Memorandum Opinion March 14, 2024 — No. 4:22-cr-00246 (Dkt. 65, M.D. Pa.)

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A Memorandum Opinion dated March 14, 2024, Document 65, in United States v. Nicholas Perkins, No. 4:22-CR-00246 (Case 4:22-cr-00246-MWB), in the U.S. District Court for the Middle District of Pennsylvania, signed by Chief United States District Judge Matthew W. Brann. The indictment of June 28, 2022 charges one count of bank fraud under 18 U.S.C. § 1344 and one count of false loan application under 18 U.S.C. § 1014. The defendant asked the court to revoke three release conditions: supervision by Pretrial Services, permission to travel outside specified areas, and the firearms restriction. The court denies the Motion to Modify Conditions of Release.

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“Memorandum Opinion March 14, 2024 — No. 4:22-cr-00246 (Dkt. 65, M.D. Pa.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/memorandum-opinion-march-14-2024-no-4-22-cr-00246-dkt-65-m-d-pa-43afcf0003/, SHA-256 9f7933cc6b092a7def511e4010c5543dee2bd5de6fc5bb5956d899e97ac2c7da.

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Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, No. 4:22-CR-00246

v. (Chief Judge Brann)

NICHOLAS PERKINS,

Defendant.

MEMORANDUM OPINION

MARCH 14, 2024

I. BACKGROUND

On June 28, 2022, a grand jury sitting in the Middle District of Pennsylvania

returned an indictment against Defendant Nicholas Perkins, charging him with one

count of Bank Fraud, in violation of 18 U.S.C. § 1344, and one count of False Loan

Application, in violation of 18 U.S.C. § 1014.1 On July 13, 2022, Perkins appeared

before United States Magistrate Judge William I. Arbuckle and pleaded not guilty

to all charges2 and Judge Arbuckle ordered Perkins released pending trial subject to

certain conditions.3 Perkins now asks the Court to revoke three of those conditions:

Condition 7(a) Perkins must submit to supervision by Pretrial Services; Condition

7(f) Perkins must seek permission from Pretrial Services to travel outside of

1
Indictment, Doc. 1. Perkins was also charged with one count of Wire Fraud, in violation of 18
U.S.C. § 1343, and one count of Unlawful Monetary Transaction, in violation of 18 U.S.C. §
1957; those charges were previously dismissed by the Court. Nov. 7, 2023 Ord., Doc. 39.
2
Plea, Doc. 12.
3
July 13, 2022 Ord., Doc. 14.
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 2 of 10

Pennsylvania, West Virginia, and the Western District of New York; and Condition

7(k) Perkins must surrender and not possess any firearms.4 The Government opposes

Perkins’ request, which is fully briefed and ripe for disposition.5 Trial is scheduled

to begin on September 9, 2024.6

II. DISCUSSION

The Bail Reform Act7 directs courts to order the release, pending trial, on

personal recognizance a person charged with an offense unless the court determines

that “such release will not reasonably assure the appearance of the person as required

or endanger the safety of any other person or the community.”8 If the court does

make such a determination, the court may impose conditions of release which must

be “the least restrictive further condition, or combination of conditions” to meet

those ends.9

A. Pretrial Supervision and Travel Restriction

As Perkins does not claim that any request to travel outside of the area

prescribed by Judge Arbuckle has been denied by Pretrial Services, the issue here is

4
Mot. to Modify Conditions of Release, Doc. 52.
5
Supp., Doc. 53; Opp’n, Doc. 59; Reply, Doc. 64.
6
Jan. 23, 2024 Ord., Doc. 57.
7
18 U.S.C. § 3142.
8
18 U.S.C. § 3142(b).
9
18 U.S.C. § 3142(c)(1). See also 18 U.S.C. § 3142(g) (factors to be considered).

2
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 3 of 10

a narrow one: whether the requirement that Perkins seek permission one business

day prior to any such travel is overly restrictive.10

As an initial matter, Perkins’ argument that his compliance with the conditions

of release for nearly two years “demonstrates that these conditions are no longer the

least-restrictive conditions” is not well taken.11 Those who abide by conditions of

release are not due a reward any more than those who abide by criminal statutes such

as those prohibiting bank fraud. On the contrary, those who fail to abide with

conditions of release are subject to increased restrictions, including detention.

Further, as the Government notes, “[t]he safety of others, and the defendant’s

promise to appear at any future court dates, may be a result of these pretrial release

conditions, and not evidence that the conditions are unnecessary.”12 Perkins’

argument to the contrary is little more than a suggestion that the Court should toss

away its umbrella because it is not getting wet.13

As Perkins notes, Pretrial Services “acknowledged from the time of Mr.

Perkins’ initial appearance that he presented a ‘minimal risk of nonappearance and

10
The Court notes that the conditions as stated in the form Order issued by Judge Arbuckle are
more onerous than the conditions as described by Judge Arbuckle during the July 13, 2022
hearing setting those conditions. As the Government only defends the conditions as stated by
Judge Arbuckle during the hearing, the Court will construe the parties’ arguments accordingly.
Further, though the Court will deny Perkins’ Motion, it will clarify in its Order the conditions
for the benefit of the parties.
11
Cf. Supp. 10.
12
Opp’n. 25.
13
Cf. Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 590 (2013) (Ginsburg, J. dissenting) (observing
that removing statutory conditions of the Voting Rights Act that have worked and continue to
work “is like throwing away your umbrella in a rainstorm because you are not getting wet”).

3
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 4 of 10

danger to the community.’”14 A “minimal risk” is not the same as no risk. On the

scale of pretrial travel restrictions—ranging from no restrictions to detention—those

imposed upon Perkins are appropriately minimal. Indeed, as noted by Magistrate

Judge Arbuckle, the conditions imposed are less restrictive than those recommended

by Pretrial Services.15 Judge Arbuckle also said that he was “very comfortable with

[Perkins] traveling around the [continental] United States.”16 In response to concerns

raised by Perkins, Judge Arbuckle clarified that the travel could be for any purpose

“as long as [Pretrial Services] know[s] where he’s going.”17 He further stated that,

in the event Pretrial Services denied any such request, that Perkins should advise the

Court which would work to resolve the issue.18 Practically, the condition imposed

by Judge Arbuckle is little more than a requirement that Perkins notify Pretrial

Services of any travel, and the least restrictive means to ensure his appearance as

ordered by the Court.19

14
Supp. 10 (quoting Pretrial Services Report, Doc. 59-1 at 4).
15
July 13, 2022 Tr., Doc. 59-2 11:24-12:3.
16
Id. 15:13-15.
17
Id. 15:10.
18
Id. 14:20-22.
19
Magistrate Judge Arbuckle “require[d Perkins] to participate in drug testing and counseling as
instructed by the probation department” with the understanding that they would not require
Perkins to submit to testing “unless they had a reason.” Id. 12:22-25. Rather, the condition was
simply to allow Pretrial Services to order testing in the event they did perceive a problem. Id.
13:2-3. As explained by Judge Arbuckle, the travel restriction similarly grants Pretrial Services
the authority to deny a request for travel if they perceive a problem, not arbitrarily.

4
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 5 of 10

B. Firearm Restriction

Perkins argues that the prohibition against possessing a firearm as a condition

of pretrial release is unconstitutional on its face and as applied to him because there

is no historical tradition of prohibiting gun ownership by individuals facing pending

criminal charges. In response, the Government insists that such conditions of release

are consistent with the historical tradition of firearm regulation.

The text of the Second Amendment provides: “A well regulated Militia, being

necessary to the security of a free state, the right of the people to keep and bear Arms,

shall not be infringed.”20 Following the decisions of the United States Supreme Court

in District of Columbia v. Heller21 and McDonald v. City of Chicago,22 federal

Courts of Appeals in near unanimity adopted a two-step “means-end” test to access

Second Amendment claims.23 In New York State Rifle & Pistol Assn., Inc. v. Bruen,

the Supreme Court declared that, “[d]espite the popularity of this two-step approach,

it is one step too many.”24 The Court “reiterate[d] that the standard for applying the

Second Amendment is as follows:”

When the Second Amendment's plain text covers an
individual's conduct, the Constitution presumptively protects that
conduct. The government must then justify its regulation by
demonstrating that it is consistent with the Nation's historical tradition
20
U.S. Const. amend. II.
21
554 U.S. 570 (2008).
22
561 U.S. 742 (2010).
23
See New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 18 (2022) (discussing two-
step test applied in the wake of Heller and McDonald); Range v. Atty. Gen. U.S. of Am., 69
F.4th 96, 100 (3d Cir. 2023) (en banc) (same).
24
597 U.S. at 18.

5
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 6 of 10

of firearm regulation. Only then may a court conclude that the
individual's conduct falls outside the Second Amendment's
“unqualified command.”25

Thus, after Bruen courts must “first decide whether the text of the Second

Amendment applies to a person and his proposed conduct” then, if it does, determine

whether the firearm regulation at issue “is part of the historical tradition that delimits

the outer bounds of the right to keep and bear arms.”26 It is undisputed that, following

the decision of the United States Court of Appeals for the Third Circuit in Range v.

Attorney General United States of America in which the Court held that “the people”

of the Second Amendment refers to all Americans, the Second Amendment applies

to Perkins and his proposed conduct.27

The burden then shifts to the Government to show that the regulation at

issue—restricting the possession of firearms by those accused of crimes and subject

to pretrial release—is part of the historical tradition of firearm regulation.28 Perkins

asserts that no such regulation could have existed at the time of the nation’s founding

because “the first attempt to restrict firearm access as a condition of pre-trial release

came less than forty years ago” with the passage of the Bail Reform Act.29 However,

25
Id. at 24 (quoting Konigsberg v. State B. of Cal., 366 U.S. 36, 50 n.10 (1961)).
26
Range, 69 F.4th at 101 (quoting Bruen, 597 U.S. at 19).
27
Id. Notwithstanding Range, Courts have uniformly held that “felony indictees are within the
scope of ‘the people’ who have Second Amendment rights.” U.S. v. Rowson, 652 F. Supp. 3d
436, 462-63 (S.D.N.Y. 2023) (citing U.S. v. Kays, 624 F. Supp. 3d 1262, 1265 (W.D. Okla.
2022); U.S. v. Stambaugh, 641 F. Supp. 3d 1185, 1189 (W.D. Okla. 2022)).
28
Range, 69 F.4th at 103.
29
Supp. 6.

6
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 7 of 10

“[h]istorical tradition can be established by analogical reasoning, which “requires

only that the government identify a well-established and representative

historical analogue, not a historical twin.’”30

Arguing that the restriction on possessing firearms while on pretrial release is

facially unconstitutional, Perkins suggests that “Bruen requires the regulatory

landscape be trimmed [not] with a scalpel, [but] a chainsaw.”31 For Perkins’ facial

challenge to succeed, he must show that “no set of circumstances exist under which

the [restriction] would be valid.”32 To the extent that Perkins asks the Court to hold

unconstitutional all restrictions on the possession of firearms by those subject to

pretrial release, thus “call[ing] into question . . . the constitutionality of the entire

Bail Reform Act,”33 the Court declines that invitation.34

Courts addressing similar challenges post-Bruen have nearly uniformly held

the imposition of restrictions on the possession of firearms by those facing pending

criminal proceedings to be consistent with the Nation’s historical tradition of firearm

30
Range, 69 F.4th at 103 (quoting Bruen, 597 U.S. at 30).
31
U.S. v. Perez-Gallan, 640 F. Supp. 3d 697, 713 (W.D. Tex. 2022), aff'd, No. 22-51019, 2023
WL 4932111 (5th Cir. Aug. 2, 2023)
32
U.S. v. Salerno, 481 U.S. 739, 745 (1987).
33
See U.S. v. Wendt, 650 F. Supp. 3d 672, 681 (S.D. Iowa 2023) (observing that finding firearm
restrictions imposed as a condition of pretrial release unconstitutional would necessarily apply
to other restrictions, such as those on travel and the prohibition of contact with co-defendants).
34
See U.S. v. Perez-Garcia, 628 F. Supp. 3d 1046, 1051 (S.D. Cal. 2022), aff'd sub nom. U.S. v.
Garcia, No. 22-50314, 2023 WL 2596689 (9th Cir. Jan. 26, 2023) (rejecting facial challenge
to restriction on firearm possession based on pending criminal charges); Holland v. Rosen, 895
F.3d 272 (3d Cir. 2018) (holding that there is no constitutional right to monetary bail in favor
of other non-monetary bail conditions).

7
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 8 of 10

regulation.35 Given the difficulty of making “different judgment calls on reasonably

contestable, highly abstract questions of historical analogy,”36 the emergence of a

consensus suggests that that the constitutionality of the restriction at issue is

relatively straightforward.37 In any event, the Court does not understand Bruen as

35
Perez-Garcia, 628 F. Supp. 3d 1046; Rowson, 652 F. Supp. 3d 436; Kays, 624 F. Supp. 3d
1262; Wendt, 650 F. Supp. 3d at 681; U.S. v. Fencl, No. 21-CR-3101 JLS, 2022 WL 17486363,
at *3 (S.D. Cal. Dec. 7, 2022), aff'd sub nom. U.S. v. Garcia, No. 22-50314, 2023 WL 2596689
(9th Cir. Jan. 26, 2023); United States v. Jackson, 661 F. Supp. 3d 392 (D. Md. 2023); U.S. v.
Slone, --- F. Supp. 3d ----, 2023 WL 8037044 (E.D. Ky. Nov. 20, 2023); U.S. v. Slye, No. 1:22-
MJ-144, 2022 WL 9728732 (W.D. Pa. Oct. 6, 2022); U.S. v. Alston, No. 523CR00021FLRN1,
2023 WL 4758734 (E.D.N.C. July 18, 2023), report and recommendation adopted, No. 5:23-
CR-021-FL-1, 2023 WL 7003235 (E.D.N.C. Oct. 24, 2023); United States v. Bartucci, --- F.
Supp. 3d ----, 2023 WL 2189530 (E.D. Cal. Feb. 23, 2023); United States v. Posada, --- F.
Supp. 3d ----, 2023 WL 3027877 (W.D. Tex. Apr. 20, 2023); United States v. Simien, --- F.
Supp. 3d ----, 2023 WL 1980487 (W.D. Tex. Feb. 10, 2023); United States v. Now, No. 22-
CR-150, 2023 WL 2717517 (E.D. Wis. Mar. 15, 2023); United States v. Stennerson, No. 22-
cr-0139, 2023 WL 2214351 (D. Mont. Feb. 24, 2023); United States v. Gore, No. 2:23-cr-04,
2023 WL 2141032 (S.D. Ohio Feb. 21, 2023); United States v. Kelly, No. 3:22-cr-0037, 2022
WL 17336578 (M.D. Tenn. Nov. 16, 2022); U.S. v. Trevino, No. 2:23-CR-00066 RB, 2023
WL 8237053 (D.N.M. Nov. 28, 2023). But see Stambaugh, 641 F. Supp. 3d 1185; United
States v. Hicks, 649 F. Supp. 3d 357 (W.D. Tex. 2023); United States v. Quiroz, 629 F. Supp.
3d 511 (W.D. Tex. 2022).
The Court notes that several of these cases address 18 U.S.C. § 922(n)’s prohibition on the
transport or receipt of firearms by those under felony indictment, rather than mere possession
of firearms by such individuals. E.g., Jackson, 661 F. Supp. 3d at 414. Given the contours of
the restriction at issue here as well as the significant overlap in the historical analysis, the Court
finds that such cases are nonetheless instructive.
36
See Jackson, 661 F. Supp. 3d at 407, 413 (noting that judges are not historians and ill-equipped
to conduct a searching historical analysis for the countless federal firearm cases) (citations and
quotations removed). But see Bruen, 597 U.S. at 31 (“We see no reason why judges frequently
tasked with answering these kinds of historical, analogical questions cannot do the same for
Second Amendment claims.”).
37
Cf. Jackson, 661 F. Supp. 3d at 413 (noting that “a split is to be expected” following Bruen);
Bruen, 597 U.S. at 26 (observing that, in some cases, the historical inquiry will be relatively
straightforward).

8
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 9 of 10

requiring District Courts to conduct a historical inquiry in each case any more than

courts are required to do so in cases raising other constitutional issues.38

Though this Court is not bound by the decisions of other District Courts, it

would be injudicious, in the face of a broad consensus of courts across the country,

for this Court to presume that it could, independently, better conduct the relevant

historical inquiry.39 Thus, this Court adopts the consensus view that the inquiry for

firearm restrictions imposed as a condition of pretrial release remains the same post-

Bruen: What restrictions, if any, are to be determined by an individualized

determination according to the factors set forth in the Bail Reform Act.40

To that end, the Court begins by defining the condition at issue. Like the travel

restriction, Magistrate Judge Arbuckle’s order setting Perkins’ conditions of release

does not prohibit him from possessing firearms in all circumstances. Rather, Judge

Arbuckle clarified that Perkins could request and Pretrial Services could grant

permission to Perkins to possess a firearm within its discretion.41 And, as above,

Perkins does not claim that he has requested and been denied such permission.

38
For instance, courts do not revert to first principles as a matter of course when defendants, as
Perkins had previously, raise Fourth Amendment issues. Nov. 7, 2023 Mem. Op. and Ord.,
Docs. 38, 39.
39
If the Court were inclined to independently conduct the relevant historical inquiry, the time
and judicial resources required would result in the Court’s decision—if not rendered moot by
the Supreme Court’s forthcoming decision in United States v. Rahimi, No. 22-915—coming
too late to be of much use to the parties, as trial is scheduled for September 2024.
40
Wendt, 650 F. Supp. 3d at 689.
41
July 13, 2022 Tr. 16:12-23.

9
Case 4:22-cr-00246-MWB Document 65 Filed 03/14/24 Page 10 of 10

The Court finds that the restriction imposed by Judge Arbuckle is sufficiently

tailored to address the minimal risk of danger posed by Perkins. While the Court

appreciates that Perkins’ criminal history—two charges for simple assault and a DUI

over twenty years ago—is relatively limited and antediluvian, the Court is also

mindful that Perkins has not been facing a felony indictment in the intervening years.

Therefore, the Court agrees with Judge Arbuckle that a restriction on the possession

of firearms for the purpose of ensuring the safety of the supervising probation

officers is appropriate.42

III. CONCLUSION

For the foregoing reasons, Defendant Nicholas Perkins’ Motion to Modify

Conditions of Release is denied.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

42
Id. 16:14-16.

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