From time to time I read a police blotter or release that just makes me want to sympathize a little with the criminals. Here’s the issue that I have, many criminals are arrested on crimes that are simply “malum prohibitum,” an act that’s illegal because the man says so. Versus an act that’s “malum in se,” one that’s inherently evil. A good comparison here would be possession of a firearm being illegal versus murder. One of these crimes is evil and the other is generally victimless. A recent sentencing makes me shake my head a little at the circular arguments that could be made for the convicted criminal.

MISSOULA, Mont. — A Kalispell man with a felony conviction was sentenced today to five years in prison, to be followed by three years of supervised release for illegally possessing firearms, U.S. Attorney Jesse Laslovich said.

Matthew Ryan Cubberly, 36, pleaded guilty in April to prohibited person in possession of a firearm and possession of an unregistered firearm.

The age old “prohibited person in possession” charge. We can’t complain when we see cases like this result in convictions when many Second Amendment supporters use the argument, “enforce the laws that are on the books.” But, we’re going to take a closer look.

In court documents, the government alleged that Cubberly was convicted of a felony drug crime in Flathead County and was on state supervision when probation officers suspected a probation violation and conducted a home visit in March 2022. During a search of Cubberly’s residence, the officers found two 12-gauge shotguns next to Cubberly’s bed. Both guns had the stocks cut off, and the barrels were less than 18 inches in length. Neither firearm was registered with the National Firearms Registration and Transfer Record. Cubberly was prohibited from possessing firearms because of his felony conviction.

The irony of Cubberly’s possession of an NFA item not being registered is that he is a prohibited person. Cubberly, even if he wanted to register the sawed off shotguns, he wouldn’t be able to without self-incrimination. In essence, couldn’t an affirmative defense have been about Fifth Amendment protections?

Things get complicated because Cubberly is a felon. According to the release, his felony was noted in their reporting to be a “drug crime.” What was that drug crime? Was it sales? Was it simple possession? Was it intent to distribute? That makes the situation murky, doesn’t it?

What the DOJ failed to report was other alleged crimes. There was a report of a person named Matthew Ryan Cubberly, who would have been 26 at the time, ten years ago, picked up on some really icky stuff.

SANFORD – Two men were ordered to prison following plea agreements Monday because they showed up in Seminole County, lured here by Craigslist ads that promised them sex with a 14-year-old girl.

Terry John Whippie, 50, a Tarpon Springs taxi driver, agreed to a 3 1/2 year plea deal and Matthew Ryan Cubberly, 26, an unemployed man from Kissimmee, agreed to 1 1/2 years in prison.

Both men fell victim to a sex sting by deputies in several Central Florida counties, including Seminole, Orange and Marion, who pretended they are the parents of a 14-year-old girl and offered her for sex in a Craigslist ad.

How did the DOJ miss this ever-so-small detail? I’d like to think the 1 and ½ years in prison would have been the primary disqualifier for Cubberly, that is if we’re talking about the same guy. Can we say for sure? No. But, same full name, same age. Eh, pretty close. Other reporting listed “Matthew R. Cubberly 8/25/1986 26 Kissimmee,” as a person charged in the sting operation.

Another report corroborates and perhaps affirms the speculation on Cubberly’s criminal history.

A review of records in Flathead County District Court show that local prosecutors opened three cases against Cubberly in 2017. He was found guilty of felony criminal possession of dangerous drugs, failure to register as a sexual or violent offender and criminal distribution of dangerous drugs. He was sentenced on all three in 2018.

The picture that’s being painted is that we’re not dealing with a saint. And that’s a problem when dealing with crimes that are malum prohibitum.

Trying to have sex in exchange for money with a 14-year-old, it’s safe to say is a crime that’s malum in se, just wrong morally. The selling of drugs? Also morally repugnant, just not as morally repugnant as statutory rape for hire. 

Firearm possession as a felon? Now we’re skating into territory that’s shaky. Being in possession of a National Firearms Act. firearm, is that really a crime? The NFA is facially unconstitutional when it comes to forced registration and tax. Then there’s the matter of a felon having to self-incriminate if they tried to register a SBR or SBS with the ATF.

The reflection that supporters of the Second Amendment are forced to make upon this quagmire is about said prohibitions. Shouldn’t someone who has paid their debt to society be fully re-vested with their rights? If an individual is safe enough to be released back into our communities, then that means the state or government rehabilitated that person. At least that’s what we’re supposed to believe in the lollipop land of criminal justice reform we live in circa 2023.

As we march forward towards further rights restoration, we’re going to have to grapple with these realities. The fact of the matter is, there are some very bad, evil, and disgusting people out there, that have no less a right to be fully recognized as whole citizens as some of our most saintly persons in society. Is Cubberly’s arrest, conviction, and sentencing constitutional? If it is, is it just as applied or facially?

I offer up, if so, then only as applied, we don’t need Cubberlys out there armed and being menaces to our communities. But what happens when these kinds of things happen to “good” people? For every Cubberly that’s out there, there are approximately 13 “good guys.” One crumbled cookie shouldn’t ruin an entire baker’s dozen. Do we call “BS” on these types of crimes being crimes or accept them? The federal government has a large burden to find an analogue that very well may not be there.