U.S. v. Smith

• Decision Date: 16 May 1997
• Docket Number: No. CR 96-2140.,CR 96-2140.
• Citation: 964 F.Supp. 286
• Parties: UNITED STATES of America, Plaintiff, v. William Maurice SMITH, Defendant.
• Court: U.S. District Court — Northern District of Iowa

964 F.Supp. 286

UNITED STATES of America, Plaintiff, v. William Maurice SMITH, Defendant.

No. CR 96-2140.

United States District Court, N.D. Iowa, Eastern Division.

May 16, 1997.

COPYRIGHT MATERIAL OMITTED

Thomas G. Lininger, Asst. U.S. Attorney, Cedar Rapids, IA, for Plaintiff, U.S.

Thomas P. Frerichs, Frerichs Law Office, P.C., Waterloo, IA, Carter H. Stevens, Beecher Law Firm, Waterloo, IA, for Defendant, William Maurice Smith.

OPINION and ORDER

MELLOY, Chief Judge.

This matter is before the Court on Defendant's Motion to Dismiss (doc. # 19), filed January 21, 1997. Defendant was charged on December 11, 1996 with four counts of firearm violations. A superseding indictment was filed on February 21, 1997, stating:

Count 1: The defendant possessed a firearm, after he had been convicted of a misdemeanor crime of domestic violence, in violation of Title 18, United States Code, Section 922(g)(9).

Count 2: The defendant knowingly made false and fictitious written statements to a licensed gun dealer in connection with the purchase of a firearm, in violation of Title 18, United States Code, Section 922(a)(6).

Count 3: On November 15, 1996, the defendant, who was then under indictment for a crime punishable by imprisonment for a term exceeding one year, did knowingly receive a firearm, this in violation of Title 18, United States Code, Section 922(n).

The indictment stems from an incident on November 17, 1996, when Defendant shot Lauralee Smith, his wife and mother of his child. Previously, Defendant had been convicted of misdemeanor assault against Lauralee in 1994. Despite the fact that Defendant could have been charged under Iowa's newly enacted domestic assault statute, Defendant was charged under Iowa Code section 708.1, simple assault, for the 1994 incident. Defendant plead guilty to the simple assault charge.

Defendant provides four basis for his first Motion to Dismiss: 1) the Iowa statute for simple assault, to which Defendant plead guilty, does not have as elements the use of force or the attempted use of force, and the existence of a domestic relationship as required by 18 U.S.C. § 921(a)(33); 2) section 921(a)(33) is unconstitutionally vague; 3) Counts 2, 3, and 4 of the original indictment are multiplicitious; 4) Defendant was not indicted in Colorado for sexual assault when he purchased a gun and his plea agreement did not provide for punishment of a term of imprisonment to last longer than one year, thus Defendant could not have been in violation of the section 922(n)¹ as charged in Count 3.

DISCUSSION

Elements of Prior Conviction

Use of Force

Count I charges Defendant with violating 18 U.S.C. § 922(g)(9) which states in part:

It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Section 921(a)(33) defines "misdemeanor crime of domestic violence" as an offense that is a misdemeanor under Federal or State law that

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, 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.

Defendant was convicted in 1994 of assault under Iowa Code section 708.1 which provides that a person commits assault if he or she does any of the following:

1) Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.

2) Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

3) Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.

Defendant argues that his 1994 assault conviction cannot be a "misdemeanor crime of domestic abuse" under section 921(a)(33) because section 708.1 does not have as an element the use of or attempted use of physical force because it can be violated in a nonviolent manner.²

Courts have faced this issue in the context of enhanced penalty and career offender statutes. For example, 18 U.S.C. § 924(e)(2)(B)(i) and U.S.S.G. § 4B1.2(1)(i) require predicate offenses that constitute a "violent felony."³ In cases where the state statute allows the predicate offense to be committed in either a violent or a non-violent manner, courts may go beyond the fact of conviction of the predicate offense to determine whether that offense falls within the federal statute's definition of "violent felony." United States v. Wright, 957 F.2d 520, 522 (8th Cir.1992); citing Taylor v. United States, 495 U.S. 575, 591, 110 S.Ct. 2143, 2154, 109 L.Ed.2d 607 (1990) (where section 924(e)(2)(B)(ii)'s inclusion of burglary as a violent felony could be committed in either violent or non-violent means pursuant to state statute, court may "go beyond mere fact of conviction" and examine the indictment or information and jury instructions to determine whether prior conviction constituted section 924(e)(2)(B)(ii) burglary). The U.S. v. Wilson, 951 F.2d 586 (4th Cir.1991) court held that, because a robbery conviction required the taking of property "by force and violence, or by intimidation," the use or threatened use of force is an element of robbery, and a conviction of robbery was a conviction of a violent felony for purposes of section 4B1.2(1). Wright, 957 F.2d at 521. However, the court noted that when an offense can be committed without violence, the court may examine the underlying facts of the offense. Id. at 522.

The documents to which a court may look for underlying facts vary depending on whether the prior conviction involved a jury trial or a plea bargain. When a defendant was convicted by a jury, the court looks to the charging instrument and the jury instructions. Taylor, 495 U.S. at 602, 110 S.Ct. at 2160. However, when a defendant enters a guilty plea to the predicate offense, the court may broaden its scope of investigation. Taylor, 932 F.2d at 708-09. Exactly what documents should be examined by a court to determine the underlying facts is not settled. See e.g., United States v. Bonat, 106 F.3d 1472, 1476 (9th Cir.1997) (indictment, judgment of conviction, signed guilty plea, and "documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes" considered proper documents); United States v. Adams, 91 F.3d 114 (11th Cir. 1996) (court looked to "easily produced and evaluated court documents" to determine whether prior crime was "violent felony" where defendant entered a guilty plea); United States v. Palmer, 68 F.3d 52, 59 (2nd Cir.1995) (same).

Defendant argues that Taylor and its progeny are inapplicable to this analysis because they all involved felony predicate offenses. In Iowa, no record is made of misdemeanor proceedings. Thus, Defendant contends, there exists no record from which the Court can determine the underlying facts of the offense to which Defendant pled guilty. Specifically, the Court cannot ascertain which facts listed in the charging instrument were admitted by Defendant. While this is a valid concern, especially in cases where only the charging document is available, a defendant can be allowed to present evidence to establish that the offense to which he plead guilty differed from the offense described in the charging document.

The Court finds instructive the analysis under section 924(e)(1) noted in United States v. Hudspeth, 42 F.3d 1015 (7th Cir. 1994). To determine whether a defendant had committed three prior convictions that resulted from acts "committed on occasions different from one another ...", the court must ascertain whether each of the prior convictions arose out of a "separate and distinct criminal episode." Id. at 1019. After the government has established that the defendant has three prior violent felony convictions, "[t]he burden then shifts to the defendant to establish by a preponderance of the evidence that the prior convictions occurred on a single `occasion,' and thus cannot be the basis for sentence enhancement." Id. at 1019 n. 6.

Taylor warns of detailed and time-consuming examinations of the underlying facts of the predicate offense. Taylor, 495 U.S. at 601, 110 S.Ct. at 2159-60. However, allowing the defendant the opportunity to challenge the Government's evidence does not have to become a wide ranging probe.

In Defendant's case, the Court can look to the charging instrument to determine whether Defendant committed a "misdemeanor crime of domestic violence" as defined in section 921(a)(33).

The Complaint filed in Defendant's 1994 assault case provided:

That on 09-13-94, at approximately 1230 hours, said Defendant did approach the victim, Lauralee Lorenson, while she was at work, at the Western Home, in Cedar Falls. That there was a verbal dispute as a result of this contact. That during the course of the verbal dispute, said Defendant did grab the victim by the throat, and did also push her down, while keeping her from leaving the area of the elevator, which they were in, at the time of the dispute.

(Gov. ex. 3) A written statement provided by Defendant at his initial appearance confirmed the facts as provided in the Complaint. (Gov. ex. 4). Defendant pled guilty to assault, Iowa Code section 708.1. The Court does not doubt that grabbing a person by the throat, pushing...