United States v. Flett

379 F.Supp.3d 1152

UNITED STATES of America, Plaintiff,

v.Tommie Joe FLETT, Defendant.

No. 2:18-cr-00157-SMJ

United States District Court, E.D. Washington.

Signed May 21, 2019

Alison L. Gregoire, US Attorney's Office, Spokane, WA, for Plaintiff.

ORDER RULING ON PRETRIAL MOTIONS

SALVADOR MENDOZA, JR., United States District Judge

On September 5, 2018, the Government filed an Indictment charging Defendant Tommie Joe Flett with two counts: assault with a dangerous weapon and domestic assault by an habitual offender resulting in substantial bodily injury. ECF No. 1. On March 19, 2019, the Court rejected the parties' Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, granted Flett's oral motion to withdraw his guilty plea, and scheduled a pretrial conference and trial. ECF No. 40.

The Court held a pretrial conference on May 21, 2019. Before the Court was Flett's motion to dismiss count two and response to the Government's notice of prior convictions, ECF No. 54 ; Flett's motion to bifurcate or sever counts and response to the Government's notice of prior convictions, ECF No. 50 ; Flett's objections to anticipated expert testimony, ECF No. 49 ; and Flett's motions in limine , ECF No. 48. The Court ruled orally on each of Flett's motions and objections. This Order memorializes and supplements the Court's oral rulings, which are incorporated herein. The Court addresses each of Flett's motions and objections in turn.

A. Flett's motion to dismiss count two

Count two of the Indictment charges Flett with domestic assault by an habitual offender resulting in substantial bodily injury. ECF No. 1 at 2. Flett moves to dismiss count two, arguing insufficient evidence supports it because his criminal history does not contain the two predicate convictions required. ECF No. 54 at 4–8. For the jury to find Flett guilty of count two, the Government must prove beyond a reasonable doubt that, on or about July 12, 2018, he "ha[d] a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction ... any assault, sexual abuse, or serious violent felony against a[n] ... intimate partner." 18 U.S.C. § 117(a)(1) ; see also ECF No. 1 at 2.

Flett argues he has only one predicate conviction because his prior state and tribal convictions do not qualify as the second predicate.¹ Applying the categorical approach, Flett argues his prior state and tribal convictions are overbroad because they require a lesser mens rea than the federal generic offenses, which require intent. ECF No. 54 at 4–7. Assuming, without deciding, that the categorical approach applies in this context, Flett's argument fails.

Both Flett and the Government point to simple assault and assault by striking, beating, or wounding (i.e., simple battery² )— 18 U.S.C. § 113(a)(4) and (5) —as possible comparators. Id. at 5; ECF No. 61 at 8, 11, 12. Because § 113 "does not specify a mens rea requirement, nor does it define ‘assault,’ " the Ninth Circuit has "applied the common law definition of assault to § 113 crimes." United States v. Lamott , 831 F.3d 1153, 1156 (9th Cir.), cert. denied , ––– U.S. ––––, 137 S. Ct. 258, 196 L.Ed.2d 195 (2016). "Common law assault is defined as ‘(1) a willful attempt to inflict injury upon the person of another, also known as an attempt to commit battery, or (2) a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.’ " Id. (quoting United States v. Lewellyn , 481 F.3d 695, 697 (9th Cir. 2007) ).

"Under the common law, ‘an assault is an attempted battery and proof of a battery will support conviction of an assault.’ " Lewellyn , 481 F.3d at 697 (quoting United States v. Dupree , 544 F.2d 1050, 1052 (9th Cir. 1976) ). "[B]attery is a general intent crime." Lamott , 831 F.3d at 1157. "[A] general intent crime requires only that the act was volitional (as opposed to accidental), and the defendant's state of mind is not otherwise relevant." Id. at 1156. Thus, "[a]t common law, battery did not require intent to injure, only that the offensive touching was willful." Lewellyn , 481 F.3d at 697. Similarly, "[t]he mens rea requirement [for assault] is that the volitional act be willful or intentional; an intent to cause injury is not required." Id.

Incorporating these rules, the model jury instructions for simple assault and simple battery require that the defendant commit the act "intentionally." See Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury Instructions 8.7A, 8.8 (2010 ed.). " ‘Intentionally’ applies to the act itself, and serves merely to distinguish nonvolitional or accidental conduct. The requirement that an act be done ‘intentionally’ is ‘a perfectly adequate formulation of the idea of general intent.’ " Lamott , 831 F.3d at 1158 n.1 (quoting United States v. Smith , 638 F.2d 131, 133 (9th Cir. 1981) ). And again, under that formulation, "[i]ntent to injure is not required"; indeed "criminal negligence or recklessness will suffice" as long as the act itself was intentional in the sense that it was volitional and voluntary. United States v. Juvenile Male , 930 F.2d 727, 728–29 (9th Cir. 1991) ; see also Lamott , 831 F.3d at 1156, 1158 n.1 ; United States v. Loera , 923 F.2d 725, 728 (9th Cir. 1991).

The Government alleges Flett has nine prior state and tribal convictions that qualify as predicates. ECF No. 61 at 4–5. But the Government relies most heavily on Flett's 2006 and 2008 Spokane Tribal Court convictions for second degree assault and battery. Id. at 9. Under the Spokane tribal code, "[a]ny person who shall willfully and knowingly use force or violence on another person shall be guilty of assault and battery in the second degree when he willfully and unlawfully touches, strikes or otherwise harms the person or body of another." SPOKANE TRIBE OF INDIANS, REV. LAW & ORDER CODE § 8-2.02(a) (2013), available at http://spokane tribe.com/userfiles/file/SLOC% 2005-14-2013% 20% 28Final% 29% 281% 29.pdf.

The plain language of this statute—specifically the words "willfully and knowingly" and "willfully and unlawfully"—requires that the defendant commit the act "intentionally" within the common law meaning outlined above. Specifically, this statute requires a volitional and voluntary act. Flett's argument that "willfully" is a lower mens rea than "intentionally," ECF No. 54 at 8, is mistaken because the words are synonymous in this context.³ Further, Flett's argument that this statute extends to nonbodily harm, id. , ignores the corporal focus of its plain language, which proscribes "us[ing] force or violence on another person" by "touch[ing], strik[ing] or otherwise harm[ing] the person or body of another."

Therefore, Flett's 2006 and 2008 Spokane Tribal Court convictions for second degree assault and battery did not require a lesser mens rea than, and are no broader than, the federal generic offenses of simple assault and simple battery. The victims involved in those tribal convictions appear to have been Flett's intimate partners. See ECF No. 44 at 5 ; ECF No. 61 at 4. As a matter of law, either of those tribal convictions could qualify as Flett's second predicate.⁴

From this evidence, a rational jury could find beyond a reasonable doubt that Flett had the two required predicate convictions on or about July 12, 2018. In sum, it appears the Government may present sufficient evidence to prove Flett "ha[d] a final conviction on at least 2 separate prior occasions in Federal ... or Indian tribal court proceedings for offenses that would be, if subject to Federal jurisdiction ... any assault ... against a[n] ... intimate partner." 18 U.S.C. § 117(a)(1) ; see also ECF No. 1 at 2. Flett's motion to dismiss count two is DENIED.

B. Flett's motion to bifurcate or sever counts

Count one of the Indictment charges Flett with assault with a dangerous weapon. ECF No. 1 at 1. Count two of the Indictment charges Flett with domestic assault by an habitual offender resulting in substantial bodily injury. Id. at 2. For the jury to find Flett guilty of count one, the Government must prove the following elements beyond a reasonable doubt:

First, the defendant assaulted D.L. by intentionally wounding her;

Second, the defendant acted with the intent to do bodily harm to D.L.;

Third, the defendant used a dangerous weapon; and

Fourth, the assault took place within the external boundaries of the Colville reservation, in Indian country.

See Ninth Circuit Jury Instructions Comm., Manual of Model Criminal Jury Instructions 8.7 (2010 ed.); see also ECF No. 1 at 1 ; 18 U.S.C. § 113(a)(3). For the jury to find Flett guilty of count two, the Government must prove the following elements beyond a reasonable doubt:

First, the defendant knowingly assaulted D.L.;

Second, as a result, D.L. suffered substantial bodily injury;

Third, at the time of the assault, D.L. was the defendant's current or former intimate or dating partner;

Fourth, the assault took place within the external boundaries of the Colville reservation, in Indian country; and

Fifth, the defendant committed the assault after having a final conviction on at least two separate prior occasions in federal, state, or Indian tribal court proceedings for offenses that would be, if subject to federal jurisdiction, any assault, sexual abuse, or serious violent felony against an intimate partner.

See ECF No. 1 at 2 ; 18 U.S.C. § 117.

Flett moves to bifurcate trial proceedings because, he argues, the Government would prejudice his defense on count one by introducing evidence of his nine prior domestic assault convictions to prove count two's final element. ECF No. 50 at 1–3. Flett proposes withholding count two's final element, and corresponding evidence of his prior domestic assault convictions, unless and until the jury finds the Government has proven all other elements of count two beyond a reasonable...