371 F.3d 430 (8th Cir. 2004), 02-3606, United States v. Pfeifer

Docket Nº:02-3606
Citation:371 F.3d 430
Party Name:United States v. Pfeifer
Case Date:June 10, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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371 F.3d 430 (8th Cir. 2004)

UNITED STATES of America, Plaintiff--Appellee,


Robert Lee PFEIFER, also known as Barney Pfeifer, Defendant--Appellant.

No. 02-3606.

United States Court of Appeals, Eighth Circuit

June 10, 2004

Rehearing and Rehearing En Banc Denied Aug. 6, 2004.

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[Copyrighted Material Omitted]

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Patricia A. Carlson, argued, Pierre, SD, for appellant.

Judith K. Grunewaldt, argued, Asst. U.S. Attorney, Sioux Falls, SD, for appellee.

Before HANSEN,1 Chief Judge, JOHN R. GIBSON and LOKEN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Robert Lee Pfeifer conditionally pleaded guilty to possessing a firearm after being convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9). Pfeifer appeals his conviction on the following statutory and constitutional grounds: 1) he did not knowingly and intelligently waive the right to counsel in the predicate domestic violence conviction, as required by 18 U.S.C. § 921(a)(33)(B) in order to obtain a conviction under § 922(g)(9); 2) as applied to him, § 922(g)(9) violates the Ex Post Facto Clause of the United States Constitution because it effectively increases the punishment for an earlier conviction; 3) § 922(g)(9) is unconstitutionally vague because it does not provide fair warning that his possession of a firearm is prohibited conduct; 4) § 922(g)(9) is unconstitutionally overreaching in that it interferes with his Second Amendment right to bear arms. We affirm.


On May 5, 1985, Robert Lee Pfeifer was involved in a disagreement with his wife, which ended with Pfeifer striking her in the face with his hand. He was subsequently charged by information with simple assault under S.D.C.L. section 22-18-1 in that he did "willfully and unlawfully, attempt to cause bodily injury to another, namely: Diane Pfeifer, and had the actual ability to cause the injury."

Pfeifer was arraigned on this charge on May 9, 1985, before Judge Donald Heck, a Circuit Judge of the Sixth Judicial Circuit, Pierre, South Dakota. The court informed Pfeifer that he was charged with simple assault and was entitled to have a lawyer at all stages of the proceedings and that, if necessary, one would be appointed for him at county expense. Pfeifer stated that he wanted to proceed without a lawyer. The court filed the information and read the charge to him in essentially the same language which we have set forth above. The court again told Pfeifer that he was charged with simple assault and informed him that it was a Class 1 misdemeanor.

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Pfeifer stated that he understood the charge.

Pfeifer was asked if he had been in the courtroom when another defendant, Mr. Odom, was advised of his constitutional and statutory rights. The court had informed Odom that he had the right to represent himself in person and to be represented by a lawyer. He had the right to a speedy public trial, to have compulsory process served to obtain witnesses, and to confront and question the witnesses. If he entered a plea of not guilty, he would be presumed innocent, the burden would be on the State to prove the charge beyond a reasonable doubt, and he could be convicted only by a unanimous jury verdict. The entry of a guilty plea waived all of these constitutional and statutory rights. The court also informed Odom of certain driving-related consequences that would stem from a conviction for driving under the influence of alcohol, although this particular instruction had no direct bearing on Pfeifer's case. Pfeifer stated that he heard the rights explained to Odom and had no questions about them.

At the court's request, Pfeifer described the disagreement with his wife that gave rise to the assault charge. Pfeifer said he locked the door to their house because their older children were staying out too late. His wife disagreed and unlocked the door, and he relocked it. According to Pfeifer, "She went to unlock it again and I hit her." Based on Pfeifer's description of the events, the court found that the plea had been voluntarily given and that there was a factual basis for the charge contained in the information. The court accepted the guilty plea and found Pfeifer guilty as charged.

Both before and after his 1985 conviction, Pfeifer used firearms regularly for hunting, guide work, and as part of his work as a butcher. The simple assault conviction had no impact on his ability to possess firearms until eleven years later when Congress enacted 18 U.S.C. § 922(g)(9), which states: "It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence ... to possess in or affecting commerce, any firearm."

Although the record indicates that Pfeifer knew through various sources of the new law's applicability to him, he nonetheless went hunting with a rifle on November 10, 2001. He was subsequently charged with violating § 922(g)(9) and another subsection of § 922. The government later dismissed the second charge as part of a plea agreement under which Pfeifer conditionally pleaded guilty to violating § 922(g)(9). The conditional nature of the guilty plea meant that Pfeifer could raise the appeals now before this court.


Pfeifer argues that his conviction under 18 U.S.C. § 922(g)(9) should be reversed because he did not knowingly and intelligently waive the right to counsel in the predicate misdemeanor proceeding, as required by 18 U.S.C. § 921(a)(33). We review de novo the district court's refusal to dismiss an indictment based on its interpretation of a federal statute. United States v. Smith, 171 F.3d 617, 619 (8th Cir. 1999).

In 1996, Congress enacted § 922(g)(9), which states: "It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence ... to possess in or affecting commerce, any firearm." In defining the term "misdemeanor crime of domestic violence," § 921(a)(33)(B)(i) provides that an earlier misdemeanor conviction shall not count as a predicate offense for purposes of § 922(g)(9) unless the defendant "was represented

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by counsel in the case, or knowingly and intelligently waived the right to counsel in the case."

The courts that have addressed the issue directly have interpreted § 921(a)(33)(B)(i) as creating a legal definition to be decided by the court as a matter of law rather than by a jury as an element of the crime. See United States v. Hartsock, 347 F.3d 1, 7 (1st Cir. 2003) (holding that absence of waiver is an affirmative defense); United States v. Akins, 276 F.3d 1141, 1145 (9th Cir. 2002) (same). The First Circuit is the only appellate court to have considered the allocation of the burden of proof on this issue. See Hartsock, 347 F.3d at 8-9 (concluding that the defendant bears both the burden of production and burden of persuasion). The proper allocation of the burden of proof was not discussed by the parties in the instant case and does not affect the outcome.

In considering whether a defendant knowingly and intelligently waived counsel for purposes of § 922(g)(9) and § 921(a)(33)(B)(i), courts generally have applied the same principles that are used when analyzing waiver of counsel under the Sixth Amendment. See, e.g., 171 F.3d 617 at 621-22 (8th Cir. 1999); United States v. Jennings, 323 F.3d 263, 275-76 (4th Cir.) cert. denied, --- U.S. ----, 124 S.Ct. 531, 157 L.Ed.2d 412 (2003). In particular, "any waiver of the right to counsel must be knowing, voluntary, and intelligent." Iowa v. Tovar, --- U.S. ----, ----, 124 S.Ct. 1379, 1387, 158 L.Ed.2d 209 (2004). A waiver is intelligent only if the defendant is "made aware of the dangers and disadvantages of self-representation" at the time of the waiver, "so that the record will establish that he knows what he is doing and his choice is made with eyes open." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (internal citation omitted). During the pretrial stages of the criminal process, less vigorous warnings are typically adequate because "the full dangers and disadvantages of self-representation ... are less substantial and more obvious to an accused than they are at trial." Tovar, --- U.S. at ----, 124 S.Ct. at 1382. Throughout the waiver inquiry, "[c]ourts must consider the particular facts and circumstances surrounding each case, including the background, experience, and conduct of the accused." Moore v. United States, 178 F.3d 994, 998 (8th Cir. 1999).

This court has considered the waiver issue in the context of a § 922(g)(9) offense on one other occasion. In Smith, 171 F.3d at 619, the defendant was charged with simple misdemeanor assault following a 1994 incident involving the mother of his child. The Iowa state court appointed counsel to represent the defendant, but counsel did not appear at the defendant's plea hearing. The state court asked the defendant if he wanted to go forward at the plea hearing despite counsel's absence. The defendant agreed, signed a written waiver form, and proceeded with a proposed plea agreement. Two years later, the defendant conditionally pleaded guilty to violating § 922(g)(9), with the 1994 conviction acting as the predicate domestic violence offense. The defendant argued on appeal that he had not knowingly and intelligently waived his right to counsel in the predicate offense. We rejected his argument, holding:

The evidence of Smith's written waiver, coupled with his prior invocation of his right to appointed counsel, and the acceptance of his waiver by the Iowa magistrate who took his plea, sufficiently show, and allow us to conclude as a matter of law, that Smith voluntarily and knowingly waived his right to counsel

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at the plea hearing for purposes of § 921(a)(33)(B).

Id. at 622.


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