United States District Court, E.D. Wisconsin
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.
PAMELA PEPPER, United States District Judge.
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.
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.
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:
1. The petitioner/protected person has filed a petition
alleging domestic abuse under §813.12, Wisconsin
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.
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
4. The sheriff to assist in executing this injunction, if
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
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.
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.
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.
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.
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.
July 19, 2017 order, this court adopted both of Judge
Jones's recommendations and ...