United States District Court, S.D. New York
MEMORANDUM AND ORDER
Kevin Castel United States District Judge
John Caraballo Crespo is charged in a one-count indictment
with unlawful possession of a firearm while subject to a
protective order, in violation of 18 U.S.C. § 922(g)(8).
Defendant has moved to dismiss the indictment on the grounds
that the underlying protective order fails to satisfy the
requirements of section 922(g)(8). He also requests
disclosure of the grand jury minutes. For the reasons
explained below, defendant's motion is denied. BACKGROUND
The indictment charges the defendant with possessing a
firearm while subject to a protective order. (Indictment,
Def.'s Mot. to Dismiss Ex. A). The relevant statute
reads, in part, as follows:
It shall be unlawful for any person . . . who is subject to a
court order that . . .
(A) was issued after a hearing of which such person received
actual notice, and at which such person had an opportunity to
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child of
such intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear of
bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate
partner or child; or
(ii) by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such
intimate partner or child that would reasonably be expected
to cause bodily injury . . .
to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition;
or to receive any firearm or ammunition which had been
shipped or transported in interstate of foreign commerce.
18 U.S.C. § 922(g)(8).
indictment alleges that defendant was subject to a protective
order that satisfied both subsections (C)(i) and (C)(ii).
However, the defendant argues that the indictment should be
dismissed because the underlying protective order fails to
satisfy the requirements of section 922(g)(8)(C)(i) or
(C)(ii) and fails to establish that the protective order was
issued on behalf of an intimate partner.
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
“need do little more than to track the language of the
statute charged and state the time and place (in approximate
terms) of the alleged crime.” United States v.
Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (internal
quotation marks omitted). “An indictment is sufficient
so long as it: (1) ‘contains the elements of the
offense charged and fairly informs the defendant of the
charge against which he must defend, ' and (2)
‘enables [the defendant] to plead an acquittal or
conviction in bar of future prosecutions for the same
offense.'” United States v. Thompson, No.
13 Cr. 378 (AJN), 2013 WL 6246489, at *6 (S.D.N.Y. Dec. 3,
2013) (quoting Hamling v. United States, 418 U.S.
87, 117 (1974) (alteration in original).