United States v. Guide

• Decision Date: 17 March 2017
• Docket Number: 4:15-CR-40114-01-KES
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. LER WAH GUIDE, Defendant.
• Court: U.S. District Court — District of South Dakota

UNITED STATES OF AMERICA, Plaintiff, v. LER WAH GUIDE, Defendant.

4:15-CR-40114-01-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

March 17, 2017

ORDER DENYING MOTION TO DISMISS

NATURE AND PROCEDURE OF CASE

Defendant, Ler Wah Guide, is charged with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(9). Guide has moved to dismiss the indictment arguing that his 2013 misdemeanor conviction for domestic abuse in Beadle County, South Dakota, does not qualify as a "misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33)(B)(i)(II). Docket 55. Guide specifically contends that he did not knowingly and intelligently waive his right to a jury trial when he pleaded guilty to the charges against him in Beadle County. Id. The court held an evidentiary hearing on Guide's motion on February 16, 2017. For the following reasons, the court denies Guide's motion to dismiss.

FACTS

Based on the testimony given and the exhibits introduced at the evidentiary hearing, the court finds the following facts by the greater weight of the evidence:

Guide is a permanent resident alien who immigrated to the United States from Myanmar (Burma) in 2006.¹ After immigrating to the United States, Guide eventually settled in Huron, South Dakota. Guide is a part of a minority ethnic group in Burma whose primary language is Karen.² Guide's schooling in Burma ended after he completed the fifth grade. The only language Guide can speak and read is Karen. Guide does not read or speak English.

On August 26, 2013, a complaint was filed against Guide for Simple Assault Domestic Abuse in Beadle County, South Dakota. Guide first appeared in court for this charge on September 4, 2013. At this hearing, the Beadle County Court appointed Jeffrey Burns to represent Guide and continued Guide's initial appearance.³ On September 18, 2013, Guide reappeared before the Beadle County court for his initial appearance. This hearing was continued for an additional two weeks at the request of Burns so Guide and Burns could meet with an interpreter present.

On the morning of October 2, 2013, Guide returned for his initial appearance. Guide met with Burns and an interpreter, Eh Mwee Pohto, prior tothe hearing. This meeting lasted for about eighteen minutes.⁴ Given Burns's normal practice, during this meeting he would have advised Guide of his right to a jury trial on his domestic abuse charge and discussed with Guide the consequences of pleading guilty, including the loss of the right to a jury trial.

The Beadle County court proceeded in its typical manner on October 2, 2013. First, the court was called to order around 9:00 a.m. Next, the Beadle County magistrate judge began the hearing by giving all of the defendants present a mass advisement of their rights. Finally, after the magistrate judge finished giving the mass advisement, the court began calling individual cases on the docket.⁵

Because the Beadle County court typically has a number of cases involving non-English speaking defendants, Spanish and Karen interpreters are present to translate the magistrate judge's mass advisement and interpret for individual cases.⁶ Prior to the start of a hearing, these interpreters identify the non-English speaking defendants present and direct them to the courtroom's jury box. Once in the jury box, these defendants are separated sothat the mass advisement can be translated in Spanish and Karen, respectively, as the magistrate judge gives it. The translators then assist with individual cases as needed.

Those defendants who speak and read Karen also receive a written advisement form from the interpreter. This form is translated from English to Karen and describes the rights that defendants have, such as the right to a speedy trial and the right to a jury trial. Karen defendants may read this form while the mass advisement is being translated and can keep the form to read after the mass advisement is finished. Karen defendants also have the opportunity to review the form with the interpreter after the magistrate judge finishes giving the mass advisement of rights. Karen defendants who wish to plead guilty must sign this form below the advisement indicating that the defendant has read their rights and understands those rights.

Guide was present and in the jury box with the other Karen speaking defendants during the magistrate judge's mass advisement on October 2, 2013. The advisement was orally translated from English to Karen by Pohto, who Guide knew personally. Guide also received the translated advisement of rights form from Pohto prior to the start of the hearing. Guide had the form, which he signed, for about twenty minutes before his case was called by the magistrate judge. Guide did not indicate to Pohto, Burns, or the magistrate judge that he did not understand his mass advisement or the rights contained in the form.⁷

Guide's case was called by the Beadle County court at 9:22 a.m. Guide appeared with Burns, who stated that Guide desired to plead guilty. During Guide's individual exchange with the magistrate judge, Guide orally acknowledged that he understood the maximum possible penalties associated with his misdemeanor domestic abuse charge. Burns then provided the court with Guide's signed advisement of rights form.⁸ After the court accepted Guide's guilty plea, the magistrate judge sentenced Guide to thirty-six days in prison, with thirty days suspended, and gave Guide a total fine of $525.00.

DISCUSSION

Guide argues that his 2013 misdemeanor conviction for domestic abuse does not qualify as a predicate "misdemeanor crime of domestic violence" under 18 U.S.C. § 921(a)(33).⁹ Docket 55. In support of his argument, Guide contends that the Beadle County court records from October 2, 2013, fail to establish that he knowingly and intelligently waived his right to a jury trial, as requiredby 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb), when he pleaded guilty to Simple Assault Domestic Abuse on October 2, 2013, in the Beadle County court. Id.

I. Standard for Waiver of Right to Jury Trial.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI. Criminal defendants, however, may waive their constitutional right to a jury trial. Adams v. United States ex rel. McCann, 317 U.S. 269, 275 (1942). "[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." Id. at 278. When evaluating the "unique circumstances" of a given case, courts may consider a number of factors that bear on the defendant's ability to understand the right to waive a jury trial and on a defendant's ability to understand discussions regarding the waiver of the right to a jury trial. See United States v. Leja, 448 F.3d 86, 93-94 (1st Cir. 2006) (compiling cases discussing some relevant factors in assessing the validity of a defendant's wavier of the right to a jury trial); Sowell v. Bradshaw, 372 F.3d 821, 831-36 (6th Cir. 2004) (evaluating the facts and circumstances surrounding the defendant's decision to sign a written waiver of the right to trial by jury in a death penalty case); United States v. Pfeifer, 371 F.3d 430, 434 (8th Cir. 2004) (taking into account a defendant's background, experience, and conduct when assessing the validity of a waiver of the right to counsel).

In defining the term "misdemeanor crime of domestic violence," under 18 U.S.C. § 921(a)(33), Congress has seemingly adopted the federal constitutional standard for waiving the right to a jury trial by providing:

(B)(i) A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] 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.¹⁰

18 U.S.C. § 921(a)(33) (emphasis added).

Three observations from federal courts regarding the analysis of challenges seeking to contest the validity of a waiver of the right to a jury trial are relevant to the court's disposition of Guide's motion to dismiss the indictment. First, federal courts addressing whether an individual knowingly and intelligently waived the right to a jury trial agree that the federal constitutional standard applies when evaluating the validity of the waiver. United States v. Williams, 559 F.3d 607, 613 (7th Cir. 2009); United States v. Frechette, 456 F.3d 1, 11 (1st Cir. 2006) (applying federal standard to assesswhether defendant knowingly and intelligently waived right to a jury trial under 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb)); cf. Pfeifer, 371 F.3d at 434 (applying federal standard to assess whether a defendant knowingly and intelligently waived the right to counsel under 18 U.S.C. § 921(a)(33)(B)(i)(I)). Second, federal courts have concluded that defendants bear the burdens of persuasion and production when claiming that there was a lack of a knowing and intelligent waiver. Williams, 559 F.3d at 613; Frechette, 456 F.3d at 12-13. Third, federal courts agree that no single constitutional requirement exists requiring that waivers of the right to counsel take a particular form. Williams, 559 F.3d at 610 (compiling cases and concluding that the waiver of the right to a jury trial can result from signed written waiver or result from an individual colloquy between the court and the defendant); Sowell, 372 F.3d at 834 (citing United States v. Martin, 704 F.2d 267, 274-75 (6th Cir. 1983)) (observing that "colloquies are not constitutionally required" and that "an...