United States District Court, D. Montana, Billings Division
P. WATTERS, UNITED STATES DISTRICT JUDGE
the Court is Defendant Antonio Francisco Gutierrez's
motion to dismiss the indictment. (Doc. 27). For the
foregoing reasons, the Court denies the motion.
around February 5, 2018, Antonio Gutierrez allegedly robbed a
casino in Billings, Montana. Later the same night, Gutierrez
was arrested by the Billings Police Department. The police
referred the case to the Yellowstone County Attorney's
office, which charged Gutierrez with the state crime of
robbery. (Doc. 28-1 at 3).
March 27, 2018, the Deputy Yellowstone County Attorney
prosecuting Gutierrez, Julie Patten, emailed an Assistant
United States attorney to ask if the United States had any
interest in prosecuting the case. (Doc. 29 at 17). Ms. Patten
did this as a result of a Project Safe Neighborhoods Task
Force meeting she had attended approximately one week prior.
Two Assistant United States Attorneys, Joe Thaggard and Colin
Rubich, had also attended the Task Force meeting.
Thaggard responded that the United States may be interested
in the case and referred it to an agent with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives. Over the course
of the next month, Ms. Patten and the Billings Police
Department cooperated with the ATF agent by sharing evidence
obtained by the Billings police. (Doc. 29 at 1-17). The state
continued to proceed with its case against Gutierrez. (Doc.
28-1 at 3).
April 19, 2018, Gutierrez was federally indicted and an
arrest warrant was issued. Between April 19, 2018 and May 11,
2018, the ATF agent emailed Ms. Patten to determine
Gutierrez's whereabouts so the ATF agent could effectuate
the federal arrest warrant. (Doc. 29 at 1-9). On May 23,
2018, Gutierrez was arrested under the federal arrest
warrant. On May 25, 2018, Ms. Patten filed a motion to
dismiss the state charges against Gutierrez without
prejudice, which the state court granted. (Doc. 28-1 at 3).
Because the state charges were dismissed without prejudice,
the state retained the option to prosecute Guiterrez for the
robbery, should the United States decide not to go forward.
Ms. Patten wanted to retain this option.
federal indictment charged Gutierrez with conspiracy to
commit robbery affecting commerce, robbery affecting
commerce, possession of a firearm in furtherance of a crime
of violence, and felon in possession of a firearm. (Doc. 1).
point between 2000 and 2003, Gutierrez was convicted of
burglary in Idaho state court. (Doc. 28-1 at 1-2). In 2003,
upon completion of his sentence and probation, Gutierrez was
discharged from probation and his burglary was reduced to
misdemeanor theft. (Doc. 28-1 at 1-2). The order discharging
Gutierrez from probation states "[Gutierrez] is not to
be considered a convicted felon because he has successfully
complied with the terms and conditions of probation and paid
all restitution/reimbursement and fines in full." (Doc.
28-1 at 2). Gutierrez has not filed an application with the
Idaho commission of pardons and parole requesting his right
to possess firearms be restored. (Doc. 30-2 at 3).
argues the indictment should be dismissed for three reasons.
First, Gutierrez argues the felon in possession of a firearm
count should be dismissed because Gutierrez is not a felon
prohibited from possessing a firearm. Second, Gutierrez
argues the indictment should be dismissed because the federal
government violated the Speedy Trial Act by using state
authorities to arrest and hold Gutierrez until the federal
government could build its case. Third, Gutierrez argues the
indictment fails to show a sufficient nexus between the
crimes alleged and interstate commerce.
Gutierrez is a person prohibited from possessing a firearm
under § 922(g)(1) because Idaho law expressly provides
that his final discharge did not restore his rights to
possess a firearm unless he filed an application with the
commission of pardons and parole, which he did not
argues he is not prohibited from possessing firearms because
his final discharge order restored his civil rights and
stated he was not to be considered a convicted felon. The
Court disagrees that the final discharge order had the effect
of restoring his civil right to possess a firearm.
unlawful under federal law for any person who has been
convicted in any court of a "crime punishable by
imprisonment for a term exceeding one year" to possess
any firearm in or affecting commerce. 18 U.S.C. §
922(g)(1). "Crime punishable by imprisonment for a term
exceeding one year" does not include a conviction which
has been expunged, pardoned, or for which a person has had
his or her civil rights restored, unless such expungement,
pardon, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive
firearms. 18 U.S.C. § 921(a)(20). The "unless"
clause is ...