USA v. Schmidlkofer

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JASON DONALD SCHMIDLKOFER,
Defendant.
Case No. 3:20-cr-00065-TMB-MMS-1
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND VERDICT
I. 	INTRODUCTION
This matter came before the Court on a bench trial, which commenced and ended on
July 12, 2021.1 The United States of America charged Defendant Jason Donald Schmidlkofer with
one count of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Count 1) and one count of Possession of a Firearm in Furtherance of a Federal Drug Trafficking
Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 2).2 	The United States subsequently
moved to dismiss Count 2, and the Court granted the motion.3 The bench trial only concerned
Count 1, the Felon in Possession charge.4 At the conclusion of the trial, the Court took the matter
under advisement for deliberation and decision. 	Having heard and carefully considered the
evidence and argument presented at trial and all briefings and stipulations, and in accordance with
Federal Rule of Criminal Procedure (“Rule”) 23(c), the Court now renders its verdict.
1 Dkt. 85 (Minute Entry).
2 Dkt. 2 (Indictment).
3 Dkts. 73 (Mtn. to Dismiss Count 2); 76 (Text Order Granting M to Dismiss Count 2).
4 See Dkt. 70 (United States Trial Brief).
Case 3:20-cr-00065-TMB-MMS Document 95 Filed 09/21/21 Page 1 of 7

2
II. 	PROCEDURAL HISTORY
This criminal action arises out of the United States’ allegation that on or about January 21,
2020, Defendant, having previously been convicted of a crime punishable by imprisonment for a
term exceeding one year, did knowingly possess, in and affecting interstate and foreign commerce,
a firearm.
Defendant filed a Motion to Suppress Evidence from a stop that occurred on January 21,
2020.5 Defendant argued that the stop and seizure of Defendant was unlawful under the Fourth
Amendment to the United States Constitution.6 An evidentiary hearing on the Motion to Suppress
was held on March 26, 2021, before U.S. Magistrate Judge Matthew Scoble.7 	The Magistrate
Judge issued his Initial Report and Recommendation (“Initial R&R”) on June 4, 2021.8 Defendant
filed an objection to the Initial R&R, and the United States filed a response to Defendant’s
objection.9 The Magistrate Judge issued his Final Report & Recommendation (“Final R&R”) on
June 29, 2021, which the Court adopted in its entirety, denying the Motion to Suppress.10
Prior to trial, Defendant filed a Motion in Limine seeking to prohibit the United States from
eliciting testimony on the “circumstances of the seizure of Defendant[,]” “timing of the seizure of
Defendant and of the firearm including when and where the firearm was first observed[,]” and
5 Dkt. 30 at 1 (Motion to Suppress).
6 Id.
7 Dkt. 48 (Minute Entry).
8 Dkt. 63 (Initial R&R).
9 Dkts. 64 (Defendant’s Objection to Initial R&R); 65 (United States Reply).
10 Dkts. 68 (Final R&R); 75 (Text Order Adopting Final R&R and Denying Motion to Suppress).
Case 3:20-cr-00065-TMB-MMS Document 95 Filed 09/21/21 Page 2 of 7

3
“[t]he actions of the officers before and up to the actual seizure of Defendant’s firearm[.]”11 The
United States opposed the Motion in Limine, and the Court subsequently denied the motion.12
Defendant waived his right to trial by jury in writing.13 The United States consented and
the Court approved the same as required by Rule 23, allowing the case to be tried by the Court.14
The Court issued an order setting forth its analysis as to why the case should proceed to trial on
July 12, 2021.15 A one-day bench trial took place on July 12, 2021.16
III. 	FINDINGS OF FACT AND CONCLUSIONS OF LAW
Pursuant to 18 U.S.C. § 922(g)(1), “[i]t shall be unlawful for any person . . .who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 	For Defendant to be found guilty of Felon in
Possession of a Firearm under Section 922(g)(1), the United States must prove four elements
beyond a reasonable doubt:
(1) the Defendant knowingly possessed a Bersa .380 semiautomatic pistol;
(2) the Bersa .380 semiautomatic pistol had been shipped or transported from outside of
the State of Alaska;
11 Dkt. 81 at 1–2 (Motion in Limine).
12 Dkts. 82 (Opposition to Motion. in Limine); 83 (Order Denying Motion in Limine).
13 Dkt. 80 (Waiver).
14 Id.
15 Dkt. 84 (Order re: Trial Scheduling).
16 Dkt. 85.
Case 3:20-cr-00065-TMB-MMS Document 95 Filed 09/21/21 Page 3 of 7

4
(3) at the time the Defendant possessed a Bersa .380 semiautomatic pistol, the Defendant
had been convicted of a crime punishable by imprisonment for a term exceeding one year; and
(4) at the time the Defendant possessed a Bersa .380 semiautomatic pistol, the Defendant
knew that he had been convicted of such crime.17
At trial, Defendant stipulated18 to the first element of the crime, that he knowingly
possessed a firearm, to wit a Bersa .380 semiautomatic pistol with serial number G82986. Trial
was held on the remaining three elements.
A. Factual Findings
The evidence presented by the United States at the July 12, 2021, bench trial established,
beyond a reasonable doubt, each of the contested elements of Count 1 of the Indictment.
As to the second element of the offense, the United States established that the Bersa .380
semiautomatic pistol, serial number G82986, had been shipped or transported from outside of the
State of Alaska. At trial the United States called Special Agent (“SA”) Sarah Lynn Foreman with
the Bureau of Alcohol, Tobacco, Firearms, and Explosives in Anchorage, Alaska. SA Foreman
was qualified as an expert in interstate nexus in firearms and ammunition and testified that she
performed an interstate nexus analysis on the Bersa .380 semiautomatic pistol photographed in
Government Exhibits 7–10. 	SA Foreman concluded that the firearm traveled in interstate
commerce because the firearm was made in Argentina and imported in New Jersey before traveling
into Alaska. 	SA Foreman testified that the ammunition accompanying the firearm was
17 See United States v. Benamor, 937 F.3d 1182, 1186 (9th Cir. 2019); Rehaif v. United States139
S. Ct. 2191, 2194 (2019); Ninth Circuit Model Inst. 8.65A (2019).
18 See United States v. Bazuaye, 240 F.3d 861, 864 (9th Cir. 2001) (stipulated facts may be used
to establish elements of the crime beyond a reasonable doubt); United States v. Courville, 805 F.
App’x 519, 520 (9th Cir. May 18, 2020) (mem. op.) (facts admitted during bench trial by
stipulation).
Case 3:20-cr-00065-TMB-MMS Document 95 Filed 09/21/21 Page 4 of 7

5
manufactured in Utah. The United States also introduced, and the Court admitted, SA Foreman’s
Investigation Report regarding her Firearm and Ammunition Interstate Nexus Determination as
Exhibit 12. The Determination at Exhibit 12 describes the Bersa .380 semiautomatic pistol and
her findings. Based on the testimony of SA Foreman and aforementioned exhibits, the Court finds
that the United States established beyond a reasonable doubt that Bersa .380 semiautomatic pistol,
serial number G82986, had been shipped or transported from outside of the State of Alaska and
traveled in interstate commerce.
As to the third element of the offense, the United States established that at the time the
Defendant possessed a Bersa .380 semiautomatic pistol, the Defendant had been convicted of a
crime punishable by imprisonment for a term exceeding one year. At trial the United States called
Samuel McKinstry, who works as an officer for U.S. Probation and Pretrial Services in Anchorage,
Alaska. Officer McKinstry testified that he had contact with Defendant. Officer McKinstry stated
that he set up housing for Defendant when he started supervised release in connection with a
different case. Exhibits 14, 16, 17, 18, 19 were introduced by the United States and admitted by
the Court. Officer McKinstry testified as to the contents of Exhibit 19, the Judgment in a Criminal
Case, United States v. Jason Donald Schmidlkofer, No. 3:15-cr-00103-03-SLG-DMS-3 (closed on
July 8, 2016). Officer McKinstry testified that Exhibit 19 contains conditions of supervised release
in connection with that case. Officer McKinstry testified that based on his experience, the offense
listed in Exhibit 19, Conspiracy to Defraud the Government with Respect to Claims in violation
of 18 U.S.C. § 286, is a felony offense. 	Exhibit 19 was signed on July 8, 2016, and states that
Defendant was sentenced to 56 months of imprisonment and three years of supervised release.
Exhibit 18 is a Minute Entry detailing the Court’s imposition of sentence in United States v. Jason
Donald Schmidlkofer, No. 3:15-cr-00103-03-SLG-DMS-3.
Case 3:20-cr-00065-TMB-MMS Document 95 Filed 09/21/21 Page 5 of 7

6
As to the fourth element of the offense, Officer McKinstry testified as to the contents of
Exhibit 17, which is a written Acknowledgment of Conditions signed by both Defendant and
Officer McKinstry on September 19, 2019. 	Officer McKinstry testified that he went over the
conditions in the Judgment with Defendant. He then testified as to the contents of Exhibit 16, the
Firearms and Explosives Notice, which was signed by both Defendant and Officer McKinstry on
September 19, 2019. 	Exhibit 16 states that Defendant understands he has been convicted of a
felony and that he is prohibited from possessing a firearm in accord with 18 U.S.C. § 922(g).
Officer McKinstry testified that he reviewed the Firearms and Explosives Notice with Defendant.
Based on the testimony of Officer McKinstry and Government Exhibits 14, 16, 17, 18, and 19, the
Court finds that the United States established beyond a reasonable doubt that Defendant had been
convicted of a crime punishable by imprisonment for a term exceeding one year and that at the
time the Defendant possessed a Bersa .380 semiautomatic pistol, the Defendant knew that he had
been convicted of such crime.
B. Conclusions of Law
After consideration of the parties’ stipulation and evidence presented, the Court finds that
the United States established beyond a reasonable doubt that Defendant knowingly possessed a
Bersa .380 semiautomatic pistol; the Bersa .380 semiautomatic pistol had been shipped or
transported from outside of the State of Alaska; at the time the Defendant possessed a Bersa .380
semiautomatic pistol, the Defendant had been convicted of a crime punishable by imprisonment
for a term exceeding one year; and at the time the Defendant possessed a Bersa .380 semiautomatic
pistol, the Defendant knew that he had been convicted of such crime. 	Accordingly, Defendant
Jason Donald Schmidlkofer is GUILTY of Felon in Possession of a Firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2) as charged in the Indictment.
Case 3:20-cr-00065-TMB-MMS Document 95 Filed 09/21/21 Page 6 of 7

7
IV. 	VERDICT
Accordingly, for the reasons set forth herein, the Court finds Defendant Jason Donald
Schmidlkofer GUILTY of Count One of the Indictment.19
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 21st day of September, 2021.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
19 Dkt. 2.
Case 3:20-cr-00065-TMB-MMS Document 95 Filed 09/21/21 Page 7 of 7