Case: 1:08-cr-00848 Document #: 131 Filed: 06/29/10 Page 1 of 7 PageID #:568
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`No. 08 CR 848
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`Judge Robert M. Dow, Jr.
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`UNITED STATES OF AMERICA,
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`v.
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`JOE HESTER,
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Defendant Joe Hester’s motion to dismiss the indictment [86]. For
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`the reasons set forth below, the motion to dismiss [86] is respectfully denied.
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`I.
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`Background
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`On February 17, 2009, a federal grand jury returned a three-count indictment charging
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`Defendant Joe Hester (“Hester”) with one count of being a felon in possession of a firearm in
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`violation of 18 U.S.C. § 922(g)(1) and two counts of possession of narcotics with intent to
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`distribute [24]. On December 9, 2009, a grand jury returned a superseding indictment based on
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`substantially the same charges [89]. On December 1, 2009, prior to the superseding indictment,
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`Hester filed a motion to dismiss the indictment relying on the Seventh Circuit’s recent decision
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`in Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009). In Buchmeier, the Illinois
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`Department of Corrections sent the defendant a notice that notified him of the restoration of
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`certain civil rights. Hester’s motion contends that he has not committed a predicate felony – a
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`crime punishable by imprisonment for a term exceeding one year – which is an element that the
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`government must prove under § 922(g)(1). Hester argues that, under Buchmeier, his Illinois
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`convictions do not count as predicate felonies because the State of Illinois notified him of the
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`restoration of certain civil rights. 1
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`1 Hester argues that his Buchmeier claim requires dismissal of the entire indictment. However, Hester’s
`Buchmeier argument pertains only to the § 922(g) charge in Count I – the only count that depends on the
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`Case: 1:08-cr-00848 Document #: 131 Filed: 06/29/10 Page 2 of 7 PageID #:569
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`On December 21, 2009, the government filed a motion to extend time to respond to
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`Hester’s motion in order to determine whether Illinois sent Hester a notice similar to the one at
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`issue in Buchmeier. On January 5, 2010, after the Court granted the government’s first motion,
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`the government filed a second motion for an extension, in order to obtain relevant documents
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`from the Illinois Department of Corrections. On January 14, 2010, the judge previously assigned
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`to the case recused herself, without ruling on the motion to dismiss the indictment or the
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`government’s second motion for extension of time. On January 21, 2010, the Court granted the
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`government’s second motion for extension of time, and later gave Hester additional time to file
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`his reply.
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`II.
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`Legal Standard
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`Federal Rule of Criminal Procedure 12(b)(3)(B) permits a party to make a pretrial motion
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`that challenges the sufficiency of an indictment or information. The contents of an indictment or
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`information, in turn, are spelled out in Federal Rule of Civil Procedure 7(c)(1). The Seventh
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`Circuit teaches that an indictment is constitutionally adequate and complies with Rule 7(c)(1)
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`where it (i) states the elements of the offense charged, (ii) fairly informs the defendant of the
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`nature of the charge so that he or she may prepare a defense, and (iii) enables the defendant to
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`plead an acquittal or conviction as a bar against future prosecutions for the same offense. United
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`States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997); see also Hamling v. United States, 418
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`U.S. 87, 118 (1974) (discussing precedent and describing when the language of the indictment
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`will be deemed sufficient); Russell v. United States, 369 U.S. 749, 763 (1962) (among the criteria
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`meaning of the phrase “crime punishable by imprisonment for a term exceeding one year.” § 921(a)(20).
`Counts II and III are drug trafficking offenses and are not affected by Buchmeier. Hester cites no support,
`and the Court in its own research has not found any support, for Hester’s claim that because he was
`originally charged by complaint with violating § 922(g), the indictment may only survive if it contains a §
`922(g) count. In any event, as explained below, the Court determines that the § 922(g) count survives.
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`2
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`Case: 1:08-cr-00848 Document #: 131 Filed: 06/29/10 Page 3 of 7 PageID #:570
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`for gauging sufficiency of an indictment are whether it includes “the elements of the offense
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`intended to be charged” and whether is “sufficiently apprises the defendant of what he must be
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`prepared to meet”).
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`The Supreme Court has long held that “[a]n indictment returned by a legally constituted
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`and unbiased grand jury, * * * if valid on its face, is enough to call for trial of the charge on the
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`merits.” Costello v. U.S., 350 U.S. 359, 362 (1956). Indictments are to be reviewed “on a
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`practical basis and in their entirety, rather than in a hypertechnical manner.” United States v.
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`Cox, 536 F.3d 723. A motion to dismiss an indictment is not “a means of testing the strength or
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`weakness of the government’s case.’” United States v. Moore, 563 F.3d 583, 586 (7th Cir.
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`2009). Thus, while an indictment may be dismissed if subject to a defense that raises a purely
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`legal question (United States v. Labs of Virginia, Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003)),
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`a defense that relates to the strength of the Government’s evidence ordinarily must wait for the
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`trial. Moore, 563 F.3d at 586 (inquiry at the motion to dismiss phase is to determine “if it’s
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`possible to view the conduct alleged” as constituting the crime alleged); United States v. Risk,
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`843 F.2d 1059, 1061 (7th Cir. 1988) (noting the ordinary rule while affirming a district court that
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`dismissed an indictment as to which, under the undisputed facts, “there was no case to prove”).
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`III. Analysis
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`In Buchmeier, the Court considered whether defendant’s Illinois convictions qualified
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`him as an armed career criminal under 18 U.S.C. § 924(e). Section 924(e) establishes a fifteen
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`year mandatory minimum sentence for a defendant convicted as a felon in possession of a
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`firearm under § 922(g) who has had at least three previous convictions for violent felonies or
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`serious drug offenses. At issue was whether Buchmeier had three convictions for violent
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`felonies, which, under the statute, must be crimes “punishable by imprisonment for a term
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`3
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`Case: 1:08-cr-00848 Document #: 131 Filed: 06/29/10 Page 4 of 7 PageID #:571
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`exceeding one year.” 18 U.S.C. § 922(e)(2)(B). Buchmeier argued that his eight Illinois
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`convictions for burglary did not meet the statutory definition of such crimes in light of 18 U.S.C.
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`§ 921(a)(20), which states:
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`The term “crime punishable by imprisonment for a term exceeding one year” does
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`(A) any Federal or State offenses pertaining to antitrust violations, unfair trade
`practices, restraints of trade, or other similar offenses relating to the regulation of
`business practices, or
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`(B) any State offense classified by the laws of the State as a misdemeanor and
`punishable by a term of imprisonment of two years or less.
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`What constitutes a conviction of such a crime shall be determined in accordance
`with the law of the jurisdiction in which the proceedings were held. Any
`conviction which has been expunged, or set aside or for which a person has been
`pardoned or has had civil rights restored shall not be considered a conviction for
`purposes of this chapter, unless such pardon, expungement, or restoration of civil
`rights expressly provides that the person may not ship, transport, possess, or
`receive firearms.
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`18 U.S.C. § 921(a)(20).
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`Based on the last cited paragraph, Buchmeier claimed that Illinois had restored his civil
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`rights with respect to his eight burglary convictions, and that the restoration of his civil rights did
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`not expressly prohibit him from possessing firearms. Buchmeier, 581 F.3d at 564. With the
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`eight convictions “erased,” Buchmeier no longer would have three convictions for violent
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`felonies and could not be properly sentenced under § 924(e) as an armed career criminal. Id. In
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`support of his claim, Buchmeier relied on a notice that he received from the Illinois Department
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`of Corrections after his state sentences expired and he was released from all supervision. Id.
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`The notice informed Buchmeier that the State of Illinois had restored his right to vote and to hold
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`offices created under the Illinois constitution and did not expressly state that Buchmeier was
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`prohibited from possessing firearms. Id.
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`4
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`Case: 1:08-cr-00848 Document #: 131 Filed: 06/29/10 Page 5 of 7 PageID #:572
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`The Seventh Circuit sided with Buchmeier, concluding that the notice that he received
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`purported to restore his civil rights with respect to his eight Illinois convictions and did not
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`expressly state provide that Buchmeier was prohibited from possessing firearms. The court held
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`that the eight burglary convictions were not “crime[s] punishable by imprisonment for a term
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`exceeding one year” under § 921(a)(20). Id. at 567. The court reasoned that the second sentence
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`of the final paragraph of § 921(a)(20) – governing convictions in which a person has had his civil
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`rights restored – is an “anti-mousetrapping provision,” which “protects people who might be
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`snookered, by material omissions from governmental documents, into believing that they are
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`entitled to possess firearms.” Id. at 566. The court concluded that if the state “sends a document
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`that seems to restore all civil rights[,] the conviction does not count for federal purposes unless
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`the document warns the person about a lingering firearms disability.” Id. at 566-57.
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`Hester claims that he received the same notice from Illinois that Buchmeier received, and
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`that, like Buchmeier, he believed that he was entitled to possess firearms. Therefore, Hester
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`contends that his Illinois convictions do not count as predicate felonies under § 922(g) and he is
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`entitled to dismissal of all three counts of the indictment.
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`In this case, the indictment alleges that Hester has been previously “convicted of a crime
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`punishable by at least a term of imprisonment exceeding one year.”2 [89 at 1]. However, the
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`government contends that it need not rely on any of Hester’s Illinois convictions as predicate
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`felonies under § 922(g). Instead, the government alleges that Hester has a felony conviction in
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`2 In his reply brief, Hester contends that the government “charged and indicted” him as a felon in
`possession based on an Illinois conviction, not on a Georgia conviction. Although the affidavit attached
`to the criminal complaint [1] refers only to Illinois offenses, both the initial [24] and superseding [89]
`indictments indicate that Hester was “previously convicted of a crime punishable by at least a term of
`imprisonment exceeding one year,” without reference to the jurisdiction of the predicate felony. Hester
`has not cited, nor has the Court found, any authority to support the proposition that the government must
`specify the jurisdiction of the predicate offense in the indictment.
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`5
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`Case: 1:08-cr-00848 Document #: 131 Filed: 06/29/10 Page 6 of 7 PageID #:573
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`the State of Georgia, which serves as the predicate felony in this case, and that the Illinois notice
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`does not serve to restore his civil rights with respect to the Georgia conviction.
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`According to the government and not contested by Hester in his reply brief, Hester was
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`convicted in Georgia of a crime punishable by imprisonment for a term exceeding one year prior
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`to Hester’s possession of a firearm as charged in the indictment. The government contends that
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`on May 22, 1979, Hester, using the alias Charles Willie Young, was convicted of burglary (a
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`felony) in the Fulton Superior Court in the State of Georgia, and sentenced to up to three years in
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`prison, with a requirement that he serve five months.3
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`Section 921(a)(20) states that what constitutes a crime punishable by imprisonment for a
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`term exceeding one year is “determined in accordance with the law of the jurisdiction in which
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`the proceedings were held.” In other words, “whether a person has had civil rights restored * * *
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`is governed by the law of the convicting jurisdiction.” Beecham v. United States, 511 U.S. 368,
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`371 (1994) (holding that federal law decides whether rights have been restored with respect to a
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`federal conviction); see also U.S. v. Schnell, 353 Fed. Appx. 12, 15 (7th Cir. 2009) (“Only the
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`jurisdiction that obtained a conviction may forgive the conviction for purposes of § 921(a)(20)”).
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`Thus, even if Hester received a notice from Illinois restoring his civil rights in Illinois, that notice
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`did not – indeed, could not – have any impact on Hester’s prior conviction in Georgia.
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`Accordingly, the Georgia conviction – which was for a crime punishable by imprisonment for a
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`term exceeding one year – may serve as a necessary predicate felony under § 922(g)(1).4
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`3 The government represents to the Court that it has obtained a certified copy of the conviction from the
`State of Georgia.
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` In his reply brief, Hester understandably expresses frustration with the government’s use of a thirty-
`year old conviction from another jurisdiction to serve as the predicate felony for the felon in possession
`charge, particularly after the complaint referred only to a prior Illinois conviction. However, Hester has
`not provided, and the Court in its independent research has not found, authority that suggests any
`temporal limitations on the predicate felonies under the felon in possession statute.
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`Case: 1:08-cr-00848 Document #: 131 Filed: 06/29/10 Page 7 of 7 PageID #:574
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`IV. Conclusion
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` For the reasons stated above, the motion to dismiss [86] is respectfully denied.
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`Dated: June 29, 2010
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`____________________________________
`Robert M. Dow, Jr.
`United States District Judge
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