Opinion
Criminal No. 03-192 (JRT/RLE)
February 2, 2004
Michelle E. Jones, Minneapolis, MN, for plaintiff
Robert J. Kolstad, Minneapolis, MN, for defendant
ORDER REJECTING DEFENDANT'S CONDITIONAL GUILTY PLEA
In May of 2003, defendant Donald James Brun, Jr. ("Brun") was charged by indictment with two counts of Prohibited Person in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(9) and 924(a)(2). On August 26, 2003, Brun entered a conditional guilty plea to Count 1 of the indictment pursuant to a plea agreement. Brun admitted to all the essential elements of the crime charged, except the element requiring that he had been convicted of a crime of domestic violence as defined by 18 U.S.C. § 922(g)(9) and 921(a)(33)(A). Brun reserved the right to challenge the government's contention that he had been convicted of a crime of domestic violence, as defined by the statute.
The Court now addresses whether the government has established that Brun committed a crime of domestic violence as defined by the applicable federal statutes. Before reaching that question, however, the Court must decide what evidence it is permitted to review to make such a determination. For the reasons discussed below, the Court finds that the plea transcript [Government's Exhibit 3] is admissible, but that the Court nonetheless cannot find that Brun committed the predicate offense, and therefore cannot accept defendant's plea of guilty.
FACTS
On April 12, 1999, Brun pled guilty in Cass County District Court to "fifth degree domestic assault." According to the transcript from the entry of plea / sentencing hearing ("plea transcript", the admissibility of which is discussed below), Brun and a friend were at the Star of the North Bar when Brun's estranged wife came up behind him. He shoved her and told her to leave him alone. As part of this "squabble" Brun broke the window of his ex-sister-in-law's pickup truck. Specifically, the plea colloquy proceeded as follows:
Question by the Court: And she [your estranged wife] got into a squabble?Answer by defendant: Yes.
Q: Did you nail her?
A: What?
Q: Did you hit her?
A: No.
Q: Push her?
A: Shoved her — told her to get away from me.
* * *
Q: As a part of this was there a pickup window broke [n]?
A: Yes, that was her sister[']s.
Q (to the prosecutor): Counsel, with those admissions are you willing to go with no further charges?
A (by the prosecutor): I would prefer to take the domestic and [sic] as long as there is restitution on the window.
ANALYSIS
Federal law prohibits any person who has been convicted of a misdemeanor crime of domestic violence from possessing firearms. 18 U.S.C. § 922(g)(9). A "crime of domestic violence" is defined as a crime that "has, as an element, the use or attempted use of physical force, or the threatened use of deadly weapon." 18 U.S.C. § 921(a)(33)(A)(ii).In determining whether the crime to which Brun has pled guilty meets the criteria of § 921(a)(33)(A)(ii), the Court is restricted to looking at "the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 600 (1990). The Court will first discuss whether, given the framework of Taylor, it is permissible for the Court to consider the plea transcript. The Court will then discuss defendant's motion.
I. Plea transcript
It is well established that "[w]hen statutory language dictates that predicate offenses contain enumerated elements, [the court] must look only to the predicate offense rather than to the defendant's underlying acts to determine whether the required elements are present." United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999). Where, as here, a statute has subdivisions and it is unclear under which subdivision the defendant was convicted, this limited inquiry may be expanded to review, for example, charging papers or jury instructions. Id. at 620-21 (citing Taylor v. United States, 495 U.S. 575, 602 (1990)).
In this case, neither the Complaint ticket that was issued [Government's Exhibit 1] nor the Criminal Minute Sheet [Government Exhibit 2] specifies which subsection Brun was charged with violating. The minute sheet, however, notes that a factual basis was given for the guilty plea; this factual basis is set forth in the guilty plea/sentencing transcript ("plea transcript"). The Court conditionally accepted the plea transcript at the August 28, 2003 hearing on this matter.
Specifically, the Complaint ticket notes that Brun was charged with the offense of "Fifth degree assault — Domestic" in violation of Minn. Stat. § 609.2242, "Fifth degree Assault" in violation of Minn. Stat. § 609.224, and "Damage to Property" in violation of Minn. Stat. § 609.595. The Criminal Minute Sheet indicates that Brun pled guilty to "5th Degree Assault — Domestic" and indicates no statute number.
Brun argues that a plea transcript is neither charging papers nor jury instructions, and as such must not be considered. However, in certain circumstances, the Eighth Circuit has approved of looking to a sentencing or plea transcript to determine whether the underlying crime met certain statutory criteria. See, e.g., United States v. Payton, 918 F.2d 54, 55-56 (8th Cir. 1990) (holding that defendant's voluntary admission at sentencing explaining the conduct could be used to determine whether the elements of burglary were met for federal sentencing enhancement purposes); United States v. Larson, 13 Fed. Appx. 439, 440, 2001 WL 766842 (8th Cir. 2001) (affirming district court's determination that prior misdemeanor assault conviction did not qualify as "crime of domestic violence" where lower court looked to plea transcript, but not commenting on propriety of looking to plea transcript); United States v. Medicine Eagle, Jr., 266 F. Supp.2d 1039, 1044-1045 (D.S.D. 2003) (noting that the Court may resort to other easily produced and evaluated court documents that clearly establish the conduct of which defendant was convicted, and considering the entire "state file", but also noting that same result would have been reached had the Court considered only the charging papers).
Although the Eighth Circuit has not explicitly held that it is appropriate to examine plea transcripts in cases such as this, the tenor of both the Smith and Larson opinions support such a conclusion. In addition, the rationale of Taylor v. United States, 495 U.S. 575 (1990), also supports consideration of the plea transcript. Specifically, in Taylor, the Supreme Court noted the language of the statute and the legislative history as support for the categorical approach. Id. at 600-01. The Court also focused, however, on "the practical and potential unfairness of a factual approach," which the Court characterized as "daunting." Id. at 601. The Court rejected a reading of the statute that would force the district court to conduct what could amount to a mini-trial to determine whether the prior offense qualified. Id. at 601-02 (the Court asked, rhetorically, "Would the Government be permitted to introduce the trial transcript before the sentencing court, or if no transcript is available, present the testimony of witnesses?"). However, nothing in Taylor prevents the district court from reviewing easily produced and evaluated court documents that potentially establish the defendant's prior offense conduct. See Medicine Eagle, Jr., 266 F. Supp.2d at 1044-45. Such an inquiry does not involve drawn out re-examination of the conduct underlying the prior offense, and raises few of the "fairness" concerns noted by the Taylor Court. For these reasons, the government's Exhibit 3, the plea transcript, is admitted.
II. Predicate offense and federal statute
Brun pled guilty to Fifth Degree Domestic Assault, in violation of Minnesota Statute Section 609.2242, subd. 1. Subdivision 1 has two subsections, providing that one is guilty of a misdemeanor domestic assault if the person "(1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another." Minn. Stat. § 609.2242, subd. 1(1)-(2). Thus, if Brun pled guilty to section 609.2242, subd. 1(1), then he was not convicted of an offense that "has, as an element, the use or attempted use of force." 18 U.S.C. § 921(a)(33)(A)(ii).
Looking only to the Complaint ticket and the Criminal Minute Sheet, there simply is no way to discern to which subsection Brun pled guilty. If the Court's inquiry were limited to those exhibits, the question would be an easy one and Brun's guilty plea could not be accepted. The plea transcript sheds some light on the events of the evening in question, and makes the Court's task somewhat more difficult. However, even if the Court considers the plea transcript, the Court cannot conclude that the Cass County District Court was not accepting a plea to subdivision 1(1). The plea transcript includes information that Brun told his ex-wife to get away from him, and also includes information that Brun broke the window on his sister-in-law's pickup truck. Breaking a truck window would certainly fit the statutory definition of subdivision 1(1) — committing an act with intent to cause fear in another of immediate bodily harm. Similarly, as defendant argues, not every shove inflicts bodily harm, and not every shove is an attempt to inflict bodily harm. See Minn. Stat. § 609.02, subd. 7 (defining "bodily harm" as physical pain or injury, illness, or any impairment of physical condition). Therefore, a shove could amount to a violation of subdivision 1(1).
In sum, to accept Brun's guilty plea to misdemeanor domestic assault, the Cass County Judge was not required to find the elements of subdivision 1(2) satisfied. See Smith, 171 F.3d at 621 (holding that proper inquiry was determining whether "the jury was required to actually find the elements of generic burglary in order to convict the defendant"); see also Taylor, 495 U.S. at 601-02 (noting that where a defendant's prior offense was the result of a plea bargain, it is "unfair" to examine the actual conduct and "impose a sentence enhancement as if the defendant had pled guilty to burglary."). The government cannot establish that Brun pleaded guilty in Cass County Court to a violation of Minn. Stat. § 609.2242, subd. 1(2). Therefore, the government cannot establish that Brun is ineligible to possess a firearm, and the Court cannot accept Brun's conditional guilty plea.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that defendant's conditional guilty plea is REJECTED.