United States v. Banks , 339 F.3d 267 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 15, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41428
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
ERIC BANKS
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit
Judges.
KING, Chief Judge:
Defendant-Appellee Eric Banks was charged with five counts
of possession of a firearm while subject to a restraining order
in violation of 18 U.S.C. § 922(g)(8) (2000). The district court
dismissed these counts because it found that the restraining
order to which Banks was subject was not issued after a
“hearing,” as § 922(g)(8)(A) requires. The United States now
appeals the dismissal of the counts, arguing that Banks did
receive a “hearing” within the meaning of § 922(g)(8)(A). We
agree, and thus we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
A. Facts
The facts are, for the most part, undisputed. The
prosecution in this case arose out of the investigation of an
explosion at a trailer home owned by Alisha Barrington in
Atlanta, Texas, in January 2002. When Barrington opened the door
to enter her trailer home, an explosive device detonated,
destroying much of the trailer, knocking Barrington to the
ground, and killing her cat.1 The local police, joined by agents
from the Bureau of Alcohol, Tobacco, and Firearms (collectively
“the police”), concluded that the explosive device was
constructed from a metal pipe.
The police investigation soon focused on Defendant-Appellee
Eric Banks, Barrington’s ex-boyfriend who had previously lived
with her. The police visited Banks at his home and asked for
consent to search his home and his truck. Banks gave consent,
and the police found material implicating Banks in the explosion,
including electrical connections for splicing wires and a receipt
for electrical supplies and a pipe. The police also found two
firearms. The police then obtained a warrant to search Banks’s
home and his truck. During the warrant search and the search
accompanying Banks’s subsequent arrest, the police found two
other firearms, as well as other evidence implicating Banks in
the explosion.
At the time of the explosion, Banks was subject to a
temporary protective order obtained by Barrington. On August 1,
2001, after her relationship with Banks ended and Banks
1
Due to a previous fire at the home (for which Banks was
also under investigation), Barrington no longer lived there, but
her cat did.
2
threatened her personal safety in numerous ways,2 Barrington
filed an application for a temporary protective order through the
Cass County, Texas, District Attorney’s Office. Barrington
verified the application under oath. The application contained a
statement of abuse, which detailed Banks’s threats and physical
and emotional abuse. A deputy sheriff served Banks with notice,
advising him of a hearing scheduled for August 13. Banks,
through his attorney, postponed the hearing at least once.
The Assistant District Attorney on the case then became
worried for Barrington’s safety and obtained a temporary ex parte
protective order on October 10.3 The temporary ex parte order,
which lasted for fourteen days, explicitly prohibited Banks from
possessing a firearm. Banks was served with a copy of the
temporary ex parte order on October 15, when he was in court on
charges of making terroristic threats. The presiding district
judge, Judge Leon Pesek, gave Banks the ex parte order and
advised him that a hearing on the application for the temporary
protective order was set for October 22.
On October 22, Banks appeared in court and consented to an
agreed temporary protective order. Judge Jack Carter was the
presiding judge that day. There is conflicting evidence about
who was in court that day. Barrington testified at the hearing
2
Banks and Barrington lived together from the fall of
1998 to January 2001. After they broke up, there is evidence
that Banks pulled a gun on Barrington’s stepfather, tried to run
Barrington off the road, shot at Barrington’s car, shot at a car
that resembled Barrington’s, defaced Barrington’s car, and
started the fire at Barrington’s trailer home.
3
The temporary ex parte order was signed by Judge Jack
Carter.
3
on Banks’s motion to dismiss the federal indictment that she and
the Assistant District Attorney were present, while defense
counsel stated that only he, Banks, and the Assistant District
Attorney were present. The parties simply informed the court
that they had reached a settlement. No witnesses were called and
no evidence was presented other than the protective order itself.
Banks later signed the agreed order in his attorney’s office.
Banks’s attorney forwarded the signed order to the Assistant
District Attorney, who signed the order and forwarded it to Judge
Pesek. Judge Pesek then signed the order in his chambers outside
the presence of either of the parties and returned it to the
District Attorney’s office for filing. The agreed order
specifically stated that Banks could not possess a firearm while
subject to the order.
B. Procedural History
Banks was charged with five counts of possession of a
firearm4 while subject to a restraining order in violation of 18
U.S.C. § 922(g)(8) (2000) and one count of possession of an
unregistered firearm in violation of 26 U.S.C. § 5861(d) (2000).5
Banks filed a motion to dismiss the first five counts of the
indictment, arguing that he was not subject to a court order
issued after a “hearing,” as 18 U.S.C. § 922(g)(8)(A) requires.
The United States initially opposed the motion, arguing that the
4
Banks was charged with one count for each of the four
firearms found during the consent, warrant, and arrest searches
and one count for the explosive device.
5
This indictment superseded the first indictment, which
charged only four counts of possession of a firearm while subject
to a restraining order in violation of 18 U.S.C. § 922(g)(8).
4
matter could not be determined pretrial. The district court
agreed and advised the parties it would deny the motion. But,
the United States then agreed to waive its opposition to the
pretrial determination. The district court held an evidentiary
hearing on the motion.
The district court entered an opinion and order dismissing
the first five counts of the indictment based on
18 U.S.C. § 922(g)(8). The district court held that the agreed
order was not issued after a “hearing” within the meaning of
§ 922(g)(8)(A). The district court read United States v.
Spruill, 292 F.3d 207 (5th Cir. 2002), to require a hearing where
evidence is presented and witnesses are called, so that an
uncontested order could not be the basis of a § 922(g)(8)
prosecution.6
The United States now appeals, arguing that Banks received a
hearing within the meaning of 18 U.S.C. § 922(g)(8)(A).
II. STANDARD OF REVIEW
A challenge to an indictment based on the legal sufficiency
of uncontested facts is an issue of law reviewed de novo. See
United States v. Moore, 73 F.3d 666, 668 (6th Cir. 1996) (using
the de novo standard to review a motion to dismiss an indictment
based on undisputed facts).
III. DISCUSSION
The counts of the indictment at issue were based on 18
6
The district court did not resolve the factual dispute
about who was present in court on October 22, 2002, because it
determined that “the record was otherwise clear that no hearing
was conducted.” No party argues to this court that resolution of
that factual dispute is required to decide this appeal.
5
U.S.C. § 922(g)(8), which states:
(g) It shall be unlawful for any person --
(8) who is subject to a court order that --
(A) was issued after a hearing of which such
person received actual notice, and at which person
had an opportunity to participate;
(B) restrains such person from harassing,
stalking, or threatening an intimate partner of
such person or child of such intimate partner or
person, or engaging in other conduct that would
place an intimate partner in reasonable fear of
bodily injury to the partner or child; and
(C) (i) includes a finding that such person
represents a credible threat to the physical
safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the
use, attempted use, or threatened use of
physical force against such intimate partner
or child that would reasonably be expected to
cause bodily injury . . .
to . . . possess in or affecting commerce[] any firearm or
ammunition . . .
18 U.S.C. § 922(g)(8) (2000) (emphasis added). The only portion
of § 922(g)(8) at issue in this appeal is the requirement in
subsection (A) that the court order be “issued after a hearing of
which such person received actual notice, and at which person had
an opportunity to participate.” Id.
The question before us is thus whether the process leading
up to the agreed temporary protective order7 in this case
qualifies as a “hearing.” The statute itself does not define the
term “hearing.” Our key case addressing the “hearing”
requirement is United States v. Spruill. See 292 F.3d 207 (5th
Cir. 2002). In that case, Spruill argued that he did not receive
a hearing as § 922(g)(8)(A) requires. Id. at 214. The order at
7
The order that forms the basis for the indictment in
this case is the temporary protective order, not the ex parte
order, because the ex parte order expired and only the temporary
order was in effect when Banks was found with firearms.
6
issue was an agreed protective order that was issued even though
Spruill never appeared before a judge and no evidentiary hearing
was held. See id. at 210-11. Further, Spruill was not
represented by counsel and was illiterate. See id. Spruill went
to see the Assistant District Attorney on the case, who explained
the purpose of the protective order to Spruill and told him where
to sign if he agreed to the order. See id. Spruill signed the
agreed order and it was forwarded to a judge. See id.
The Spruill court determined that this process did not meet
the requirements of § 922(g)(8)(A). See id. at 215-21. The
court noted that “no hearing was ever set and Spruill received no
notice of any hearing.” Id. at 217. The court also noted that
Spruill never appeared before a judge, stating that “the court’s
approval of the order agreed to out of court . . . clearly does
not carry with it the same degree of assurance that the issuing
court itself determined that such an order was necessary to
prevent family violence as would an order issued after an actual
hearing.” Id. at 217. The court cited, with approval, the
Pennsylvania Supreme Court’s definition of a “hearing”:
[A] hearing intends a judgment bench attended by judges
or officials sitting in a judicial capacity, prepared
to listen to both sides of the dispute and to consider
deeply, reflect broadly, and decide impartially, and
the mere consideration of a report moving across one’s
desk[] is not a hearing.
Id. at 218 (quoting Commonwealth v. Davis, 612 A.2d 426, 429 (Pa.
1992)) (emphasis added in Fifth Circuit opinion). The court thus
interpreted § 922(g)(8)(A) to mean that “the hearing must have
been set for a particular time and place and the defendant must
have received notice of that and thereafter the hearing must have
7
been held at that time and place.” Id. at 220.
The hearing requirement contained in § 922(g)(8)(A) was met
in this case. Banks had “actual notice” and “an opportunity to
participate,” as 18 U.S.C. § 922(g)(8)(A) requires, and the only
reason that evidence (in addition to Barrington’s verified
statement of abuse) was not introduced is because Banks consented
to the agreed protective order. On October 15, Banks was advised
in open court that a hearing was set for October 22 on the
temporary protective order. Banks, his attorney, the Assistant
District Attorney, and perhaps Barrington appeared in court on
the scheduled date for the hearing. The presiding judge, Judge
Carter, sat on the bench, ready for the hearing; the evidence
indicates that he was “prepared to listen to both sides of the
dispute and to consider deeply, reflect broadly, and decide
impartially.” Id. (quoting Commonwealth v. Davis, 612 A.2d 426,
429 (Pa. 1992)). Banks had an opportunity to put on evidence,
but he did not avail himself of that opportunity. Though neither
the Assistant District Attorney nor defense counsel put on live
testimony, there was evidence before the court supporting
issuance of the protective order, in the form of Barrington’s
statement of abuse. This statement was verified under oath and
attached to the application for the temporary protective order.
As Spruill requires, the hearing in this case was “set for a
particular time and place and the defendant . . . received notice
of that and thereafter the hearing [was] held at that time and
place.” Id. Banks thus received a “hearing.”
Banks argues that his case is factually indistinguishable
8
from Spruill because both cases involved agreed orders and, thus,
there was no “hearing” in this case. But the facts of Spruill
are distinguishable in many respects. In Spruill, no application
for a protective order was ever filed, see Spruill, 292 F.3d at213 n.7, while in this case, such an application was filed and it
contained a detailed statement of abuse. In Spruill, the date
for a hearing was never officially set, see id. at 210-11, 216,
while in this case, the hearing date was set and the hearing was
postponed by Banks at least once. Spruill was not represented by
counsel and was illiterate, see id. at 210-11, while Banks was
represented by counsel and is literate. The protective order in
Spruill did not specify that Spruill could not possess a firearm,
see id. at 209 n.1, but the protective order in this case did
clearly state that Banks may not possess a firearm. Spruill
never appeared before a judge, see id. at 210-11, 216, but Banks
did appear before a judge and had an opportunity to contest the
protective order. Spruill had no chance to present his side of
the case, see id., while here Banks clearly did.
Banks effectively asks us to hold that an agreed order can
never be the basis for an 18 U.S.C. § 922(g)(8) prosecution.
That we will not do. First, the Spruill court did not hold that
an agreed order cannot be the basis for a § 922(g)(8)
prosecution, though the court certainly could have done so. In
fact, the Spruill court cited, with approval, United States v.
Wilson, where the Seventh Circuit found that a defendant
consenting to an agreed order received a “hearing” sufficient to
9
satisfy procedural due process.8 See Spruill, 292 F.3d at 219
n15 (citing Wilson, 159 F.3d 280, 289-90 (7th Cir. 1998)). In
that case, Wilson, his wife, and her attorney appeared in court.
See Wilson, 159 F.3d at 284. Wilson and his wife’s attorney then
retired to the judge’s chambers for a hearing. See id. The
judge explained the order’s purpose and terms and Wilson, acting
pro se, indicated that he understood the order and consented to
its terms. See id. The Spruill court distinguished Wilson on
its facts, noting “the contrasts to Spruill’s case, in which no
hearing was set, given notice of, or held, there was no
appearance before the judge, and the order was explained to the
illiterate Spruill by the protected party’s attorney.” Spruill,
292 F.3d at 220 n.15.
Indeed, this court has previously anticipated that agreed
orders may be the basis for a § 922(g)(8) prosecution. In United
States v. Emerson, we indicated that uncontested orders may form
the basis for a § 922(g)(8) prosecution in the context of the
defendant’s Second Amendment challenge to the statute. See 270
F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). In
Emerson, we recognized that “the Second Amendment does protect
individual rights” but that those rights may be “subject to . . .
limited, narrowly tailored specific exceptions or restrictions
8
Wilson did not raise the exact same issue as Spruill
because Wilson argued that the hearing violated his procedural
due process rights, see Wilson, 159 F.3d at 289-90, while Spruill
argued that the government failed to prove the “hearing” element
of a § 922(g)(8) offense, see Spruill, 292 F.3d at 214. The
Spruill court’s citation of Wilson is nonetheless helpful because
it indicates that the Spruill court recognized that an agreed
order could be the basis for a § 922(g)(8) prosecution.
10
for particular cases that are reasonable and not inconsistent
with the right of Americans generally to individually keep and
bear their private arms.” Id. at 261. Emerson argued that
prosecution under § 922(g)(8)(C)(ii) violated his Second
Amendment right because the protective order at issue did not
contain an express judicial finding that he represented a future
danger. See id. at 260-61. We rejected Emerson’s argument,
finding that
Congress in enacting section 922(g)(8)(C)(ii) proceeded
on the assumption that the laws of the several states
were such that court orders, issued after notice and
hearing, should not embrace the prohibitions of
paragraph (C)(ii) unless such either were not contested
or evidence credited by the court reflected a real
threat or danger of injury to the protected party by
the party enjoined.
Id. at 262 (emphasis added). We explained further:
With respect to temporary injunctions and similar
orders to be issued only after notice and hearing, the
Texas rule of law, as we have noted, is that such an
order, at least to the extent contested and explicitly
prohibiting acts such as are covered by section
922(g)(8)(C)(ii), may not properly issue unless the
issuing court concludes, based on adequate evidence at
the hearing, that the party restrained would otherwise
pose a realistic threat of imminent physical injury to
the protected party, and this is so regardless of
whether or not Texas law requires the issuing court to
make on the record express or explicit findings to that
effect.
Id. at 264 (emphasis added). In Emerson, then, we contemplated
that an agreed protective order could be the basis for a
§ 922(g)(8) prosecution. Further, in United States v. Henry, we
affirmed the defendant’s § 922(g)(8) conviction that was based on
an agreed protective order, though we did not explicitly consider
whether the “hearing” requirement had been met. See Henry, 288
F.3d 657, 660-64 (5th Cir.), cert. denied, 123 S. Ct. 224 (2002).
11
Reading Spruill, Emerson, and Henry in harmony, we find that an
agreed order can form the basis for a § 922(g)(8) prosecution at
least where a hearing on a domestic violence order was set for a
particular time and place, the defendant received notice of it,
the defendant appeared in court with an attorney, the judge was
present and ready to hear his case, the court had evidence before
it that domestic violence had occurred, and the court gave the
defendant an opportunity to be heard.
Were we to hold that an agreed order could never be the
basis for a § 922(g)(8) prosecution, a defendant with all the
protections that the statute contemplates could simply consent to
an agreed order to escape a later federal prosecution. In this
case, Banks’s hearing was set for a particular date, he received
notice of it in open court, and he appeared with his attorney on
the date of his hearing. Judge Carter sat on the bench, prepared
to listen to both sides of the dispute and render an impartial
decision. Before the court was Barrington’s verified statement
of abuse. Banks had an opportunity to present evidence on his
own behalf, but he chose not to do so, instead consenting to an
agreed protective order. On these facts, the “hearing”
requirement contained in 18 U.S.C. § 922(g)(8)(A) was met.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s
order dismissing the counts of the indictment based on 18 U.S.C.
§ 922(g)(8) and REMAND for further proceedings.
12