This case, in a sense, started in 1992 when Willard Hartsock pled guilty in the Somerset Division of the Maine District Court to the misdemeanor domestic assault 1 of his wife Beth Hartsock and was sentenced to 48 hours in the local jail. Hartsock and his wife later divorced and Hartsock moved to North Carolina. Beth 2 apparently remained in Maine. In October of 2000, Beth informed the police that she had received a call from her former husband, during which he “threatened her with regard to firearms” and said he was returning to Maine. After some investigation, the police located Hartsock in Maine and, after he consented to a search, found him in possession of four rifles, two shotguns, and a pistol. As a result, Hart-sock was charged with violating a federal statute the ultimate purpose of which is to protect domestic abuse victims from the risk of further violence involving firearms. The statute, 18 U.S.C. § 922(g)(9), makes it unlawful for any person who has been *3 convicted in any court of a “misdemeanor crime of domestic violence” to carry a firearm in or affecting interstate commerce. There is an exception: the statute does not apply if the defendant was convicted for the prior misdemeanor crime of domestic violence without counsel and without having knowingly and intelligently waived counsel. 18 U.S.C. 921(a)(33)(B)(i)(I).
The question raised by this interlocutory appeal, 28 U.S.C. § 1292 (2003), is, in applying that exception, how to allocate the burden of proof that the prior conviction was without counsel or qualifying waiver. The magistrate judge rejected the government’s argument that the exception was an affirmative defense on which the defendant bore the burden of proof, and found , that the government had not met its burden to show that Hartsock had knowingly and intelligently waived his right to counsel in his 1992 state conviction.
United States v. Hartsock,
The allocation of the burden of proof for the exception set forth in § 921(a)(33)(B)(i)(I) is an issue of first impression in our court. We reverse the district court’s holding and remand. We conclude that the exception is an affirmative defense and not an element of the crime, that the government need only prove the prior conviction, and that the defendant bears the burden of proving he or she is within the exception.
I.
On August 6, 2002, Willard Hartsock was indicted for violating 18 U.S.C. § 922(g)(9). The indictment charged him with the possession of seven firearms after having been convicted approximately a decade earlier of domestic assault. By the time Hartsock was indicted, Maine authorities had destroyed the plea transcripts of his 1992 domestic assault conviction during routine space-saving procedures. The prosecution filed a motion in limine arguing that, under § 921(a)(33)(B)(i)(I), it did not have to prove in the first instance that Hartsock had knowingly and intelligently waived his right to counsel in his earlier conviction. Hartsock denied that he had any burden under the exception and, in line with this position, did not present any evidence on the issue.
The government, which did not have the benefit of the plea transcripts or recording, submitted the deposition testimony of Judge Douglas A. Clapp, who was the only district court judge presiding in Somerset County on the day that Hartsock was convicted in 1992. Although he had no individual recollection of Hartsock’s conviction, Judge Clapp testified that he always informs defendants who plead guilty about their right to an attorney, and did so in 1992. The government also presented the affidavit of federal agent Brent McSweyn, who in the nascent stages of the investigation had listened to a tape recording of Hartsock’s plea colloquy, and had interviewed Hartsock concerning the conviction. According to McSweyn, the tape showed that Hartsock had waived his right to counsel in the plea colloquy after telling the judge that he had consulted with an attorney. Neither party had the benefit of the federal court’s determination as to the allocation of burdens on the exception when they decided what evidence to submit.
In analyzing this motion, the magistrate judge first determined that the issue was a question of law to be decided by the court and that the United States bore the initial
*4
burden to produce evidence on that issue.
Hartsock,
The district court adopted in whole the recommended opinion of the magistrate judge. Id. at 25. The government appealed.
II.
A. Scope of Issues on Appeal
On appeal, Hartsock and the United States agree that whether Hartsock knowingly and intelligently waived his right to counsel is a question of law to be resolved by the judge in a Rule 104(a) hearing. We take no position on the proper resolution of this issue other than to rule that Hartsock has waived any argument that he is entitled to submit this issue to a jury by having adopted the stance that it is a preliminary question for the court. 3 Instead, we focus on the point of contention: which party bears the burden of proof on the applicability of the § 921(a)(33)(B)(i)(I) exception.
The government bears the initial burden of showing that the defendant was indeed convicted of a predicate misdemeanor offense, which is indisputably an element of the § 922(g)(9) offense. The government met that burden by introducing a certified copy of Hartsock’s conviction for assault and by Hartsock’s stipulation that the assault involved domestic violence.
The question here is whether the government or the defendant bears the burden of proving that this domestic assault conviction was within the exception set forth in § 921(a)(33)(B)(i)(I), which provides that:
(B)(i) A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] for purposes of this chapter [18 U.S.C. §§ 921 et seq.], unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case;
This is a matter of statutory interpretation, reviewed de novo.
See United States v. Molak,
B. Statutory Background
Section 922(g)(9), also known as the Lautenberg Amendment to the Gun Control Act of 1968, was passed in 1996 as part of the Omnibus Consolidated Appropriations Act of 1997. The Amendment, which was adopted by an overwhelming majority of the Senate, was designed to “remedy the disparate treatment between
*5
those convicted of a felony involving domestic assault and those convicted of a misdemeanor involving domestic assault.”
United States v. Meade,
When it enacted the Lautenberg Amendment, Congress was clearly aware
4
that at least some of those who would be prosecuted under the statute would not have been represented by counsel in their predicate misdemeanor offense: no constitutionally recognized right to counsel then existed for misdemeanor convictions that did not actually lead to imprisonment.
See Scott v. Illinois,
C. Statutory Interpretation
Analysis starts with the statutory language.
Richardson v. United States,
*6
This interpretation is confirmed by the definition of “misdemeanor crime of domestic violence” in subparagraph (A), which begins with, “Except as provided in subparagraph (C).” § 921 (a)(33)(B)(i) (emphasis .added); see Webster’s Third New International Dictionary 791 (Philip Babcock Gove ed., 3d ed.1993) (defining “exception” as “the act of excepting”). Despite the erroneous cross-reference — the statute does not contain a subparagraph (C) 7 — Congress’s intent to label the provisions of subparagraph (B) as exceptions rather than elements of the crime is clear from the face of the statute. 8
The classification of § 921(a)(33)(B)(i)(I) as an exception, and not an element, is also buttressed by the statute’s structure; the provision is not located in either the sub-paragraph defining the underlying crime (§ 922(g)(9)) or a subparagraph explicitly defining a term used in the underlying crime (e.g. § 921(a)(33)(A)).
See United States v. Gravenmeir,
Finally, Hartsock’s interpretation of § 921(a)(33)(B)(i)(I) as an element of § 922(g)(9) would require the government to prove beyond a reasonable doubt to the jury that Hartsock knowingly and intelligently waived his right to counsel.
See Sullivan v. Louisiana,
Courts confronting statutory exceptions such as § 921(a)(33)(B)(i)(I) generally treat them as affirmative defenses to the underlying crime.
See, e.g., United States v. Kloess,
Despite the fact that the statute does not label it as such, we conclude that § 921(a)(33)(B)(i) is an affirmative defense.
See Kloess,
Next is the question of how to allocate the burden of proving that defense. The term “burden of proof’ has been given shifting meanings over the years,
see generally Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries,
Generally, with affirmative defenses, the defendant bears at least the burden
*8
of production. The Supreme Court recognized as much over eighty years ago.
See McKelvey v. United States,
This leaves the question of the burden of persuasion. Labeling something, here § 921(a)(33)(B)(i)(I), an “affirmative defense” does not answer the question of how the burden of persuasion is allocated. That is because the label “affirmative defense” applies to different categories of defenses.
See
1 LaFave,
Substantive Criminal Law,
§ 1.8(c) (1986). One such category is defenses that “negative guilt by cancelling out the existence of some required element of the crime.”
Id.
Other categories of affirmative defenses, such as duress, do not negate an element of the crime, but instead provide a justification sufficient to overcome or mitigate criminal liability.
Id.
Yet a third type of affirmative defense is based on individual exceptions to substantive crimes.
Id.; see Bartelho,
Because § 921(a)(33)(B)(i)(I) is not the type of affirmative defense that negates an element of the offense, the allocation of the burden of persuasion does not implicate any constitutional questions.
Cf. Patterson,
This court has not adopted bright-line rules for allocating the burden of per
*9
suasion for affirmative defenses. Rather, “[i]t strikes us as good sense to examine both the particular crime and the particular defense at issue in assigning the burden of proof.”
United States v. Diaz,
We conclude that the defendant rather than the government should bear the burden of persuasion that he or she is within the exception: that is, that the defendant did not have counsel or did not knowingly or intelligently waive the right to counsel in the predicate misdemeanor offense. The primary reason is that the defendant is likely to have significantly more knowledge than the federal prosecutor concerning the circumstances of the predicate misdemeanor offense. As the government notes, while the defendant was presumably in state court and knows what happened when the conviction was entered, the United States will generally not have been a party to the prosecution of the predicate offense. To be sure, some defendants may be ill-equipped to recount the pertinent details of their waiver of counsel, having perhaps forgotten the nature, or even 'the existence, of the judge’s statements regarding the import of counsel. But it is indisputablé that a § 922(g)(9) defendant assisted by his constitutionally-guaranteed lawyer in the federal proceeding, will still, as a general rule, be better equipped to dispute the fact of representation or the voluntariness of an earlier waiver of counsel than the federal prosecution. Indeed, this case illustrates the point: while the prosecution has no way of procuring information about the reasons behind Hartsock’s 1992 waiver of counsel because of the state court’s routine destruction of its records, Hartsock presumably has some idea of why he chose not to have counsel.
Our reasoning is buttressed by the practical fact that the prosecution will often not be able to offer any proof beyond the record of the prior conviction. State courts routinely destroy supporting records. As such, requiring the government to shoulder the burden of persuasion would, as one commentator has said, place “an impossible burden on the prosecution to establish the existence of facts within the special knowledge of the defendant.” See LaFave, supra, § 1.8. The situation might be different if § 922(g)(9) were limited to those who had been convicted of a predicate domestic violence offense within a certain number of years, as state records from recent convictions are less likely to have been destroyed. But because § 922(g)(9) applies to individuals who have been convicted of misdemeanor crimes of domestic violence in the distant past, there *10 is no such assurance of readily available state records.
Placing the burden of proof on the defendant to show he is within the exception for prior uncounseled convictions is aHn to the usual placement of burdens for post-conviction attacks on prior convictions. As we explained in
United States v. Paleo,
Given the information gap between defendant and prosecutor, the most sensible rule is to place on the defendant the burdens of production and persuasion as to the exception, i.e. the burden of proof. This rule maximizes the likelihood of more accurate factfinding. Placing the burden of persuasion on the prosecution would substantially hamper the government’s ability to enforce § 922(g)(9) and to effectuate the statute’s mandate that “wife beaters and child abusers should not have guns.” 142 Cong. Rec. S8831 (daily ed. July, 25, 1996) (statement of Sen. Lautenberg).
Our conclusion is supported by our decision in
United States v. Bartelho,
where we addressed 18 U.S.C. § 922(g)(1), which prohibits the possession of a firearm by anyone “convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” In that case, we interpreted an exception to this statute for defendants who had been pardoned for the predicate offense or had their civil rights restored. 18 U.S.C. § 921(a)(20). Reasoning that this exception was an affirmative defense on which the defendant had superior information,
Bartelho
held that the defendant bore the burden on the exception and that the government was not required to show the validity of the past conviction.
Bartelho,
III.
This leaves only the question of the appropriate disposition of this appeal. We reverse. We think it best to remand to the district court so that the district judge himself can determine the issue afresh in light of the allocation of burdens set forth in this opinion and any evidentiary submissions. At the time the parties submitted the evidence to the magistrate judge, they did not know who had what burden, and that uncertainty may have influenced their choice of what evidence to present. We reverse and remand for further proceedings consistent with this opinion.
Notes
. The only available evidence suggests that Hartsock "hit [his wife] with his hands” and that she "had to go to the hospital because of the injuries she received.”
. The record does not reveal whether Beth Hartsock kept her last name after the divorce. We therefore refer to her only as Beth.
. Although we are aware that all of the courts to have considered this issue have determined that the § 921 (a)(33)(B)(i)(I) inquiry is a legal issue to be decided by the judge rather than the jury,
see, e.g., United States v. Bethurum,
.Because the Lautenberg Amendment was ultimately passed as part of a last minute series of congressional maneuvers, see generally Eric Andrew Pullen, Guns, Domestic Violence, Interstate Commerce, and the Lautenberg Amendment, 39 S. Tex. L.Rev. 1029, 1037 (1998), the legislative history concerning the statute is sparse. Indeed, neither the House nor the Senate held hearings on the statute. Id. None of the legislative history we examined addresses Congress's specific purpose for enacting § 921(a)(33)(B)(i)(I).
. This defendant did not fit in that category of concern as he was imprisoned (for forty-eight hours) in 1992 and so had the right to counsel under Scott. Our concern, though, is the larger one of understanding what Congress intended as to the universe of potential defendants with predicate misdemeanor convictions.
. Congress also created an exception for those convicted of a domestic violence misdemeanor without a jury trial. That exception is not at issue here.
. Because subparagraph (B) does in fact provide for several exceptions to the basic definition, it appears clear that the reference to subparagraph (C) is a typographical error and that it was intended to read "subparagraph (B).” In any case, subparagraph (B) creates exceptions to the phrase "misdemeanor crime of domestic violence” independently of the seemingly faulty cross-reference.
.
Cf. Estate of Kunze v. Comm’r of Internal Revenue,
. Although the magistrate judge noted that the reasoning of
Bartelho
was "conceivably applicable to the present dispute,”
Hartsock,
. Some courts have suggested that once a defendant has satisfied his or her burden of production on an affirmative defense, then the burden of persuasion shifts back to the government to show by a preponderance of the evidence that the affirmative defense has not been met.
See, e.g., United States v. Jackson,
. Bartelho did not distinguish between the burdens of production and persuasion. We need not address that issue to resolve this case.