U.S. v. Brown
| Decision Date | 31 October 2002 |
| Docket Number | No. TH 02-19-CR-01 T/L.,TH 02-19-CR-01 T/L. |
| Citation | 235 F.Supp.2d 931 |
| Parties | UNITED STATES of America, Plaintiff, v. Michael BROWN, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Timothy M. Morrison, United States Attorney Office, Indianapolis, IN, for Plaintiff.
William E. Marsh, Indiana Federal Community Defenders, Indianapolis, IN, for Defendant.
ENTRY ON DEFENDANT'S SECOND MOTION TO DISMISS
The grand jury charged Defendant Michael Brown in a two-count Indictment. The prosecution is based on the statutory scheme that is the centerpiece of federal firearms regulation, the Gun Control Act of 1968, 18 U.S.C. §§ 921-930, and both charges arise from a 1996 amendment (the "Lautenberg Amendment") to that statutory scheme. The Lautenberg Amendment added domestic violence misdemeanants to the list of persons who are prohibited from possessing or receiving firearms which have an interstate commerce nexus. Count One of the Indictment relates to the purchase of such a firearm (a Smith & Wesson .38 caliber pistol) in September of 2001. This count alleges that Mr. Brown committed a violation of 18 U.S.C. § 922(a)(6) by knowingly providing false information in connection with the purchase of the firearm on an ATF form 4473 by answering "No" to a question asking whether he had a prior conviction for a misdemeanor crime of domestic violence. Count Two of the Indictment charges Mr. Brown with possession of nine other firearms after having been convicted of a misdemeanor crime of domestic violence, an infringement of 18 U.S.C. § 922(g)(9). The Defendant moves for dismissal of both counts pursuant to Federal Rule of Criminal Procedure 12(b). This entry will first discuss the factual predicate for the motion and will then analyze the application of the law to the facts.
On June 7,1993, Mr. Brown pled guilty to a misdemeanor charge of Battery under Indiana law, the predicate offense for his federal Indictment.1 He was sentenced to a one year term in jail, suspended, with the exception of thirty days and a one year term of probation which included six months home detention and counseling. (Def.'s Br., Ct. Order.) As of the date of the sentencing, he had already served three days of incarceration, and under an Indiana sentencing credit formula (not relevant to the issues presented by this motion), this left twelve additional days of incarceration for him to serve. (Sentencing Tr. at 11.) Judge Dowd allowed Mr. Brown to serve that time on an intermittent basis on his days off from work.
The Defendant argues that he is not subject to the firearms disability imposed by 18 U.S.C. § 922(g)(9) because his prior conviction does not meet the definition of a misdemeanor crime of domestic violence as provided in 18 U.S.C. § 922(a)(33)(B)(ii). This statute exempts from its scope misdemeanants whose civil rights have been restored, and Mr. Brown contends he falls into that category.2 In response, the government denies the Defendant suffered a deprivation of his civil rights on account of his misdemeanor conviction, and so is ineligible for the civil rights restoration exception.
The determination of the Defendant's motion depends on the interplay of federal and Indiana state law. It appears that this challenge is a matter of first impression, and the evaluation of it is done cautiously in light of the important policies implicit in the Lautenberg Amendment. The federal and state statutes involved in this question present a murky essence, but in the end, appear to this court to lead to a clear, but somewhat surprising, result.
The court begins with the relevant exception to a misdemeanor crime of domestic violence contained in 18 U.S.C. § 921(a)(33)(B)(ii):
A person shall not be considered to have been convicted of such an offense [a misdemeanor crime of domestic violence] for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had his civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.
As the few other courts to have construed this section of the Lautenberg Amendment have noted, the statutory language implies an awareness on the part of Congress that while some states strip persons of their civil rights for some types of domestic violence misdemeanors, this practice is not universal.3 United States v. Wegrzyn, 305 F.3d 593, 2002 WL 31190150, at 593-96 n. 3 (6th Cir.2002). At the same time, Congress intended to give the states a measure of influence over the coverage of the federal law through control over their own laws governing forfeiture and restoration of a misdemeanant's civil rights. See United States v. Smith, 171 F.3d 617, 625 (8th Cir.1999).
The statute thus directs the court to ascertain whether, under Indiana law, the Defendant has had his civil rights restored.4 As the parenthetical phrase in the statute suggests, and logic would imply, restoration of civil rights can only occur in those jurisdictions which revoke these rights in the first place.
The question, then, is whether Indiana law first strips persons of, and later restores back to them, either their right to vote, serve on a jury, or hold public office upon conviction of a misdemeanor offense of domestic violence. The Defendant argues that it does and points to Indiana election laws to support this assertion. Indiana Code section 3-7-13-4 provides that a person convicted of a crime and imprisoned upon conviction is "deprived of the right of suffrage by the General Assembly pursuant to Article 2, Section 8 of the Constitution of the State of Indiana." The right to vote is reinstated by Indiana Code section 3-7-13-6: Accordingly, under these provisions Mr. Brown lost his right to vote during his imprisonment and regained it once his sentence was served.5 Similarly, Indiana law disqualifies a person from jury service if "(4) The person is under a sentence imposed for an offense." Ind.Code § 33-4-5-7(b). The Defendant was accordingly barred from jury service until the expiration of his sentence,6 at which point he no longer fit the definition of persons ineligible to serve on a jury. Thus, by implication, this right was restored to him. See Hampton v. United States, 191 F.3d 695, 699 (6th Cir.1999) (); United States v. Hall, 20 F.3d 1066 (10th Cir. 1994) (same). It would appear that Mr. Brown has articulated plausible arguments that both his right to vote and right to serve on a jury were lost and later restored, in which case he would qualify for the civil rights restoration exception. Nonetheless, serious consideration must be given to the government's counter arguments.
The government responds that a more careful reading of Indiana law and its interaction with federal law leads to the opposite conclusion as to both the right to vote and serve on a jury. The court first considers the government's argument concerning the right to vote. In this regard, the provision of the Indiana Code mandating the disenfranchisement of prisoners, Indiana Code section 3-7-13-4, cites to Article 2, Section 8 of the Indiana Constitution, which reads: "The General Assembly shall have the power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime." Ind. Const. art. II, § 8. An "infamous crime," moreover, is one punishable for a "term of years" in prison, see Taylor v. State Election Bd. of the State of Ind., 616 N.E.2d 380, 385 (Ind.Ct.App.1993), which means "more than one year," Wilson v. Montgomery County Election Bd., 642 N.E.2d 258, 261 (Ind.Ct.App.1994). Such a crime is generally referred to as a felony. Mr. Brown's prior state offense was a Class A misdemeanor, for which the maximum penalty is a maximum of one year imprisonment. Ind.Code § 35-50-3-2. It is thus not an infamous crime.
The government's brief seems to argue that the state constitutional provision restricts the General Assembly's power of disenfranchisement to persons convicted of infamous crimes, thus, the General Assembly exceeded its constitutional authority by prohibiting imprisoned misdemeanants, such as Mr. Brown, from voting. It was the court's impression from reading the government's brief that it contended that the Indiana legislature could not lawfully divest the Defendant of his right of suffrage, and, as a result, his right to vote did not need to be restored to him by operation of law. At oral argument, counsel for the government backed somewhat away from this position, indicating that the argument about the Indiana constitutional provision was made not so much to assert the legislature's limited authority, but rather, to show that the legislature intended only to disenfranchise imprisoned felons. In other words, the constitutional reference in the disenfranchisement statute requires it to be construed as only applying to felons serving terms of imprisonment because the statute incorporates the constitution's specification of infamous crimes.
There are several flaws in these lines of argument. First, it is not clear that Indiana Code section 3-7-13-4, as written, contravenes the Indiana Constitution. No Indiana court has passed on the constitutionality of the statute. And, the Indiana General Assembly, unlike Congress, is not limited to certain enumerated powers, see United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), but possesses general police powers, see generally Cent. Union Tel. v. Indianapolis Tel....
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