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United States v. Gutierrez

United States District Court, D. Montana, Billings Division

July 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO FRANCISCO GUTIERREZ, Defendant.

          ORDER

          SUSAN P. WATTERS, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Antonio Francisco Gutierrez's motion to dismiss the indictment. (Doc. 27). For the foregoing reasons, the Court denies the motion.

         I. Facts

         On or 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).

         Around 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.

         Mr. 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).

         On 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.

         The 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).

         At some 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).

         II. Discussion

         Gutierrez 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.

         A. 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 do

         Gutierrez 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.

         It is 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 ...


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