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United States v. Handshoe

United States District Court, N.D. Indiana, Fort Wayne Division

August 24, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JEREMY HANDSHOE, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN, JUDGE

         This matter is before the Court on the Defendant's Motion to Dismiss 18 U.S.C. § 924(e) Allegations Contained in Count 1 and Count 2 [ECF No. 44], filed on July 7, 2016. For the reasons set forth in this Opinion and Order, the Court grants the Defendant's Motion.

         BACKGROUND

         On June 24, 2015, the Government filed a two-count Indictment [ECF No. 1], charging the Defendant with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Counts 1 and 2 allege that the Defendant possessed a firearm on two separate dates; Count 1 applies to conduct that occurred on or about February 26, 2015 and Count 2 applies to conduct that occurred on or about April 1, 2015. In each count, the Government also charged the Defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which provides, in relevant part: “[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.” Both counts of the Indictment included the following predicate offenses for an enhanced punishment under § 924(e):

On or about October 10, 1997, Jeremy Handshoe was convicted and sentenced in the Noble County Circuit Court, Albion, Indiana, in Cause No. 57C01-9705-CF-000054, of Burglary, a Class C Felony; and
On or about December 14, 1998, Jeremy Handshoe was convicted and sentenced in the Noble County Circuit Court, Albion, Indiana, in Cause No. 57C01-9907-CF-000047, of Burglary, a Class C Felony; and
On or about May 17, 2007, Jeremy Handshoe was convicted and sentenced in the Noble County Circuit Court, Albion, Indiana, in Cause No. 57C01-0603-FC-000017, of Burglary, a Class C Felony.

(Indictment 1-2, ECF No. 1.)

         On July 7, 2016, the Defendant filed a Motion to Dismiss 18 U.S.C. § 924(e) Allegations Contained in Count 1 and Count 2 [ECF No. 44], arguing that in light of Mathis v. United States, 136 S.Ct. 2243 (2016), the Defendant's three burglary convictions cannot serve as ACCA predicate offenses. On July 21, 2016, the Government filed its Response [ECF No. 46]. On July 26, 2016, the Defendant filed his Reply [ECF No. 47]. With this matter fully briefed, the Court grants the Defendant's Motion to Dismiss.

         STANDARD OF REVIEW

         To be sufficient, an indictment must “be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). It must also cite to the applicable statute. Id. The Seventh Circuit has stated that an indictment “must fulfill three distinct functions. First, the indictment must state all of the elements of the crime charged; second, it must adequately apprise the defendant of the nature of the charges so that he may prepare a defense; and third, it must allow the defendant to plead the judgment as a bar to any future prosecutions for the same offense.” United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000).

         A defendant may allege that an indictment is defective for “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). “Challenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence.” United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (quoting United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006)). “To successfully challenge the sufficiency of an indictment, a defendant must demonstrate that the indictment did not satisfy one or more of the required elements and that he suffered prejudice from the alleged deficiency.” United States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013) (citing United States v. Dooley, 578 F.3d 582, 589-90 (7th Cir. 2009)). Ultimately, the question on a motion to dismiss is not whether the indictment alleges sufficient facts from which a jury could find guilt, but rather whether the government conceivably could produce such evidence at trial. United States v. Castor, 558 F.2d 379, 384 (7th Cir. 1977).

         DISCUSSION

         The Defendant argues that his burglary convictions are not violent felonies because Indiana burglary, Ind. Code § 35-43-2-1, is broader than the elements of generic burglary. Specifically, the Defendant asserts that the ability to commit burglary under section 35-43-2-1 by breaking or entering through a fence means it does not constitute generic burglary under the ACCA. In response, the Government contends that the Defendant's claim is meritless because section 35-43-2-1 matches generic burglary under the ACCA, as fences are fixed-in-place ...


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