347 F.3d 1 (1st Cir. 2003), 03-1609, U.S. v. Hartsock

Docket Nº:03-1609
Citation:347 F.3d 1
Party Name:U.S. v. Hartsock
Case Date:October 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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347 F.3d 1 (1st Cir. 2003)

UNITED STATES of America, Appellant,

v.

Willard HARTSOCK, Defendant, Appellee.

No. 03-1609.

United States Court of Appeals, First Circuit

October 10, 2003

Heard Sept. 4, 2003.

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F. Mark Terison, Senior Litigation Counsel, United States Attorney for the District of Maine, was on brief for Appellant.

Walter F. McKee on brief for Appellee.

Before BOUDIN, Chief Judge, SILER, Chief Circuit Judge, [*] and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

This case, in a sense, started in 1992 when Willard Hartsock pled guilty in the Somerset Division of the Maine District Court to the misdemeanor domestic assault 1 of his wife Beth Hartsock and was sentenced to 48 hours in the local jail. Hartsock and his wife later divorced and Hartsock moved to North Carolina. Beth 2 apparently remained in Maine. In October of 2000, Beth informed the police that she had received a call from her former husband, during which he "threatened her with regard to firearms" and said he was returning to Maine. After some investigation, the police located Hartsock in Maine and, after he consented to a search, found him in possession of four rifles, two shotguns, and a pistol. As a result, Hartsock was charged with violating a federal statute the ultimate purpose of which is to protect domestic abuse victims from the risk of further violence involving firearms. The statute, 18 U.S.C. § 922(g)(9), makes it unlawful for any person who has been

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convicted in any court of a "misdemeanor crime of domestic violence" to carry a firearm in or affecting interstate commerce. There is an exception: the statute does not apply if the defendant was convicted for the prior misdemeanor crime of domestic violence without counsel and without having knowingly and intelligently waived counsel. 18 U.S.C. 921(a)(33)(B)(i)(I).

The question raised by this interlocutory appeal, 28 U.S.C. § 1292 (2003), is, in applying that exception, how to allocate the burden of proof that the prior conviction was without counsel or qualifying waiver. The magistrate judge rejected the government's argument that the exception was an affirmative defense on which the defendant bore the burden of proof, and found that the government had not met its burden to show that Hartsock had knowingly and intelligently waived his right to counsel in his 1992 state conviction. United States v. Hartsock, 253 F.Supp.2d 24, 25-26 (D.Me.2003). Adopting the magistrate judge's reasoning, the district court granted the defendant's motion to exclude the record of his domestic assault conviction. That ruling effectively stymied the prosecution, which led to this appeal by the government.

The allocation of the burden of proof for the exception set forth in § 921(a)(33)(B)(i)(I) is an issue of first impression in our court. We reverse the district court's holding and remand. We conclude that the exception is an affirmative defense and not an element of the crime, that the government need only prove the prior conviction, and that the defendant bears the burden of proving he or she is within the exception.

I.

On August 6, 2002, Willard Hartsock was indicted for violating 18 U.S.C. § 922(g)(9). The indictment charged him with the possession of seven firearms after having been convicted approximately a decade earlier of domestic assault. By the time Hartsock was indicted, Maine authorities had destroyed the plea transcripts of his 1992 domestic assault conviction during routine space-saving procedures. The prosecution filed a motion in limine arguing that, under § 921(a)(33)(B)(i)(I), it did not have to prove in the first instance that Hartsock had knowingly and intelligently waived his right to counsel in his earlier conviction. Hartsock denied that he had any burden under the exception and, in line with this position, did not present any evidence on the issue.

The government, which did not have the benefit of the plea transcripts or recording, submitted the deposition testimony of Judge Douglas A. Clapp, who was the only district court judge presiding in Somerset County on the day that Hartsock was convicted in 1992. Although he had no individual recollection of Hartsock's conviction, Judge Clapp testified that he always informs defendants who plead guilty about their right to an attorney, and did so in 1992. The government also presented the affidavit of federal agent Brent McSweyn, who in the nascent stages of the investigation had listened to a tape recording of Hartsock's plea colloquy, and had interviewed Hartsock concerning the conviction. According to McSweyn, the tape showed that Hartsock had waived his right to counsel in the plea colloquy after telling the judge that he had consulted with an attorney. Neither party had the benefit of the federal court's determination as to the allocation of burdens on the exception when they decided what evidence to submit.

In analyzing this motion, the magistrate judge first determined that the issue was a question of law to be decided by the court and that the United States bore the initial

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burden to produce evidence on that issue. Hartsock, 253 F.Supp.2d at 35, 39. The magistrate judge concluded that the United States "must prove in the first instance not only the existence of the conviction ..., but also in the first instance show the existence of an intelligent and knowing waiver of the right to counsel and a jury trial," and found that the government's evidence did not meet this burden. Id. at 38, 44.

The district court adopted in whole the recommended opinion of the magistrate judge. Id. at 25. The government appealed.

II.

A. Scope of Issues on Appeal

On appeal, Hartsock and the United States agree that whether Hartsock knowingly and intelligently waived his right to counsel is a question of law to be resolved by the judge in a Rule 104(a) hearing. We take no position on the proper resolution of this issue other than to rule that Hartsock has waived any argument that he is entitled to submit this issue to a jury by having adopted the stance that it is a preliminary question for the court. 3 Instead, we focus on the point of contention: which party bears the burden of proof on the applicability of the § 921(a)(33)(B)(i)(I) exception.

The government bears the initial burden of showing that the defendant was indeed convicted of a predicate misdemeanor offense, which is indisputably an element of the § 922(g)(9) offense. The government met that burden by introducing a certified copy of Hartsock's conviction for assault and by Hartsock's stipulation that the assault involved domestic violence.

The question here is whether the government or the defendant bears the burden of proving that this domestic assault conviction was within the exception set forth in § 921(a)(33)(B)(i)(I), which provides that:

(B)(i) A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] for purposes of this chapter [18 U.S.C. §§ 921 et seq.], unless--

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case;

This is a matter of statutory interpretation, reviewed de novo. See United States v. Molak, 276 F.3d 45, 49 (1st Cir. 2002).

B. Statutory Background

Section 922(g)(9), also known as the Lautenberg Amendment to the Gun Control Act of 1968, was passed in 1996 as part of the Omnibus Consolidated Appropriations Act of 1997. The Amendment, which was adopted by an overwhelming majority of the Senate, was designed to "remedy the disparate treatment between

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those convicted of a felony involving domestic assault and those convicted of a misdemeanor involving domestic assault." United States v. Meade, 986 F.Supp. 66, 68 (D.Mass.1997). Before the Amendment only those with felony convictions were prohibited from obtaining and possessing firearms. Recognizing that "plea bargains [in domestic violence cases] often result in misdemeanor convictions for what are really felony crimes," 142 Cong. Rec. S10379 (daily ed. Sept. 12, 1996) (statement of Sen. Feinstein), Congress established with the Lautenberg Amendment a policy of "zero tolerance when it comes to guns and domestic violence." 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg). Observing that "nearly 65 percent of all murder victims known to have been killed by intimates were shot to death," 142 Cong. Rec. S10379 (daily ed. Sept. 12, 1996) (statement of Sen. Murray), Congress hoped that closing this loophole would help to reduce the 150,000 instances of household violence involving firearms that are reported each year. 142 Cong. Rec. S8831 (daily ed. July 25, 1996) (statement of Sen. Lautenberg).

When it enacted the Lautenberg Amendment, Congress was clearly aware 4 that at least some of those who would be prosecuted under the statute would not have been represented by counsel in their predicate misdemeanor offense: no constitutionally recognized right to counsel then existed for misdemeanor convictions that did not actually lead to imprisonment. See Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); cf. Alabama v. Shelton, 535 U.S. 654, 674, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002) (holding that an indigent defendant is constitutionally entitled to state-provided counsel if he or she receives a suspended sentence of imprisonment). Because a violation of § 922(g)(9) carries a minimum term of imprisonment of ten months, see U.S.S.G. § 2K2.1, there was the potential that an indigent defendant uncounseled in a misdemeanor crime of domestic violence would later violate § 922(g)(9) by possessing a firearm and be imprisoned. 5 Although Congress may not have been obliged to act on this concern, see Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (approving of using an "uncounseled felony conviction as the basis for...

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