United States v. Hartsock, Crim. No. 02-60-B-S (D. Me. 1/31/2003), Crim. No. 02-60-B-S.
| Decision Date | 31 January 2003 |
| Docket Number | Crim. No. 02-60-B-S. |
| Parties | UNITED STATES OF AMERICA, v. WILLARD HARTSOCK, Defendant. |
| Court | U.S. District Court — District of Maine |
WALTER F. MCKEE, ESQ., LIPMAN, KATZ & MCKEE AUGUSTA, ME, for Defendant.
MICHAEL D. LOVE, ESQ., U.S. ATTORNEY'S OFFICE, BANGOR, ME, U.S. Attorneys.
Willard Hartsock is facing federal criminal charges under 18 U.S.C. § 922(g)(9) for knowingly possessing firearms affecting interstate commerce while having previously been convicted of a misdemeanor crime of domestic violence. In 1992 Hartsock plead guilty to a domestic assault charge in the State of Maine and did so without counsel. Section 921(a)(33)(B)(i) of title 18 provides that Hartsock is not prosecutable under § 922(g)(9) unless he "knowingly and intelligently waived the right to counsel in the case" and, having been entitled to a jury trial, "knowingly and intelligently waived the right to have the case tried by a jury." Through normal document destruction procedures the state court's records, including the tape recordings of the arraignment and plea and the actual complaint and other court filings, have all been destroyed. The United States claims that during the early phase of its investigation into this charge a federal ATF officer listened to the electronic recording of the plea and would testify that Hartsock had a conversation with the judge concerning his consultation with a lawyer prior to coming to court.
The United States is pressing a motion in limine and a motion for Rule 104(a) preliminary determination of admissibility. (Docket No. 5.) The prosecution wants an order barring Hartsock from presenting evidence at trial concerning the alleged waiver of his right to counsel and a jury trial at the time of his 1992 plea. Viewing § 921(a)(33)(B)(i) as akin to an affirmative defense to the § 922(g)(9) charge, the United States asks the Court to make the § 921(a)(33)(B)(i) determination by an evidentiary standard that places upon Hartsock the burden of producing evidence that he did not waive counsel by something more than a scintilla but shy of a preponderance of the evidence. Once Hartsock produces such evidence, the United States would then accept that it would have the burden of persuading the court of waiver, meaning that the issue of waiver would be determined by the judge. Hartsock contends that the waiver determinations of § 921(a)(33)(B)(i) are elements of the crime that must be found by the jury by proof beyond a reasonable doubt.
After hearing the argument of counsel and taking a proffer by the United States of what evidence it would introduce vis-à-vis Hartsock's domestic assault plea, and purposefully not requiring Hartsock to provide any evidentiary proffer, I now GRANT the United States' motion in limine and preclude Hartsock from introducing any evidence at trial concerning whether, in connection with the misdemeanor conviction referred to in Count One of the Indictment in this case, Hartsock knowingly and intelligently waived the right to either counsel or a jury trial. On the motion for a Rule 104(a) preliminary determination of admissibility, I recommend that the court rule the proffered conviction inadmissible. I frame the second part of this memorandum of decision as a recommended decision subject to de novo review because I recognize that it is case dispositive in this instance.
The meaning of a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9) is fully defined under 18 U.S.C. § 921:
(33)(A) Except as provided in subparagraph (C), the term "misdemeanor crime of domestic violence" means an offense that —
(i) is a misdemeanor under Federal or State law; and
(ii) 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, by 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.
(B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, 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.
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
[1] So in original. No subparagraph (C) was enacted in subsec. (a)(33).
18 U.S.C. § 921(a)(33) (footnote in original).
The United States would have the court characterize § 921(a)(33)(B)(i) as an affirmative defense in the same fashion as § 921(20) restoration of civil rights exception to § 922(g)(1)1 predicate convictions has been treated. It relies on First Circuit reasoning that is conceivably applicable to the present dispute when it said of § 921(a)(20):
While neither § 921(a)(20) nor § 922(g)(1) explicitly describes the role that the § 921(a)(20) definition should play or specifies who must initially raise or ultimately bear the burden of proof on the issue of the predicate conviction's continuing vitality, we conclude that § 921(a)(20) is merely a legal definition for the phrase "conviction for a term exceeding one year" in § 922(g)(1). Indeed, the title to 18 U.S.C. § 921 is "Definitions." Furthermore, § 921(a)(20) begins with the words "[t]he term `crime punishable by imprisonment for a term exceeding one year' does not include," and is followed by two exceptions. Thus, § 921(a)(20) serves to narrow the class of prior convictions down to a smaller class of convictions that may serve as predicate convictions under § 922(g)(1). To treat § 921(a)(20) as a legal definition accords with the approaches taken explicitly by two other circuits, see United States v. Jackson, 57 F.3d 1012, 1016 (11th Cir. 1995); Flower, 29 F.3d at 534; United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993), and implicitly by several others, see United States v. Frushon, 10 F.3d 663, 665-66 (9th Cir. 1993); Martin v. United States, 989 F.2d 271, 273 (8th Cir.), cert. denied, 510 U.S. 979 (1993); United States v. Cassidy, 899 F.2d 543, 545 (6th Cir. 1990).
We are persuaded by the approach of United States v. Flower. The significance of § 921(a)(20)'s definitional nature is that the trial judge bears the responsibility of determining as a matter of law whether a prior conviction is admissible in a § 922(g)(1) case. Flower, 29 F.3d at 535. Under Bartelho's proposed rule, the government would be required to refute every possibility that criminal defendants have had their prior convictions nullified or their civil rights restored. Rather than require the government to show a negative proposition, we reject Bartelho's interpretation. It is certainly much easier for criminal defendants to raise the issue of whether their prior convictions have been nullified or their civil rights otherwise restored. Id.
A claim of restoration of civil rights is in the nature of an affirmative defense. As a result, once a prior felony conviction and corresponding loss of civil rights is proven by the government, as with any other factual condition, the presumption is that that condition remains. See Jackson, 57 F.3d at 1016 () (quoting United States v. Laroche, 723 F.2d 1541, 1543 (11th Cir.), cert. denied, 467 U.S. 1245 (1984)). It is up to the defendant to raise the issue and produce evidence showing that changed circumstances make the original condition inapplicable. See Jackson, 57 F.3d at 1017; Flower, 29 F.3d at 535. Defendant has not done so here.
Thus, upon de novo review, see, e.g., United States v. Three Juveniles, 61 F.3d 86, 87 (1st Cir. 1995) (), we find no error of law, since the government was not required to show the validity of his past conviction in order to prove a violation of § 922(g)(1).
United States v. Bartelho, 71 F.3d 436, 440-41 (1st Cir. 1995) (footnote omitted).
There are a few federal courts that have been called on to characterize the § 921(a)(33)(B) inquiry. In United States v. Akins the Ninth Circuit addressed whether the defendant knowingly and intelligently waived the right to counsel for purposes of § 922(g)(9) after the District Court had denied a motion to dismiss the indictment on this ground and the jury convicted the defendant. 276 F.3d 1141 (9th Cir. 2002). It dubbed § 921(a)(33)(B)(i) "a statutory defense," id. at 1145 and, relying on the Bartelho's and Flower's discussion of § 921(a)(20), reasoned, that "[b]ecause § 921(a)(33)(B)(i)(I) is a legal definition, its application...
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