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In Heckenliable, the court found that the government had provided sufficient evidence from which a reasonable jury could determine that defendant was "similarly situated to a spouse," namely, that the defendant and the victim had an intimate personal relationship and that they were living together for "about a month."
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Case No. 2:04-CR-00697PGC.
April 13, 2005
MEMORANDUM DECISION DENYING DEFENDANT'S MOTION IN LIMINE REGARDING EVIDENCE OF A "DOMESTIC" ASSAULT
Defendant David Todd Heckenliable has been indicted for violating 18 U.S.C. § 922(g)(9), which prohibits a person "who has been convicted in any court of a misdemeanor crime of domestic violence" from possessing a firearm. Several years ago, Heckenliable was convicted of simple assault. He argues that this Utah conviction was not for a crime of domestic violence because he and the victim did not have a "domestic" relationship as defined by the statute. Consequently, he asks this court to exclude any evidence pertaining to his previous conviction as irrelevant to his current prosecution. The court has previously disagreed with Heckenliable, finding the evidence of the prior conviction admissible because it is for the jury to determine whether the relationship at issue in the earlier assault conviction was "domestic" in nature. This opinion explains the reasons for that conclusion.
Background
On January 31, 2000, Heckenliable pled guilty to a violation of Utah Code Ann. § 76-5-102, entitled "Assault." The criminal information to which Heckenliable pled guilty was entitled "Domestic Violence Information." However, the prosecutor responsible for the prosecution has stated in an affidavit that the caption on the information was a mistake. In fact, the crime was not prosecuted as one involving domestic violence because the records available to the state did not reveal that Heckenliable and the victim had ever cohabited or had children together.In the current prosecution, Heckenliable contends that while his relationship with the victim of the previous conviction was at times romantic, he and the victim were never married, never commingled money, never had children, and never cohabited. Heckenliable also alleges that during his relationship with the victim, both continued having sexual relationships with other partners. He further argues that the victim was married to another man throughout their relationship, and that Heckenliable himself had multiple girlfriends. Heckenliable's version of the facts is supported by affidavits from his sister, a girlfriend, and his landlord.
In response, the government has produced an untitled court record from the underlying conviction that purportedly shows that the conviction involved domestic violence. The document states that "[t]his case involves domestic violence." The document also states that the defendant "is ordered to present proof of completing a domestic violence program by June 14, 2002." Additionally, a government agent investigated the circumstances of the previous conviction; he interviewed the victim, who recounted that Heckenliable was "living with" her. Moreover, during a hearing before this court, the government stated that the victim's family was willing to testify at trial that Heckenliable and the victim cohabited in a sexual relationship.
Rules 402 and 104(b) of the Federal Rules of Evidence
Heckenliable challenges the relevance of evidence regarding his relationship, contending that the government lacks sufficient evidence to show that the relationship was domestic in nature. Rule 402 of the Federal Rules of Evidence renders all relevant evidence admissible, except where prohibited by the Constitution of the United States, by Act of Congress, or by other rules. Rule 104(b) states, "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." At this preliminary stage of the proceedings, the court's only task is to determine "whether the evidence is sufficient to support a jury finding that the condition has been met." Here, Heckenliable argues that evidence relating to his prior conviction is only relevant if the prosecution can prove at trial that the prior conviction was for a crime of domestic violence. Thus, as a preliminary matter, this court must determine whether the prosecution has shown that at trial it could introduce sufficient evidence from which a reasonable jury could conclude that this previous conviction was one of "domestic violence," as required by the § 922(g)(9) — the statute Heckenliable is charged with violated.Sections 922(g)(9) and 921(a)(33)
Section 922(g)(9) prohibits any person "who has been convicted in any court of a misdemeanor crime of domestic violence" from possessing any firearm or ammunition. Another section of the statute — § 921(a)(33) — defines "misdemeanor crime of domestic violence" as an offense that:
(I) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
18 U.S.C. § 921(a)(33) (emphasis added).
In interpreting this language, the first question that arises is whether the "elements" of the statute must include not only use of force but also the domestic nature of the relationship. Several courts, including the Federal, D.C., First, Second, Fifth, Eighth, Ninth and Eleventh Circuits, have concluded that while § 921(a)(33) requires the previous conviction to have as an element the use of force, it does not require the relationship aspect also be an element. Within the Tenth Circuit, the District of Kansas and this District (per Judge Kimball) have also concluded that § 921(a)(33) only requires the underlying offense to have force as an element. This court agrees that the relationship aspect in § 922(g)(9) need not be an element of the offense.
See White v. Dep't of Justice, 328 F.3d 1361 (Fed. Cir. 2003).
See United States v. Barnes, 295 F.3d 1354 (D.C. Cir. 2002).
See United States v. Meade, 175 F.3d 215 (1st Cir. 1999).
See United States v. Kavoukian, 315 F.3d 139 (2nd Cir. 2002).
See United States v. Shelton, 325 F.3d 553 (5th Cir. 2003).
See United States v. Smith, 171 F.3d 617 (8th Cir. 1999).
See United States v. Belless, 338 F.3d 1063 (9th Cir. 2003).
See United States v. Chavez, 204 F.3d 1305 (11th Cir. 2000).
See United States v. Blosser, 2002 U.S. Dist. LEXIS 19339, at *13-14 (D. Kn. 2002) (02-40074-01-JAR).
United States v. Thompson, 134 F. Supp. 2d 1227, 1230 (D. Utah 2001).
In this case, there is no doubt that Heckenliable's assault conviction under Utah Code Ann. § 76-5-102 has the use or attempted use of force as an element. Heckenliable's argument, then, necessarily devolves to the claim that the victim of his offense does not — as a factual matter — fall within the definition of a misdemeanor crime of domestic violence. In some cases, simple assault can be a "misdemeanor crime of domestic violence," since it has as an element the use or attempted use of force, so long as the prosecution can show that the crime was committed by the defendant against a person within the required relationship. The required relationship, in turn, exists if the defendant (1) is a former or current spouse, parent or guardian of the victim; (2) has a child in common with the victim; (3) cohabits with the victim as a spouse, parent, or guardian; or (4) is similarly situated to a spouse, parent, or guardian of the victim. It is undisputed that neither (1) nor (2) apply to this case. The issue before this court, then, is whether Heckenliable cohabited with the victim of his previous crime "as [her] spouse," or whether Heckenliable was "similarly situated to a spouse" of the victim. Because either of these relationships would render § 922(g)(9) applicable, the court considers them separately.
See 18 U.S.C. § 921(a)(33)(A)(ii) (2005).
See id.
See id.
See id.
Cohabitation "as a Spouse"
In prohibiting firearms possession by a misdemeanant convicted of using force while he "is cohabiting with or has cohabited with the victim as a spouse," Congress used a broad and somewhat open-ended phrase. There are, of course, limits to it. The statute must be specific enough to provide sufficient notice to a person of ordinary intelligence as to what actions are proscribed. But the statute survives that test if construed as the court does below.
Id.
See United States v. Harris, 347 U.S. 612, 617 (1954).
In a well-written but unpublished opinion — United States v. Costigan — Chief Judge Hornby of the United States District Court for the District of Maine listed several factors that might be considered when determining whether two persons are cohabiting as spouses, including:
No. Crim. 00-9-B-H, 2000 WL 898455, at *5 n. 14 (D. Me. June 16, 2000).
[The] length of the relationship; shared residence as indicated by spending the night and keeping one's belongings at the residence; intimate relations; expectations of fidelity and monogamy; shared household duties; regularly sharing meals together; joint assumption of child care; providing financial support; moving as a family unit; joint recreation and socialization; and recognition of the live-in relationship by family and friends as indicated by visits to the residence.
Id. at *5 n. 14.
Of course, "[t]hese factors [are] by no means exhaustive, [but] are strong indicators that a relationship has functioned like a marriage, thereby bringing the relationship within the ambit of section 921(a)(33)(a)." In adopting the Costigan factors, the First Circuit upheld a finding that a defendant cohabited "as a spouse of" his victim where the defendant had moved in with the victim and the victim's children; had a sexual relationship with the victim; kept his clothes at their home in a dresser purchased for that purpose; lived in an apartment the defendant found for them; partook in regular family activities with the victim and her children; disciplined and cared for the victim's children; and was considered to be living together with the victim by visiting family members. Similarly, in White v. Department of Justice, the Federal Circuit found a defendant "cohabited with the victim as a spouse" where the victim testified that she shared a residence with the defendant for a period of time; that when the two were not living together, the defendant stayed with the victim for up to five days and nights per week; that they had an expectation of monogamy; that they shared household responsibilities; and that they engaged in common social activities.
Id.
See United States v. Costigan, 18 Fed.Appx. 2, *5, 2001 WL 535734, **2 (1st Cir. 201).
See White, 328 F.3d at 1369-70.
In this case, the court will adopt the Costigan factors as outlining relevant considerations in determining the domestic nature of a relationship. While the facts of the relationship in this case are disputed, at this stage the court must determine only whether the government has proffered sufficient proof that it will be able to provide evidence at trial from which a reasonable jury could conclude that Heckenliable cohabited "as a spouse" of the victim of his prior crime. The court finds that the government has proffered sufficient proof. The jury could find believable evidence that Heckenliable cohabited with the victim; that they had a sexual relationship; and that the victim's family considered Heckenliable and the victim to be cohabiting as a couple. Heckenliable's assertion that there was not an expectation of monogamy because he had multiple sexual partners during the relationship will be but a factor for the jury to consider in evaluating all the evidence. As for the rest of Heckenliable's contentions, the prosecution promises to introduce evidence of equal value that the jury might find credible. Consequently, this court finds that the prosecution has met its burden under rule 104(b) and thus evidence pertaining to Heckenliable's prior conviction is relevant and admissible.
"Similarly Situated to a Spouse"
As an additional reason for denying Heckenliable's motion, the prosecution has proffered sufficient evidence from which a reasonable jury could find that Heckenliable was "similarly situated to a spouse" of the victim under § 921(a)(33). The syntax of the statute suggests that Congress used the phrase "similarly situated to a spouse" to cover domestic arrangements that are not necessarily based on sexual or family relationships. Thus, relevant to this case, the statute forbids firearms possession by "a person who is cohabiting with . . . the victim as a spouse" or "by a person similarly situated to a spouse. . . ." In dropping the word "cohabiting" from the final clause, Congress apparently intended to sweep into the statute relationships that did not involve cohabitation. Congress was no doubt concerned that some persons, while not habiting, might nonetheless remain in such frequent contact with each other that a risk of deadly violence would exist if firearms were present. Indeed, another provision in the statute includes "former spouses" within its ambit — presumably because of the potential for conflict inherent in such relationships even where intimate relations no longer take place. Similarly, it seems that two sisters who share a residence and have had frequent violent exchanges that led to simple assault convictions are prohibited from possessing firearms even though they are not in a spousal or parental relationship.
While the statute's plain language sufficiently supports the conclusion that the phrase "similarly situated to a spouse" was expansive, the legislative history bolsters this conclusion. Senator Lautenberg, who sponsored the statute, noted that "anyone who attempts or threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk, and should be prohibited from possessing firearms." While not binding, comments from a statute's sponsor deserve appropriate respect. Senator Lautenberg's comments further persuade the court that Congress intended to keep firearms away from convicted misdemeanants whose relationships with their victims posed a threat that violent interchanges were likely to reoccur. For example, Senator Lautenberg expressly noted that the bill aimed at keeping weapons away from the hypothetical misdemeanant who "loses control, flies into a rage and then strikes out violently at those closest to him."
See Salinas v. United States, 522 U.S. 52 (1997) (when interpreting a statute, courts look first to the statute's plain language).
142 Cong. Rec. S11872-01,11877.
See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27 (1982).
See 142 Cong. Rec. S11872-01, 11876-79.
Id. at 11876.
This interpretation of the "similarly situated" clause is consistent with the case law. In United States v. Cuervo, the Eighth Circuit upheld a conviction under § 922(g)(9) where the evidence showed that the defendant, Schoenauer, had been convicted of assaulting his secretary. "The evidence showed that [the secretary] and Schoenauer stayed together periodically at an apartment Schoenauer kept. During this time, Schoenauer remained married and lived with his wife." The court held that "[w]hile Schoenauer's victim was not his spouse, the evidence showed that she shared an intimate personal relationship with Schoenauer. Thus, the jury was free to determine, as a factual matter, that she was in a position similar to a spouse." Under the "similarly situated" clause, even if Schoenauer did not "cohabit" with his secretary, he could be proscribed from possessing the firearm.
354 F.3d 969 (8th Cir. 2004) (vacated on alternative grounds).
Id. at 997.
Id. at 998.
In sum, the "similarly situated" clause assures that convicted misdemeanants who meet all other elements but who are not in a spousal or parental relationship are prohibited from possessing a firearm if their relationship with the victim presents the same concerns Congress had in passing the statute. Congress simply used the phrase "similarly situated to a spouse, parent or guardian" to cover, without specifically enumerating, the myriad close personal relationships that could result in recurring conflicts — conflicts that could escalate to deadly violence if a previously convicted misdemeanant had access to a firearm.
Keeping in mind that the phrase "similarly situated to a spouse" was meant to broaden the scope of the statute, the prosecution here has provided sufficient evidence from which a reasonable jury could determine that Heckenliable was "similarly situated to a spouse" in ways relevant to the statutory goal. Although Heckenliable and the victim of his prior conviction were not married, the government has proffered evidence that they had an intimate personal relationship and that they were living together for about a month. This evidence is sufficient to allow the government to argue to the jury that Heckenliable and the victim of his prior crime had the requisite relationship.
CONCLUSION
The issue before the court at this stage is a narrow one. The court concludes the prosecution should have the opportunity to present its case, and has provided sufficient evidence from which a reasonable jury could conclude that Heckenliable's relationship with the victim of his previous conviction was sufficiently close to create a crime of "domestic violence." His motion in limine [18-1] is therefore properly denied.
SO ORDERED