United States v. Edward Gyn Hamm , 134 F. App'x 328 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 04-13808
FILED
Non-Argument Calendar U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 31, 2005
D. C. Docket No. 03-00299-CR-CO-NE THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD GYN HAMM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 31, 2005)
Before TJOFLAT, ANDERSON, and CARNES, Circuit Judges.
PER CURIAM:
Edward Gyn Hamm pleaded guilty to one count of possession of a firearm
by an unlawful user of a controlled substance, in violation of 18 U.S.C.
§ 922(g)(3), and one count of possession of a firearm while subject to a protection
order, in violation of 18 U.S.C. § 922(g)(8). Hamm appeals the district court’s
denial of his motion to dismiss the violation of 18 U.S.C. § 922(g)(8) on the
grounds that the Alabama statute under which the restraining order was issued is
unconstitutional.1
Under Alabama’s Protection From Abuse Act, Ala. Code § 30-5-1 et seq., a
court can issue “such temporary orders as it deems necessary to protect the plaintiff
or minor children from abuse, or the immediate and present danger of abuse to the
plaintiff or minor children, upon good cause shown in an ex parte proceeding.”
Ala. Code § 30-5-6(b). Within fourteen days of the filing of a petition for a
protection order, the court must hold a hearing where “the plaintiff shall prove the
allegations of abuse by a preponderance of the evidence.” Id. § 30-5-6(a). The
court must advise the defendant that he may be represented by counsel at that
hearing. Id.
“A willful violation of [a protection] order is a Class A misdemeanor which
is punishable by a fine not to exceed two thousand dollars ($2,000) or
imprisonment for up to a year in jail, or both, and is also punishable for civil
1
In pleading guilty to the violation of 18 U.S.C. § 922(g)(8), Hamm reserved the right to
appeal the district court’s denial of his motion to dismiss.
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contempt.” Id. § 30-5-8(b); see also id. § 30-5-9. However, a defendant is subject
to state imprisonment for up to one year only if “an indictment or a complaint
giving . . . notice of the criminal charges” is issued and a hearing is held. Batey v.
State, 755 So. 2d 593, 595 (Ala. Crim. App. 1999). Without notice and a hearing
on the alleged violation of the protection order, a defendant can only be held in
contempt of court. Id.Hamm contends that Alabama’s Protection From Abuse Act violates due
process because it allows for the issuance of a protection order without affording
the defendant notice and an opportunity to be heard. According to Hamm, the ex
parte protection order is void from its inception, and the fact that a later hearing at
which the defendant is afforded notice and an opportunity to be represented by
counsel does not make the protection order valid. Hamm asserts that, in order for a
protection order not to offend due process, the defendant must have notice and a
hearing in front of a jury before it is issued.
Hamm’s contentions are without merit. The Act allows for the issuance of
an ex parte protection order only as “necessary to protect the plaintiff or minor
children from abuse, or the immediate and present danger of abuse to the plaintiff
or minor children, upon good cause shown in an ex parte proceeding.” Ala. Code
§ 30-5-6(b). The Act also provides that a hearing must occur within fourteen days
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of the filing of a petition for a protection order and that the defendant must be
advised that he may be represented by counsel at that hearing. Id. § 30-5-6(a).
Based on these procedures, the issuance of an ex parte protection order pursuant to
the Act does not offend due process. Cf. Ex parte Williams, 474 So. 2d 707, 710
(Ala. 1985).
Hamm also argues that the Act violates both his due process rights and his
right to bear arms because, according to Hamm, the Act enables a federal
prosecution pursuant to 18 U.S.C. § 922(g)(8) based on a state protection order that
was issued without notice and a hearing. Hamm misunderstands § 922(g)(8).
According to the explicit terms of that federal statute itself, a defendant is subject
to federal prosecution pursuant to § 922(g)(8) only if the state protection order was
issued “after a hearing of which [the defendant] received actual notice, and at
which such person had the opportunity to participate.” 18 U.S.C. § 922(g)(8)(A).
The Act does not violate due process or the right to bear arms on the grounds
asserted by Hamm because a defendant cannot be prosecuted pursuant to
§ 922(g)(8) where the state protection order was issued without notice and a
hearing. Moreover, Hamm conceded during the plea hearing that, in his case,
“[t]he protection order was issued after a hearing of which [he] had received actual
notice and had the opportunity to participate.”
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AFFIRMED.
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