United States v. Nason, Docket No. 00-CR-37-B-S (D. Me. 2/13/2001), Docket No. 00-CR-37-B-S.
| Decision Date | 13 February 2001 |
| Docket Number | Docket No. 00-CR-37-B-S. |
| Parties | UNITED STATES Of AMERICA, v. Robert NASON, Jr., Defendant. |
| Court | U.S. District Court — District of Maine |
Pending before the Court are the following motions: Defendant's Motion to Dismiss Indictment and Motion to Withdraw Guilty Plea (Docket #12). Additionally, the Government has filed a Motion to Certify Question of State Law to the Supreme Judicial Court of Maine (Docket #9) and a Motion for Rule 104(a) Preliminary Determination of Admissibility (Docket #14). Stripped to their essence, all of these motions question whether Defendant's previous misdemeanor assault conviction falls within the definition of "misdemeanor crime of domestic violence" found in 18 U.S.C. § 921(a)(33). For the reasons discussed below, the Court finds that Defendant's previous assault conviction qualifies as a "misdemeanor crime of violence." Therefore, the Court DENIES both Defendant's Motion to Dismiss and Defendant's Motion to Withdraw Guilty Plea.
On June 19, 2000, Defendant Robert Nason was indicted on one count of being a domestic violence misdemeanant in possession of a firearm in violation of 18 U.S.C. § 922 (g)(9) ("Count I") and one count of making a false statement in connection with the purchase of a firearm in violation of 18 U.S.C. § 922(a)(6) ("Count II"). The previous misdemeanor conviction that serves as the basis for the present charges is described in the instant indictment as: "Assault, Somerset County Superior Court (Docket No. CR 980362), 12/14/98." (Indictment (Docket #1).)
The available court record from this underlying assault conviction consists of various documents. First, there is a summons received by Defendant that charges him with a violation of 17-A M.R.S.A. § 207 and describes the charged violation as "assault domestic." (See Court Ex. 1.) There is also a criminal complaint charging that on July 6, 1998, Robert Nason "did intentionally, knowingly or recklessly cause bodily injury or offensive physical contact to one Beth Nason." (Id.) The state court docket report shows that Nason pled guilty to this complaint on December 14, 1998, and was sentenced to 72 hours imprisonment and ordered to pay a $10 special assessment fee.1
In addition to the court records of the underlying conviction, the Government has submitted copies of the police report that served as the basis for the criminal complaint. Included in the police report are signed statements the police collected from: Robert Nason, the Defendant; Beth Nason, the victim of the assault; and Barbara Richards, a friend of Beth Nason who witnessed the assault. In his signed statement Robert Nason described the events as follows: (Id.)
On August 23, 2000, Defendant pled guilty to Count I of the pending federal indictment. Pursuant to a plea agreement (Docket #8), the Government agreed to dismiss Count II in exchange for Defendant's plea of guilty to possession of a firearm after conviction for a misdemeanor crime of domestic violence. On December 13, 2000, the Court held a presentence conference at which the Government advised that it was filing a motion to certify a question of state law. Therefore, the Court, pursuant to Defendant's motion, continued the case.
Since that time, both Defendant and the Government have filed a variety of motions all seeking resolution of the same question; namely, when does a misdemeanor assault conviction under 17-A M.R.S.A. § 207 qualify as a "misdemeanor crime of domestic violence" for purposes of a violation of section 922(g)(9)? The Court notes that Mr. Nason is one of many defendants before this Court raising this question.2 The question came to light after two decisions by another court within this District.
First, Chief Judge Hornby issued a decision on a pending sentencing guideline issue in United States v. Weeks, No. CRIM. 00-4-B-H, 2000 WL 1879808 (D.Me. Sept. 28, 2000). In Weeks, the defendant questioned whether his previous plea of "nolo" to a Maine assault charge qualified as a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33). Depending on Chief Judge Hornby's resolution of this question, the defendant may or may not have been considered a "prohibited person" under United States Sentencing Guideline § 2K2.1(a)(4). The court applied a categorical approach pursuant to the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 600-06 (1990). By looking at the police reports and victim statements, Chief Judge Hornby concluded that the assault did not involve bodily injury and that the defendant, therefore, pled "nolo" to an offensive physical contact assault.3 He ultimately concluded "that whatever the actual circumstances of the underlying assault, [Mr. Weeks] pleaded nolo to and was convicted of only offensive physical contact, and that such a crime is not a crime that categorically involves physical force." Id. at *2.
Second, on January 3, 2001, Chief Judge Hornby applied his reasoning in Weeks to decide a motion to dismiss in the case of United States v. Southers, No. 00-83-P-H, 2001 WL 9863 (D.Me. Jan. 3, 2001). In Southers, the defendant was charged with being a domestic violence misdemeanant in possession of a firearm in violation of 18 U.S.C. § 922 (g)(9). The underlying misdemeanor that served as the basis for the federal charge was a 1992 "nolo" plea to the charge that he had "intentionally, knowingly or recklessly caused bodily injury or offensive physical contact to Tammy Gardner" in violation of 17-A M.R.S.A. § 207.
Essentially, Southers required Chief Judge Hornby to similarly reconcile Maine's assault statute, 17-A M.R.S.A. § 207, with the federal definition of "misdemeanor crime of domestic violence" found in 18 U.S.C. § 921(a)(33)(A). However, the question was raised in reference to the sufficiency of an indictment rather than a sentencing guideline calculation. See id. Standing by his previous conclusion that an assault conviction based on offensive physical contact does not have physical force as an element, Chief Judge Hornby dismissed the indictment although the underlying facts found in the criminal complaint alleged what amounted to physical force. See id. at *1 ().
At oral argument, both the Government and Defense counsel acknowledged that Chief Judge Hornby's decisions in Weeks and Southers are not binding on the Court's determination of the pending motions. However, counsel on both sides correctly raised concerns that all defendants charged with violations of section 922(g)(9) be treated fairly and uniformly within the District.
"In the normal course of events, a facially valid indictment returned by a duly constituted grand jury calls for a trial on the merits." United States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997) (citing Costello v. United States, 350 U.S. 359, 363 (1956); United States v. Rodriguez, 738 F.2d 13, 16 (1st Cir. 1984)). However, Rule 12(b) of the Federal Rules of Criminal Procedure also states that "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion." Fed.R.Crim.P. 12(b).
In this case, Defendant's Motion raises both questions of law and questions of fact. Essentially, the Court first must determine, as a matter of law, whether a conviction under 17-A M.R.S.A. § 207 categorically involves the use or attempted use of physical force. If not, then the Court must determine, as a matter of law, what evidence, if any, a court may look to in determining whether a defendant's conviction under 17-A M.R.S.A. § 207 involved the use or attempted use of physical force. The answer to this legal question, in turn, raises a factual question; namely, whether the Government's evidence is sufficient for a jury to conclude that the defendant has a previous conviction for a misdemeanor crime of domestic violence?
Obviously, this latter factual question can only be resolved by a jury trial. See, e.g., United States v. DeLaurentis, 230 F.3d 659, 660 (3rd Cir. 2000) () However, the Court must frame the jury's inquiry and decide what evidence the Government may present to support its charge. Additionally, the Court understands that it is in the interest of both the Government and Defendant to resolve the legal questions at this pretrial stage. See, e.g., United States v. Alfonso, 143 F.3d 772, 777 n. 7 (2nd Cir. 1998) (); U.S.S.G. § 3E1.1 ().
Having set the stage, the Court must now embark on its own application of the relevant precedents to the case at hand. The case law that all parties agree is at issue grows from the Supreme Court's decision in United States v. Taylor, 495 U.S. 575 (1990), in which the Court adopted a categorical approach to determine whether previous convictions constituted violent felonies for purposes of sentencing enhancement under 18 U.S.C. § 924(e).
Following Taylor's mandate, the First Circuit repeatedly has applied a categorical approach to determine what qualifies as a violent felony under section 924(e). See, e.g., United States v. Shepard, 231 F.3d...
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