United States v. McMichael

• Decision Date: 05 October 2018
• Docket Number: CASE No. 1:18-cr-99
• Parties: UNITED STATES of America, Plaintiff, v. Mark Andrew MCMICHAEL, Defendant.
• Court: U.S. District Court — Western District of Michigan

350 F.Supp.3d 647

UNITED STATES of America, Plaintiff,

v.Mark Andrew MCMICHAEL, Defendant.

CASE No. 1:18-cr-99

United States District Court, W.D. Michigan, Southern Division.

Signed October 5, 2018

Nils R. Kessler, U.S. Attorney, Grand Rapids, MI, for Plaintiff.

Helen C. Nieuwenhuis, Federal Public Defender, Grand Rapids, MI, for Defendant.

OPINION & ORDER

ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE

INTRODUCTION

Federal law prohibits certain categories of individuals from possessing firearms and ammunition. These categories include, among others, felons, fugitives, illegal drug users and addicts, illegal aliens, and those convicted of a misdemeanor crime of domestic violence. Also included in this list are those who have "been adjudicated as a mental defective or ... been committed to a mental institution." 18 U.S.C. § 922(g)(4). Defendant Mark Andrew McMichael is a gun collector. He has numerous firearms in his collection and, as recently as February 2016, Mr. McMichael has regularly renewed his Federal Firearms License from the Bureau of Alcohol, Tobacco, Firearms and Explosives. According to the government, he is also an individual who has been committed to a mental institution, and so he has violated federal law.

The government centers its argument on Mr. McMichael's approximately twelve-day hospitalization during May 2014 at the Munson Medical Center in Traverse City. During this time two doctors completed certificates that stated Mr. McMichael required mental health treatment. But no court, committee, board, or other authoritative body ever determined Mr. McMichael needed to be committed to a mental institution. Rather, after the physicians completed their certifications, Mr. McMichael elected to defer a hearing and to cooperate with treatment. He completed the treatment and was discharged from the hospital without any court order putting him there.

Believing the hospitalization was enough to satisfy the predicate of being "committed to a mental institution" the government has charged Mr. McMichael in the Indictment with being a committed person in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(4). The government has also charged Mr. McMichael with making a false statement in a firearms license application, in violation of 18 U.S.C. § 924(a)(1)(A), for failing to affirmatively state on his subsequent renewal application that he had been committed to a mental institution. Mr. McMichael moves to dismiss both charges because, as a matter of law, he had never been committed to a mental institution or, in the alternative, he received insufficient process to deny him his Second Amendment rights. In the Court's view, Mr. McMichael's hospitalization does not amount to a commitment under the statute, and he did not make false statements when renewing his firearms license, as a matter of law. Therefore, the motion to dismiss must be GRANTED.

LEGAL STANDARD

Mr. McMichael brings the instant motion under FED. R. CRIM. P. 12(b)(3)(B)(v) as a motion to dismiss the indictment for failure to state an offense. On a motion to dismiss an indictment, the Court must view the indictment's factual allegations as true and must determine only whether the indictment is "valid on its face." Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). "Generally, motions are capable of determination before trial if they raise questions of law rather than fact." United States v. Jones , 542 F.2d 661, 664 (6th Cir. 1976). "[W]here the defendant is arguing that as a matter of law the undisputed facts do not constitute the offense charged in an indictment, the Court is reviewing a question of law, not fact." United States v. Vertz , 40 F. App'x 69, 70 (6th Cir. 2002) (citing United States v. Bowman , 173 F.3d 595 (6th Cir. 1999) ). A reviewing court is permitted to "make preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial court's conclusions do not invade the province of the ultimate finder of fact." United States v. Levin , 973 F.2d 463, 467 (6th Cir. 1992).

FACTUAL AND PROCEDURAL BACKGROUND¹

On May 10, 2014, Mr. McMichael's wife, Nicole, completed a Grand Traverse County Probate Court form entitled "Petition/Application for Hospitalization." (ECF No. 18-1, PageID.47). Nicole described several changes that she had observed in her husband's behavior, and she wrote that her husband needed treatment. The same day, Mr. McMichael was admitted to the Munson Medical Center, though he asserts his admission was voluntary and that he did not know his wife had completed the petition. It is clear that no court ordered the admission.

Between May 10 and May 12, Mr. McMichael was treated at the medical center. Then, on May 12, 2014, Dr. Douglas Gentry, M.D., completed a Grand Traverse County Probate Court form entitled "Clinical Certificate." On the form, Dr. Gentry diagnosed Mr. McMichael with "acute paranoia / schizophrenia

" (ECF No. 18-1, PageID.49) and he reported that Mr. McMichael was a person requiring treatment. Dr. Gentry recommended that Mr. McMichael be hospitalized. (Id. at PageID.50). Thereafter, Mr. McMichael was transferred to the medical center's behavioral health services program. On May 13, 2014, Mr. McMichael was examined by a psychiatrist, Dr. Thomas Harding, M.D. After the examination, Dr. Harding completed a second certificate that was identical to the one completed by Dr. Gentry. (Id. at PageID.51). Dr. Harding diagnosed Mr. McMichael with psychosis, and further concluded that Mr. McMichael required treatment. He too recommended hospitalization. (Id. at PageID.51-52). These certificates were filed with the probate court, and Mr. McMichael was appointed counsel. The next step was a court hearing.

However, on May 15, 2014 and before any hearing took place, Mr. McMichael signed a completed probate court form entitled "Request to Defer Hearing on Commitment." (Id. at PageID.56). On the form, Mr. McMichael checked a box indicating that he agreed to a combined hospitalization and alternative treatment program for up to 90 days, with hospitalization not to exceed 60 days. Mr. McMichael further requested that his court hearing be deferred, and he affirmed that he understood he could refuse subsequent treatment and demand a court hearing. (Id. ). Mr. McMichael was then treated by Munson's behavioral health services and discharged on May 21, 2014.

Throughout the following years, Mr. McMichael maintained his firearm collection and regularly renewed his firearms license. The applications he completed contained the following statement: "Under penalties imposed by 18 U.S.C. § 924, I certify that the statements contained in this renewal application, and any attached statements, are true and correct to the best of my knowledge and belief." One of the questions in the renewal application asked Mr. McMichael "have you ever been committed to any mental institution?" The government states Mr. McMichael answered in the negative, and at least for purposes of this motion, Mr. McMichael does not aver otherwise.²

On December 1, 2017, acting on a tip, ATF agents executed a search warrant at Mr. McMichael's residence and recovered the firearms and ammunition listed in the indictment. On May 8, 2018, the grand jury returned the Indictment in this case. (ECF No. 1). Mr. McMichael filed his motion to dismiss on August 1, 2018 (ECF No. 18) and the Court heard oral argument on September 13, 2018.

DISCUSSION

Under § 922(g), "the government must prove three elements: (1) the defendant falls within one of the categories listed in the § 922(g) subdivisions (‘the status element’); (2) the defendant possessed a firearm or ammunition (‘the possession element’); and (3) the possession was ‘in or affecting [interstate or foreign] commerce.’ " United States v. Rehaif , 888 F.3d 1138, 1143 (11th Cir. 2018).

Mr. McMichael is charged under 18 U.S.C. § 922(g)(4). The status element in that section is that of a person "who has been adjudicated as a mental defective or who has been committed to a mental institution[.]" Read in total, Section 922(g)(4) states:

It shall be unlawful for any person-(4) who has been adjudicated as a mental defective or has been committed to any mental institution, 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.

The possession and interstate commerce elements of the statute are not at issue in this motion. And the government does not contend that Mr. McMichael has been adjudicated as a mental defective. But the government does argue that Mr. McMichael was committed to a mental institution and, therefore, is prohibited from possessing firearms and ammunition.

Section 922(g)(4) does not define "committed" and both sides offer competing constructions. The government, relying on United States v. Vertz , 40 F. App'x 69 (6th Cir. 2002), an unpublished split decision by the Sixth Circuit Court of Appeals, argues it is enough that two physicians provided certifications affirming the necessity of the commitment. On the other hand, Mr. McMichael contends that a temporary and ex parte hospitalization is not enough for a commitment under the statute, and some formal action by an authoritative body is required to satisfy the statute (as well as due process). Accordingly, the dispositive question presented by both sides is whether Mr. McMichael's May 2014 hospitalization—one that all agree was not triggered by an adversary proceeding or adjudicative decision—amounts to a commitment to a mental institution under Section 922(g)(4). The Court concludes it does not.

1. Interpreting the Statute

The Court begins by looking at the statute itself. "The language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of...