U.S. v. Pfeifer
| Decision Date | 24 May 2002 |
| Docket Number | No. CR 02-30028.,CR 02-30028. |
| Citation | 206 F.Supp.2d 1002 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert Lee PFEIFER, a/k/a Barney Pfeifer, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Mikal G. Hanson, Assistant United States Attorney, Pierre, SD, for Plaintiff.
Patricia A. Carlson, Carlson Law Office, Pierre, SD, for Defendant.
Defendant filed an alternative motion (Doc. 10) to dismiss or to suppress certain evidence. U.S. Magistrate Judge Moreno conducted an evidentiary hearing on May 6, 2002, and filed and served a report and recommendation (Doc. 23). The magistrate has by virtue of a letter of May 21, 2002, corrected two typographical errors in the report and recommendation, neither of which adversely impact either party. The Court has conducted a de novo review of the transcript of the hearing (Doc. 16) (which essentially is nothing more than oral arguments), the transcript of the arraignment of the defendant in state court on May 9, 1985, the transcript of the sentence hearing of June 6, 1985, and the presentence report, all in the same case in state court, the transcript of the arraignment and sentence hearing in the case of State of South Dakota v. Tom L. Odom, and finally all papers and documents in connection with a proceeding in state court seeking to expunge the prior criminal conviction involving the assault on the defendant's then wife.
Defendant has filed objections (Doc.27) to the recommendation of the magistrate and the objections have been considered. The facts of this case may present a certain amount of unfairness and overreaching. Congress makes those decisions, however, not the federal judiciary. The executive branch makes similar decisions. The current Attorney General, since taking office, has directed federal prosecutors to not plea bargain any case in which a charge has been made involving the use of a firearm in a crime of violence. The arguments of the defendant are clearly foreclosed by United States v. Smith, 171 F.3d 617 (8th Cir.1999) and the cases cited therein. What the Iowa Supreme Court may have held is of no legal significance in a criminal case in federal court in South Dakota.
The objections should be overruled, the alternative motion denied and the report and recommendation accepted. Now, therefore,
IT IS ORDERED that the alternative motion to dismiss or to suppress evidence in the nature of documents and records (Doc. 10) is hereby denied.
IT IS FURTHER ORDERED that the objections (Doc. 27) should be and are hereby overruled and the report and recommendation (Doc. 23) should be and is hereby adopted.
[¶ 1] Defendant, Robert Lee Pfeifer, a/k/a Barney Pfeifer (Pfeifer) filed an alternative Motion to dismiss the case or to suppress evidence on April 23, 2002. Plaintiff, United States of America (government) filed written responses to the Motion. A hearing was subsequently held on May 6, 2002, at which the parties stipulated that the Court could receive and consider the records on file in connection with Pfeifer's 1985 simple assault conviction in South Dakota state court (Haakon County Cr. No. 85-12). After lengthy oral argument, the Court took the Motion under advisement.
[¶ 2] Because Pfeifer's Motion is a dispositive one, the 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.
[¶ 3] In May, 1985, Pfeifer struck his wife, Diane Pfeifer, during a domestic dispute in the couple's home. He was charged with simple assault and thereafter pled guilty to this offense. On June 6, 1985, he received a 90-day suspended jail sentence.
[¶ 4] More than a decade and-a-half later, Pfeifer was charged federally with possessing a firearm after being convicted of a misdemeanor crime of domestic violence, 18 U.S.C. §§ 922(g)(9) and 924(a)(2), and with attempting to acquire a firearm from a licensed dealer by making a false written statement, 18 U.S.C. §§ 922(a)(6) and 924(a)(2). Pfeifer has pled not guilty to these two charges and was released, on conditions, pending trial.
[¶ 5] Following his arraignment and not guilty pleas, Pfeifer filed a Motion seeking to dismiss the charges against him or in the alternative to suppress evidence of his 1985 simple assault conviction. He claims that the conviction was not for a "misdemeanor crime of domestic violence" and that he was not "convicted" for purposes of both federal charges because he was not represented by counsel and did not knowingly and intelligently waive his right to counsel in his prior assault case. He also claims that prosecuting him for violating § 922(g)(9) would contravene the Ex Post Facto Clause found in Article I, § 9 of the United States Constitution and would subject him to "cruel and unusual punishment" under the Constitution's Eighth Amendment. Finally, he contends that any evidence relating to the 1985 conviction, including his unsuccessful attempt in 2000 to expunge the conviction, should, at a minimum, be suppressed and the government prohibited from using such evidence at trial, except for impeachment purposes.
[¶ 6] On September 30, 1996, the President signed into law, as part of the Omnibus Consolidated Appropriations Act of 1997, the Lautenberg Amendment to the Gun Control Act of 1968, 18 U.S.C. § 1921, et seq. This Amendment makes it "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...." 18 U.S.C. § 922(g)(9). 18 U.S.C. § 921(a)(33)(A) defines "misdemeanor crime of domestic violence" as an offense that (1) is a misdemeanor under federal or state law and (2) "has, as an element, the use or attempted use of physical force ... committed by a current or former spouse ... [or] by a person with whom the victim shares a child...." 18 U.S.C. § 924(a)(2) subjects persons who knowingly violate § 922(g)(9) to a fine, imprisonment or both.
[¶ 7] Pfeifer initially argues that his 1985 simple assault conviction cannot constitute the predicate offense for § 921(a)(33)(A) because the offense he was convicted of was not a "misdemeanor crime of domestic violence." Pfeifer was convicted in 1985 under SDCL 22-18-1 which, at the time, provided that a person was guilty of simple assault if he:
(1) Attempts to cause bodily injury to another, other than a law enforcement officer engaged in the performance of his duties, and has the actual ability to cause the injury;
* * * * * *
(5) Intentionally causes bodily injury to another which does not result in serious bodily injury.
A simple assault conviction under either of these subsections was then, and is still now, a Class 1 misdemeanor carrying a maximum penalty of a $1,000 fine, one year imprisonment in a county jail, or both the fine and the imprisonment. SDCL 22-18-1; 22-6-2.
[¶ 8] Pfeifer was charged with and pled guilty to an Information that alleged that on or about May 5, 1985, he did "wilfully and unlawfully, attempt to cause bodily injury to another, namely: Diane Pfeifer, and had the actual ability to cause the injury...." In his factual basis statement and again in his presentence interview with a court services officer, Pfeifer admitted that he hit his wife over a dispute involving their children.1
[¶ 9] Because the assault committed by Pfeifer clearly involved the use or attempted use of physical force, it qualifies as a "misdemeanor crime of domestic violence" within the meaning of § 921(a)(33)(A). United States v. Smith, 171 F.3d 617, 620-621 (8th Cir.1999). Having satisfied the predicate misdemeanor offense requirement found in § 922(g)(9) and § 922(a)(6) the government may move forward with its case against Pfeifer if, but only if, he was in fact "convicted" of the assault offense under federal law.
[¶ 10] Section 921(a)(33)(B)(i) provides that a person is not considered to have been "convicted" of a misdemeanor crime of domestic violence unless he "was represented by counsel in the case, or knowingly and intelligently waived [his] right to counsel. ..." Pfeifer, as already stated, pled guilty to the assault offense, but did so without benefit of counsel. At his May 9, 1985 arraignment, the following exchange occurred between Pfeifer and the state trial court:
(Information read.)
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