United States District Court, D. South Dakota, Central Division
For Cody James Horse Looking, Defendant: Randall Briggs Turner, LEAD ATTORNEY, Federal Public Defender's Office, Pierre, SD.
For USA, Plaintiff: Timothy M. Maher, LEAD ATTORNEY, U.S. Attorney's Office (Pierre, SD), Pierre, SD.
ORDER DENYING MOTION TO DISMISS INDICTMENT
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
Federal law prohibits the possession of a firearm by a person " who has been convicted ... of a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). Defendant Cody James Horse Looking pleaded guilty in state court to the simple assault of his wife. He was later indicted by a federal grand jury for violating § 922(g)(9). Horse Looking has moved to dismiss his indictment, arguing first that his simple assault conviction does not qualify as a misdemeanor crime of domestic violence because his conviction did not have " as an element, the use or attempted use of physical force," 18 U.S.C. § 921(a)(33)(A)(ii), and second that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921 (a)(33)(B)(ii). Because Horse Looking's conviction satisfies the force requirement of § 921(a)(33)(A)(ii) and did not result in the loss of any civil rights within the " core cluster," this Court denies Horse Looking's motion to dismiss the indictment.
In 2010, Horse Looking was charged in a South Dakota state court with the simple assault of his then wife Cassandra Horse Looking (Cassandra) in violation of South Dakota Codified Law (SDCL) § 22-18-1. Doc. 33-1 at 4-5. Horse Looking pleaded guilty to the offense in January 2011. Doc. 33-1 at 7; Doc. 33-2. Before accepting Horse Looking's plea, the state court judge outlined the nature of the simple assault charge, saying:
[T]he Grand Jury returned an Indictment that charged you with simple assault, domestic violence. The domestic part is the person who's alleged to be the victim here, who is Cassandra Horse Looking, who I think at the time you had been married to her. That's the domestic part.
The simple assault part is that you attempted to cause -- you threatened to cause, or you intentionally caused bodily injury to her. That charge of simple assault domestic violence is a Class 1 misdemeanor. The maximum sentence for that is a year in the county jail, a $2,000 fine, or both of those things.
Doc. 33-2 at 4. The judge then questioned Horse Looking about the charge:
THE COURT: So what happened on August 28th? What was the assault? What happened?
[HORSE LOOKING]: Umm, got into an argument and she became physical and she cut me and I pushed her. And she laughed, came back with the cops the next day, and I ended up going to jail.
THE COURT: Okay. So did you do any type of physical assault on her?
[HORSE LOOKING]: Yes.
THE COURT: Okay. And what, did you threaten some sort of -- to her, was there some injury to her?
[HORSE LOOKING]: I pushed her, she caused -- she fell down.
THE COURT: Did that cause some cuts or ...