Petition for Writ of Certiorari — Michael Blake DeFrance, Petitioner v. United States
Supreme Court briefMay 16, 2025
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25-5028
No.
IN THE
SUPREME COURT OF THE UNITED STATES
FILED
MAY 1 6 2025
OFFICE OF THE CLERK
SUPREME COURT, U.S.
October Term, 2024
MICHAEL BLAKE DeFRANCE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
RACHEL JULAGAY
Federal Defender
* MICHAELDONAHOE
Deputy Federal Defender
Federal Defenders of Montana
50 West 14th Street, Suite 1
Helena, MT 59601
Telephone: (406) 449-8381
*Counsel of Record for Petitioner
SUBMITTED: May 16, 2025
RECEIVED
MAY 2 1 2025
QUESTIONS PRESENTED
Question 1: Whether the relationships listed in 18 USC §921(a)(33)(A)
defining misdemeanor crime of domestic violence serve both jurisdictional and
substantive purposes under controlling decisions of this Court, considering
Congress’s passage of the Bipartisan Safer Communities Act (BSCA); and whether
the Ninth Circuit acted in violation of this Court’s rule in Steel Company v.- Citizens
For A Better Environment, 523 U.S. 83 (1998), which requires federal courts to
address any issue of subject matter jurisdiction before determining any issue on the
merits.
Question 2: Whether this Court’s decision in United States v Hayes, 555 U.S.
415 (2009), forbids pretrial application of the categorical approach, the
circumstance-specific approach or Double Jeopardy Clause issue preclusion rules
where the state domestic assault statute lists relationship elements, but that list is
broader than the relationships listed in the federal law.
Question 3: Should the government be estopped from continuing with this
prosecution on judicial estoppel/due process grounds since before trial the
government i) cleared petitioner to possess firearms on five occasions; and ii)
adopted the position that petitioner’s 2013 PFMA conviction was based on a
“dating” relationship in a proposed plea agreement? Positions inconsistent with its
trial theory that the PFMA conviction was supported by a spousal type relationship,
ii
'5
PARTIES TO THE PROCEEDING
Petitioner, who was the defendant in the district court, and defendant
appellant in the Ninth Circuit Court of Appeals, is Michael Blake DeFrance.
Petitioner is represented by Deputy Federal Defender, Michael Donahoe, of the
Federal Defenders of Montana for the District of Montana, Helena Branch.
Respondent, who was the plaintiff in the district court and plaintiff-appellee
in the Ninth Circuit Court of Appeals, is the United States of America. Respondent
is represented by Jennifer S. Clark and Timothy A. Tatarka, Assistant United States
Attorneys for the District of Montana.
STATEMENT OF DIRECTLY RELATED CASES
• Michael Blake DeFrance v. United States, No. 22-6956, Supreme
Court of the United States. Petition for Certiorari denied April 3,
2023 (App. A, p. 29).
• United States v. DeFrance, No. 22-30131, United States Court of
Appeals for the Ninth Circuit. Interlocutory Appeal dismissed;
order entered February 15, 2023 (App. A, p. 30).
There are no other proceedings related to this case under Rule 14.1 (b)(iii).
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED....................................................................................... ii
PARTIES TO THE PROCEEDING..........................................................................iii
STATEMENT OF DIRECTLY RELATED CASES............................................... iii
TABLE OF CONTENTS........................................................................................... iv
TABLE OF AUTHORITIES...................................................................................... v
OPINIONS BELOW.................................................................................................... 1
JURISDICTION AND TIMELINESS OF THE PETITION.................................... 2
CONSTITUTIONAL PROVISIONS INVOLVED ........................
3
STATUTORY PROVISIONS INVOLVED..............................................................4
STATEMENT OF THE CASE..................................................
4
1. Introduction....................................................................................... 4
2. Proceedings in the District Court.....................................................6
3. Proceedings in the Ninth Circuit Court ofAppeals....................... 12
REASONS FOR GRANTING THE WRIT............................................................. 13
1. Jurisdiction.......................................................................................15
2. The proper analytic approach and its timing................................ 25
3. Judicial estoppel/due process notice............................................. 29
CONCLUSION.......................................................................................................... 33
iv
TABLE OF AUTHORITIES
Page No.
CASES
American Fire & Casualty Co. v. Finn,
341 U.S. 6 (1951) .......................................................................................... 24
Ashe v. Swenson,
397 U.S. 436 (1970) ......................................................................................26
Atascadero State Hosp. v. Scanlon,
473 U.S. 234 (1995) ...................................................................................... 23
In re Babaisakov,
24 I. & N. Dec. 306 (2007)............................................................................ 29
Bogle v. Garland,
21 F.4th 637 (9th Cir. 2021)........................................................................... 28
Bond v. United States,
572 U.S. 844 (2014) .........................
21, 22, 23,25
Coffin v. United States,
156 U.S. 432 (1895) ...................................................................................... 30
Commonwealth ofPennsylvania v. Nelson,
350 U.S. 497 (1956) ........................................................................................25
Cosby v. Jones,
682 F.2d 1373 (11th Cir. 1982)..................................................................... 32
Davis v. United States,
417 U.S. 333 (1974) ..................................................................................14,25
Hernandez-Zavala v. Lynch,
806 F.3d 259 (4th Cir. 2015).................................................................... 8,28
Jackson v. Virginia,
443 U.S. 307(1979) ............................................................................ 5, 12,14
Jackson v. Virginia,
443 U.S. 407 (1979) ............. i........................................................................ 32
V
Lafler v. Cooper,
566 U.S. 156(2012)
33
Lawrence v. Chater,
516 U.S. 163 (1996)
5
Liparota v. United States,
471 U.S. 419 (1985)
17
Missouri v. Frye,
566 U.S. 134(2012)
8,33
New Hampshire v. Maine,
532 U.S. 742 (2001)
Nijhawan v. Holder,
557 U.S. 29 (2009)
.................................................. 30
............................ 26, 28, 29
Oklahoma v. Castro-Huerta,
597 U.S. 629 (2022)
23
Oscanyan v. Arms Company,
103 U.S. 261 (1881)
.......................... 32
Schlup v. Delo,
513 U.S. 298 (1995)
33
Shepard v. United States,
544 U.S. 13 (2005)
..................................... 26
Steel Company v. Citizens For A Better Environment,
523 U.S. 83 (1998)
ii, 4
Taylor v. United States,
495 U.S. 575 (1990)
25
Torres v. Lynch,
578 U.S. 452 (2016)
21
United States v Hayes,
555 U.S. 415 (2009)
ii, 10, 13. 14, 15, 19,20, 23 24, 27, 28
United States v. Andujar,
49F.3d 16 (1st Cir. 1995)
32
United States v. Barone,
71 F.3d 1442 (9th Cir. 1995)......................................................................... 14
United States v. Benton,
988 F.3d 1231 (10th Cir. 2021)..................................................................... 17
United States v. Caseer,
399 F.3d 828 (6th Cir. 2005)......................................................
32
United States v. DeFrance,
577 F.Supp.3d 1085 (2021)......................................................................... 2, 9
United States v. DeFrance,
124 F. 4th 814 (9th Cir. 2025).......
1
United States v. Feola,
420 U.S. 671 (1975) ..
18,21,25
United States v. Johnson,
592 F.3d 749 (7th Cir. 2010)........................................................................... 32
United States v. Lanier,
520 U.S. 259 (1997) ........................................................................................ 20
United States v. McNeil,
362 F.3d 570 (9th Cir. 2004)...........................................................................20
United States v. Pepe,
895 F.3d 679 (9th Cir. 2018)...........................................................................20
United States v. Ruiz,
536 U.S. 622 (2002) ................................................................................ 15, 16
United States v. Wright,
835 F.2d 1245 (8th Cir. 1987)....................................................................... 32
Virigina Uranium, Inc. v. Warren,
587 U.S. 761 (2019) ....................................................................
///
///
vii
23
UNITED STATES CODE
18 USC §921(a)(33)(A)
18 USC §921(a)(33)(A)(ii)
18 USC §922(a)(6)
18 USC §922(g)(9)
18 USC §922(t)(2)(C)
18 USC §1291
18 USC §3231
18 USC §3742(a)
28 USC §1254(1)
ii, 4, 10, 11
16, 17, 19, 27
6,30
6, 10, 14,16, 17,19, 20, 23,24,27, 32, 33
6,29
16
4, 12, 15, 16, 17, 24, 25
15
2
FEDERAL RULES
9
31
2
iii
Rule 11
Rule 12(b)(1)
Rule 13
Rule 14.1(b)(iii)
UNITED STATES CONSTITUTION
Fifth Amendment to the United States Constitution
Sixth Amendment to the United States Constitution
Tenth Amendment to the United States Constitution
3, 26
3
3
MONTANA CODE ANNOTATED
Montana Code Ann. §45-5-206 (2011)
10
APPENDICES
1-30
31-192
.......................... 193-394
395-630
Appendix A
Appendix B
Appendix C
Appendix D
; 228-249
Under Seal Supplemental Appendix C
viii
No.
IN THE
SUPREME COURT OF THE UNITED STATES
MICHAEL BLAKE DeFRANCE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
Petitioner, Michael Blake DeFrance, petitions for a writ of certiorari, or other
appropriate relief, to review the decision of the United States Court of Appeals for
the Ninth Circuit in this case.
OPINIONS BELOW
1.
The Opinion of the Ninth Circuit Court of Appeals styled as United
States v. DeFrance (9th Cir. 2025) is published at 124 F. 4th 814. The Memorandum
disposition, which accompanied the Ninth Circuit’s published Opinion, is
unpublished. Copies of those decisions are reproduced at Appendix A, pp. 1-27.
1
2.
The district court’s original decision denying pretrial relief under both
the categorical approach and issue preclusion rules under the Double Jeopardy
Clause is reported at 577 F.Supp.3d 1085 (2021) (App. B, pp. 174-192).
3.
The district court’s unpublished Findings of Fact, Conclusions of Law
and Order finding petitioner guilty on all counts can also be found in the Appendix.
(App. B,pp. 96-140).
JURISDICTION AND TIMELINESS OF THE PETITION
The Ninth Circuit’s decisions reversed, in part, and affirmed, in part,
petitioner’s convictions. Count I of the second superseding indictment was reversed.
Counts II, III and IV were affirmed, but the sentences imposed on those counts were
vacated, with a remand to the district court for resentencing. Both the Ninth Circuit’s
Opinion and its Memorandum disposition were filed on December 30, 2024.
Petitioner then filed a Petition for Rehearing and Suggestion for Rehearing En Banc
on January 28, 2025, which the Ninth Circuit denied on February 24,2025 (App. A,
28).
This Court’s jurisdiction arises under 28 USC §1254(1). Petitioner’s petition
is timely because it was both electronically filed and placed in the United States
mail, first class postage pre-paid, on May 16, 2025, within the 90 days for filing
under the Rules of this Court (see Rule 13,
July 19, 2021, order.
2
1 and 3) as amended by the Court’s
CONSTITUTIONAL PROVISIONS INVOLVED
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury,. .. nor be deprived of life, liberty, or property, without due
process of law; nor shall private property be taken for public use,
without just compensation.
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his
defense.
The Tenth Amendment to the United States Constitution provides:
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.
STATUTORY PROVISIONS INVOLVED
Relevant state and federal statutory provisions involved are set forth in
Appendix D attached to this petition.
///
///
///
3
STATEMENT OF THE CASE
1. Introduction.
Petitioner takes this opportunity to segregate and address his contention
regarding the second aspect of Question 1 set forth above; that enactment of the
BSCA impacted the district court’s subject matter jurisdiction on Count I. As
discussed in more detail below, the district court engaged this jurisdiction argument,
in part. However, when we repeated the claim in the Ninth Circuit opening brief
(App. D, pp. 557-570), and the petition for rehearing, that court elected to pretermit
the issue of jurisdiction over Count I. Instead, the Ninth Circuit opted to decide a
legal merits issue involving application of the categorical approach to the force
clause of 18 USC §921(a)(33)(A). Reversing on Count I, but allowing the
convictions on Counts II, III and IV to stand (App. A, pp. 17-18, 27).
Assuming for purposes of this discussion that the district court was incorrect
in its analysis regarding the jurisdictional impact of enactment of the BSCA, such
error would require that Count I be dismissed by the district court under 18 USC
§3231 for lack of jurisdiction. Not reversed on a categorical approach merits
analysis. Thus, we contend under Steel Company v. Citizens For A Better
Environment, 523 U.S. 83 (1998), the issue of subject matter jurisdiction should have
been addressed by the Ninth Circuit first. Because, if petitioner had prevailed on that
jurisdictional claim, the convictions on Counts II, III, and IV would de facto be
4
resolved on the merits. Since the conclusion that petitioner was never a prohibited
person in light of enactment of the BSCA, would necessitate acquittal on Counts II,
III, and IV based on insufficient evidence. See Jackson v. Virginia, 443 U.S. 307
(1979).
We highlight this point early so as not to bury the lead and because this
situation suggests that an appropriate remedy here may be to grant this petition,
vacate the judgment and remand (GVR) for consideration of the jurisdictional issue
by the Ninth Circuit in the first instance:
Regardless of its earlier history, however, the GVR order has, over the
past 50 years, become an integral part of this Court's practice, accepted
and employed by all sitting and recent Justices. We have GVR'd in light
of a wide range of developments, including our own decisions,
SQQpost, at 613 (SCALIA, J., dissenting), State Supreme Court
decisions, see, e.g., Conner v. Simler, 367 U.S. 486, 81 S.Ct. 1679, 6
L.Ed.2d 1241 (1961), new federal statutes, see, e.g., Sioux Tribe of
Indians v. United States, 329 U.S. 685, 67 S.Ct. 364, 91 L.Ed. 602
(1946)...
Lawrence v. Chater,
516 U.S. 163, 166-167(1996)
(emphasis added).
We respectfully submit that a GVR order in this case would be in stride with
the Court’s application of the GVR remedy where a new controlling statute could
change the result reached by the lower court.
Ill
III
•
5
2. Proceedings in the District Court.
In 2013 petitioner was convicted by his guilty plea in a Montana Justice Court
for a misdemeanor assault crime entitled Partner Family Member Assault (PMFA);
under the 2011 version of that Montana statute (App. D, p. 595-598). In 2021, in
connection with an ongoing law enforcement investigation, petitioner was found in
possession of firearms, which he admitted. In due course petitioner was indicted in
federal court in a series of three indictments for being a previously convicted
domestic violence misdemeanant, unlawfully in possession of firearms. The first
two indictments (App. C, pp. 211-214) each charged a single count for violation of
18 USC §922(g)(9) (App. D, p. 620). However, after petitioner disclosed to the
government that he had been cleared to possess firearms on five previous occasions
by successfully engaging in five National Instant Criminal Background Check
System (NICS) checks, the government went back to the Grand Jury a third time to
charge petitioner with violations of 18 USC §922(a)(6) (App. C, p. 250-253) for
lying on the ATF 4473 Forms1 (App. C, p. 228-249). Important here is that none of
the indictments ever alleged any sort of relationship element (App. C., 211-214,250-
1 It warrants emphasis here that petitioner disclosed the ATF 4473 Forms so he could
use them as evidence that he had been successfully vetted for firearms possession on
five previous occasions. See e.g., petitioner’s Notice of Defenses in the district court
(App. C, p. 215-227). Moreover, as we will discuss later, by statute the materials or
documents the government examined during those NICS background checks were
destroyed. 18 USC §922(t)(2)(C). (App. C, p. 598).
6
253). A point we address in our discussion below under our due process/estoppel
arguments.
Before and during petitioner’s federal bench trial, record evidence showed
that at the time of his arrest and conviction, petitioner’s 2013 Montana PFMA
centered on a “dating” relationship, not a spousal one. In this connection, the district
court found:
99. Neither party contended or presented evidence that, at the time of
the PFMA on April 13—14, 2013, DeFrance was Charlo’s spouse or
former spouse, cohabiting or had cohabited with her as a spouse, or
shared a child in common with her. Accordingly, the Court concludes
that it must determine whether the PFMA was “committed by ... a
person similarly situated to a spouse ... of the victim.” 18 U.S.C. §
921(a)(33)(A)(ii).
App. B, p. 116.
However, the record shows:
• The PFMA victim (aged 15) moved from Montana to Dulce,
New Mexico, in October 2010 where she attended Dulce High
School (App. C, pp. 370-374; App. D, pp. 504-505, 532,536);
• While living in Dulce, New Mexico, for approximately 20
months, the PFMA victim dated another individual who
attended Dulce High School (App. D, pp. 511, 532-539);
• The PFMA victim (aged 17) moved back to Montana from
New Mexico in June 2012 attending Two Eagle River School
in Pablo, Montana, the fall of 2012 through May 2014 (App.
C, pp. 375-383; App. D, p. 540);
///
7
• At the time of the PFMA in 2013, the victim was visiting
petitioner for the weekend and did not live with him (App. C,
pp. 261-262; App. D, pp. 436, 449, 459, 461, 469, 515, 525528);
• At the time of the PFMA on April 13,2013, the PFMA victim
(aged 17) and petitioner (aged 19) had been dating for about
nine months (see App. C, pp. 268; App. D, pp. 449,468, 513515, 525); and
• The PFMA victim did not turn 18 years until April 23, 2013,
10 days after the PFMA incident; and under Montana law, she
had no legal capacity to marry without parental or judge
approval (App. D., 396, 404-405). Cf. Hernandez-Zavala v.
Lynch, 806 F.3d 259,262 (2015) (showing that in immigration
context “similarly situated to a spouse” must be consistent
with domestic or family domestic violence laws of the
jurisdiction where the offense occurs).
In addition, even apart from this proof, the government admitted in a proposed
plea agreement offer that petitioner’s PFMA conviction was, in fact, premised on
“dating” relationship (App. D, 425). Touting the proposed agreement in its trial
brief, the government stated:
Although the defendant is proceeding to trial, the United States notes
for the record that a motion for change of plea would have been more
beneficial to the defendant than a conviction following trial. See
Missouri v. Frye, 132 S. Ct. 1399 (2012). A written, proposed plea
agreement was presented to the defendant for his consideration. That
plea agreement represented, in the government’s view, the most
favorable offer extended to the defendant.
///
///
8
The Government does not seek to involve the Court in the plea
agreement process in violation of Rule 11, but respectfully requests the
Court make an inquiry to ensure the record is protected.
(App. C., pp. 329-330).
Over petitioner’s objection, however, the district court elected not to inquire
about the plea agreement as the government requested.
Likewise, although
petitioner made the government’s plea agreement admission part of his appeal, the
Ninth Circuit chose not to address the issue at all. The proposed plea agreement
provided in part:
The parties agree that the defendant’s conviction for the misdemeanor
crime of domestic violence was based on the fact he was in a current
dating relationship with the victim at the time of the offense.
(App. D., 425).
Petitioner put on an energetic defense in the district court, which included
numerous pretrial and post-trial motions described in the district court docket (App.
C, pp. 195-198; ECF Nos. 14, 15, 16,17, 31, 32, 43, 44 and 53). Relevant here are
petitioner’s motions to dismiss for failure to state an offense; under the categorical
approach and the Double Jeopardy Clause (App. C, pp. 195-198; ECF Nos. 14, 15,
16, 17, 31, 32, 43, 44 and 53). Each of those motions being denied by the district
court in a published order, 577 F.Supp.3d 1085 (D. Mont. 2021) (App. B, pp. 174192).
Ill
9
In part, petitioner argued that, unlike the situation this Court confronted in
United States v. Hayes, 555 U.S. 415 (2009), where there were no relationship
elements contained in the state predicate conviction statute, the Montana PFMA
statute did contain an over-inclusive list of relationships not covered by the federal
firearms ban of §922(g)(9). In particular, the “dating” relationship. Compare by
contrast Moniava Cq(\q Ann. §45-5-206 (2011) (App. D, pp. 595-598) with 18USC
§921(a)(33)(A) (pre-2022) (App. D, p. 616).
Six months after the district court rejected petitioner’s pretrial dating
relationship argument, and before trial, Congress enacted the BSCA amending
§§922(g)(9) to include dating relationships within the federal firearms ban.
Moreover, the Historical Notes to BCSA specifically state that:
The amendments made by subsection (a) [of 18 USC §921(a)(33) and
(37)] shall not apply to any conviction of a misdemeanor crime of
domestic violence entered before the date of enactment of this Act [June
25, 2022].
App. D, p. 618 (emphasis added).
Based on this legislative development petitioner moved the district court for
permission to file a motion for reconsideration of his previous motions to dismiss
(App. C, p. 278-319). The district court denied that permission in a written order
(App. B, p. 92-95).
///
10
The case then proceeded to a bench trial on April 26-27,2023. Both testimony
and documentary evidence showed that the victim of the misdemeanor domestic
assault was 17 years old, lived with her mother, attended school in another town, and
was visiting for the weekend at the time of the assault. Trial testimony also showed
by the victim’s own account that petitioner and the victim had “been together since
June [2012]” (App. C, p. 265) and dating for about nine months (App. C, 268).
Rejecting this evidence the district court found petitioner guilty on all counts
concluding that petitioner’s relationship with the domestic assault victim fell within
the undefined “similarly situated as a spouse” language set forth in §921(a)(33)(A)
(App. B, p. 140). To do this, the district court considered evidence having nothing
to do with the record supporting petitioner’s domestic violence conviction.
Next, petitioner filed post-trial motions for acquittal, to arrest judgment for
lack of jurisdiction, and for a new trial (App. D, pp. 395-433), which the district
court denied (App. B, pp. 141-166). Contained within those post-trial arguments
petitioner renewed his claim that the BSCA impacted his case in a jurisdictional
sense and the government was taking inconsistent positions.
arguments the district court ruled, in part:
///
///
///
11
Rejecting«these
To be sure, it could have been easier for the government to prove that
Mr. DeFrance and Ms. Charlo were in a dating relationship as defined
by the [BSCA] amended statute when Mr. DeFrance committed the
PFMA; he has all but conceded as much during this litigation. But the
evidence and arguments supporting such a conclusion are consistent,
not inconsistent, with the government’s position at trial that they were
similarly situated to spouses. The United States nowhere conceded that
it could only prove that the couple was in a dating relationship, and the
Court will not construe the offered plea agreement in that manner.
(App. B, p. 159).
Over his objection, petitioner was sentenced on all counts to 21 months
incarceration, to run concurrently, followed by three years of supervised release
(App. B, pp. 168-169). Petitioner next timely appealed to the Ninth Circuit Court of
Appeals. He was released on conditions pending that appeal, and remains released,
currently residing in Montana.
3. Proceedings in the Ninth Circuit Court ofAppeals.
In the Ninth Circuit, petitioner renewed the arguments made in the district
court, to include his claim that the change in law affected by the BSCA was a
jurisdictional game changer as to Count I, denying the district court subject matter
jurisdiction under 18 USC §3231 (App. D., pp. 558-559). And alternatively, that
petitioner should have been acquitted on all counts the merits under Jackson v.
Virginia, 443 U.S. 307 (1979). Among the several claims that petitioner presented
to the Ninth Circuit, one in particular urged that under the categorical approach
Montana’s PMFA statute does not meet the federal definition of misdemeanor crime
12
of domestic violence, since it does not contain an element of force. After oral
argument conducted on September 12,2024, the Ninth Circuit organized its decision
completely around that force claim, reversing petitioner’s conviction on Count I, and
concluding that the Montana domestic assault statute does not contain a force
element (App. A, p. 2). As to the false statement counts, however, the Ninth Circuit
affirmed those convictions, but vacated the sentences on those counts, tagged with
the following footnote:
3 . . . Congress added “a person who has a current or recent former
dating relationship with the victim” in 2022, after DeFrance’s 2013
domestic violence conviction, see Bipartisan Safer Communities Act,
Pub. L. No. 117-159, § 12005, 136 Stat. 1313, 1332 (2022), but that
change is not material to the question at issue in this opinion.
(App. A, p. 6).
In response to the Ninth Circuit’s Opinion, petitioner filed a petition for both
Panel Rehearing and Rehearing En Banc, basically echoing the jurisdictional and
acquittal claims that he has argued throughout the progress of his case. The petition
was denied in a written order on February 24,2025 (App. A, p. 28).
REASONS FOR GRANTING THE WRIT
The important questions raised in this petition are generated but not resolved
by this Court’s decision in United States v. Hayes, 555 U.S. 415 (2009). There, with
Chief Justice Roberts and Justice Scalia dissenting, the Court held that the
categorical approach does not apply to the situation where the predicate state assault
13
statute does not contain a domestic relations type element. Unlike Hayes, however,
the Montana predicate assault statute under which petitioner was convicted requires
that the assault target a family or household member; or be based on some intimate
relationship, including dating, with the domestic violence victim. (App. D, p. 295).
Since the proof both before and during trial showed that petitioner’s Montana
misdemeanor domestic violence conviction was based on a “dating” relationship,
this case should have been dismissed for lack of jurisdiction or insufficient proof.
Because dating did not fall within the federal firearms ban until 2022, nine years
after petitioner’s Montana domestic violence conviction. Cf. Davis v. United States,
417 U.S. 333, 346-347 (1974) (conviction and punishment for an act that the law
does not make criminal is a complete miscarriage ofjustice). Also see United States
v. Barone, 71 F.3d 1442,1444 and fn. 4 (9th Cir. 1995) (recognizing that it is unclear
how a jurisdictional element mingled with the merits ought to be analyzed, de novo
as a matter of law; or deferentially in a light favorable to the government under the
sufficiency the evidence test of Jackson v. Virginia, 443 U.S. 307 (1979).
Relatedly, the following important issues warrant this Court’s review.
First, whether under this Court’s decisions the relationship element in a
§922(g)(9) prosecution serves both a substantive and a jurisdictional purpose.
14
Second, what analytic approach governs, and when is it applied, to a situation
where, unlike Hayes, the domestic relationship supporting the state court
misdemeanor domestic violence conviction was not one covered under federal law?
Third, whether petitioner’s successful vetting on five occasions before trial
under the NICS to possess firearms; and/or the government’s admission in writing
that petitioner’s state domestic violence conviction centered on a “dating”
relationship should have terminated this prosecution on judicial estoppel/due process
notice grounds.
1. Jurisdiction.
This Court has ruled both that “a federal court always has jurisdiction to
determine its own jurisdiction”; and further that in some circumstances, it may be
necessary for the Court “to address the merits” in order to make that determination.
United States v. Ruiz, 536 U.S. 622, 628 (2002), citing United States v. Mine
Workers, 330 U.S. 258, 291 (1947). We recognize that Ruiz involved a statutory
jurisdiction analysis arising under 18 USC §3742(a) to determine whether a federal
district court sentence had been “imposed in violation of the law” 536 U.S. at 627;
and in contrast here the jurisdictional question arises under 18 USC §3231 (United
States District Courts shall have jurisdiction over "... offenses against the laws of
the United States.”) (App. D, p. 624). Despite this difference, the broader principle
of Ruiz should remain consistent. A federal court always has jurisdiction to
15
determine its own jurisdiction; and sometimes it is necessary to address the merits
of a dispute in order to determine whether federal jurisdiction exists. An important
question here is when does that determination take place?
Applying the Ruiz framework shows that because petitioner’s prior Montana
PFMA conviction was generated under the heading of a “dating” relationship,
neither the district court, nor by extension the Court of Appeals, had subject matter
jurisdiction over Count I in this case under 18 USC §3231 or §1291, respectively.
Petitioner never was a prohibited person within the firearms ban of 18 USC
§922(g)(9). Furthermore, petitioner is not guilty under Counts II, III, and IV. Since,
again, he has never been barred from possessing firearms under §922(g)(9). Or put
a little differently, petitioner did not lie on the ATF 4473 Forms about his status as
a domestic violence misdemeanant. In fact, that is exactly why petitioner was
cleared to possess firearms via the five successful NICS checks in the first place.
In an unlawful firearms possession case under §922(g)(9), the partner/family
relationships set forth in §921 (a)(33)(A)(ii) are partly jurisdictional and partly
substantive. Jurisdictional because Congress does not have the power to prohibit
local simple assaults nationwide. And substantive because the domestic status
relationships listed by Congress in §92 l(a)(33)(A)(ii) were intended to limit the
jurisdictional reach of §922(g)(9) in order to address the problem of domestic
violence, within the specific context of the listed relationships. See e.g., United
16
States v. Benton, 988 F.3d 1231, 1239 (10th Cir. 2021) (holding that to be guilty of
an offense under §922(g)(9), the government must prove both material elements that
defendant knowingly possessed a firearm, and at the time of possession knew his
status as a person convicted of a misdemeanor crime of domestic violence as defined
in federal law).
Think of it this way: Congress could have framed §922(g)(9) offenses to
include any misdemeanor state domestic violence assault predicate, but chose not to.
Instead, it cabined the reach of the firearms ban generated by §922(g)(9) to a slate
of prior convictions involving specific domestic-type relationships (App. D, p. 616).
Congress’s 2022 enactment of the BSCA adding “dating” relationships to the reach
of the §922(g)(9) firearms ban confirms this. Because the BSCA specifically
provides that the addition of dating to the federal list of relationships in
§921(a)(33)(A)(ii) does not apply to domestic assault convictions “entered” before
June 25, 2022 (App. D, p. 618). This jurisdictional carve-out effected by the BSCA
is unmistakable. Because, as this Court has consistently ruled, what is and what is
not an “offense against the United States” under 18 USC §3231 turns on the defining
“elements of the criminal offense [which definition] is entrusted to the legislature,
particularly in the case of federal crimes, which are solely creatures of statute.”
Liparota v. United States, 471 U.S. 419, 424 (1985) citing United States v. Hudson,
7 Cranch 32, 3 L.Ed. 259 (1812).
17
United States v. Feola, 420 U.S. 671 (1975) aids the discussion here, as well.
There, the defendant and others were convicted of assaulting individuals during the
progress of an undercover drug sting. However, the defendants did not know that
the assaulted individuals were federal agents. This Court ruled that the fact that the
individuals in the drug sting turned out to be federal officers was “jurisdictional
only”. In other words, the government was not obliged to prove that the defendants
knew the status of those assaulted as federal officers. As the Court put it in an
important footnote: “The question then, is not whether the requirement is
jurisdictional, but whether it is jurisdictional only”. 420 U.S. at 476, fn. 9.
Elements in federal criminal statutes are considered “jurisdictional only”
when they serve Congress’s purpose in federalizing pre-existing state law and do not
transform innocent conduct into criminal conduct. Id. However, in holding that the
victim’s federal agent status was “jurisdictional only” the Feola Court goes on to
stress that a jurisdictional element can also be “an element of the offense Congress
intended to describe and to punish”. 420 U.S. at 676, n.9. More specifically, Feola
holds:
///
///
///
///
18
“a requirement is sufficient to confer jurisdiction on the federal
courts for what otherwise are state crimes precisely because it
implicates factors that are an appropriate subject for federal
concern.” ... “a mere general policy of deterring assaults would
probably prove to be an undesirable or insufficient basis for
federal jurisdiction1, but where Congress seeks to protect the
integrity of federal functions and the safety of federal officers, the
interest is sufficient to warrant federal involvement.”
420 U.S. at 676, n. 9 (emphasis added).
In a similar way, the purpose of §922(g)(9) and its associated definitional
statues is not to deter assaults generally, which is a state function; but only firearm
possession connected to state domestic violence prior convictions, involving one of
the relationships listed in the federal statute, §921 (a)(33)(A)(ii). Thus, under
§922(g)(9) Congress intends to address the problem of domestic violence in very
specific relationship situations. While at the same time honoring each state’s choice
as to how to define its own crimes through its own statutory text. .
The courts below honored neither Montana’s legislative choice to include
dating relationships as context for domestic assault; nor Congress’s legislative
choice in deciding not to include dating as a domestic assault context, until June 25,
2022. They do this by reading this Court’s Hayes decision so broadly as to authorize
a federal retrial on any type of state court misdemeanor assault in order to prove the
federal relationship element. In other words, regardless whether the state court
assault statute/conviction at issue is of the domestic relations variety or not.
19
Hayes does not sanction this type of judicial de-coupling because, as is the
case here, such a broad reading authorizes a federal retrial of the state domestic
assault conviction, by ignoring the list of relationships contained within the state
predicate domestic assault statute. Just another way of saying that petitioner’s
misdemeanor domestic violence conviction based on “dating”, was not captured by
the federal firearms ban of §922(g)(9) until long after that conviction was entered.
Importantly, Congress decided not to include a state domestic violence
conviction arising from “dating” relationships in its first iteration of the §922(g)(9)
banning firearms possession. Only to change course nine years after entry of
petitioner’s Montana PFMA, by adding “dating” to the federal list of domestic
relationships falling within §922(g)(9) the current federal firearms ban. Even apart
from what we contend here is a jurisdictional problem, the basic right to due process
notice is totally compromised by subjecting petitioner to a federal trial on the merits
based on a “spousal relationship” listed under federal law. A relationship which
played no part whatsoever in the entry of petitioner’s state court misdemeanor
conviction. See e.g., United States v. Lanier, 520 U.S. 259, 266 (1997) (outlining
the three related manifestations of the due process fair warning requirement); also
see United States v. Pepe, 895 F.3d 679, 6896 (9th Cir. 2018) and United States v.
McNeil, 362 F.3d 570, 574 (9th Cir. 2004) (each of these decisions holding, in part,
that when Congress amends a statute older versions of it must be reevaluated).
20
Likewise, in Torres v. Lynch, 578 U.S. 452 (2016), this Court reinforces the
point that in contrast to Feola, where the federal officer status element was deemed
to be “jurisdictional only”; an element of a federal offense can both “make evident
Congress’s regulatory power”, and also “play a role in defining the behavior
Congress thought harmful”. Id. at 471. According to Torres, these dual-purpose
elements can generate “tough questions” as to whether they should be treated as both
jurisdictional and substantive or “jurisdictional only”. Id. at 470-471.
Finally, this Court’s decision in^owcZ v. United States, 572 U.S. 844 (2014) is
helpful here. Bond involved a situation where a spouse (Bond), who had been twotimed by her husband and best friend, spread toxic chemicals on the best friend’s
car, mailbox, and doorknob causing her minor chemical burns. Which injuries in
the end were treated by rinsing with water. On a challenge mounted by Bond under
the Tenth Amendment this Court held that the assaultive conduct was not covered
by the federal statute at issue:
///
///
///
III
III
///
21
The question presented by this case is whether the Implementation
Act also reaches a purely local crime: an amateur attempt by a
jilted wife to injure her husband's lover, which ended up causing
only a minor thumb bum readily treated by rinsing with water.
Because our constitutional structure leaves local criminal activity
primarily to the States, we have generally declined to read federal
law as intruding on that responsibility, unless Congress has clearly
indicated that the law should have such reach. The Chemical
Weapons Convention Implementation Act contains no such clear
indication, and we accordingly conclude that it does not cover the
unremarkable local offense at issue here.
Bond, 572 U.S. at 848.
Although Bond is not factually similar to this case, the principles set forth in
the opinion nevertheless apply. Without question the police power to charge and
prosecute a domestic violence crime rests primarily with the individual states. 572
U.S. at 857-859. Thus, absent a clearly expressed Congressional intent Bond reasons
that:
It is appropriate to refer to basic principles of federalism embodied
in the Constitution to resolve ambiguity in a federal statute. In this
case, the ambiguity derives from the improbably broad reach of
the key statutory definition given the term—“chemical
weapon”—being defined; the deeply serious consequences of
adopting such a boundless reading; and the lack of any apparent
need to do so in light of the context from which the statute arose—
a treaty about chemical warfare and terrorism. We conclude that,
in this curious case, we can insist on a clear indication that
Congress meant to reach purely local crimes, before interpreting
the statute's expansive language in a way that intrudes on the
police power of the States.
572 U.S. at 859-860.
///
22
Congress’s recent 2022 amendments to §922(g)(9) under the BSCA, and its
allied statutes, reflect that a “dating” relationship was not a prohibited status under
§922(g)(9), when petitioner was convicted of domestic violence in 2013. As the
Bond decision makes plain “it is incumbent upon the federal courts to be certain of
Congress' intent before finding that federal law overrides' ” ‘the usual constitutional
balance of federal and state powers.’” 572 U.S. at 858, citing Gregory v. Ashcroft,
501 U.S. 452, 460 (1991).
Any Congressional intent to override traditional states’ rights (i.e., police
power) must be unmistakably clear “in the language of the statute”. Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 242 (1995). Also see Oklahoma v. Castro-
Huerta, 597 U.S. 629, 642 (2022), citing cases, including Virigina Uranium, Inc. v.
Warren, 587 U.S. 761, 778 (2019) (“The Supremacy Clause cannot “be deployed ...
to elevate abstract and unenacted legislative desires above state law”). 587 U.S. at
642. There is nothing in §922(g)(9), or this Court’s decision in Hayes, which
authorizes a federal court to retry a sui generis state domestic violence offense
conviction, based on a dating relationship that was not covered under federal law at
the time.
The evidence here shows that petitioner’s Montana PFMA conviction offense
involved a “dating” relationship between two teenagers (aged 17 and 19); a
relationship that was not covered under §922(g)(9) until 2022, some nine years after
23
petitioner’s state conviction was entered. Nor does this Court’s decision in Hayes
alter this conclusion. Especially considering the fundamental legal principle that
federal jurisdiction is carefully guarded against expansion by judicial interpretation:
The jurisdiction of the federal courts is carefully guarded against
expansion by judicial interpretation or by prior action or consent
of the parties. To permit a federal trial court to enter a judgment
in a case removed without right from a state court where the
federal court could not have original jurisdiction of the suit even
in the posture it had at the time of judgment, would by the act of
the parties work a wrongful extension of federal jurisdiction and
give district courts power the Congress has denied them.
American Fire & Casualty Co. v. Finn,
341U.S. 6, 17-18(1951).
Since Montana PFMA contained the relationship element of “dating” in 2013
and petitioner was arrested and convicted of his Montana PFMA on that basis, the
fact that Congress did not add “dating” until enactment of the BSCA, at a minimum,
retroactively clarifies that petitioner is not now, nor has he ever been, a prohibited
person under §922(g)(9). Given that federal courts are empowered to determine
jurisdiction at any time it is important to consider that subject matter jurisdiction
over criminal cases in federal court is carefully circumscribed by 18 USC §3231:
The district courts of the United States shall have original
jurisdiction, exclusive of the courts of the States, of all offenses
against the laws of the United States.
Nothing in this title shall be held to take away or impair the
jurisdiction of the courts of the several States under the laws
thereof.
24
According to this Court, “the office of the second sentence [set forth in §3231]
is merely to limit the effect of the jurisdictional grant of the first sentence . .
Commonwealth ofPennsylvania v. Nelson, 350 U.S. 497, 501, n. 10 (1956). Hence,
under Feola, Torres, and Bond, Count I should have been dismissed for lack of
subject matter jurisdiction, and petitioner should have been acquitted on Counts II,
III, and IV, because dating was the basis for the relationship element, which was not
a federal crime. See, again, United States v. Davis, 417 U.S. 333, 346-347 (1974)
(conviction and punishment for an act the law does not make criminal is a complete
miscarriage of justice).
2. The proper analytic approach and its timing.
There are four different approaches to determine if a prior state conviction
triggers a federal consequence. The first, and perhaps the most common
methodology, is the “categorical approach”. Under this approach the court
determines only whether a particular defendant was convicted under a state criminal
statute that categorically matches a generic federal offense, without considering the
particular facts supporting the defendant’s state conviction. See e.g., Taylor v.
United States, 495 U.S. 575 (1990). A second and close cousin of the categorical
approach is the modified categorical approach, which authorizes the court to consult
a narrow class of documents such as the charging documents, the plea agreement,
and plea hearing transcript, if any. However, police reports and victim statements
25
are generally off limits here and cannot be consulted. See Shepard v. United States,
544 U.S. 13 (2005).
The Court recognized yet a third approach in Nijhawan v. Holder, 557 U.S.
29 (2009), called the circumstance-specific approach which applies when the
underlying federal statute refers to specific circumstances rather than generic crimes.
Under this method, the court is authorized to look beyond the elements of the prior
state conviction and consider the ’’facts and circumstances underlying an offender’s
conviction”. Nijhawan, supra, 557 U.S. at 34 (emphasis added).
And a fourth way a court can discern the nature of a prior conviction is by
applying collateral estoppel, issue preclusion rules arising under the Double
Jeopardy Clause contained in the Fifth Amendment to the United States
Constitution. See Ashe v. Swenson, 397 U.S. 436 (1970) (Double Jeopardy Clause
incorporates collateral estoppel as a constitutional requirement).
As this menu of analytic approaches suggests, in descending order each one
expands the content of the data set above it, allowing for consideration of additional
material in order to determine the nature of a prior conviction. Thus, facts cannot
be considered under a straight categorical approach; but a narrow list of documents
can be consulted in order to apply the modified categorical approach, involving
relevant factual matters. And so on until the Court reaches the circumstance specific
26
approach, or double jeopardy/issue preclusion rules, which allow consideration of
material, the categorical/modified approach would not tolerate.
This paradigm highlights an important issue in this case.
Namely, if
relationship elements are present in the state domestic assault statute of conviction,
whether the Court’s decision in Hayes authorizes re-litigation of the state predicate
conviction. Even where the state predicate domestic relationship of conviction (here
“dating”) was not within the orbit of §922(g)(9) federal firearms ban at the time the
state predicate conviction was entered. In Hayes the dissenters predicted that the
“practical difficulties and potential unfairness of a factual approach are daunting”.
Hayes, 555 U.S. at 436. To which the majority replied:
9. Generally, as in this case, it would entail no “ ‘elaborate factfinding
process,’ ” cf. post, at 1092, to determine whether the victim of a violent
assault was the perpetrator's “current or former spouse” or bore one of
the other domestic relationships specified in § 921(a)(33)(A)(ii) to the
perpetrator.
555 U.S. at 428, fn. 9.
Assuming without conceding that the Court’s decision in Hayes requires
application of the circumstance specific approach, we submit that application of that
approach should nevertheless be determined early in the proceeding and before trial
by using all of the analytic modalities discussed above. In other words, unlike
Hayes, the situation here reflects a state domestic violence statute does contain
relationship elements, which implicates the categorical approach. Furthermore,
27
relevant court records show that the domestic relationship was of a “boyfriend
girlfriend” nature between non-cohabitating teenagers, supporting application of the
modified categorical approach. And finally, the i) police report governing
petitioner’s arrest (App. D., p. 449); ii) the victim’s statement (App. C., p. 265,268);
and iii) trial testimony from the arresting officer (App. D., p. 468), and the Justice
of the Peace (App. D., pp. 487-488) who took petitioner’s guilty plea, all reflect a
“dating” relationship. Which bears on application of the circumstance specific
approach. See e.g., Bogle v. Garland, 21 F.4th 637, 648-649 (9th Cir. 2021) (police
report can be considered in application of circumstances specific approach);
Hernandez-Zavala v. Lynch, 806 F.3d 259 (4th Cir. 2015) (illustrating in an
immigration context how various approaches can apply to identify the nature of a
misdemeanor crime of domestic violence under Hayes and Nijhawari).
In summary, none of the various approaches outlined above required a trial to
determine jurisdiction or the nature of the relationship in this case. On this point,
consider that in Nijhawan v. Holder the government assured the Court in its merits
brief that application of the circumstance specific approach would not involve re
litigation of the prior conviction itself:
///
///
///
28
. . . The Attorney General cautioned in Silva-Trevino that “allowing
inquiry beyond the record of conviction does not mean that the parties
would be free to present ‘any and all evidence bearing on an alien’s
conduct leading to the conviction.’ ” 241. & N. Dec. at 703.
Rather, “[t]he sole purpose of the [circumstance specific] inquiry is to
ascertain the nature of a prior conviction; it is not an invitation to
relitigate the conviction itself.” Ibid.; see also Babaisakov, 24 I. & N.
Dec. at 321.13
13 The Attorney General and the Board have thus indicated their
awareness of, and intention to avoid, the problem of readjudicating
guilt—a problem petitioner stresses (Br. 20,47), but which simply does
not arise in this case.
Brief of Respondent, pp. 43-44,
Nijhawan v. Holder, No. 08-495
(footnote included).
3. Judicial estoppel/due process notice.
Petitioner disclosed to the government that he had been successfully vetted to
possess firearms on five previous occasions under the NICS (App. C, p. 215-249).
The government reacted by moving to preclude petitioner’s Notice of Defenses
(App. C, p. 197, ECF Nos. 36 and 37); and further by charging petitioner for lying
on the NICS ATF 4473 Forms, by failing to identify himself as a domestic violence
misdemeanant (App. C, p. 250-253). However, under 18 USC §922(t)(2)(C), there
was no way to reconsider the materials that the government examined during those
background checks, which leads to petitioner’s argument here.
29
Petitioner was, of course, presumed innocent. Coffin v. United States, 156
U.S. 432,460 (1895) (presumption of innocence is evidence in favor of the accused).
Considering that there was no way for the government to re-examine the materials
the government consulted to authorize petitioner to proceed with those five firearms
transactions, the United States should have been estopped from proceeding with the
false statement counts brought under 18 USC §922(a)(6). This Court defines the
doctrine ofjudicial estoppel as a party taking a position on one phase of the case but
then attempting to rely on a contradictory argument to prevail in another phase of
the case. New Hampshire v. Maine, 532 U.S. 742 (2001). Here, the government
reversed its position in the following manner.
First, it failed to allege a specific relationship in any of the three indictments
it brought against petitioner (App. C, 211-214, 250-253).
Second, it disputed the conclusion reached on the five previous NICS checks
where petitioner was authorized to proceed with the transactions and to possess
firearms.
Third, through its internal plea agreement procedure, the government chose to
admit with unmistakable clarity that petitioner was in a “dating” relationship at the
time of his Montana PFMA conviction. Claiming that its plea agreement offer was
the most favorable disposition of the case; and asking the district court to ensure that
30
V
petitioner had been notified of the proposed plea agreement, which the district court
declined to do. (App. C, pp. 329-330).
The government’s admission that petitioner’s PFMA was based on a dating
relationship also required that this case be dismissed because the admission
contradicted the government’s spousal theory at trial. The extent to which an
admission binds the government depends on the context, the nature of the admission,
and whether it was made intentionally or by mistake. Here, the admission comes
after petitioner has been cleared on five occasions to possess firearms; and in the
context of a plea agreement offer, which the government urged was the best way for
petitioner to resolve his case: plead guilty to what was not a crime, to avoid the risk
of conviction for a crime petitioner did not commit. The nature of the government’s
admission clarifies in straightforward fashion that petitioner’s PFMA was based on
a dating context, which was not a relationship within the federal firearms ban until
June 25, 2022. And here, again, it is important to stress that the government never
alleged a relationship element in any of its three indictments.
This last point is important because under Rule 12(b)(1) of the Federal Rules
of Criminal Procedure, a party can raise by pretrial motion “any defense, objection,
or request that the court can determine without a trial on the merits” (App. D, p.
604). The government’s admission before trial that the relationship was “dating”
meant that petitioner was never a prohibited person under the pre-2022 version of
31
§922(g)(9). See e.g., Oscanyan v. Arms Company, 103 U.S. 261, 263 (1881) (“The
power of the court to act in the disposition of a trial upon facts conceded by counsel
is as plain as its power to act upon the evidence produced.”) In other words, there
were no facts to find at trial, since the government admitted that the relationship was
dating and not “an offense against the United States” at the time of its commission.
Furthermore, the very possibility that petitioner’s domestic violence
conviction arose from a dating context generated reasonable doubt sufficient to
acquit petitioner of all charges. Consider Justice Gorsuch’s view when writing for
the Tenth Circuit as a Circuit Judge:
... where ...“the evidence ... gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of
innocence, we must reverse the conviction, as under these
circumstances a reasonable jury must necessarily entertain a
reasonable doubt.
United States v. Lovern, 590
F.3d 1095, 1107 (10th Cir. 2009).
Other circuit courts agree:
-
-
United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995);
United States v. Caseer, 399 F.3d 828, 840 (6th Cir. 2005);
United States v. Johnson, 592 F.3d 749, 755 (7th Cir. 2010);
United States v. Wright, 835 F.2d 1245, 1249 n. 1 (8th Cir.
1987); and
Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir. 1982).
Under this Court’s decision in Jackson v. Virginia, 443 U.S. 407 (1979), “the
question whether the trier of fact has power to make a finding of guilt requires a
32
binary response: Either the trier of fact has power as a matter of law or it does not”.
Schlup v. Delo, 513 U.S. 298, 330 (1995). And just like petitioner’s jurisdictional
claim, the Ninth Circuit failed to address this issue concerning the government’s plea
agreement admission. Despite the fact that we argued the issue extensively in both
petitioner’s opening and reply briefing in that court (App. D, pp. 557-593). Given
this Court’s recent jurisprudence involving plea agreements, see Lafler v. Cooper,
566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012), this important issue
merits review by this Court. Whether the government should be held accountable
for its plea agreement admission, which took petitioner completely out of reach of
the §922(g)(9) firearms ban.
CONCLUSION
WHEREFORE, petitioner prays the Court will either GVR this case for the
Ninth Circuit to consider the jurisdiction and/or the plea agreement issues in the first
instance; or grant this petition and set the case down for full briefing and argument.
///
///
III
III
///
III
33
RESPECTFULLY SUBMITTED this 16th day of May, 2025.
Zs/ Michael Donahoe________
RACHEL JULAGAY
Federal Defender for the District of Montana
*MICHAEL DONAHOE
Deputy Federal Defender
Federal Defenders of Montana
50 West 14th Street, Suite 1
Helena, MT 59601
Telephone: (406) 449-8381
*Counsel of Record
34
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2024
MICHAEL BLAKE DeFRANCE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
CERTIFICATE OF WORD COUNT
As required by Supreme Court Rule 33.1(h), I certify that the Petition for
Writ of Certiorari contains 7,602 words, excluding the parts of the document that
are exempted by the Supreme Court Rule 33.1(d).
I declare under penalty of perjury that the foregoing is true and correct.
1
■■
>
DATED this 16th day of May, 2025.
RESPECTFULLY SUBMITTED,
/s/ MICHAEL DONAHOE
Deputy Federal Defender
Federal Defenders of Montana
50 West 14th Street, Suite 1
Helena, MT 59601
Telephone: (406) 449-8381
Counsel of Record
2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.