Russell E. Booker and Michael Wyman plead guilty in separate domestic violence cases to assault in Maine. Both cases occurred some years ago. More recently Booker accidentally shot a hunting partner and Wyman shot a bullet into the air during a domestic dispute. Both were indicted and convicted in Federal court for possessing a weapon after a misdemeanor domestic violence conviction.

Booker and Wyman appealed to the First Circuit Court of Appeals alleging that since Maine’s assault law does not require a specific intent to commit a crime the convictions cannot serve as a basis for the Federal convictions. The state statute allows a conviction for recklessly assaulting someone. They also alleged violations of their Second Amendment right to possess a gun.

The Federal statute banning possession of guns (18 USC 922(g)(9) by those convicted of misdemeanor domestic violence reads:

That it shall be unlawful for any person . . . (9) who has been convicted in any court of a misdemeanor crime of domestic violence, 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 First Circuit rejected the defendants argument that the state statute had to be an intentional crime. Nowhere in the Federal statute does it require that the domestic violence statute have a particular mens rea or intent. Therefore the court ruled that Congress in passing Section 922(g)(9) did not mandate a mens rea and therefore the convictions are valid.

Pointing to Heller in which the Supreme Court recognized the Second Amendment right to possess a gun the court pointed out that the Supreme Court recognized that certain categories of people could be banned from possessing guns. The First Circuit held that due to the significant number of people killed with guns in domestic violence disputes that Congress can prohibit misdemeanants convicted of domestic violence from possessing guns.

The irony here is that while looking at the intent of Congress in ruling that a particular mens rea is not necessary for a conviction under Section 922(g)(9), the Court did not look at the intention of the First Congress which passed the Bill of Rights. Certainly the first Congress did not intend to limit the ability of misdemeanants from possessing weapons. It is unlikely that domestic violence was even a crime in 1789.

Franklin Woods plead guilty to conspiring to manufacture fifty grams or more of methamphetamine. He was sentenced to 108 months. In determining his sentencing guidelines the District Court applied an enhancement for possession of a firearm. There was no evidence that Woods had a firearm or that he knew that a firearm was present. The evidence of manufacturing was found in a co-defendant’s residence. But the District Court assumed that Woods knew that there was a high likelihood that a gun would be present in a residence used to manufacture methamphetamine.

The District Court found that Woods was responsible for 53.64 grams of methamphetamine, which has a value of approximately $5,000. The Sixth Circuit Court of Appeals remanded the case to the District Court for resentencing. Previously it has determined that when there is a large amount of narcotics it is safe to assume that one of the defendants has a gun. But in those cases, barring evidence to the contrary, it has never assumed that a co-defendant had a gun when the value of the drugs was less than $60,000.

What I do not understand is why based solely upon the value or the quantity of the narcotics one can assume that a gun is present. Certainly it is not unusual to find a gun when narcotics are present. Often a gun may be present when the value of the narcotics is considerably under $60,000. But if we assume that those who would conspire together to manufacture of sell drugs know each other fairly well, based upon their knowledge of each other or the history of their relationship they may know whether a gun is likely to be present or not be present. Certainly there are any number of cases where guns are not present.

Dawnya Grice made two 911 calls on February 15, 2007. In the first she said that her boyfriend Terrence L. Katz had threatened her and she had left her apartment to get away from him. On request she told the operator that he did not have a weapon. In the second call she said he had left the apartment and he had a gun and it looked like he was carrying it in his pants. He was detained and no weapon was found. They did find $1800 in cash on him.

Grice consented to the police searching the apartment. They found guns, marijuana and cocaine. Katz’s fingerprints were on a Remington 12 gauge shotgun. He was charged with various offenses but was only convicted on one count of possession of a gun by a convicted felon. He made motions for an acquittal and for a new trial pursuant to Sections 29 and 31 of the Federal Rules of Criminal Procedure. But the motions were denied and the appeal was filed.

At trial the parties stipulated that Katz had been convicted of a felony prior to February 15, 2007 and that Grice leased the apartment. Neither Katz nor Grice testified at the trial.

At trial and on appeal Katz argued that there was insufficient evidence to convict him of a violation of 18 USC Section 922(g) being a felon in possession of a gun. In order to convict him the prosecution must prove that he had a prior felony conviction, that he possessed the weapon after the conviction and that the weapon traveled in interstate commerce. The first element was stipulated to and there was no argument about the third element. The only issued is whether he possessed the weapon on February 15, 2007 since the stipulation said he had been convicted sometimes prior to that date.

The court found that there was no evidence that he possessed the weapon on February 15, 2007 and it reversed the conviction. Possession can be either personal or constructive. The only evidence showing Katz’s possession of the gun was his fingerprints on the gun. But since the date of the fingerprints cannot be proved this did not help the government’s case.

Constructive possession can be shown when two people are present in a house and there is evidence tying the defendant to the gun. But none was present and there was no evidence showing Katz’s ties to the house. There was no evidence that he lived there. None of his clothes were found there and there was no indicia showing that Katz had any ties to the house.

The Supreme Court, back from its winter vacation decided United States v. Hayes, In 1996 Congress extended the law banning ex-felon from possessing a gun to include people convicted of misdemeanors involving domestic violence. Under Hayes the prior misdemeanor need not be charged as a crime of domestic violence but it merely be an assault or a threat against one who is in a domestic relationship with the defendant.

The term a “crime of domestic violence” is a term of art referring to a particular charge. For example in California Penal Code Section 273,5(a) defines the crime as:

Any person who willfully inflicts upon a person who is
his or her spouse, former spouse, cohabitant, former cohabitant, or
the mother or father of his or her child, corporal injury resulting
in a traumatic condition, is guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not more than one
year, or by a fine of up to six thousand dollars ($6,000) or by both
that fine and imprisonment.

Certainly Congress knew this when it passed the statute and by using the term it must have meant one convicted of domestic violence.

But the Court’s reading of the statute has a number of problems. As Chief Justice Roberts says, in dissent, the majority’s view will make it much more difficult to get a conviction. If the predicate offense is one in which the defendant is convicted of domestic violence, it would be fairly easy to get a conviction by bringing into the courtroom the defendant’s rap sheet or other documents to show that there is a conviction for a charge of domestic violence. But when the conviction is for a crime other than domestic violence, let us say simple battery, as in Hayes it will be necessary to retry the predicate offense before a jury and to have that jury under >Apprendi find the that the defendant committed the act of domestic violence beyond a reasonable doubt. As any prosecutor will tell you it is hard enough to get a victim in a domestic violence case to testify once and it will be impossible to get the victim to testify a second time in a weapons case that may not even involve the victim.

Many defendants have entered into plea bargains, pleading to battery instead of domestic violence because they did not want the particular consequences of a domestic violence conviction. Now as a result of Hayes they will not get the benefit of the bargain. This will make it harder to plea bargain cases in the future.