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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CRIMINAL NO. 15-CR-00260-KD-N

)

GREGORY LAMAR MARSHALL and )

JERRY DAVE HYNDS-JULIO )

ORDER

This matter is before the Court on Defendant Hynds-Julio’s Motion to Dismiss Counts 

Five and Six and to Strike Allegations in Count One (Doc. 37), Defendant Marshall’s Motion to 

Dismiss Count Four of the Indictment and to Strike Language as to Count One (Doc. 38), the 

government’s response (Doc. 42), and the Defendants’ replies (Docs. 55-56). 

Count Four, brought against Marshall, alleges a violation of 18 U.S.C. § 922(d)(5)(B), 

which states:

It shall be unlawful for any person to sell or otherwise dispose of any firearm or 

ammunition to any person knowing or having reasonable cause to believe that 

such person ... who, being an alien ... except as provided in subsection (y)(2), has 

been admitted to the United States under a nonimmigrant visa...

18 U.S.C. § 922(d)(5)(B).

Counts Five and Six, brought against Hynds-Julio, each allege a violation of 18

U.S.C. 922(g)(5)(B), which states:

It shall be unlawful for any person ... who, being an alien ... except as provided 

in subsection (y)(2), has been admitted to the United States under a nonimmigrant 

visa ... to ship or transport in interstate or foreign commerce, or possess in or 

affecting commerce, any firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported in interstate or foreign 

commerce.

18 U.S.C. § 922(g)(5)(B).1

 1 The parties agree that Hynds-Julio was present in the United States pursuant to a non-immigrant visa.

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Defendants argue that Counts Four, Five, Six, and the objective of the conspiracy in 

Count One should be dismissed because: The Court should take judicial notice that Hynds-Julio 

is a sitting Congressman in the Honduran Congress, thus he is an official of a foreign 

government, and therefore, § 922(y)(2)(C) excepts the Defendants from the prohibitions of §§

922(d)(5)(B) and (g)(5)(B). Section 922(y)(2)(C) states:

Subsections (d)(5)(B), (g)(5)(B), and (s)(3)(B)(v)(II) do not apply to any alien 

who has been lawfully admitted to the United States under a nonimmigrant visa, if 

that alien is ... an official of a foreign government or a distinguished foreign 

visitor who has been so designated by the Department of State...

18 U.S.C. § 922(y)(2)(C)(emphasis added). 

The government’s only response to Defendants’ motions is a brief and meritless 

argument that the Department of Justice has promulgated regulations which expand coverage of 

the criminal statute beyond what is stated in the statute. (Doc. 42). The Court adopts the reasons 

stated in Defendants’ replies (Docs. 55 and 56) and rejects the government’s argument.

In addition, the government failed to address whether § 922(y)(2) requires an exempted

foreign official to be “so designated by the Department of State.” 18 U.S.C. § 922(y)(2)(C). 

Regardless, the Court agrees with the defendants that a plain interpretation of the grammatical 

structure of § 922(y)(2)(C) does not require “an official of a foreign government” to be “so 

designated by the Department of State.” The “or” contained between these quoted portions of the 

statute indicates reference to separate categories of persons, i.e. an “official” or a “visitor.” As 

the Eleventh Circuit has explained, 

“In construing a statute we must begin, and often should end as well, with the 

language of the statute itself.” Merritt v. Dillard, 120 F.3d 1181, 1185 (11th Cir.

1997). Where the language Congress chose to express its intent is clear and 

unambiguous, that is as far as we go to ascertain its intent because we must 

presume that Congress said what it meant and meant what it said. See, e.g., 

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 

117 L.Ed.2d 391 (1992) (“We have stated time and again that courts must 

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presume that a legislature says in a statute what it means and means in a statute 

what it says there.”).

United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998).

The government also failed to address the Defendants’ contention that the Court can take 

judicial notice of the fact that Defendant Hynds-Julio is an official of a foreign government. 

Though the Court may take judicial notice of a fact in a criminal case, the jury ultimately decides 

the fact and is free to not accept the fact. Fed. R. Evid. 201(f)(“In a criminal case, the court must 

instruct the jury that it may or may not accept the noticed fact as conclusive.”). Thus, because 

this determination ultimately rests with the jury, the Court cannot dismiss Counts Four, Five, and

Six, or strike the portion of Count One that alleges a violation of § 922(d)(5)(B) as an objective 

of the conspiracy, unless the government concedes this fact. Accordingly, the Defendants’ 

motions (Docs. 37-38) are DENIED.

DONE and ORDERED this 25th day of January 2016.

/s/ Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE

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