U.S. v Sanchez (May 5, 2011)
That's an interesting decision and only 11 pages!
Sanchez was originally convicted of domestic violence under AZ law. Later, he was picked up carrying a firearm and ammo, in conflict with the the Lautenberg act. Maybe.
AAR, he was indicted by a Federal Grand Jury on violation of §922(g)(9) (possession of a firearm by being convicted of a MCDV). In pretrial motions, Sanchez argued that the underlying crime lacked “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” against the supposed victim.
Five days later, the Feds filed a superseding indictment on violating §922(g)(8) (receiving a firearm while under a RO). He was convicted on that count. The Government argued that possession of the firearm is the same as receiving a firearm.
Sanchez appealed.
Oh, Sanchez is not out of the woods yet, as the feds can re-indict under the (apparently) weaker violation he was originally charged with. We won't know how weak (if at all, but that is a good presumption) the former indictment is, until the Feds try Sanchez on it (and I suspect they will).
One thing you can bet, is that courts in the 9th Circuit will now be a lot more explicit when issuing an RO/TRO.
The panel said that this is a case of first impression, meaning that this has not come up in the Circuit before. They cite 3 other Circuit cases (1st - 2006; 4th - 1999; and 11th - 2010) that have held the same thing the 9th has now held: The RO must be explicit in satisfying the underlying verbiage of §922(g)(8).
As the Court wrote:
The Circuit panel reversed and remanded with orders to vacate the indictment.
As criminal cases go, this merely sets the stage for chipping away at Lautenberg.
That's an interesting decision and only 11 pages!
Sanchez was originally convicted of domestic violence under AZ law. Later, he was picked up carrying a firearm and ammo, in conflict with the the Lautenberg act. Maybe.
AAR, he was indicted by a Federal Grand Jury on violation of §922(g)(9) (possession of a firearm by being convicted of a MCDV). In pretrial motions, Sanchez argued that the underlying crime lacked “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” against the supposed victim.
Five days later, the Feds filed a superseding indictment on violating §922(g)(8) (receiving a firearm while under a RO). He was convicted on that count. The Government argued that possession of the firearm is the same as receiving a firearm.
Sanchez appealed.
Oh, Sanchez is not out of the woods yet, as the feds can re-indict under the (apparently) weaker violation he was originally charged with. We won't know how weak (if at all, but that is a good presumption) the former indictment is, until the Feds try Sanchez on it (and I suspect they will).
One thing you can bet, is that courts in the 9th Circuit will now be a lot more explicit when issuing an RO/TRO.
The panel said that this is a case of first impression, meaning that this has not come up in the Circuit before. They cite 3 other Circuit cases (1st - 2006; 4th - 1999; and 11th - 2010) that have held the same thing the 9th has now held: The RO must be explicit in satisfying the underlying verbiage of §922(g)(8).
As the Court wrote:
The Circuit panel reversed and remanded with orders to vacate the indictment.
As criminal cases go, this merely sets the stage for chipping away at Lautenberg.