United States District Court, N.D. Iowa, Cedar Rapids Division
WILLIAMS UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's motion to
dismiss Count One of the Indictment. (Doc. 23). The
government timely resisted the motion. (Doc. 34). For the
following reasons, defendant's motion is
February 21, 2019, a grand jury returned an Indictment
charging defendant with possession of firearms by a felon
(Count One), in violation of Title 18, United States Code
Section 922(g)(1), and possession of stolen firearms (Count
Three), in violation of Title 18, United States Code Section
922(j). (Doc. 3). Count One alleged that defendant had
previously been convicted of two felonies, each in San Luis
County, California: Grand Theft on or about June 15, 2011,
and Inflicting Corporal Injury Upon a Spouse or Cohabitant on
or about May 20, 2002. (Id.). On April 22, 2019,
defendant filed the motion to dismiss. Defendant argues that
the May 20, 2002 conviction should be struck from the
Indictment because the conviction was reduced to a
misdemeanor, and because it is prejudicial surplusage. (Doc.
23, at 1); see also Fed. R. Crim. P. 7(d). Defendant
also argues that the June 15, 2011 conviction may not have
been a felony conviction because California law could
consider it a misdemeanor. (Id., at 1-2). Finally,
defendant argues that the Indictment is deficient because it
does not allege that defendant knew that he was a prohibited
felon. (Id., at 2).
7, 2019, a grand jury returned a Superseding Indictment that
altered Count One to charge defendant with possession of
firearms by a prohibited person, in violation of Title 18,
United States Code Sections 922(g)(1) and 922(g)(3). (Doc.
30, at 1-2). The Superseding Indictment charges that
defendant was prohibited from possessing firearms both as a
convicted felon and as an unlawful drug user. (Id.).
The Superseding Indictment continues to allege that defendant
was convicted of a felony on June 15, 2011, but removes the
allegation that defendant was convicted of a felony on May
20, 2002. Accordingly, the Court denies as
moot defendant's arguments related to the May
20, 2002 conviction. The Court will apply defendant's
remaining arguments to the Superseding Indictment.
STANDARD OF REVIEW
Rule of Criminal Procedure 12(b) authorizes pretrial motions
to present “any defense, objection, or request that the
court can determine without a trial on the merits.”
Fed. R. Crim. P. 12(b)(1). “A motion is capable of
pretrial determination ‘if trial of the facts
surrounding the commission of the alleged offense would be of
no assistance in determining the validity' of the
motion.” United States v. Turner, 842 F.3d
602, 604-05 (8th Cir. 2016) (quoting United States v.
Covington, 395 U.S. 57, 60 (1969)). “[T]o be
valid, an indictment must allege that the defendant performed
acts which, if proven, constitute the violation of law for
which he is charged. If the acts alleged in the indictment do
not constitute a violation of law, the indictment is properly
dismissed.” United States v. Polychron, 841
F.2d 833, 834 (8th Cir. 1988).
JUNE 15, 2011 CONVICTION
about June 15, 2011, defendant was convicted of Grand Theft,
in violation of California Penal Code Section 487(a), and the
imposition of sentence was suspended. Defendant's Exhibit
C (Doc. 23-4); Government's Exhibit 4 (Doc. 34-5). Under
California law, Grand Theft is a “wobbler”
offense, meaning it can be considered a felony or a
misdemeanor, depending on how the sentencing judge classifies
it and the sentence imposed. People v. Valenzuela,
209 Cal.Rptr.3d 860, 862 (Cal.Ct.App. 2017). When, as here,
the sentencing court suspends the imposition of sentence for
a wobbler offense, that offense remains a felony until and
unless “the court takes affirmative steps to classify
the crime as a misdemeanor.” People v. Park,
299 P.3d 1263, 1269 (Cal. 2013). “[T]he court may
reduce a wobbler to a misdemeanor either by declaring the
crime a misdemeanor at the time probation is granted or at a
later time- for example, when the defendant has successfully
completed probation.” Id.
does not assert that his Grand Theft conviction was actually
reduced to a misdemeanor, merely that there is a
“possibility” it could have been. (Doc. 23-1, at
4). Defendant concedes that the issue of whether he has been
convicted of a felony “may involve factual
determinations” and that, on the record now before the
Court, such determinations “would be trial
issues.” (Id.). Defendant argues that, at
trial “the government must prove a) that imposition of
sentence never occurred, i.e., judgment was never rendered
and therefore Defendant was never sentenced to misdemeanor
jail instead of felony prison, and b) the Court never
declared the offense a misdemeanor.” (Id.).
The government argues that in the absence of any
“indication that defendant's Grand Theft conviction
was converted into a misdemeanor offense . . . [the
conviction] should be treated as a felony offense.”
(Doc. 34-1, at 7).
defendant's apparent concession that this question is, at
best, a factual issue for trial, the Court is unclear what
relief defendant is seeking, other than perhaps an advisory
opinion as to who would bear the burden of proof on this
issue. The Court need not decide that question, however,
because defendant's Grand Theft conviction is a
qualifying conviction for purposes of Section 922(g)(1)
regardless of whether the California court reduced the charge
to a misdemeanor or not.
unlawful for any person “who has been convicted in any
court of[ ] a crime punishable by imprisonment for a term
exceeding one year” to possess a firearm. 18 U.S.C.
§ 922(g)(1). The statute creates an exception for
“any State offense classified by the laws of the State
as a misdemeanor and punishable by a term of imprisonment of
two years or less.” Id. § 921(a)(20)(B).
Thus, whether a state would classify an offense as a felony
or a misdemeanor is only relevant where the offense is
punishable by a term of imprisonment of more than one year
but not more than two years. If the offense is punishable by
more than two years, it is a qualifying offense under Section
922(g)(1) regardless of how state law would classify it.
California, Grand Theft is punishable “by imprisonment
in a county jail not exceeding one year or pursuant to
subdivision (h) of Section 1170.” Cal. Penal Code
§ 489(c). Section 1170(h) allows a court to impose
“a term of imprisonment in a county jail for 16 months,
or two or three years.” Id. § 1170(h)(1).
The maximum sentence defendant could have received on his
Grand Theft conviction was three years imprisonment, and thus
his conviction qualifies under Section 922(g)(1) regardless
of whether it was reduced at sentencing to a misdemeanor.
See also United States v. Horodner, 993 F.2d 191,
194 (9th Cir. 1993) (holding that assault with a deadly
weapon, another ...