United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION TO DISMISS
E. SCHREIER UNITED STATES DISTRICT JUDGE
AND PROCEDURE OF CASE
Ler Wah Guide, is charged with possession of a firearm by a
prohibited person in violation of 18 U.S.C. § 922(g)(9).
Guide has moved to dismiss the indictment arguing that his
2013 misdemeanor conviction for domestic abuse in Beadle
County, South Dakota, does not qualify as a
“misdemeanor crime of domestic violence” under 18
U.S.C. § 921(a)(33)(B)(i)(II). Docket 55. Guide
specifically contends that he did not knowingly and
intelligently waive his right to a jury trial when he pleaded
guilty to the charges against him in Beadle County.
Id. The court held an evidentiary hearing on
Guide's motion on February 16, 2017. For the following
reasons, the court denies Guide's motion to dismiss.
on the testimony given and the exhibits introduced at the
evidentiary hearing, the court finds the following facts by
the greater weight of the evidence:
is a permanent resident alien who immigrated to the United
States from Myanmar (Burma) in 2006. After immigrating to the
United States, Guide eventually settled in Huron, South
Dakota. Guide is a part of a minority ethnic group in Burma
whose primary language is Karen. Guide's schooling in
Burma ended after he completed the fifth grade. The only
language Guide can speak and read is Karen. Guide does not
read or speak English.
August 26, 2013, a complaint was filed against Guide for
Simple Assault Domestic Abuse in Beadle County, South Dakota.
Guide first appeared in court for this charge on September 4,
2013. At this hearing, the Beadle County Court appointed
Jeffrey Burns to represent Guide and continued Guide's
initial appearance. On September 18, 2013, Guide reappeared
before the Beadle County court for his initial appearance.
This hearing was continued for an additional two weeks at the
request of Burns so Guide and Burns could meet with an
morning of October 2, 2013, Guide returned for his initial
appearance. Guide met with Burns and an interpreter, Eh Mwee
Pohto, prior to the hearing. This meeting lasted for about
eighteen minutes. Given Burns's normal practice, during
this meeting he would have advised Guide of his right to a
jury trial on his domestic abuse charge and discussed with
Guide the consequences of pleading guilty, including the loss
of the right to a jury trial.
Beadle County court proceeded in its typical manner on
October 2, 2013. First, the court was called to order around
9:00 a.m. Next, the Beadle County magistrate judge began the
hearing by giving all of the defendants present a mass
advisement of their rights. Finally, after the magistrate
judge finished giving the mass advisement, the court began
calling individual cases on the docket.
the Beadle County court typically has a number of cases
involving non-English speaking defendants, Spanish and Karen
interpreters are present to translate the magistrate
judge's mass advisement and interpret for individual
cases. Prior to the start of a hearing, these
interpreters identify the non-English speaking defendants
present and direct them to the courtroom's jury box. Once
in the jury box, these defendants are separated so that the
mass advisement can be translated in Spanish and Karen,
respectively, as the magistrate judge gives it. The
translators then assist with individual cases as needed.
defendants who speak and read Karen also receive a written
advisement form from the interpreter. This form is translated
from English to Karen and describes the rights that
defendants have, such as the right to a speedy trial and the
right to a jury trial. Karen defendants may read this form
while the mass advisement is being translated and can keep
the form to read after the mass advisement is finished. Karen
defendants also have the opportunity to review the form with
the interpreter after the magistrate judge finishes giving
the mass advisement of rights. Karen defendants who wish to
plead guilty must sign this form below the advisement
indicating that the defendant has read their rights and
understands those rights.
was present and in the jury box with the other Karen speaking
defendants during the magistrate judge's mass advisement
on October 2, 2013. The advisement was orally translated from
English to Karen by Pohto, who Guide knew personally. Guide
also received the translated advisement of rights form from
Pohto prior to the start of the hearing. Guide had the form,
which he signed, for about twenty minutes before his case was
called by the magistrate judge. Guide did not indicate to
Pohto, Burns, or the magistrate judge that he did not
understand his mass advisement or the rights contained in the
case was called by the Beadle County court at 9:22 a.m. Guide
appeared with Burns, who stated that Guide desired to plead
guilty. During Guide's individual exchange with the
magistrate judge, Guide orally acknowledged that he
understood the maximum possible penalties associated with his
misdemeanor domestic abuse charge. Burns then provided the
court with Guide's signed advisement of rights
form. After the court accepted Guide's
guilty plea, the magistrate judge sentenced Guide to
thirty-six days in prison, with thirty days suspended, and
gave Guide a total fine of $525.00.
argues that his 2013 misdemeanor conviction for domestic
abuse does not qualify as a predicate “misdemeanor
crime of domestic violence” under 18 U.S.C. §
921(a)(33). Docket 55. In support of his argument,
Guide contends that the Beadle County court records from
October 2, 2013, fail to establish that he knowingly and
intelligently waived his right to a jury trial, as required
by 18 U.S.C. § 921(a)(33)(B)(i)(II)(bb), when he pleaded
guilty to Simple Assault Domestic Abuse on October 2, 2013,
in the Beadle County court. Id.
Standard for Waiver of Right to Jury Trial.
Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury.” U.S. Const.
amend. VI. Criminal defendants, however, may waive their
constitutional right to a jury trial. Adams v. United
States ex rel. McCann, 317 U.S. 269, 275 (1942).
“[W]hether or not there is an intelligent, competent,
self-protecting waiver of jury trial by an accused must
depend upon the unique circumstances of each case.”
Id. at 278. When evaluating the “unique
circumstances” of a given case, courts may consider a
number of factors that bear on the defendant's ability to
understand the right to waive a jury trial and on a
defendant's ability to understand discussions regarding
the waiver of the right to a jury trial. See United
States v. Leja, 448 F.3d 86, 93-94 (1st Cir. 2006)
(compiling cases discussing some relevant factors in
assessing the validity of a defendant's wavier of the
right to a jury trial); Sowell v. Bradshaw, 372 F.3d
821, 831-36 (6th Cir. 2004) (evaluating the facts and
circumstances surrounding the ...