                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-1097
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Todd Virgil Larson,                      *
                                         *      [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                              Submitted: June 12, 2001

                                   Filed: July 10, 2001
                                    ___________

Before BOWMAN and HEANEY, Circuit Judges, and KOPF,1 District Judge.
                          ___________

PER CURIAM.

       In 1992, Todd Virgil Larson pleaded guilty to a state misdemeanor assault
charge under Minn. Stat. § 609.224 (1992). In 2000, he was charged with three counts
of firearms violations under various subsections of 18 U.S.C. § 922 (1994 & Supp. IV
1998). Filing a motion in limine to dismiss the Minnesota assault conviction as a
predicate to the § 922 charges (the indictment includes other convictions as additional
predicates to the federal charges), Larson argued that it was unclear from the state-

      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska, sitting by designation.
court record whether the 1992 misdemeanor assault conviction qualified as a
"misdemeanor crime of domestic violence" within the purview of 18 U.S.C.
§ 922(g)(9). The lack of clarity resulted, his argument continued, from the structure of
Minn. Stat. § 609.224 and the nature of his plea of guilty to the criminal offense
proscribed by section 609.224. The statute provides:

          Subdivision 1. Misdemeanor. 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.

It is undisputed that only clause (2) of the above-quoted statute satisfies "the use or
attempted use of physical force" element required to prosecute defendant under 18
U.S.C. § 922(g)(9). 18 U.S.C. § 921(a)(33)(A). In United States v. Smith, 171 F.3d
617 (8th Cir. 1999), the Eighth Circuit held that a state misdemeanor assault conviction
is sufficient as a predicate crime for purposes of § 922(g)(9) as long as the underlying
conviction is for assault involving use of physical force rather than merely placing the
victim in fear of imminent bodily harm. Id. at 620. Here, Larson contended, neither
the plea transcript nor the record of conviction nor the charging document resolves the
question whether he pleaded guilty to clause (1) or clause (2) of section 609.224
subd. 1.

      After reviewing the record, the District Court2 concluded that Larson's arguments
were well-founded and granted his motion in limine to dismiss the Minnesota assault


      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
                                          -2-
conviction as a predicate offense. The government seeks review of the court's ruling,
bringing an interlocutory appeal pursuant to 18 U.S.C. § 3731 (1994)

       Having considered the record and the arguments of the parties, we agree with the
District Court that the state-court record does not make it clear whether Larson pleaded
guilty under clause (1) or (2) of Minn. Stat. § 609.224 subd. 1. Accordingly, the ruling
of the District Court is affirmed, and the case is remanded for trial on the pending § 922
charges, none of which has been dismissed in its entirety. As the District Court noted,
other predicate offenses remain for the government to proceed with its case.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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