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United States v. Taylor

United States District Court, E.D. Wisconsin

February 21, 2018

UNITED STATES OF AMERCA, Plaintiff,
v.
BRAXTON TAYLOR, Defendant.

          ORDER OVERRULING DEFENDANT'S OBJECTION (DKT. NO. 60), ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO. 58), AND DENYING DEFENDANT'S MOTION TO DISMISS SUPERSEDING INDICTMENT (DKT. NO. 49)

          HON. PAMELA PEPPER, United States District Judge.

         On November 14, 2017, the defendant filed a motion to dismiss the superseding indictment, dkt. no. 49, and a motion for severance of counts, dkt. no. 50. A month later, on December 18, 2017, Magistrate Judge David E. Jones issued an order denying the motion to sever, and a report and recommendation that this court deny the motion to dismiss. Dkt. No. 58. On January 2, 2018, the defendant objected to Judge Jones's decision, arguing that: (1) Judge Jones did not address how the defendant's domestic violence injunction could qualify as an “order” under 18 U.S.C. §922(g)(8)(C)(ii), when it did not include the exact language of that statute; and (2) the judge's decision not to sever counts was contrary to law and clearly erroneous. Id. at 9. The court overrules the objections, adopts Judge Jones's report and recommendation and denies the defendant's motions.

         I. Background

         A. Factual Background

         On April 2, 2013, the defendant's former girlfriend, T.T., petitioned for a restraining order against the defendant. Dkt. No. 16-1. The petition showed that T.T. and the defendant were in a dating relationship, had lived together and were expecting a child together. Id. at 1. It also noted that the defendant had access to guns at “his mom's house, ” and that weapons had been involved in a past incident between T.T. and the defendant. Id. The Milwaukee County Circuit Court commissioner granted the temporary restraining order on April 2, 2013, and scheduled an injunction hearing for April 16, 2013. Id. at 2.

         By the April 16 hearing, the petitioner had not yet served the defendant, and the commissioner adjourned the hearing to April 30, 2013. Dkt. No. 18-1 at 5. After the April 30 hearing, the commissioner issued a domestic abuse injunction against the petitioner that read, in relevant part:

         THE COURT FINDS:

1. The petitioner/protected person has filed a petition alleging domestic abuse under §813.12, Wisconsin Statutes.
2. This court has personal and subject matter jurisdiction. The respondent has been properly served and had an opportunity to be heard.
3. There are reasonable grounds to believe that the respondent engaged in, or based upon prior conduct of the petitioner/protected person and the respondent may engage in, domestic abuse of the petitioner/protected person as defined in §813.12, Wisconsin Statutes.

         THE COURT ORDERS:

1. The respondent to refrain from committing acts or threats of domestic abuse against the petitioner/protected person.
2. The respondent to avoid the petitioner/protected person's residence and/or any location temporarily occupied by the petitioner/protected person.
3. The respondent to avoid contacting or causing any person other than a party's attorney or law enforcement officer to contact the petitioner/protected person unless the petitioner/protected person consents in writing. Contact includes: contact at petitioner/protected person's home, work, school, public places, in person, by phone, in writing, by electronic communication or device, or in any other manner.
4. The sheriff to assist in executing this injunction, if requested.

         Dkt. No. 49-1. The injunction prohibited the defendant from possessing a firearm until the injunction expired-on April 30, 2017-and stated that, “[f]ederal law provides penalties for, and you may be prohibited from possessing, transporting, shipping, receiving or purchasing a firearm . . . pursuant to 18 U.S.C. 922(g)(8).” Id. at 1-2.

         Three years later, on June 24, 2016, Milwaukee police officers Erin Tischer and Michael Miller stopped an SUV for a cracked windshield. Dkt. No. 15 at 1. The officers discovered that both the driver, Austin Sanders, and the passenger (the defendant) had active arrest warrants. Id. While officers took the subjects into custody, another officer obtained consent to get into the SUV to move it onto a side street. Dkt. No. 17 at 2. When the officer got into the car, she saw a handgun in the SUV's driver door pocket. Dkt. No. 15 at 1. Officers then searched the SUV, and found another firearm under the passenger seat. Id.

         On the basis of this encounter, a grand jury returned an indictment on September 7, 2016, charging the defendant with a single count of possessing a firearm while subject to a valid domestic violence injunction in violation of 18 U.S.C. §§922(g)(8) and 924(a)(2). Dkt. No. 1.

         On February 22, 2017-five months after returning the first indictment- the grand jury returned a superseding indictment, which added a second count of possessing a firearm while under a domestic abuse injunction. Dkt. No. 10. The second count arose from a January 30, 2017 shooting incident in which officers responded to St. Joseph's hospital in Milwaukee and found the defendant suffering from gunshot wounds that they later determined were self-inflicted. Dkt. No. 18 at 3-4.[1]

         B. Procedural Background

         On February 27, 2017, Magistrate Judge William Duffin arraigned the defendant on the superseding indictment. Dkt. No. 13. Two weeks later, the defendant filed two pretrial motions: (1) a motion to suppress, dkt. no. 15; and (2) a motion to dismiss the superseding indictment, dkt. no. 16. The motion to dismiss the superseding indictment argued that 18 U.S.C. §922(g)(8) violated the defendant's Second Amendment right to keep and bear arms, as well as his Fifth Amendment right to due process. Dkt. No. 16.

         On April 20, 2017, Judge Jones issued a report, recommending that this court deny the motion to suppress. Dkt. No. 25. Eight days later, he issued a second report, recommending that the court deny the motion to dismiss the superseding indictment. Dkt. No. 26. The defendant objected to the second report and recommendation-the one asking the court to dismiss the superseding indictment-but did not object to the recommendation regarding the motion to suppress. Dkt. No. 28.

         In a July 19, 2017 order, this court adopted both of Judge Jones's recommendations and ...


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