U.S. v. Frechette

• Decision Date: 02 August 2006
• Docket Number: No. 05-2065.,No. 05-2129.,05-2065.,05-2129.
• Citation: 456 F.3d 1
• Parties: UNITED STATES of America, Appellant/Cross-Appellee, v. John FRECHETTE, Defendant, Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — First Circuit

456 F.3d 1

UNITED STATES of America, Appellant/Cross-Appellee, v. John FRECHETTE, Defendant, Appellee/Cross-Appellant.

No. 05-2065.

No. 05-2129.

United States Court of Appeals, First Circuit.

Heard May 5, 2006.

Decided August 2, 2006.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellant/cross-appellee.

John Paul DeGrinney, with whom De-Grinney Law Offices was on brief, for appellee/cross-appellant.

William S. Harwood, Valerie A. Wright, Verrill Dana, LLP, Dennis Henigan, Elizabeth Haile, and Brady Center to Prevent Gun Violence on brief for Brady Center to Prevent Gun Violence, Southern Maine Chapter of Million Mom March, Maine Citizens Against Handgun Violence, Maine Coalition to End Domestic Violence, National Council of Women's Organizations, Chief Mathew Baker, Chief Timothy Burton, Sheriff Mark Dion, Chief Edward Googins, Chief William Welch, and Chief Don Winslow, amici curiae.

Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

On October 16, 1996, John Frechette was convicted in state court in Lewiston, Maine, after pleading no contest to a charge that he had assaulted his then live-in girlfriend. This offense was a misdemeanor, see Me.Rev.Stat. Ann. tit. 17-A, § 207, and Frechette was sentenced to a jail term of thirty days, which was immediately suspended, and to a one-year term of probation.

In 1996 Congress passed, as part of the Omnibus Consolidated Appropriations Act of 1997, the Lautenberg Amendment to the Gun Control Act of 1968 ("the Amendment"), Pub.L. No. 104-208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996) (codified as amended at 18 U.S.C. §§ 921, 922, 925). See United States v. Hartsock, 347 F.3d 1, 4-5 (1st Cir.2003). The Amendment was intended, in part, to address the growing national recognition of the importance of deterring domestic violence. See id. at 5 (citing sources). It expressed Congress's recognition that firearms were frequently used in domestic violence attacks. See id.

Congress also recognized that there was a loophole in the law, which it moved to close. Although earlier law had restricted the possession of firearms by those convicted of domestic violence felonies, no such restrictions existed as to possession of firearms by persons convicted of domestic violence misdemeanors. See id. The Amendment eliminated this disparity. Under 18 U.S.C. § 922(g)(9), it is now unlawful for a person "who has been convicted in any court of a misdemeanor crime of domestic violence" to, inter alia, "possess in or affecting commerce, any firearm or ammunition." The statute defines "misdemeanor crime of domestic violence" as an offense that:

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A). This provision is subject to some affirmative defenses, two of which are described below and are involved in this appeal.

On February 9, 2005, a federal grand jury returned a superseding indictment charging Frechette with having "knowingly possessed in and affecting commerce a firearm, specifically a Phoenix Arms, .22 caliber pistol," in violation of 18 U.S.C §§ 922(g)(9) and 924(a).¹ There seems to be little dispute Frechette had a firearm; his main defense was that his misdemeanor domestic violence conviction did not count as a predicate offense within the meaning of the statute.

Frechette did not argue that his 1996 Maine offense was not a "misdemeanor crime of domestic violence," as defined at 18 U.S.C. § 921(a)(33)(A). Instead, he moved to dismiss the indictment on the basis that the 1996 offense did not count as a "conviction" within the meaning of 18 U.S.C. § 921(a)(33)(B)(i)(I) and (II), because it was secured without his having "knowingly and intelligently waived [both] the right to counsel," 18 U.S.C. § 921(a)(33)(B)(i)(I), and "the right to have the case tried by a jury," id. § 921(a)(33)(B)(i)(II).

The text of the affirmative defenses Frechette invoked provides:

(i) A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] for purposes of this chapter, unless —

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

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

Id. § 921(a)(33)(B)(i).

The statute also sets forth another affirmative defense, which is set out just below those already described. See id. § 921(a)(33)(B)(ii). That defense is not at issue here, but is pertinent to understanding the provisions that are at issue:

(ii) A person shall not be considered to have been convicted of such an offense 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 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.

Id.

In response to Frechette's motion to dismiss the indictment, the government entered into evidence a transcript of Frechette's October 16, 1996 state-court appearance on the assault charge. The transcript showed that the state court conducted a "mass arraignment," in which it brought a large group of defendants into the courtroom and advised them collectively about their rights. Frechette does not dispute that he was among that group of defendants.

Among other things, the court informed Frechette and the others that they had the right to a jury trial:

Now here are your rights. Since you're here on a criminal charge, I want to advise you, first and foremost, that you're all presumed innocent until proven guilty. Under our system of justice, and the state and federal constitution[s], you are entitled to a trial by judge or jury. You are entitled to have the State, and by the State, I mean the law enforcement agency that has arrested you and charged you with a crime, to come to court and prove their case to a judge or jury....

The court also informed the group of defendants that each of them had the right to counsel:

The third right and the last right that I want to explain to everybody is your right to an attorney. If any of you are here and there is a probability or a possibility that you could be facing jail if you are convicted of the crime that you are being charged with here, I would advise you to get a lawyer or get legal advice. Also, if you can't afford a lawyer, depending on your financial circumstances, you can ask me to appoint a lawyer at the State expense for you. Here's how that happens. You let me know. I'm obviously going to let you know how serious the offense is and you are going to be asked about whether you are going to represent yourself, hire a lawyer, or ask for a court appointed lawyer. If you ask for a court appointed lawyer, you're gonna be screened this morning by a financial screening officer who will interview you and decide whether you meet the guidelines for a court appointed lawyer. If you meet the guidelines, a lawyer will be appointed who practices within our jurisdiction here. . . . If you don't qualify, that means you will have to hire your own lawyer or represent yourself. Please understand the case doesn't go away because you don't get a court appointed lawyer. You still have to face the charges. . . .

Finally, the court explained to the group that each defendant could enter one of three pleas, and that each would waive the rights to a trial and to counsel by pleading "guilty" or "no contest":

I am going ask you to enter one of three pleas: Guilty, Not Guilty, No Contest. Guilty means what it says. It means that you will end up saying "I'm Guilty" — you admit the charge and we will impose a sentence this morning. If you plead Not Guilty, you are asking for a trial and I will give you a date for your trial. If you plead No Contest that means that you don't want to plead Guilty, but you don't want a trial and you want to dispose of the matter and you want to get rid of it today. There is still a conviction. In other words, I make a finding of guilt. The only difference is that you haven't pled guilty, you're still convicted without a trial. Those of you who plead Guilty and those of you who plead No Contest waive your right to a trial. Obviously, you're not going to have a trial. You waive your right also to get the advice of a lawyer, so please understand those consequences before you decide to plead Guilty. . . .

. . . .

Now if you plead Not Guilty you'll get a date for trial — I told you that. Then we're going to hand you three pieces of paper . . . . Page One is your ticket to a jury trial. Since it's a criminal offense, you have a right to say, "I want a jury trial instead of a judge trial." The reason you're in district court is because all of you are here on Class D and E crimes.... If you want a jury trial, you take the first piece of paper that is handed to you this morning and within three weeks of today's date, sign it and bring it to the clerk in the lobby.... If that happens, your case is transferred across the river and...