U.S. v. Medicine Eagle
| Decision Date | 21 May 2003 |
| Docket Number | No. CR 02-30122.,CR 02-30122. |
| Parties | UNITED STATES of America, Plaintiff, v. Gabriel D. MEDICINE EAGLE, Jr., Defendant. |
| Court | U.S. District Court — District of South Dakota |
Jeffrey C. Clapper, Assistant United States Attorney, Pierre, SD, for Plaintiff.
Edward G. Albright, Assistant Federal Public Defender, Pierre, SD, for Defendant.
The defendant filed a motion (Doc. 23) to dismiss the indictment. The plaintiff filed a written response. U.S. Magistrate Judge Moreno conducted a hearing on April 23, 2003, at which hearing the parties submitted supplemental legal memorandums. The magistrate filed and served a report and recommendation (Doc. 39). Defendant has filed objections (Doc. 40).
The court has now conducted a de novo review of all the files and records herein, including those documents contained within Document 38. The report and recommendation should be adopted. The efforts of the defendant to frustrate the court in trying to determine the truth of the matter should be rejected. The question before the court is largely a legal matter and this court agrees with the legal conclusions set forth in the report and recommendation. The motion to dismiss should be denied and the objections should be overruled. Now, therefore,
IT IS ORDERED, as follows:
1) The motion to dismiss (Doc. 23) is denied.
2) The report and recommendation (Doc. 39) is adopted.
3) The objections (Doc. 40) of the defendant are overruled.
On April 8, 2003, Defendant, Gabriel D. Medicine Eagle, Jr. (Defendant), moved to dismiss the Indictment. Six days later, Plaintiff, United States of America (Government) filed a written response to Defendant's Motion to Dismiss. A hearing was subsequently held on April 23, 2003, at which the parties were allowed to submit supplemental memoranda.
Because Defendant's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following Report and Recommendation for disposition of the Motion.
Defendant is charged by Indictment with four firearm offenses in violation of 18 U.S.C. §§ 922(g)(8), 922(g)(9) and 924(a)(2). The Indictment alleges that between January 1, 2001 and January 22, 2001, in Tripp County, South Dakota, Defendant knowingly possessed firearms, which had been shipped and transported in interstate commerce, while being subject to a valid court ordered restraining order (Counts I and III) and after being convicted of a misdemeanor crime of violence (Counts II and IV). The restraining order referred to in Counts I and III of the Indictment is a domestic protection order that was issued by a state court in South Dakota on April 10, 2000. The misdemeanor domestic violence offense mentioned in Counts II and IV of the Indictment is a disorderly conduct conviction that occurred on March 31, 2000 in South Dakota state court.
In his Motion to Dismiss, Defendant claims that the state protection order does not satisfy the requirements of § 922(g)(8) and that his disorderly conduct conviction is not a "misdemeanor crime of domestic violence" and therefore cannot serve as a predicate offense for the two § 922(g)(9) charges. As is discussed in more detail below, Defendant's claims are without merit and as such, his Motion should be denied in all respects.
Section 922(g)(8) prohibits a person subject to a domestic violence restraining order from possessing firearms. The statute reads, in pertinent part, as follows:
It shall be unlawful for any person—
(8) Who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury....
Defendant contends that the April 10, 2000 protection order does not satisfy the requirements of § 922(g)(8) because the state court did not make the necessary findings and conclusions that he and the petitioner in that case, Mondae L. Medicine Eagle, were "family or household members", that domestic abuse had occurred and that he had actual notice of the hearing and an opportunity to participate. A close examination of the protection order, however, shows that the order complies with § 922(g)(8) and in particular, subparts (A), (B) and (C)(ii) thereof.
At the outset, the order of protection was entered against Defendant thereby making him "subject to a court order." In addition, the protection order plainly states that Defendant was personally present at the hearing, that he waived further hearing and that he stipulated to the entry of the order and to its terms and conditions. Subpart (A), therefore, was adhered to because Defendant had notice of the hearing and actually appeared at and participated in the same. Subparts (B) and (C)(ii) were likewise satisfied by the state court's directives in the order that:
The Respondent [Defendant] shall be restrained from committing any acts resulting in physical harm, bodily injury, or attempting to cause physical harm or bodily injury, or from inflicting fear of imminent physical harm of bodily injury against family or household members, SDCL 25-10-1.
The Court finds and concludes that the protection order falls within the prohibitions of § 922(g)(8) and that Defendant's contentions to the contrary must fail.
Section 922(g)(9) makes it unlawful for any person "... who has been convicted in any court of a misdemeanor crime of violence to ... possess in or affecting commerce, any firearm...." As relevant here, "misdemeanor crime of domestic violence" is defined as a misdemeanor under state law that:
Has, as an element, the use or attempted use of physical force ... committed by a current or former spouse ... of the victim by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse ..., or by a person similarly situated to a spouse ... of the victim.
18 U.S.C. § 921(a)(33)(A)(ii).
Defendant was convicted in state court of the misdemeanor offense of disorderly conduct in violation of SDCL 22-13-1(1)1 on March 31, 2000. Defendant argues that his disorderly conduct conviction is not a "misdemeanor crime of domestic violence" because it does not include, as an element, "the use or attempted use of physical force." He points out that under South Dakota law, the disorderly conduct offense he was convicted of can be committed in ways that do not involve the use of physical force. He maintains that this ambiguity is fatal and requires dismissal of Counts II and IV of the Indictment. Defendant's argument turns in large part on whether it is permissible to look beyond the predicate offense to the underlying acts in order to determine whether the element of physical force is present within the meaning of § 921(a)(33)(A)(ii).
The Court agrees with Defendant that § 22-13-1(1) is broad enough to be violated without "the use or attempted use of physical force." See State v. Rocky Mountain, 449 N.W.2d 257, 259 (S.D.1989) (). Nevertheless, the Court is satisfied that Defendant was convicted of a "misdemeanor crime of domestic violence" for purposes of § 922(g)(9).
In the context of the enhanced sentencing provisions of the Armed Career Criminals Amendment Act of 1986, codified at 18 U.S.C. § 924(e), the United States Supreme Court held that, in determining whether a prior offense is a felony for enhancement purposes, the sentencing court should ordinarily limit itself to the fact of conviction and the statutory definition of the prior offense. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Recognizing, however, that some statutes contain a single section covering multiple crimes, some of which are "violent" and some of which are not, the Supreme Court allowed the sentencing court to look to the indictment or information and jury instructions to ascertain whether the defendant was convicted of a "violent" felony or some other type of offense. Id.; see also United States v. Spell, 44 F.3d 936, 939-40 (11th Cir.1995) (); United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994) (); United States v. Smith, 10 F.3d 724, 733-34 (10th Cir.1993) (). Courts have also looked at charging papers, judgments of conviction, plea agreements, statements by the defendant for the record, pre-sentence reports adopted by the court, findings by the court and other court documents. See United States v. Shepard 231 F.3d 56, 65-70 & n. 10 (1st Cir.2000), cert, denied 534 U.S. 829, 122 S.Ct. 72, 151 L.Ed.2d 37 (2001); United States v. Kirksey, 138 F.3d 120, 125-26 (4th Cir.), cert,...
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