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United States v. Jimenez

United States District Court, D. Colorado

June 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID JIMENEZ, Defendant.

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Notice of Appeal [Docket No. 63] filed by defendant David Jimenez. Defendant appeals his conviction of driving under restraint after a jury trial presided over by Magistrate Judge Michael E. Hegarty in Criminal No. 16-mj-07009-MEH. The Court exercises jurisdiction over this appeal pursuant to 18 U.S.C. § 3402 and Fed. R. Crim P. 58(g)(2)(D). Neither party requested oral argument.

         I. BACKGROUND[1]

         Defendant works as a subcontractor for a flooring company. Docket No. 72 at 90:15-91:1. On November 3, 2015, defendant and two co-workers drove to Colorado Springs, Colorado for a job. Id. at 92:16-96:20. The defendant's driver's license was under restraint so one of his co-workers drove. Id. at 94:18-25. At some point during the trip, defendant fell asleep in the back of the van. Id. at 95:25-96:10. When he woke up, the van was approaching the Gate 3 entrance to Fort Carson, a federal military reservation in Colorado Springs. Id. at 21:13-24, 96:11-97:20. Defendant testified that he got into the driver's seat so he could be the one to speak to the gate guard. Id. at 97:7-98:9.

         Although defendant indicated that he moved into the driver's seat only after the van was stopped at the gate, id. at 99:14-21, Specialist Brian Mathis, who was on duty at Gate 3, testified that he observed defendant drive several car lengths to the gate kiosk. Id. at 29:4-30:12. Specialist Mathis asked defendant for identification, proof of insurance, and the vehicle's registration. Id. at 31:6-10. He then ran a check on defendant's state identification card, which showed that defendant had a revoked driver's license. Id. at 31:21-25. A military police officer, Bruce Punday, arrived and issued defendant a violation notice for driving while under restraint. Id. at 67:1-68:17; see also Docket No. 1 (violation notice). On May 31, 2016, defendant was charged by information with driving under restraint in violation of Colo. Rev. Stat. § 42-2-138(1)(d), as assimilated by 18 U.S.C. § 13, the Assimilative Crimes Act (“ACA”). Docket No. 9.

         Colo. Rev. Stat. § 42-2-138(1)(d) provides:

A person who drives a motor vehicle or off-highway vehicle upon any highway of this state with knowledge that the person's license or privilege to drive, either as a resident or nonresident, is restrained under section 42-2-126(3), is restrained solely or partially because of a conviction of DUI, DUI per se, DWAI, or UDD, or is restrained in another state solely or partially because of an alcohol-related driving offense is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail for not less than thirty days nor more than one year and, in the discretion of the court, by a fine of not less than five hundred dollars nor more than one thousand dollars.

         Pursuant to the statute, one of the elements of driving while under restraint is that the defendant drove “upon any highway of this state.” Colo. Rev. Stat. § 42-2-138(1)(d); see also Colo. Jury Instructions, Criminal § 42:03 (2017).

         On August 19, 2016, during a hearing on an unrelated matter, the magistrate judge raised the issue of whether the government would have to prove that “defendant drove some distance other than on Fort Carson” in order to establish that he drove on a “highway of this state.” Docket No. 70 at 88:13-15.[2] The magistrate judge reserved ruling on the issue in order to give the parties an opportunity to submit further briefing on whether the portion of the road leading to Gate 3 but falling within Fort Carson's jurisdictional boundary qualified as a public highway[3] for purposes of Colo. Rev. Stat. § 42-2-138(1)(d). Id. at 98:10-14. On August 25, 2016, defendant submitted a supplemental brief in support of his motion to dismiss. Docket No. 26. In the brief, defendant argued that, “because Fort Carson is a restricted Federal installation, the roadway in front of the gates is not a ‘Public Highway' as defined in the statute.” Id. at 1. The government filed a response on August 30, 2016. Docket No. 31. On August 31, 2016, the magistrate judge held a second motions hearing during which he heard argument on the issue of whether the road leading to Gate 3 qualified as a public highway under Colorado law. Docket No. 32. At the hearing, the magistrate judge expressed his belief that, under Colorado's definition of “highway, ” see Colo. Rev. Stat. § 42-1-102(43), a road did not have to be entirely unrestricted to qualify as a public highway. Docket No. 71 at 7:22-8:14. The magistrate judge further noted that the road leading to Gate 3 was “certainly a public road in the sense that public services built it and maintains it” and anyone can access Fort Carson with identification. Id. at 8:15-24. Based on this reasoning, the magistrate judge denied defendant's request for an order dismissing the information. Id. at 8:25-9:3; Docket No. 32 at 1. Later in the hearing, defendant requested that he be permitted to “present evidence to a jury on the issue of a public highway because it is an element, ” Docket No. 71 at 19:23-20:1, to which the magistrate judge responded that he was “prepared to hold as a matter of law” that the roadway leading to Gate 3 qualified as a public highway and thus “any evidence relating” to that issue would be impermissible. Id. at 20:11-15. Defendant suggested that the court would be “preempting an element of the charge” and explained that he did not raise the issue of whether the road constituted a public highway in his motion to dismiss because he “thought it was a jury question.” Id. at 20:16-17, 22:5-7. The magistrate judge indicated he would provide further guidance at a later date. Id. at 23:21-24.

         On September 2, 2016, the government filed a motion requesting that the Court take judicial notice that “Chiles Avenue and Westmeadow Drive are ‘highways' that qualify, meet and conform to, (a) the definition of ‘highway' set forth in Colorado Revised Statutes Section 42-1-102(43); and (b) the definition of ‘highway' required for a conviction of Driving Under Restraint under Colorado Revised Statutes Section 42-2-138.” Docket No. 37 at 2. On September 6, 2016, the magistrate judge issued an order holding, as a matter of law, that the road leading to Gate 3 at Fort Carson is a “highway of this state” under § 42-2-138 and barring defendant from presenting any evidence regarding the meaning of “highway of this state” at trial. Docket No. 42 at 1-2.[4]

         The jury trial in this case began on September 8, 2016. See Docket Nos. 46, 48.

         At the close of the evidence, the magistrate judge instructed the jury:

         The elements of the crime of driving under restraint are:

First: that the defendant,
Second: in the State of Colorado, at or about the date and place charged,
Third: drove a motor vehicle or off-highway vehicle,
Fourth: upon any highway of this state,
Fifth: when his or her license or driving privilege was under ...

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