May 24, 2010

 

Col. Jim Konrad, Director

Division of Enforcement

Minnesota Department of Natural Resources

Box 47

500 Lafayette Road

St. Paul, Minnesota  55155-4047

 

Re:     In the Matter of the Appeal of the Notice of Seizure and Intent to Forfeit Firearm, CF No. 366052 and 366053

OAH Docket No. 3-2000-21209-2

 

Dear Col. Konrad:

 

            The above-entitled matter came on for a prehearing telephone conference call on April 27 and May 3, 2010.  The Administrative Law Judge, Conservation Officer Karl Hadrits, Marshall Jarvela, and James Jarvela participated in the telephone conference.  The parties agreed that no formal hearing would be needed and that the ALJ would make a recommendation to the DNR based on the record created during the telephone conference.  After the conference call, the Administrative Law Judge requested that Conservation Officer Hadrits provide additional documentation from district court files, which he did on May 17, 2010.  The OAH record closed at that time.

 

Factual Background

 

          On November 5, 2009, Conservation Officer Hadrits received an anonymous telephone call from a person who said that he knew Marshall Jarvela was a convicted felon and could not possess a firearm and that Jarvela would be out hunting with a gun over the firearms deer season opener on a particular trail north of Miller Lake in section 20 of Wolford Township, Crow Wing County.  Officer Hadrits went to the State Patrol office and obtained a computerized criminal history report for Marshall Jarvela from the Bureau of Criminal Apprehension (BCA).[1]

 

          The BCA criminal history report contained no information suggesting Mr. Jarvela has ever been convicted of a felony, but it did contain several entries with regard to an offense date of July 11, 1999, Case No. 99001706.  On October 5, 1999, Mr. Jarvela had pleaded guilty to several charges, including fifth-degree assault.  When his probationary period was discharged on June 3, 2002, a notation was made in the BCA record that he was not entitled to ship, transport, possess or receive a firearm, and “No guns 10 years elig 06032012.”

 

          On November 7, 2009, the opening day of the firearms deer season, Officer Hadrits looked for Marshall Jarvela on the trail specified by the caller.  Officer Hadrits found Mr. Jarvela with a party of several other hunters with a rifle slung around his shoulder.  Officer Hadrits asked Mr. Jarvela to come to his truck to speak privately, which he did.  At that time, Officer Hadrits took the rifle from Mr. Jarvela’s shoulder and found it to be an SKS semi-automatic 7.62X39mm rifle with a scope, loaded with nine live rounds in the magazine and one live round in the chamber.  Mr. Marshall Jarvela stated that the gun was his and that he did not know he could not possess a firearm.  He stated that no judge had ever advised him he could not have a gun, nor had he ever been served with any paperwork advising him he could not possess a gun.  Officer Hadrits issued a seizure receipt for the gun and advised Mr. Jarvela that he would notify him at a later time whether he would be charged with any violations.  Marshall Jarvela’s father, James Jarvela, later called Officer Hadrits to say that the firearm belonged not to Marshall Jarvela but to James Jarvela.[2]

 

          Officer Hadrits submitted the case for review by the Crow Wing County Attorney’s office.  On December 28, 2009, the County Attorney’s office advised Mr. Jarvela that the office could not substantiate that he was ineligible to possess a firearm under Minn. Stat. § 624.713.  The assistant county attorney indicated, however, that a different assault conviction might disqualify Mr. Jarvela under federal law.

 

          Upon receipt of this information, Officer Hadrits submitted the case to the U.S. Bureau of Alcohol, Tobacco, and Firearms and the U.S. Attorney’s Office.  On February 5, 2010, an ATF agent advised Officer Hadrits that a 2002 conviction of domestic assault disqualified Mr. Jarvela from possessing firearms under 18 U.S.C. § 922(g)(9).  The U.S. Attorney’s Office, however, declined prosecution.[3]

 

          Upon receipt of this additional information, Officer Hadrits issued a Notice of Seizure and Intent to Forfeit Firearm, CF Nos. 366052 and 366053, to Marshall Jarvela and James Jarvela.  The notice to Marshall Jarvela stated that it was unlawful to possess under 18 U.S.C. § 922(g)(9); the notice to James Jarvela said it was unlawful to provide a firearm to a person who may not possess one under 18 U.S.C. § 922(g)(9).  The forfeiture notices contained information about how to appeal the forfeiture of the firearm.  Officer Hadrits also sent warnings to both men stating that although the U.S. Attorney’s Office had declined prosecution, Marshall Jarvela’s possession of a firearm was a federal felony-level violation, and the firearm would be administratively forfeited.

 

          The Jarvelas filed a timely appeal, contending (1) Marshall Jarvela was not aware of any restriction on possessing firearms; (2) the firearm in question belonged to James Jarvela; (3) Marshall Jarvela had never been convicted of a felony; (4) law enforcement officers had mistaken Marshall Jarvela in the past with someone else from Crookston, Minnesota, having a similar name; and (5) Officer Hadrits did not know the actual reason for seizing the gun when it was taken in November 2009.

 

          The record reflects that Mr. Jarvela was convicted of misdemeanor fifth-degree assault in October 1999 (District Court case no. 19-K9-001418).  This is the case containing the reference “No guns 10 years elig 06032012” in the BCA record.  In the course of this proceeding, Officer Hadrits reviewed this district court file and was unable to find any district court order precluding Mr. Jarvela from possessing firearms.  The BCA has now concluded that this notation was made in error and has indicated that the notation will be removed.[4]  The DNR does not contend that this conviction is a predicate offense making Mr. Jarvela’s possession of a firearm illegal under federal law.

 

          Mr. Jarvela was also convicted of misdemeanor domestic assault for an incident on January 12, 2004 (District Court case no. K9-04-000642).  The incident involved Mr. Jarvela’s pregnant girlfriend.  On April 14, 2005, Mr. Jarvela pleaded guilty to domestic assault, in violation of Minn. Stat. § 609.2242, subd. 1(1).[5]  It is this conviction the DNR originally maintained was the predicate offense making Mr. Jarvela’s possession of a firearm illegal under federal law. 

 

          Finally, Mr. Jarvela was convicted of two counts of misdemeanor assault for an incident dated November 6, 2006 (District Court case no. KX-06-003067).  In this incident, Mr. Jarvela was alleged to have threatened Jack Jarvela (identified in the complaint as Mr. Jarvela’s father) and another person with a firearm (the same one, apparently, that is the subject of this appeal).  On May 22, 2007, Mr. Jarvela pleaded guilty to two counts of fifth-degree assault, in violation of Minn. Stat. § 609.224, subd. 1(1).  In a letter submitted after the telephone conference, Conservation Officer Hadrits contended that the conviction involving Jack Jarvela also qualifies as a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g).

 

 

Legal Analysis

 

A DNR enforcement officer is required to seize firearms possessed in violation of state or federal law or court order.[6]    Under federal law, it is unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to possess in or affecting commerce any firearm or ammunition.[7]  A “misdemeanor crime of domestic violence” is defined to mean an offense that is a misdemeanor under Federal, State, or Tribal law, and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.[8]

 

The definition of a “misdemeanor crime of domestic violence” in 18 U.S.C. § 921(a)(33)(A) requires the predicate misdemeanor to have only one element:  the use or attempted use of physical force, or its alternative, the threatened use of a deadly weapon.[9]  In determining whether the required elements are present, only the elements of the predicate offense are to be examined, rather than the offender’s specific underlying conduct that resulted in the conviction.[10]

 

As noted above, the DNR maintains the April 2005 conviction of domestic assault is a predicate offense under 18 U.S.C. § 922(g).  The domestic assault statute provides as follows:

 

Subdivision 1.  Whoever does any of the following against a family or household member . . . commits an assault and is guilty of a misdemeanor:

 

                    (1)      commits an act with intent to cause fear in another of                                             immediate bodily harm or death; or

 

(2)       intentionally inflicts or attempts to inflict bodily harm upon                       another.[11]

 

Although the complaint describes a physical assault, and Mr. Jarvela was originally charged with a violation of Minn. Stat. 609.2242, subd. 1(2), he was convicted only of violating Minn. Stat. § 609.2242, subd. 1(1).  This is not an offense that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.  Only clause (2) of the above-quoted statute satisfies the “use or attempted use of physical force” element of 18 U.S.C. § 922(g)(9).[12]  Accordingly, this conviction does not constitute a predicate offense that makes it illegal for Mr. Jarvela to possess a firearm under federal law.

 

The DNR also maintains that one of the May 2007 convictions of fifth-degree assault is another predicate offense of misdemeanor domestic assault, because it involved Jack Jarvela, who was identified in the complaint as Mr. Marshall Jarvela’s father.  Mr. Marshall Jarvela has disputed that Jack Jarvela is his father, contending that Jack Jarvela is his uncle, and James Jarvela is his father.  The fifth-degree assault statute is virtually identical to the domestic assault statute cited above.  It provides as follows:

 

Subdivision 1.  Whoever does any of the following commits an assault and is guilty of a misdemeanor:

 

                    (1)      commits an act with intent to cause fear in another of                                             immediate bodily harm or death; or

 

(2)      intentionally inflicts or attempts to inflict bodily harm upon                            another.[13]

 

The record reflects that on May 22, 2007, Mr. Jarvela was convicted of violating Minn. Stat. § 609.224, subd. 1(1).  Again, this is not an offense that contains, as an element, either the use or attempted use of physical force or the threatened use of a deadly weapon.  Moreover, the federal statute would apply only to an offense committed (in relevant part) by a spouse, parent, or guardian of the victim, or by someone similarly situated to a spouse, parent, or guardian of the victim.  An assault by Marshall Javela of either his father or his uncle would not meet the definition of a misdemeanor crime of domestic assault under federal law.  For all of these reasons, the ALJ concludes that this conviction is not a predicate offense making it illegal for Mr. Jarvela to possess a firearm under federal law.

 

The result might have been different under state law.  Under state law, any person related by blood is considered to be a family member, and the conviction of an assault against a family member that involves the use of a firearm (whether under § 609.224 or § 609.2242) should result in the summary forfeiture of the firearm.  In addition, the district court could prohibit the offender from possessing any type of firearm “for any period longer than three years or for the remainder of the person’s life.”[14]  The record contains no evidence, however, that any district court has prohibited Mr. Jarvela from possessing a firearm as a result of this conviction.     

 

The ALJ accordingly recommends that the DNR withdraw the citations and warnings issued to the Jarvelas and return the firearm to Mr. Marshall Jarvela. 

 

          I am closing our file in this matter and returning the record.  Pursuant to Minn. Stat. § 116.072, subd. 6(e), the Commissioner must wait at least five days after receipt of this recommendation before making a final decision.  Within those five days, the parties may comment on this recommendation. The Commissioner must send a copy of the final decision to the Jarvelas.  If the Commissioner fails to act within 90 days after the record before the Commissioner closes, this recommendation will become the final decision in this matter.

 

                                                                      Sincerely,

                                                                     

                                                                      s/Kathleen D. Sheehy

                                                                      _______________________

                                                                      KATHLEEN D. SHEEHY                                                                                     Administrative Law Judge

Encl.

cc:      C.O. Karl Hadrits

          Mr. Marshall Jarvela

          Mr. James Jarvela

 

 


[1] Testimony of Karl Hadrits; Ex. 1 (Initial Complaint Report and BCA record).

[2] Test. of K. Hadrits; Ex. 1 (Initial Complaint).

[3] Id.

[4] Letter from Karl Hadrits to ALJ (May 12, 2010).

[5] Ex. 1 (BCA Record at pages 11-12; Complaint dated March 10, 2004 (Case No. K9-04-642)).

[6] Minn. Stat. § 97A.223, subd. 1 (2008).

[7] 18 U.S.C. § 922(g)(9).

[8] 18 U.S.C. § 921(a)(33)(A).

[9] United States v. Howell, 531 F.3d 621, 622-23 (8th Cir. 2009); United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999).

[10] Id.

[11] Minn. Stat. § 609.2242, subd. 1.

[12] See United States v. Larson, 2001 WL 766842 (8th Cir. 2001) (affirming dismissal of assault conviction under Minn. Stat. § 609.224 as a predicate offense under 18 U.S.C. § 922(g)(9)

[13] Minn. Stat. § 609.224, subd. 1.

[14] Minn. Stat. § 518B.01, subd. 2(b)(3)(definition of family member); Minn. Stat. § 609.2242, subds. 3(b) and 3(c) (forfeiture and disqualification provisions).