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Date: 07-14-2016

Case Style: United states of America v. Dustin Kyle Harvey

Case Number: 6:16-cr-00043-RAW

Judge: Steven P. Shreder

Court: United States District Court for the Eastern District of Oklahoma (Muskogee County)

Plaintiff's Attorney: Dean Burris

Defendant's Attorney: Robert S. Williams

Description: Muskogee, OK - Arthur City, Texas, Man Pleads Guilty To Firearm Possession

Dustin Kyle Harvey, , age 26, of Arthur City, Texas, pled guilty to FELON IN POSSESSION OF FIREARM, in violation of Title 18, United States Code, Sections 922(g)(1), 924(a)(2).

The charges arose from an investigation by the Choctaw Tribal Police and the Federal Bureau of Investigation.

The Indictment alleged that on or about April 15, 2016, within the Eastern District of Oklahoma, the defendant having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce, a firearm which had been shipped and transported in interstate commerce.

The Honorable Steven P. Shreder, Magistrate Judge in the United States District Court for the Eastern District of Oklahoma, in Muskogee, accepted the guilty plea and ordered the completion of a presentence report. Sentencing will be scheduled following its completion. The defendant will remain in the custody of the United States Marshals Service pending sentencing.

The statutory range of punishment is not more than 10 years imprisonment, up to a $250,000 fine or both.

1116. Prosecutions Under 18 U.S.C. § 922(g)(8)

Title 18 U.S.C. §§ 922(d)(8) and (g)(8) concern the prohibition against disposal of firearms to, or receipt or possession of firearms by, persons who are subject to domestic violence protection orders. Section 922(d)(8) prohibits the knowing transfer of a firearm to a person who is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, and section 922(g)(8) prohibits the receipt or possession of a firearm or ammunition by such a person.

There are several key evidentiary issues which can arise in these cases. A violation of § 922(d)(8) must be "knowing." Proof concerning knowledge of the restraining order on the part of the supplier must be established. The term "intimate partner" is defined as including a spouse or former spouse, or a person with whom the victim has had a child, but it does not include a girlfriend or boyfriend with whom the defendant has not resided. See 18 U.S.C. § 921(a)(32). In addition, the protective order must have been issued following an evidentiary hearing as to which the defendant had notice and an opportunity to appear. The order must include a specific finding that the defendant represents a credible threat to the physical safety of the victim or by its terms explicitly prohibit the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury.

The provisions of this statute do not provide an exception for law enforcement officers, but the provisions of the Federal firearms laws permit an exemption from many of the restrictions. Section 925(a)(1) of Title 18 grants an exemption: "The provisions of this chapter, . . . shall not apply with respect to the . . . possession . . . of any firearm or ammunition . . . issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof."

The Bureau of Alcohol, Tobacco and Firearms (BATF) has issued an advisory letter outlining the parameters of this exemption. The BATF letter states:

This [exemption] applies to an officer's possession of a firearm or ammunition whether on or off duty, as long as the officer's official duties require the possession of the firearm or ammunition. On the other hand, Federal law would be violated if an officer subject to a disabling restraining order receives or possesses a firearm or ammunition in a personal

Outcome: Guilty

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