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United States v. Cannon

United States District Court, E.D. Wisconsin

July 31, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
CLIFFORD CANNON Defendant.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE

         The government obtained an indictment alleging that on or about February 10, 2018, while subject to a state domestic abuse injunction, defendant Clifford Cannon knowingly possessed a firearm, contrary to 18 U.S.C. § 922(g)(8). Defendant moved to dismiss the indictment, arguing that the injunction, a copy of which he attached to his motion, did not meet the requirements of § 922(g)(8)(C). The magistrate judge handling pre-trial proceedings recommended that the motion be denied. Defendant objects, so I must review the matter de novo. Fed. R. Crim. P. 59(b).

         I.

         Ordinarily, in ruling on a pre-trial motion to dismiss, the court considers the sufficiency of the indictment to charge an offense, regardless of the strength or weakness of the evidence the government may introduce at trial. See United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988). In limited circumstances, however, the court may consider whether the undisputed facts proffered by the parties amount to an offense. See id. (“The district court found no violation and correctly dismissed the indictment, not because the government could not prove its case, but because there was no case to prove.”). In the present case, the parties have filed the temporary restraining order and domestic abuse injunction entered by the state court, and they agree that defendant's motion may be decided by reference to those documents. See United States v. Luedtke, No. 08-CR-189, 2008 U.S. Dist. LEXIS 96544, at *3-4 (E.D. Wis. Nov. 18, 2008) (deciding similar pre-trial motion to dismiss § 922(g)(8) charge based on alleged flaws in the underlying domestic abuse injunction).

         In July 2015, S.J. petitioned the Milwaukee County Circuit Court for a temporary restraining order on defendant, with whom she had a dating and current or former live-in relationship. (R. 11-1 at 1.) S.J. alleged that defendant had access to a handgun, and that weapons were involved in an incident between them. (R. 11-1 at 1.) The court issued the order pending a hearing, requiring, inter alia, that defendant avoid contacting S.J. and that he “refrain from committing acts or threats of domestic abuse against” her. (R. 11-1 at 2.)

         On September 3, 2015, the state court issued an injunction, finding that “[t]here are reasonable grounds to believe that [defendant] engaged in, or based upon prior conduct of [S.J.] and [defendant], may engage in domestic abuse of [S.J.] as defined in §813.12, Wis. Stats., as stated in the court record.” (R. 10-1 at 2.) The court further found that defendant had access to weapon(s), i.e., a handgun, and that weapon(s) were involved in an incident involving S.J. (R. 10-1 at 1.) The injunction ordered that defendant “refrain from committing acts or threats of domestic abuse against” S.J. (R. 10-1 at 2.) The injunction further stated that defendant “is prohibited from possessing a firearm until the expiration of this injunction, ” and that he was to immediately surrender any firearm he possessed to the sheriff. (R. 10-1 at 2.) The injunction also advised defendant that federal law provided penalties for, and he may be prohibited from, possessing a firearm pursuant to 18 U.S.C. § 922(g)(8). The injunction was to remain in effect until July 17, 2019. (R. 10-1 at 1.)

         II.

         Federal law proscribes firearm possession by any person:

who is subject to a court order that -
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]

18 U.S.C. § 922(g)(8).

         Before the magistrate judge, defendant argued that the injunction against him failed to satisfy § 922(g)(8)(C)(ii) because it forbids “domestic abuse, ” without defining it, and thus does not “by its terms explicitly prohibit” the use, attempted use, or threatened use of physical force. The magistrate judge rejected this argument, noting that courts have repeatedly held that a domestic abuse injunction need not precisely track the language in § ...


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