Opinion
Case No. 02-40074-01-JAR
October 4, 2002
MEMORANDUM ORDER AND OPINION DENYING DEFENDANT'S MOTION TO DISMISS
This matter is before the Court on defendant's Motion to Dismiss (Doc. 22), filed on July 26, 2002. The government filed a response on September 13, 2002 (Doc. 29). Due to the parties filings, oral argument was not necessary. After consideration of the parties' arguments and applicable law, the Court is prepared to rule. For the following reasons, defendant's Motion to Dismiss is denied.
I. Background
Defendant was convicted of Simple Battery in Salina, Kansas Municipal Court on December 12, 2001. The charge arose from an altercation involving his daughter. On December 20, 2001, the defendant filed a notice of appeal with the Saline County District Court.
On January 17, 2002, the defendant filled out ATF form 4473 to obtain a gun from a pawnshop. On the form, he was asked whether he had been convicted of any misdemeanor crime of domestic violence. He answered "no." On January 23, 2002, defendant came into possession of the gun from the pawnshop. These two instances give rise to the current federal charges under 18 U.S.C. § 922. The Saline County District Court tried and convicted the defendant on June 4, 2002. On June 20, 2002, the government charged the defendant for his actions on January 17 and 23, 2002.
II. Discussion and Analysis
Defendant makes three arguments in his Motion to Dismiss. First, defendant argues that by appealing his municipal court conviction to the district court, the conviction was vacated, so that he was not convicted of a domestic misdemeanor on January 17 and 23, 2002. Second, defendant argues that the federal statute requires that physical force be used in the underlying conviction, while the statute he was convicted under only required physical contact. Thus, he posits that the predicate offense is insufficient to bring the current charges. Finally, defendant argues that because he was convicted of Simple Battery, rather than Domestic Battery, the conviction does not fulfill the elements of the federal crime with which he is now charged. The Court will address each argument in turn.
A. Effect of Appeal on Municipal Court Conviction
Defendant argues that by appealing his conviction to the district court, the conviction was vacated. His argument stems from the statutory right to appeal a municipal court conviction for a trial de novo at the district court, as well as case law discussing the statute. Kansas has a two-tier trial system. This allows a defendant to go through the entire process at the municipal court level; and if he does not like the outcome, he can appeal to the district court. This appeal automatically grants the defendant a trial de novo before the district court. A defendant can pursue this avenue whether he pleads guilty or is found guilty after a municipal trial. This right is granted in Kansas Statutes Annotated § 12-4601, which reads as follows:
An appeal may be taken to the district court in the county in which said municipal court is located:
(a) By the accused person in all cases; and
(b) By the city upon questions of law.
The appeal shall stay all further proceedings upon the judgment appealed from. Kan. Stat. Ann. § 12-4601 (1991) (emphasis added).
Kansas law also provides authority for this system in Kansas Statutes Annotated § 22-3609 and § 22-3610:
(1) The defendant shall have the right to appeal to the district court of the county from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas. The appeal shall be assigned by the chief judge to a district judge. The appeal shall stay all further proceedings upon the judgment appealed from.
Kan. Stat. Ann. § 22-3609(1) (1995) (emphasis added).
(a) When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.
Kan. Stat. Ann. § 22-3610(a) (1995) (emphasis added).
Defendant cites to State v. Burkett, in which the Kansas Supreme Court dealt with an issue relating to the two-tier trial system. However, defendant misinterprets the plain language of the statute as well as the limited application of the language in Burkett. In Burkett, the defendant was dissatisfied with the sentence he received in municipal court. Pursuant to a plea bargain with the prosecutor, Burkett was to receive no incarceration; however, the judge sentenced him to concurrent jail terms on both counts. After his appeal to the district court, the defendant decided not to go with the original plea bargain. The prosecution then brought a felony charge against the defendant. In Burkett, the defendant challenged the constitutionality of refiling more serious charges when a defendant exercises his statutory right to appeal to the district court. Defendant in the case at hand relies on language in the analysis that states "[t]he plea, conviction and disposition had before the district magistrate judge are subject to automatic vacation by the appeal; none remain." However, this language does not mean that every time a defendant exercises this right to appeal, the entire conviction below is vacated. Such an interpretation would leave every defendant with a "get out of jail free card" if he could avoid every conviction in municipal court by the mere filing of an appeal to the district court.
648 P.2d 716 (Kan. 1982).
Id.at 720.
The language in Burkett, immediately before the above quoted sentence, looks to Kansas Statute Annotated § 22-3609, and quotes that "[t]he effect of the appeal is to stay all further proceedings before the district magistrate. . . ." At this point, the defendant is entitled to a trial de novo. The case also states that "pleas entered before the district magistrate judge are automatically vacated; otherwise there would be no reason for a trial." This is correct. In order to have a trial de novo, the district court must be able to look at all questions of fact and law without any restraints from the lower court's decisions. While the use of the word "vacate" in these situations may be misleading, it is clear that a complete abandonment of the original conviction does not occur. Vacating the lower court judgment only applies for the limited purpose of having a trial de novo. It is true that once the district court enters judgment. all proceedings at the municipal court are vacated. This must occur to avoid problems of double jeopardy. However, if this court were to believe that the mere filing of an appeal causes all judgments to be completely nullified, then even if a defendant defaulted on his appeal, he would be free of the lower court conviction. This is not the case.
Burkett, 648 P.2d at 720 (emphasis added).
The defendant cites to similar language in Ludwig v. Massachusetts about vacating lower court judgments in two-tier systems. Yet, that very same case and in the same paragraph defendant relies on, the Court makes clear that if a default occurs on appeal to the district court, sentence will be imposed on the municipal court conviction. This can happen because the lower decision was never truly vacated, but merely stayed. This is the only logical and rational application of the two-tier system.
427 U.S. 618 (1976).
Id. at 621-22. Defendant's motion cited to language in this paragraph stating that a lower court conviction is vacated on appeal to the district court but did not go on to include that collateral consequences still follow and that upon default, a defendant is sentenced on the original conviction.
The language of the statute is clear on its face and in direct alignment with the United States Supreme Court decision in Ludwig. Kansas's statute states that the proceedings are stayed. A stay is not synonymous with vacating a conviction. The lower court's conviction still stands, it is simply placed on hold pending the outcome of the district court process. Any vacating of the conviction applies only to allow a trial de novo, free of any and all determinations at the lower court. If the defendant is acquitted in district court, the municipal court conviction is vacated and he is free to go. If the defendant is found guilty in district court, the municipal conviction is also vacated, and sentencing and later appeals will stem from the district court findings. If, however, the defendant defaults on his appeal, the statutory stay ends and the conviction of the municipal court moves into the sentencing phase because it was never "erased" but only stayed pending a trial de novo, with full constitutional protections at the district court level.
Kan. Stat. Ann § 12-4601, § 22-3609.
Both Missouri and Washington have similar two-tier systems and fully agree that the correct legal status of the conviction in municipal court is one of a stay. In Missouri v. Coplin, the court held that if a defendant defaults on an appeal from the municipal court, the matter is remanded to the municipal court for sentencing. The court reasons that "the municipal court's judgment was not entirely vacated but merely stayed. . . ."
588 S.W.2d 48 (Mo. 1979).
Id. at 50.
In City of Seattle v. Crockett, the court said the following about municipal convictions appealed to the district court for a trial de novo under a two-tier trial system:
551 P.2d 740 (W ash. 1976).
A trial de novo in superior court as the result of a conviction and appeal taken in municipal court does not signal the initiation of an entirely new criminal process or procedure. The slate has not been wiped clean as, for example, where the defendant is to be tried again following a mistrial or order granting a new trial. The judgment of conviction rendered by the municipal court still exists and the appeal merely suspends operation of the judgment.
Id. at 741-42. (emphasis added).
Defendant's conviction in Saline Municipal Court still stood after he filed for appeal to the district court. The judgment was not vacated, but rather was stayed, until the district court issued a ruling. Accordingly, defendant's argument that no conviction existed on January 17 or 23, 2002 fails.
B. Physical Force Element
Defendant next contends that the physical force element necessary under the federal statute is not satisfied by the statute under which he was convicted. Defendant was convicted under Salina City code § 25-51, which reads as follows: Battery is:
(1) Intentionally or recklessly causing bodily harm to another person; or
(2) Intentionally causing physical contact with another person when done in a rude insulting or angry manner.
The Journal Entry of conviction is unclear as to which section the defendant was convicted under. However, the complaint charging the defendant accuses him of physical contact done in a rude, insulting or angry manner. As such, this court will assume that the defendant was convicted under subsection two of intentionally causing physical contact in a rude, insulting or angry manner.
Def. Ex. 401.
Defendant argues that the federal statute is unsatisfied because it requires physical force, and the statute he was convicted under required physical contact. Defendant is charged under 18 U.S.C. § 922(g)(9), which states:
(g) 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.18 U.S.C. § 922(g)(9).
A misdemeanor crime of domestic violence is defined as:
(a) As used in this chapter . . .
(33) (A) the term "misdemeanor crime of domestic violence" means 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 victim18 U.S.C. § 921(a)(33)(A) (emphasis added).
Defendant's argument has been heard by more than one circuit and failed. In United States v. Nason, the court dealt with the same issue in analyzing a Maine general assault statute for use as a domestic violence crime under 18 U.S.C. § 922(g)(9). The court reasoned that "offensive physical contacts with another person's body categorically involve the use of physical force and, hence, qualify as misdemeanor crimes of domestic violence under section 922(g)(9) if perpetrated against domestic partners." The court in United States v. Smith, agreed with this logic in holding that "physical contact, by necessity, requires physical force to complete."
269 F.3d 10 (1st Cir. 2001).
Id. at 20.
171 F.3d 617 (8th Cir. 1999).
Id. at 621.
This Court agrees with the logic in the above interpretation. The federal law does not require a certain degree of force or bodily harm; it merely requires that physical force be an element. Making actual physical contact with another human being cannot be done without some type of physical force. As such, the Salina Municipal Code for Simple Battery satisfies the physical force element of 18 U.S.C. § 922(g)(9).
C. Predicate Crime of Domestic Violence
Defendant's final challenge to his indictment is that the crime he was convicted of was one of Simple Battery, not Domestic Battery, as he was originally charged with. While the Tenth Circuit has not addressed this specific issue, the argument is not novel. Other circuits have dealt with similar arguments regarding the predicate conviction lacking an element of domestic violence. Courts found such arguments to be without merit. Defendant attempts to distinguish his argument in that he was originally charged with Domestic Battery but subsequently convicted of Simple Battery; thus, he argues that he was acquitted of any domestic misdemeanor. This Court finds no merit in that distinction. Whether the district court actually found the defendant to be outside a domestic relationship is outside the purview of this court. When looking at predicate offense, the court does not look beyond the jury instructions, charging and judgment documents. The government alleges that the victim was the defendant's daughter. This Court cannot think of a more obvious domestic relationship than that of blood, especially where the federal statute specifically lists the relationship of parent to the victim as a qualifying relationship. Whether the district court found that the degree of battery involved merited a conviction lacking in the enhancement that a domestic violence crime brings is of no moment.
Smith, 171 F.3d at 620; United States v. Barnes, 295 F.3d 1354 (D.C. Cir. 2002); United States v. Denis, 297 F.3d 25, 30-31 (1st Cir. 2002).
Taylor v. United States, 495 U.S. 575, 602 (1999).
The government can now come forward with such information and prove to this Court that a domestic relationship did exist. The government is certainly not barred by any notion of double jeopardy, considering the doctrine of sovereign immunity.
Moreover, as defense concedes, the federal crime with which defendant is charged does not require an element of a domestic relationship in the predicate offense. The Lautenberg Amendment, which established this crime, was enacted to prevent domestic offenders not convicted of felonies from possessing firearms. The purpose of the law would be thwarted if the only crimes actionable were those titled "Domestic" and containing an element of a domestic relationship. An entire segment of offenders, which were specifically targeted by this legislation, would fall through the cracks. As such, whether it was originally charged or not in the lower court, it can be proved in federal court for purposes of predicate offenses.
See supra n. 17.
Barnes, 295 F.3d at 1363-64 (providing the legislative history of the amendment).
Encompassed in defendant's argument, he also asserts that the government should be estopped based on entrapment. Defendant alleges that because the municipal and district judges did not inform him that this conviction would prevent him from possessing a firearm under federal law, they affirmatively misled him. A court does not have to inform a defendant of every collateral consequence that results from a conviction. Further, defendant was more than aware of the facts underlying his conviction. When he filled out the form seeking to obtain a firearm, he was asked whether he had ever been convicted of a crime of domestic violence.
United States v. Nichols, 21 F.3d 1016 (10th Cir. 1994).
Gore v. Andrews, 99 F.3d 1149, *1 (10th Cir. 1996) (Table in Westlaw, unpublished opinion). ("When accepting pleas, sentencing courts are not required to inform the defendant of collateral consequences of the plea, and the sentencing court's failure to advise the defendant of such collateral consequences does not render the plea any less knowing or voluntary.")
Defendant knew he was convicted by Salina Municipal Court of Simple Battery. Additionally, as has been held elsewhere, we can infer that he was aware of who his victim was. "It is, after all, fair to presume that a misdemeanant will know his relationship with his victim. That is enough to remove him from the class of ordinary and innocent citizens who would expect no special restrictions on the possession of a firearm."
Denis, 297 F.3d at 30-31.
Id.
The same logic applies to this case. Defendant knew the status of his relationship with his victim and he knew of the conviction. Neither judge affirmatively or even impliedly misled him in any manner.
III. Conclusion
For the reasons and authorities set out above, defendant's Motion to Dismiss is denied.
IT IS THEREFORE ORDERED that the defendant's Motion to Dismiss is denied.