United States v. Shamsid-Deen

• Citation: 454 F.Supp.3d 1307
• Decision Date: 13 April 2020
• Docket Number: CASE NO. 5:18-CR-71 (MTT)
• Parties: UNITED STATES of America, v. Idris SHAMSID-DEEN, Defendant.
• Court: U.S. District Court — Middle District of Georgia

454 F.Supp.3d 1307

UNITED STATES of America,

v.Idris SHAMSID-DEEN, Defendant.

CASE NO. 5:18-CR-71 (MTT)

United States District Court, M.D. Georgia, Macon Division.

Signed April 13, 2020

ORDER

MARC T. TREADWELL, JUDGE

Defendant Idris Shamsid-Deen was indicted on December 11, 2018 for possession of a firearm in or affecting interstate commerce by a person who has been convicted of a "misdemeanor crime of domestic violence," in violation of 18 U.S.C. § 922(g)(9). Doc. 1. 18 U.S.C. § 921(33) defines a "misdemeanor crime of domestic violence" ("MCDV") and provides, in relevant part, that

A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless--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 the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

18 U.S.C. § 921(33)(B)(II). The indictment alleges that Shamsid-Deen was convicted of Battery Under the Family Violence Act in Bibb County, Georgia on April 3, 2014. Doc. 41. The Defendant argues that the conviction does not qualify as a MCDV because he did not "knowingly and intelligently waive[ ] the right to have the case tried by a jury, by guilty plea or otherwise." The parties agree that this is an affirmative defense. Although Shamsid-Deen signed a form stating he agreed to a bench trial, he argues the form was misleading and he did not knowingly and intelligently waive his right to a jury trial. He therefore moves to exclude his MCDV conviction from evidence because the jury trial waiver was defective. For the following reasons, that motion (Doc. 70) is GRANTED .

I. BACKGROUND

Shamsid-Deen previously filed two motions to dismiss the indictment on the grounds that the MCDV jury waiver was defective. Docs. 23; 70. Although evidence suggested his purported jury trial waiver was suspect, those motions were denied because the indictment, on its face, was sufficient to state an offense, and resolving Shamsid-Deen's MCDV challenge would have required going beyond the face of the indictment.¹ Doc. 69.

On the other hand, it was clear that the issue was one for the Court, not the jury. Although there is no controlling authority on the appropriate procedure for addressing a jury waiver challenge in a § 922(g)(9) prosecution, other courts to consider the issue have most often done so by ruling on a motion to exclude evidence of the conviction under Federal Rule of Evidence 104(a). Doc. 69 at 6-10.² Shamsid-Deen then moved to exclude the conviction pursuant to Rule 104(a).

II. DISCUSSION

A. Standard

Rule 104(a) allows the Court to decide "any preliminary question about whether ... evidence is admissible." The Court decides Rule 104(a) questions by a preponderance of the evidence. Bourjaily v. United States , 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) ; Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 592 n.10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

How to allocate that burden is a complex and unsettled issue. But several points are clear.

First, as the parties agreed, § 921(33)(B)(II) creates an affirmative defense. In the Eleventh Circuit, courts consider three factors when determining whether to treat an exception to a criminal statute as an affirmative defense: language and structure, legislative history, and whether the defendant or the Government is better suited to produce evidence concerning the applicability of the exception. United States v. McArthur , 108 F.3d 1350, 1353 (11th Cir. 1997).

The statute's jury waiver exception at § 921(33)(B)(II) creates "a narrow proviso to a more general statutory offense," is listed in a separate provision of the statute, and could be omitted without doing violence to the statute. McArthur , 108 F.3d at 1353. The statute's language and structure, therefore, indicate that the exception is an affirmative defense. The legislative history of the statute, which one court described as "sparse," provides no indication of whether it is an affirmative defense. United States v. Hartsock , 347 F.3d 1, 5 n.4 (1st Cir. 2003). Finally, "[w]here defendants are better equipped to prove facts that would allow them to take advantage of a statutory exception, [courts] ordinarily view that exception as an affirmative defense." McArthur , 108 F.3d at 1355. Clearly, the defendant himself will generally be the person best able to provide evidence about whether a jury waiver was knowing and intelligent. After reviewing the McArthur factors, therefore, the Court concludes that the exception set out by 18 U.S.C. § 921(33)(B)(II) is an affirmative defense. Other courts to construe the exceptions listed in 18 U.S.C. § 921(33)(B) have likewise held that they create affirmative defenses. See Hartsock , 347 F.3d at 6 (citing cases); United States v. Bethurum , 343 F.3d 712, 717 (5th Cir. 2003).

Second, the affirmative defense established by § 921(33)(B)(II) does not negate an element of the § 922(g)(9) offense. § 921(33) is divided into two parts: subsection (A) defines MCDV ("the term ‘misdemeanor crime of domestic violence’ means ..."), and subsection (B) separately provides an exception ("A person shall not be considered to have been convicted of such an offense ... unless ..."). By the statute's terms, a charged MCDV could both satisfy the definition in subsection (A)—and thus qualify as an MCDV under § 922(g)(9) —but nonetheless be subject to the exception in subsection (B). That subsection (B) is wholly separate from the definition of an MCDV in subsection (A) supports the conclusion that it does not negate an element of the crime. Again, other courts considering the issue have reached the same conclusion. Hartsock , 347 F.3d 1 at 6 (construing § 921(33)(B)(I) ); Bethurum , 343 F.3d at 717. And that conclusion is bolstered by the fact that courts have traditionally resolved such defenses as a question of law, rather than allowing them to go to the jury.

Third, the defendant bears the burden of production. When an affirmative defense does not negate an element of the crime, the burden of production generally rests on the defendant. See McKelvey v. United States , 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301 (1922) ("it is incumbent on one who relies on such an exception to set it up and establish it"). Courts construing § 921 exceptions to § 922(g) offenses, including in the Eleventh Circuit, have reached the same conclusion. See United States v. Jackson , 57 F.3d 1012, 1017 (11th Cir. 1995) (concluding defendants bear burden of production for expungement defense to § 922(g)(1) prosecution); United States v. Bartelho , 71 F.3d 436, 440 (1st Cir. 1995) (for restoration of civil rights defense to § 922(g)(1) prosecution, holding the burden of production rests with the Government and noting that "[i]t 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"); United States v. Mayo , 705 F.2d 62, 76 (2d Cir. 1983) (concluding that the burden of production for the antique firearms exception to § 922(g) offenses rested with the defendant); United States v. Laroche , 723 F.2d 1541, 1543 (11th Cir. 1984) (same). The Court has no difficulty concluding the defendant bears that burden here.

However, the ultimate burden of persuasion is a more difficult issue, and the principles above, though they hopefully clarify the issue, do not necessarily resolve it. Even when the defendant bears the burden of production, "[t]he ultimate burden of persuasion ... may fall on either the government or the defendant, as determined by statute or court decision." United States v. Alvarez , 755 F.2d 830, 842 n.12 (11th Cir. 1985). If the burden of persuasion rests with the Government, then, assuming Shamsid-Deen has produced enough evidence to raise the issue of the validity of his jury waiver, the Government must show by a preponderance of the evidence that evidence of the conviction should be admitted. If the burden of persuasion remains with the defendant, then Shamsid-Deen must show by a preponderance of the evidence that evidence of the conviction should be excluded.

There is no controlling law on the issue. The most analogous Eleventh Circuit decision— United States v. Laroche , 723 F.2d 1541, 1543 (11th Cir. 1984) —found that the defendant failed to meet his burden of production on his contention that the firearms he possessed were antique weapons not subject to §§ 922(a)(6), (h)(1). But because the defendant failed to meet his burden of production, the Court had no occasion to consider which party bore the burden of persuasion. The Court noted that "[w]here affirmative defenses are created through statutory exceptions, the ultimate burden of persuasion remains with the prosecution, but the defendant has the burden of going forward with sufficient evidence to raise the exception as an issue." Laroche , 723 F.2d at 1543. But two of the cases cited by Laroche actually stated that the prosecution bore a burden of proof beyond a reasonable doubt, implying that they viewed the exceptions there as ones which negated an element of the offense.³ Further, the third case cited by Laroche , United States v. Stout , noted that "once the government has proven the elements of the offense, the burden shifts to defendants to demonstrate qualification under an exception. McKelvey , 260 U.S. [at] 357, 43 S.Ct. 132 ... The government ... undeniably bore its burden as to the essential elements of 26 U.S.C. s 5861(i). It was then up to defendants to show that they had met the requirements of the proviso in 27 C.F.R. 179.102." 667 F.2d 1347, 1353 (11th Cir. 1982) (emphasis added). That indicates the burden of persuasion on the affirmative defense lies with the defendant.

The Court concludes that although Laroc...