Friday, December 29, 2006

US v. Nobriga, No. 04-10169 (12-29-06). The 9th reverses a denial of a motion to dismiss an indictment for possessing a firearm after having been convicted of a misdemeanor domestic violence offense. The defendant had been convicted of a misdemeanor for abuse of a household member under a state (Hawaii) statute. He pled "no contest." He argued before the district court that the conviction did not fall under the definition of 922(g)(9)'s misdemeanor crime of violence. The trial court had held that the offense was not a categorical crime of violence, but the charging documents and plea made it so. The 9th first held that the element of "domestic relationship" did not have to be listed in the state statute. The controlling decision is US v. Belless, 338 F.3d 1063 (9th Cir. 2003). However, the 9th also held that the statute could also take in "reckless" use of force and recklessness is not an intentional use of force so as to bring in under a "crime of violence." This aligns with other circuits' interpretations. As such, the motion to dismiss should have been granted.


Post a Comment

<< Home