Collateral consequences.

United States v. Hayes, __ U.S. ___ , No. 07–608, decided 24 February 2009. The Supreme Court has resolved a issue relating to qualifying convictions for firearm possession prohibitions post-conviction.

The federal Gun Control Act of 1968, 18 U. S. C. §921 et seq., has long prohibited possession of a firearm by any person convicted of a felony. In 1996, Congress extended the prohibition to include persons convicted of “a misdemeanor crime of domestic violence.” §922(g)(9). The definition of “misdemeanor crime of domestic violence,” contained in §921(a)(33)(A), is at issue in this case. Does that term cover a misdemeanor battery whenever the battered victim was in fact the offender’s spouse (or other relation specified in §921(a)(33)(A))? Or, to trigger the possession ban, must the predicate misdemeanor identify as an element of the crime a domestic relationship between aggressor and victim?

I am in the middle of final preparations for trial this week on a domestic assault SPCM, so I was particularly drawn to this new opinion. The client is charged with assaulting "Mrs. X." But what if he'd been charged with assaulting "X." Even though the surnames are the same? What if the spouse in my case retained her unmarried name so client X was accused of assaulting Y?

According to one side of the dispute my client likely would not qualify as having a prior misdemeanor conviction. This would be because there is no element of proof under Article 128, UCMJ, that the victim is a family member. I'm not convinced the pleading of "Mrs." would have saved the charge under the one side of the circuit split. The other side of the circuit split is that there is no need to plead and prove and element of assault on a family member. Quite reasonably the Supreme Court has resolved the split in favor of the non-element side of the split. Thus, an assault on a family member charged under Article 128, UCMJ, will qualify the accused under the gun control regulations and there is no need to plead and prove the victim is a family member.