ‘substantially 

affects interstate commerce.” United States v. Adams, 343 F.3d 1024, 1028 (9th Cir. 

2003) (quoting United States v. McCoy, 323 F.3d 1114, 1119 (9th Cir. 2003)). “These 

considerations are: (1) whether the regulated activity is commercial/economic in nature; 

(2) whether an express jurisdictional element is provided in the statute to limit its reach; 

(3) whether Congress made express findings about the effects of the proscribed activity 

on interstate commerce; and (4) whether the link between the prohibited activity and the 

effect on commerce is attenuated.” Id. (citing United States v. Morrison, 529 U.S. 598, 

610–12, 120 S.Ct. 1740, 1749–51 (2000)). “The purpose of a jurisdictional hook is to 

limit the reach of a particular statute to a discrete set of cases that substantially affect 

interstate commerce.” Alderman, 565 F.3d at 647 (quoting McCoy, 323 F.3d at 1124). 

Moreover, “[s]uch a jurisdictional element may establish that the enactment is in 

 1

 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). 
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pursuance of Congress’ regulation of interstate commerce.” Id. (quoting Morrison, 529 

U.S. at 612, 120 S.Ct. at 1751). 

 The Ninth Circuit Court of Appeals has expressly found Section 922(g)(1) is 

constitutional under the Commerce Clause. United States v. Hanna, 55 F.3d 1456, 1462 

(9th Cir. 1995). “In Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 

L.Ed.2d 582 (1977), the United States Supreme Court concluded that 18 U.S.C. app. § 

1202(a), the predecessor of § 922(g)(1), required only ‘the minimal nexus that the firearm 

have been, at some time, in interstate commerce.’” Hanna, 55 F.3d at 1462 (quoting 

Scarborough, 431 U.S. at 575, 97 S.Ct. at 1969); see also Alderman, 565 F.3d at 648 

(recognizing that a “jurisdictional hook” that has been “blessed” by the Supreme Court is 

controlling, and abrogates the need for “careful parsing of post-Lopez case law). “In 

amalgamating sections 922(g), 922(h), and 1202(a), Congress gave no indication that it 

meant to narrow the statutory reach with respect to possession.” Id. (quoting United 

States v. Sherbondy, 865 F.2d 996, 1000–01 (9th Cir. 1988)). As such, “Section 922(g)’s 

requirement that the firearm [or ammunition] have been, at some time, in interstate 

commerce is sufficient to establish its constitutionality under the Commerce Clause.” Id.

at 1462 n.2. Accordingly, Defendant’s motion to dismiss is denied. 

C. Motion for Grand Jury Transcript

 Finally, Defendant seeks disclosure of the Grand Jury transcripts in order to 

challenge jurisdiction in this matter. Def.’s Mot. for Production of Grand Jury Tr. (Doc. 

25) at 2. The Government objects to disclosure. See Govt.’s Response (Doc. 33). 

 The Court “may authorize disclosure – at a time, in a manner, and subject to any 

other conditions that it directs – of a grand jury matter: . . . (ii) at the request of a 

defendant who shows that a ground may exist to dismiss the indictment because of a 

matter that occurred before the grand jury.” Fed. R. Crim. P. 6(e)(3)(E). In order to be 

entitled to early disclosure of grand jury transcripts, a particularized need must be 

established. Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 

973 (1966) (citing Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 405, 
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79 S.Ct. 1237, 1241, 1244, 3 L.Ed.2d 1323 (1959)). The defense bears the burden of 

demonstrating a particularized need. Id. at 870–72, 86 S.Ct. at 1849–50; Pittsburgh Plate 

Glass Co., 360 U.S. at 400, 79 S.Ct. at 1241. In determining whether disclosure of grand 

jury transcripts is appropriate, the Ninth Circuit Court of Appeals has directed district 

courts to consider the following: 

1) whether the desired material will avoid a possible injustice; 

2) whether the need for disclosure is greater than the need for continued secrecy; 

and 

3) that only the relevant parts of the transcripts should be disclosed. 

United States v. Plummer, 941 F.2d 799, 806 (9th Cir. 1991). Moreover, mere 

speculation that improprieties occurred before the grand jury is inadequate to establish a 

particularized need. United States v. Walczak, 783 F.2d 852, 857 (9th Cir. 1986) 

(upholding denial of disclosure of grand jury transcripts, and holding that defendant’s 

desire to show that the grand jury did not have sufficient evidence to prosecute and to 

evaluate officer testimony did not constitute a particularized need). 

 Here, Defendant asserts that the grand jury transcripts are necessary in order to 

determine that “[a] jurisdictional nexus to interstate commerce” exists, and “[w]hether 

false testimony was given before the Grand Jury concerning the commerce nexus.” 

Def.’s Mot. for Production of Grand Jury Tr. (Doc. 25) at 3. It is undisputed that the 

Government did not seize any ammunition in connection with the Indictment; however, 

its firearms expert based his opinions upon the surveillance footage, and receipts related 

to Defendant’s purchases. See Govt.’s Response (Doc. 33). Defendant’s assertion 

regarding “false testimony” before the Grand Jury is purely speculative. As such, he 

cannot meet his burden to warrant disclosure of the grand jury transcript. Furthermore, 

Defendant will have the opportunity to cross examine the firearms expert at trial. See 

United States v. Renzi (Renzi I), 651 F.3d 1012, 1027 (9th Cir. 2011) (emphasis in 

original) (internal quotations and citation omitted) (“[A] grand jury’s use of inadequate or 

incompetent evidence . . . presents a question, not of rights, but of remedies, and the 
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Court has determined that the regular operation of generally applicable rules of procedure 

and evidence at trial is the appropriate remedy.”); see also United States v. Sears, 

Roebuck & Co., Inc., 719 F.2d 1386, 1391 n.7 (9th Cir. 1983) (“[C]ourts have been 

disinclined to extend due process rights to grand jury proceedings.”). 

 Disclosure of the grand jury transcript is unnecessary to avoid a possible injustice, 

neither has Defendant demonstrated a particularized need. Accordingly, Defendant’s 

motion for grand jury transcripts shall be denied. 

III. CONCLUSION

 Defendant’s arguments regarding the grand jury’s alleged lack of jurisdiction and 

the unconstitutionality of Section 922(g), Title 18, United States Code, are without merit. 

Further, Defendant has failed to demonstrate a particularized need to warrant disclosure 

of the grand jury transcripts in this matter. 

IV. RECOMMENDATION 

 For the foregoing reasons, the Magistrate Judge recommends that the District 

Judge after her independent review DENY Defendant Emilio Urena-Villa’s Motion to 

Dismiss Indictment [sic] Lack of Jurisdiction (Doc. 24), Motion for Production of Grand 

Jury Transcript (Doc. 25), and Motion to Dismiss (Commerce Clause) (Doc. 34). 

 Pursuant to 28 U.S.C. §636(b) and Rule 59(b)(2) of the Federal Rules of Criminal 

Procedure, any party may serve and file written objections within fourteen (14) days after 

being served with a copy of this Report and Recommendation. No reply shall be filed 

unless leave is granted from the District Court. If objections are filed, the parties should 

use the following case number: CR-17-01860-TUC-CKJ. 

 . . . 

 . . . 

 . . . 

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 Failure to file timely objections to any factual or legal determination of the 

Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right 

of review. 

 Dated this 16th day of July, 2018.