United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION IN
LIMINE [ECF NO. 51]
V. PARKER, U.S. DISTRICT JUDGE.
March 20, 2019, a federal grand jury returned a three-count
indictment charging Jesse Hawkins (“Jesse”) and
his brother Price Hawkins (collectively Defendants) with
firearm offenses. Jesse is charged in two counts of the
Indictment: (1) Receipt of a Firearm While Under Indictment
in violation of 18 U.S.C. § 922(n); and (2) Possession
of an Unregistered Firearm in violation of 26 U.S.C.
§§ 5841, 5861(d) and 5871. The matter is presently
before the Court on Jesse's Motion in Limine. (ECF No.
initial motion, Jesse seeks to preclude the Government from
referring to his prior criminal charges and status as a
“youthful trainee” under Michigan's Holmes
Youthful Training Act (“HYTA”). Jesse indicates
that he will stipulate that he was assigned this status at
the time relevant to Count One of the Indictment-that is,
between on or about May 19, 2018, and on or about June 7,
2018. Jesse argues that evidence regarding his
prior felony charges and assignment under the HYTA are
irrelevant and unduly prejudicial. He therefore maintains
that this evidence should be excluded under Federal Rules of
Evidence 403 and 404.
Government argues in response that Jesse's proposed
stipulation falls short of establishing that it was illegal
for him to receive a firearm during the relevant period and
that he did so willfully (that is, he knew of that
illegality). The Government therefore contends that excluding
evidence of Jesse's prior charges and status under the
HYTA inhibits it from proving Jesse's guilt under 18
U.S.C. § 922(n). While making this argument, the
Government asserts that Jesse's status as being under
multiple HYTA sanctions rendered him “under
indictment” for purposes of § 922(n).
Government's latter assertion appears to have triggered
Jesse's counsel to raise a completely new argument in his
reply brief. That is, in reply, Jesse seeks dismissal of
Count One of the Indictment, charging him with violating
§ 922(n), on the basis that his status under the HYTA
does not meet the definition of being “under
indictment” for purposes of the statute. A reply brief
generally is not the proper place to raise an argument for
the first time. See United States v. Galaviz, 645
F.3d 347, 362 (6th Cir. 2011) (citing United States v.
Campbell, 279 F.3d 392, 401 (6th Cir. 2002)).
Nevertheless, because the Government raised the issue-and
therefore had the opportunity to address it-the Court has
decided to consider it.
It shall be unlawful for any person who is under indictment
for a crime punishable by imprisonment for a term exceeding
one year to ship or transport in interstate or foreign
commerce any firearm or ammunition or receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
18 U.S.C. § 922. “Indictment” is defined as
“an indictment or information in any court under which
a crime punishable by imprisonment for a term exceeding one
year may be prosecuted.” 18 U.S.C. § 921(a)(14).
Pursuant to the relevant sentencing provision, 18 U.S.C.
§ 924(a)(1)(D), any violation of § 922(n) must be
committed “willfully.” See Dixon v. United
States, 548 U.S. 1, 5 & n.3 (2006). To prove
willfulness, the prosecution must show that the defendant
“acted with knowledge that his conduct was
unlawful.” Id. at 5.
Government correctly indicates, Jesse's proposed
stipulation that he was assigned the status of a youthful
trainee under the HYTA during the relevant period does not
substitute for the evidence the Government seeks and needs to
introduce to prove Jesse's guilt under § 922(n). The
stipulation does not prove that Jesse was “under
indictment” for a crime punishable by imprisonment for
a term exceeding one year. Nor does it prove that Jesse knew
that it was unlawful to receive a firearm shipped or
transported in interstate commerce while he was a youthful
trainee. The Court therefore rejects Jesse's argument at
this time that this evidence must be excluded under Federal
Rules of Evidence 403 or 404.
respect to whether Jesse was “under indictment”
when he received a firearm during the relevant period, this
Court must look to Michigan law. See, e.g.,
United States v. Hill, 210 F.3d 881, 883 (8th Cir.
2000) (citing United States v. Chapman, 7 F.3d 66,
67-68 (5th Cir. 1993)). Michigan courts describe the HYTA as
“essentially a juvenile diversion program for criminal
defendants under the age of 21.” People v.
Dipiazza, 778 N.W.2d 264, 266 (Mich. Ct. App. 2009). The
Sixth Circuit has found the public policy behind the statute
“clear: to give youthful offenders a chance to wipe
their records clean provided that they do not violate their
status as ‘youthful trainees.' ” Adams v.
United States, 622 F.3d 608, 611 (2010).
HYTA allows a court, with certain exceptions, to assign an
individual to “youthful trainee” status if the
individual pleads guilty to a criminal offense committed
between the ages of seventeen and twenty-four. Mich. Comp. Laws
§ 762.11(1). At that time, a judgment of conviction is
not entered. Id. “An assignment of an
individual to the status of youthful trainee . . . is not a
conviction for a crime ….” Id. §
the statute, a court has the discretion to terminate or
revoke an individual's youthful trainee status at any
time; however, the court must do so if the individual pleads
guilty to or is convicted of certain crimes. See
Mich. Comp. Laws § 762.12(1), (2). The statute provides:
“Upon termination of consideration or revocation of
status as a youthful trainee, the court may enter an
adjudication of guilt and proceed as provided by law. If the
status of youthful trainee is revoked, an adjudication of
guilt is entered, and a sentence is imposed ….”
Id. § .12(3) If the individual's youthful
trainee status is not terminated or revoked, the court must
“discharge the individual and dismiss the
proceedings.” Id. § 762.14(1).
Sixth Circuit has not addressed whether an individual is
“under indictment” for purposes of § 922(n)
when he or she is a HYTA youthful trainee. Jesse identifies
one case in this District where the issue was litigated.
See 4/30/19 Hr'g Tr., United States v.
Bryant, Criminal Case No. 19-20134 (E.D. Mich. Apr. 30,
2019), ECF No. 27. In that case, the Honorable Bernard A.
Friedman denied the defendant's motion to dismiss the
§ 922(n) charge against him, concluding that the phrase
“under indictment” in the statute must be read
broadly and includes an individual under HYTA status.
Id. at Pg ID 141-44. Judge Friedman's holding is
consistent with those of courts in other circuits,
considering similar state statutes: United States v.
Saiz, 797 F.3d 853 (10th Cir. 2015) (holding that a
defendant who receives a conditional discharge under New
Mexico law is “under indictment”); United
States v. Valentine, 401 F.3d 609 (5th Cir. 2005)
(concluding that those subject to a deferred adjudication in
Texas are “under indictment”); United States
v. Larkin, No. 13-cr-172, 2013 WL 6498068 (N.D. Okla.
Dec. 11, 2013) (holding that the defendant, who pleaded
guilty and received a deferred sentence under Oklahoma law,
was “under indictment”); United States v.
Bonds, No. 2:16-cr-00034, 2017 WL 2991804 (N.D.Ga. Mar.
10, 2017) (concluding that a defendant is “under
indictment” when he or she pleads guilty under
Georgia's First Offender Act and is subject to a deferred
sentence); but see United States v. Hill, 210 F.3d
881 (8th Cir. 2000) (concluding that a defendant who has
pleaded guilty and received a suspended sentence under
Missouri law is not “under indictment”).
courts concluding that deferred adjudication is equivalent to
being “under indictment” reasoned that under the
statutes before them, a deferred sentence or adjudication is
not considered a conviction or a judgment. See,
e.g., Valentine, 401 F.3d at 615. The charge
against the defendant remains pending and, if whatever terms
and conditions are imposed have been fulfilled, the charge is
dismissed without court adjudication of guilt and a
conviction. Id. In Hill, in comparison, the
Eighth Circuit concluded that a defendant is not under
indictment while subject to a suspended sentence under
Missouri law. 210 F.3d at 884. The court found that,
“[u]nder Missouri law, the primary purpose of an
indictment or information is to give general notice to the
defendant of the charge against him.” Id.