United States v. DeFrance
| Decision Date | 29 December 2021 |
| Docket Number | CR 21-29-M-DLC |
| Parties | UNITED STATES of America, Plaintiff, v. Michael Blake DEFRANCE, Defendant. |
| Court | U.S. District Court — District of Montana |
Jennifer S. Clark, U.S. Attorney's Office, Missoula, MT, for Plaintiff.
Michael Donahoe, Public Defender, Federal Defenders of Montana, Helena, MT, for Defendant.
Before the Court are Defendant Michael Blake DeFrance's Motion to Dismiss Indictment for Lack of Specificity and Failure to State an Offense (Doc. 14), Motion to Dismiss Indictment Because Montana PFMA (§ 45-5-206 (2011)) is Indivisible and an Unconstitutional Noncategorical Version of 18 U.S.C. § 921(a)(33)(A)(ii) (Doc. 16), and Third Motion to Dismiss Superseding Indictment (Doc. 43). The Court will deny each of these motions to dismiss.1
On July 28, 2021, the United States charged Mr. DeFrance with one count of prohibited person in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(9). (Doc. 2.) Specifically, the Indictment alleged:
That on or about June 27, 2018 and October 2, 2018, at Missoula, in Missoula County, in the State and District of Montana, the defendant, MICHAEL BLAKE DEFRANCE, knowing he had been convicted on or about May 6, 2013, of a misdemeanor crime of violence under the laws of the State of Montana, knowingly possessed, in and affecting interstate commerce, firearms and ammunition, in violation of 18 U.S.C. § 922(g)(9).
(Id. at 1–2.)
On August 13, 2021, Mr. DeFrance moved to dismiss the indictment under Rule 12(b)(3)(B)(iii) and (v) of the Federal Rules of Criminal Procedure for lack of specificity and failure to state an offense. (Doc. 14.) On August 18, 2021, Mr. DeFrance filed a second motion to dismiss the indictment on the grounds that Montana's Partner and Family Member Assault statute ( Mont. Code Ann. § 45-5-206 ) is indivisible and an unconstitutional noncategorical version of 18 U.S.C. § 921(a)(33)(A)(ii). (Doc. 16.)
On August 26, 2021, the United States filed a Superseding Indictment, which charged Mr. DeFrance with one count of prohibited person in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(9). (Doc. 21.) The Superseding Indictment alleged:
That on or about June 27, 2018, and October 2, 2018, at Missoula, in Missoula County, in the State and District of Montana, the defendant, MICHAEL BLAKE DEFRANCE, knowing he had been convicted on or about May 6, 2013, of a misdemeanor crime of domestic violence under the laws of the State of Montana, which meets the definition of a misdemeanor crime of domestic violence under 18 U.S.C. § 921(a)(33)(A)(i) and (ii), knowingly possessed, in and affecting interstate commerce, firearms and ammunition, in violation of 18 U.S.C. § 922(g)(9).
(Id. at 1–2.)
The Court held a hearing on the first and second motions to dismiss on September 13, 2021. (Doc. 39.) On September 17, 2021, Mr. DeFrance filed a third motion to dismiss the indictment on the grounds that the elements of the offense are too vague to provide sufficient definiteness that ordinary people can understand what is prohibited and fail to provide adequate standards for those who apply the law. (Doc. 43 at 3.)
On October 21, 2021, the United States filed a Second Superseding Indictment. (Doc. 55.) The Second Superseding Indictment charged the prohibited person in possession of firearms and ammunition offense as Count I and alleged:
That on or about and between October 3, 2016, and October 2, 2018, at Missoula, in Missoula County, in the State and District of Montana, the defendant, MICHAEL BLAKE DEFRANCE, knowing he had been convicted on or about May 6, 2013, of a misdemeanor crime of domestic violence under the laws of the State of Montana, which meets the definition of a misdemeanor crime of domestic violence under 18 U.S.C. § 921(a)(33)(A)(i) and (ii), knowingly possessed, in and affecting interstate commerce, firearms and ammunition, in violation of 18 U.S.C. § 922(g)(9).
(Id. at 2.) Aside from setting forth an earlier date for the start of the alleged offense, the allegations are substantively identical to those in the Superseding Indictment. The Second Superseding Indictment further charges three counts of false statement during a firearms transaction, in violation of 18 U.S.C. § 922(a)(6), as Counts II–IV. (Id. at 2–4.) Counts II–IV allege that on three separate occasions in 2018, Mr. DeFrance knowingly made a false or fictitious written statement that he had not been convicted in any court of a misdemeanor crime of domestic violence in connection with his acquisition and attempted acquisition of a firearm. (Id. ) On November 24, 2021, Mr. DeFrance renewed his first, second, and third motions to dismiss so that the Court would consider them applicable to the Second Superseding Indictment. (Doc. 65.)
Rule 12 of the Federal Rules of Criminal Procedure authorizes a defendant to move to dismiss an indictment for lack of specificity and for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(iii), (v).
A motion to dismiss for lack of specificity requires a court to review an indictment "in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied." United States v. Berger , 473 F.3d 1080, 1103 (9th Cir. 2007) (quoting United States v. King , 200 F.3d 1207, 1217 (9th Cir. 1999) ). The test is not "whether [the indictment] could have been framed in a more satisfactory manner, but whether it conforms to the minimal constitutional standards." United States v. Awad , 551 F.3d 930, 935 (9th Cir. 2009) (quoting United States v. Hinton , 222 F.3d 664, 672 (9th Cir. 2000) ). An indictment meets constitutional and procedural muster if it "state[s] the elements of the offense charged with sufficient clarity to apprise a defendant of the charge against which he must defend and enable him to plead double jeopardy." Hinton , 222 F.3d at 672.
Furthermore, as long as the applicable statute clearly sets out the crime's essential elements, "[t]he use of a ‘bare bones’ information—that is one employing the statutory language alone—is quite common and entirely permissible" in the Ninth Circuit. United States v. Woodruff , 50 F.3d 673, 676 (9th Cir. 1995) (quoting United States v. Crow , 824 F.2d 761, 762 (9th Cir. 1987) ). Consequently, "the language of the statute may be used in the general description of an offence," as long as it is "accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence ... with which he is charged." Hamling v. United States , 418 U.S. 87, 117–18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
On a motion to dismiss for failure to state an offense, "the district court is bound by the four corners of the indictment." United States v. Boren , 278 F.3d 911, 914 (9th Cir. 2002). Distinguished from pre-trial motions to dismiss premised on other grounds—where the court may take evidence and make factual determinations—the court considering a motion for failure to state an offense "must accept the truth of the allegations in the indictment[.]" Id. "The indictment either states an offense or it doesn't." Id. To ensure that "the respective provinces of the judge and jury are respected," a Rule 12(b)(3)(B)(v) motion to dismiss "cannot be used as a device for a summary trial of evidence." Id. (quoting United States v. Jensen , 93 F.3d 667, 669 (9th Cir. 1996) ). To that end, "[t]he Court should not consider evidence not appearing on the face of the indictment." Id. (quoting Jensen , 93 F.3d at 669 ).
Mr. DeFrance's motion (Doc. 14), which was filed before the Superseding Indictment was filed, contends that (1) the Indictment "fails to specify in any detail whatsoever the domestic relationship element required to be alleged in a § 922(g)(9) prosecution[,]" and (2) the Indictment "does not include the status allegations required by Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019)." (Doc. 14 at 3.)
After the Superseding Indictment was filed, the United States responded to Mr. DeFrance's motion by arguing (1) the motion to dismiss for lack of specificity regarding the relationship element of § 922(g)(9) was mooted by the Superseding Indictment, and (2) both the Indictment and Superseding Indictment allege that Mr. DeFrance knew he had been convicted of a misdemeanor crime of domestic violence and knowingly possessed a firearm. (Doc. 25 at 6–8.)
In reply, Mr. DeFrance argued that the Superseding Indictment does not allege any facts to support the allegation that his state conviction meets the definition of a misdemeanor crime of domestic violence under 18 U.S.C. § 921(a)(33)(A), particularly because the relationship elements of Montana's PFMA and 18 U.S.C. § 921(a)(33)(A) are not identical. (Doc. 31 at 2–6.) These purportedly missing facts are key, Mr. DeFrance asserts, because the government must prove he knew he was "covered by the relevant category of relationship under the federal statute." (Id. at 4.)
As discussed above, Count I of the Second Superseding Indictment is substantively identical to the Superseding Indictment except to the extent that it alleges an earlier beginning date for the start of the offense. The Second Superseding Indictment states the elements of the § 922(g)(9) offense with sufficient particularity to apprise Mr. DeFrance of the charge against which he must defend. Hinton , 222 F.3d at 672. The statute makes it a crime "for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence" to possess any firearm or ammunition in or affecting interstate or foreign commerce. 18 U.S.C. § 922(g)(9). The statute defines a "misdemeanor crime of domestic violence" as "an offense that ... is a misdemeanor under Federal, State, or Tribal law" and "has,...
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United States v. Defrance
...is confined by the plain text of the statute to the relationship as it existed at the time of the predicate domestic violence offense. Id. at 1104-05. Neither party contended or presented evidence that, at the time of the PFMA on April 13-14, 2013, DeFrance was Charlo's spouse or former spo......