United States v. Hayes, __ U.S. ___ , No. 07–608, decided 24 February 2009. The Supreme Court has resolved a issue relating to qualifying convictions for firearm possession prohibitions post-conviction.
I am in the middle of final preparations for trial this week on a domestic assault SPCM, so I was particularly drawn to this new opinion. The client is charged with assaulting "Mrs. X." But what if he'd been charged with assaulting "X." Even though the surnames are the same? What if the spouse in my case retained her unmarried name so client X was accused of assaulting Y?
According to one side of the dispute my client likely would not qualify as having a prior misdemeanor conviction. This would be because there is no element of proof under Article 128, UCMJ, that the victim is a family member. I'm not convinced the pleading of "Mrs." would have saved the charge under the one side of the circuit split. The other side of the circuit split is that there is no need to plead and prove and element of assault on a family member. Quite reasonably the Supreme Court has resolved the split in favor of the non-element side of the split. Thus, an assault on a family member charged under Article 128, UCMJ, will qualify the accused under the gun control regulations and there is no need to plead and prove the victim is a family member.