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United States v. Crespo

United States District Court, S.D. New York

February 21, 2017

UNITED STATES OF AMERICA,
v.
JOHN CARABALLO CRESPO, Defendant.

          MEMORANDUM AND ORDER

          P. Kevin Castel United States District Judge

         Defendant 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 participate;
(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).

         The 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.

         DISCUSSION

         I. Legal Standard.

         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 “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).

         II. The ...


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