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United States v. Locke

United States District Court, E.D. Virginia, Alexandria Division

February 8, 2018

UNITED STATES OF AMERICA,
v.
BRANDON LOCKE, Defendant.

          MEMORANDUM OPINION

          T.S. ELLIS, III United States District Judge

         A superseding indictment issued on November 7, 2017 charges defendant Brandon Locke with two crimes: (i) possession of a firearm as an individual convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9), and (ii) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Defendant now seeks dismissal of count I on the ground that there are no qualifying predicate misdemeanor crimes of domestic violence (“MCDVs”) as required by § 922(g)(9). The government disagrees and the matter has now been fully briefed and argued and is ripe for disposition.

         I.

         Count I of the superseding indictment charges defendant with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(9). Specifically, the superseding indictment alleges that defendant possessed a firearm on or about August 17, 2017 in Stafford County Virginia, despite having been convicted of two previous MCDVs. The first MCDV conviction identified in the superseding indictment, referred to in Georgia as “family violence battery, ” Ga. Code § 16-5-23.1(a), (f)(1), was entered against defendant in the State Court of Muscogee County, Georgia on August 9, 2011 (the Georgia conviction). The second MCDV conviction occurred on January 18, 2017 in Juvenile and Domestic Relations (JDR) District Court in Stafford County, Virginia.[1] The Virginia MCDV conviction was for assault and battery against a family or household member in violation of Va. Code § 18.2-57.2 (the Virginia conviction).

         Defendant seeks dismissal of count I of the superseding indictment, arguing that neither of the state MCDV convictions alleged in the superseding indictment are valid predicates for a § 922(g)(9) conviction. Defendant's arguments with respect to each conviction are considered separately below.

         A.

         Defendant argues that the Virginia conviction for assault and battery of a family member cannot qualify as a predicate misdemeanor crime of domestic violence for purposes of § 922(g)(9) because the defendant did not knowingly and intelligently waive his right to a jury trial in JDR Stafford County district court. In support of his argument, defendant relies on § 921(a)(33)(B)(i)(II)(aa)-(bb) which provides in relevant part that a person shall not be considered to have been convicted of an MCDV 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.

         Thus, defendant's reliance on this provision raises two questions. First, was the defendant “entitled to a jury trial in the jurisdiction in which” his MCDV case was tried? Second, if the defendant was entitled to a jury trial in the jurisdiction in which” his MCDV case was tried, did defendant “knowingly and intelligently” waive that right?

         Defendant's argument that his Virginia conviction is an invalid predicate fails with respect to the first question, namely whether defendant had a right to a jury trial in the Stafford County JDR court. This question of course is governed by Virginia law. Under Virginia law, a defendant tried in JDR court has no right to a jury trial; a defendant is entitled to a jury trial for his Virginia MCDV case only if he pleads not guilty, is convicted, and appeals his conviction to the circuit court. See Va. Sup. Ct. R. 3A:13(a) (“The accused is entitled to a trial by jury only in a circuit court on a plea of not guilty.”). Thus, based on a plain reading of § 921(a)(33)(B)(i)(II)(aa)-(bb), defendant simply did not have right to a jury trial in his Virginia MCDV case tried in J&DR court. At best, defendant, had he pled not guilty and been convicted, had an appellate right to be retried with a jury in the Stafford County Circuit Court, but nothing in § 921(a)(33)(B)(i)(II)(aa)-(bb) suggests that an appellate right qualifies as an entitlement “to a jury trial in the jurisdiction in which the case was tried.” And although defendant could have pled not guilty and appealed a conviction to the circuit court and had a trial by jury, defendant did not do so here. Therefore, defendant was never entitled to a jury trial right under Virginia law, and thus § 921(a)(33)(B)(i)(II)(aa)-(bb) is not triggered and thus his Virginia MCDV conviction is a valid predicate for a § 922(g)(9) conviction.

         This reading of the § 921(a)(33)(B)(i)(II)(aa)-(bb) finds firm support in unpublished Fourth Circuit opinions.[2] For example, in United States v. Artis, 132 Fed. App'x 483 (4th Cir. 2005), the defendant in that case mounted a challenge to the validity of his predicate Virginia MCDV conviction that was essentially identical to the defendant's argument in this case. Specifically, defendant in Artis argued he had a jury trial right because he could appeal the J&DR determination of guilt and receive a jury trial. The Fourth Circuit rejected this argument, holding that the defendant there was “not entitled to a jury trial as a matter of law” because the defendant “did not have a right to a jury trial in J & DR court, and [] he did not invoke his right to a jury trial” in the Circuit Court because he filed no appeal. Id. at 483. In other words, a defendant does not have a jury trial right in MCDV cases in the jurisdiction of Virginia absent a conviction and an appeal. Thus, the defendant's conviction served as a valid predicate offense for a § 922(g)(9) conviction. See also United States v. Gordon, 64 Fed. App'x 274, 277 (4th Cir. 2008) (reaching the same conclusion).

         For the foregoing reasons, the defendant's Virginia MCDV conviction is a valid predicate offense for purposes of § 922(g)(9). This result, by itself, warrants denial of the motion to dismiss count I, but it is appropriate to proceed to consider whether the second predicate MCDV conviction also qualifies as a valid predicate for a conviction under § 922(g)(9).

         B.

         Defendant argues that his Georgia conviction is an invalid predicate for a § 922(g)(9) charge for two reasons. First, defendant argues that the state court's order exonerating defendant and removing his criminal record on September 27, 2017 means that the defendant is no longer a person convicted of a MCDV under 18 U.S.C. § 921(a)(33)(B). As a result, the defendant argues that the government cannot meet its burden of showing that defendant is a person prohibited from possessing a firearm. Second, defendant argues that even if his Georgia conviction were still in place it would still be an invalid predicate for the § 922(g)(9) charge in the indictment because the defendant did not knowingly ...


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