Opinion
Cr. No. 04-1689 JP.
August 8, 2005
ORDER
The United States indicted David Gonzales on one count of acquiring a firearm by a false statement and one count of possession of a firearm by a prohibited person. One element of these offenses is that the Defendant "has been convicted in any court of a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). The Government filed United States' Motion in Limine to Determine That The Defendant's Prior Aggravated Battery Conviction Is A Misdemeanor Crime of Domestic Violence (Doc. 23). Defendant filed a written response (Doc. 56) and the Court heard argument by counsel on July 28, 2005.
According to 18 U.S.C. § 921(a)(33)(A), a misdemeanor crime of domestic violence is 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 person with whom the victim shares a child in common . . ." It is not in dispute that Defendant has a prior conviction for Aggravated Battery (Misdemeanor). Defendant also does not dispute that the victim of his battery is the mother of his child. Defendant argues that a jury must determine if the Government has proven beyond a reasonable doubt that the Defendant's prior aggravated battery conviction was "a misdemeanor crime of domestic violence." I conclude that this is not a factual issue for a jury to try because the relevant facts are undisputed; and I decide as a matter of law that Defendant's prior conviction is a misdemeanor crime of domestic violence as contemplated in the relevant statutes.
IT IS ORDERED THAT the United States' Motion in Limine to Determine That The Defendant's Prior Aggravated Battery Conviction Is A Misdemeanor Crime of Domestic Violence (Doc. 23) is GRANTED and the jury will be instructed that Defendant's prior conviction is a misdemeanor crime of domestic violence.