FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-30313
Plaintiff-Appellant,
v. D.C. No.
CR-05-02007-FVS
BRAD WAYNE YOUNG,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Chief Judge, Presiding
Argued and Submitted
March 8, 2006—Seattle, Washington
Filed August 17, 2006
Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge O’Scannlain
9785
9788 UNITED STATES v. YOUNG
COUNSEL
K. Jill Bolton, Assistant United States Attorney, Spokane,
Washington, argued the cause for the appellant. James A.
McDevitt, United States Attorney, was on the briefs.
Rebecca L. Pennell, Federal Defender, Yakima, Washington,
argued the cause and was on the brief for the appellee.
UNITED STATES v. YOUNG 9789
OPINION
O’SCANNLAIN, Circuit Judge:
We consider the conditions under which federal criminal
law prohibits an individual from possessing a firearm if he is
the subject of a state domestic violence restraining order.
I
City of Union Gap, Washington, police arrested Brad
Young, the defendant-appellee, on December 29, 2004, based
on his violation of a Washington state Domestic Violence No
Contact (“DVNC”) order. Police searched Young and located
a .22 caliber pistol in his pocket. After having been read his
Miranda rights, Young admitted that the gun was his.1
It is a federal offense for those against whom a domestic
violence restraining order has been issued “after a hearing of
which such person received actual notice, and at which such
person had an opportunity to participate,” to possess a fire-
arm. 18 U.S.C. § 922(g)(8)(A). Young was indicted by an
Eastern District of Washington federal grand jury two weeks
after his Union Gap arrest and was later tried for possessing
a firearm in violation of § 922(g)(8).2
A
Because § 922(g)(8) only applies to certain restraining
orders and significant interplay between state and federal
court proceedings is involved, we review the facts relating to
the issuance in state court of the predicate DVNC order,
1
Young also admitted that he received the DVNC order by personal ser-
vice, and that the DVNC order prohibited him from contacting the victim
and from possessing firearms.
2
The record indicates neither when nor why Young was transferred
from state to federal custody.
9790 UNITED STATES v. YOUNG
which stems from an arrest earlier in December 2004 for
Young’s violation of a protective order and for felony harass-
ment under Washington state law.3 As a result of the earlier
arrest, a Washington state court issued two separate DVNC
orders against Young.
1
The first DVNC order was issued at Young’s December 6,
2004, preliminary hearing. Yakima County Superior Court
Judge Michael Schwab concluded that there was “probable
cause to believe that [Young] may have been involved in the
offense of felony violation of a no contact order.” Judge
Schwab explained to Young, “This does not mean that you’re
guilty of anything. On Wednesday morning [December 8,
2004] you’ll be advised officially of any charges.” Judge
Schwab appointed Young counsel and issued a DVNC order
(“the December 6 DVNC order”): “I’m going to issue a
domestic violence no contact order which requires you to stay
away from Lena [sic4] Emily Perez, whether she wants you to
have contact with her or not. We’ll give you a copy of this
and you need to read it carefully.” At the close of the hearing,
Judge Schwab stated that he might reconsider the bail amount
at the December 8 arraignment, but he did not indicate
whether he would reconsider the DVNC order.
At the conclusion of the preliminary hearing, the prosecut-
ing attorney handed Young a copy of the December 6 DVNC
order and a copy of the court order containing the contact
information for Young’s court-appointed attorney. The
DVNC order further stated: “This order is entered together
with the order setting conditions of release in this case. ([Rev.
3
This portion of the opinion sets forth the evidence given at trial. In Part
II, when evaluating the judgment of acquittal, we will draw all conclusions
in favor of the government, as is required. See Glasser v. United States,
315 U.S. 60, 80 (1942).
4
The court was referring to Laina Perez.
UNITED STATES v. YOUNG 9791
Code Wash.] 10.99.040; 10.99.045.) It shall remain in effect
until further order by this Court.”5
2
The second DVNC order—identical to the first, and the
predicate order for the federal offense—was issued on
December 8, two days after Young’s preliminary hearing,
when Judge Schwab began the formal arraignment under the
state felony harassment charge by again advising Young of
his rights, including his right to counsel.6
Susan Arb—a Senior Deputy Prosecuting Attorney with the
Yakima County Prosecuting Attorney’s Office recognized as
an expert in preliminary hearings and arraignments in Yakima
County Superior Court—later related in Young’s federal trial
that “during the arraignment the Court will consider condi-
tions of release. . . . One of the conditions of release is often
a No Contact Order. And that’s always considered in domes-
tic violence cases, even if other conditions of release are not.”7
Arb also explained that “Any time [the state prosecutors] file
a domestic violence charge, . . . the prosecutors also request
a No Contact Order, ask the judge to issue that No Contact
Order.”
Young’s counsel was not present at the December 8 state
court hearing, but an attorney from the county prosecutor’s
office gave Young a copy of the criminal information and
Judge Schwab explained the charges to him. After reducing
5
The Revised Code of Washington 10.99.040(3) states: “At the time of
arraignment the court shall determine whether a no-contact order shall be
issued or extended. . . .” (emphasis added). However, during the district
court trial, the prosecution did not present the jury with the content of Rev.
Code Wash. 10.99.040(3).
6
The record does not disclose whether Young and his attorney had any
contact between the December 6 and December 8 hearings.
7
Indeed, as noted above, Rev. Code Wash. 10.99.040(3) requires the
court to reconsider the DVNC order at the arraignment.
9792 UNITED STATES v. YOUNG
the bail amount to $5,000, Judge Schwab issued a new DVNC
order (“the December 8 DVNC order”):
Court: I’m also issuing a new domestic violence no
contact order which requires you to stay
away from Lena [sic] Perez whether she
wants to have contact with you or not; do
you understand that?
Young: No problem.
Court: This is a very serious matter. We expect
people to obey these orders. We hope you’ll
read this carefully. It contains very specific
warnings.8
Young then expressed some confusion as to the nature of
the charges against him. Judge Schwab explained:
Count one is a charge of assault in violation of a pro-
tection order. The allegation is that you assaulted
Lena [sic] Perez. That doesn’t mean that you’re
guilty of it. That’s what they’re saying happened. It
remains to be seen whether or not you did it. So the
purpose of this is just to advise you about what
they’re claiming. The mere fact that they say it
doesn’t make it so.
The prosecuting attorney then explained the terms of the
new DVNC order to Young and gave him a copy. Like the
prior order, the December 8 order indicated that it would
remain in effect until lifted by the court and specifically noted
8
Among the warnings, the DVNC stated: “Effective immediately, and
continuing as long as this protection order is in effect, you may not pos-
sess a firearm or ammunition. 18 U.S.C. section 922(g)(8). A violation of
this federal firearms law carries a maximum possible penalty of 10 years
in prison and a $250,000 fine.”
UNITED STATES v. YOUNG 9793
that federal law prohibited Young from possessing a firearm.
The DVNC order stated that “[t]he court finds probable cause
to believe that this case involves a threat of domestic vio-
lence, the defendant is a credible threat to the physical safety
of the victim, and that the following order is necessary to pro-
tect the victim.”
At the conclusion of the December 8 hearing, Judge
Schwab set a date for trial, as well as a date for a pre-trial
omnibus hearing.
B
In relevant part, 18 U.S.C. § 922(g)(8)9 makes it a federal
crime for any person:
who is subject to a court order that—
(A) was issued after a hearing of which such per-
son received actual notice, and at which such person
had an opportunity to participate;
(B) restrains such person from harassing, stalking,
or threatening an intimate partner10 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)
9
We have previously upheld § 922(g)(8) against a variety of challenges.
See United States v. Kafka, 222 F.3d 1129 (9th Cir. 2000) (holding that
§ 922(g)(8) does not violate due process despite the lack of mens rea
requirement); United States v. Jones, 231 F.3d 508 (9th Cir. 2000) (hold-
ing that § 922(g)(8) is within Congress’s Commerce Clause authority).
10
The parties stipulated that Laina Perez was an “intimate partner” of
Young’s.
9794 UNITED STATES v. YOUNG
(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 ship or transport in interstate or foreign com-
merce, or possess in or affecting commerce, any fire-
arm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported
in interstate or foreign commerce.11
1
At Young’s trial in federal district court, Judge Van Sickle
instructed the jury on the elements of “actual notice” and “op-
portunity to participate.” The jury instructions, tracking the
statutory text, stated that the statute required the jury to find
beyond a reasonable doubt that, “at the time the defendant
possessed the firearm, the defendant was subject to a court
order dated December 8, 2004, that: (A) was issued after a
hearing of which such person received actual notice, and at
which such person had an opportunity to participate.” The dis-
trict court further instructed the jury:
It can be legal for a court to issue a no-contact order
against an individual in emergency circumstances,
before allowing the individual notice and an oppor-
tunity to participate. However, the federal criminal
law at issue in this case only applies to those no-
contact orders that have been issued after the indi-
11
Young also stipulated that he knowingly possessed a firearm which
had been shipped in interstate commerce.
UNITED STATES v. YOUNG 9795
vidual who is subject to the order has been provided
notice and an opportunity to participate.
2
The jury found Young guilty of violating § 922(g)(8), but
the district court overturned the jury verdict based on Young’s
Federal Rule of Criminal Procedure 29 motion, concluding
that the prosecution had presented insufficient evidence that
Young’s December 8 DVNC order met the terms of
§ 922(g)(8)(A). The district court explained that “advance
notice is an important component of due process.” (Citing
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985)). The district court reasoned that “[w]ithout advance
notice, a party is unable to consult an attorney, evaluate alle-
gations or marshal evidence. In view of these considerations,
it is reasonable to conclude that § 922(g)(8) requires advance
notice of a judge’s intention to extend a no-contact order.”
Because the government presented no evidence that Young
was actually aware that the December 6 DVNC order would
be extended at the December 8 arraignment, the district court
concluded that Young lacked sufficient notice of the proceed-
ings.
Similarly, the district court reasoned that an “opportunity to
respond” requires “ ‘the opportunity to present reasons, either
in person or in writing, why proposed action should not be
taken.’ ” (Quoting United States v. Wilson, 159 F.3d 280, 290
(7th Cir. 1998)). The district court explained that:
The judge who presided over Mr. Young’s arraign-
ment did not allow him to consult with his attorney
before issuing the no-contact order. The judge did
not ask Mr. Young whether he wanted to review the
report upon which the judge relied to find probable
cause. The judge did not advise Mr. Young he was
entitled to challenge the contents of the report. The
judge did not ask Mr. Young whether he objected to
9796 UNITED STATES v. YOUNG
the entry of a no-contact order. . . . [H]aving exam-
ined the record as a whole, the Court concludes that
the judge who presided over Mr. Young’s arraign-
ment did not provide him with a meaningful oppor-
tunity to participate in the decision-making process.
(internal notes and citations omitted). The district court con-
cluded that “the jury lacked evidence from which it could
have found beyond a reasonable doubt that Mr. Young
received either actual notice of, or an opportunity to partici-
pate in, the hearing that led to the issuance of the no-contact
order,” and it entered a judgment of acquittal.
Ruling in the alternative, the district court granted Young’s
motion for a new trial under Federal Rule of Criminal Proce-
dure 33(a). The court concluded that “the jury should have
been instructed that actual notice means advance notice.” Fur-
ther, “the jury should have been instructed more clearly con-
cerning the factors it needed to consider in determining
whether Mr. Young received a meaningful opportunity to par-
ticipate.”
The United States timely appeals from both the grant of the
Rule 29 judgment of acquittal and the alternative grant of the
Rule 33 motion for a new trial.12
II
The government contends that the district court wrongly
expanded the requirements of § 922(g)(8) beyond the statu-
tory text. Young, however, argues that the statute requires a
state court hearing meeting the traditional requirements of due
process. This case requires us only to construe § 922(g)(8);
12
Double jeopardy is not a concern because the jury initially convicted
Young. See United States v. Foumai, 910 F.2d 617, 619 (9th Cir. 1990).
UNITED STATES v. YOUNG 9797
we do not consider whether the procedural protections in the
underlying Washington DVNC statute satisfy due process.13
A
First, we address Young’s argument that “Congress only
attached a firearms disability to those individuals who . . .
have already had a due process hearing.”14
In Lewis v. United States, 445 U.S. 55 (1980), the Supreme
Court construed the felon-in-possession predecessor to
13
We review de novo the grant of a judgment of acquittal. United States
v. Johnson, 357 F.3d 980, 983 (9th Cir. 2004). A motion for acquittal
should be denied if “ ‘after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ ” United
States v. Tisor, 96 F.3d 370, 379 (9th Cir. 1996) (quoting Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)). We review statutory interpretation, con-
struction, and application de novo. United States v. Ventre, 338 F.3d 1047,
1052 (9th Cir. 2003).
14
We note at the outset that there is a Circuit split as to whether
§ 922(g)(8) requires proof of a valid restraining order. The Fifth Circuit
has squarely rejected the contention that a federal court should probe into
state proceedings, noting that “ ‘nothing in section 922(g)(8) suggests that
the validity of the particular predicate court order may be inquired into in
the section 922(g)(8) criminal prosecution.’ ” United States v. Hicks, 389
F.3d 514, 534 (5th Cir. 2005), cert. denied 126 S.Ct. 1022 (2006) (quoting
United States v. Emerson, 270 F.3d 203, 213 (5th Cir. 2001)). However,
the Seventh Circuit’s decision in Wilson, 159 F.3d at 289-90, by entertain-
ing a defendant’s challenge to the underlying restraining order proceed-
ings, has implicitly concluded that a due process hearing is required. To
the extent that the Seventh Circuit intended to adopt this view, we decline
to follow it, as explained below, because it appears to be in tension with
the Supreme Court’s decision in Lewis.
Young argues that the Sixth Circuit has also followed Wilson in United
States v. Calor, 340 F.3d 428, 431 (6th Cir. 2003). We disagree. Calor did
not endorse the Seventh Circuit’s view that the defendant could challenge
the constitutionality of the state court proceedings in federal court. Rather,
it interpreted the statute itself and then noted that its result was “consistent
with that of the Seventh Circuit.” Id.
9798 UNITED STATES v. YOUNG
§ 922(g), and held that an unconstitutional prior conviction
could still qualify as a predicate conviction. Id. at 67. The
Court explained that “federal gun laws . . . focus not on reli-
ability, but on the mere fact of conviction . . . in order to keep
firearms away from potentially dangerous persons.” Id. Lewis
contrasted that provision “with other federal statutes that
explicitly permit a defendant to challenge, by way of defense,
the validity or constitutionality of the predicate felony.”15 Id.
at 62 (citing 18 U.S.C. § 3575(e) (repealed) and 21 U.S.C.
§ 851(c)(2)). Thus, Lewis concluded that “to limit the scope
of [the predecessor to § 922(g)] to a validly convicted felon
would be at odds with the statutory scheme as a whole.” Id.
at 64.
[1] Unlike the statutes identified in Lewis as allowing a
challenge to a predicate offense, § 922(g)(8)—like the statute
in Lewis—makes no such allowance. Rather, § 922(g)(8)’s
only explicit requirement is that the defendant have received
a hearing of which he had actual notice and an opportunity to
participate. Thus, “a criminal proceeding may go forward,
even if the predicate was in some way unconstitutional, so
long as a sufficient opportunity for judicial review of the
predicate [restraining order proceeding] exists,” United States
v. Afshari, 426 F.3d 1150, 1157 (9th Cir. 2005), and it is no
defense to a prosecution under this statute that the state
restraining order proceedings were unconstitutional. Other-
15
21 U.S.C. § 851(c)(2), for example, reads:
A person claiming that a conviction alleged in the information
was obtained in violation of the Constitution of the United States
shall set forth his claim, and the factual basis therefor, with par-
ticularity in his response to the information. The person shall
have the burden of proof by a preponderance of the evidence on
any issue of fact raised by the response. Any challenge to a prior
conviction, not raised by response to the information before an
increased sentence is imposed in reliance thereon, shall be
waived unless good cause be shown for failure to make a timely
challenge.
(Emphasis added).
UNITED STATES v. YOUNG 9799
wise, “to limit the scope of [§ 922(g)(8)] to a valid[ ]
[restraining order] would be at odds with the statutory scheme
as a whole.” Lewis, 445 U.S. at 64 (emphasis added).
[2] Simply, absent Congressional authorization, we will not
entertain a collateral inquiry into the constitutionality of the
state court restraining order proceedings which is immaterial
except to the extent that the federal statute explicitly requires
certain procedural protections. Accord United States v. Hicks,
389 F.3d 514, 535 (5th Cir. 2004) (relying on Lewis and con-
cluding that “nothing . . . indicates that [§ 922(g)(8)] applies
only to persons subject to a valid, as opposed to an invalid,
protective order”).
B
Turning to the language of § 922(g)(8)(A), Young argues
that the statute “provides no specific definition” for “hearing,”
“actual notice,” and “opportunity to participate,” and that as
a result, we must assume that Congress intended to require a
full due process hearing. The government disagrees and con-
tends that the language of the provision is “plain and clear,”
and should be interpreted narrowly. We consider the statutory
requirements in turn.
1
[3] The government contends that the statute defines “hear-
ing,” and thus the statutory definition should control. Young,
in contrast, argues that “hearing” must be interpreted in the
context of the larger universe of due process jurisprudence.
Section 922(g)(8), however, explicitly defines the qualities a
predicate hearing must have: for the purposes of this provi-
sion, a hearing simply is a proceeding of which the defendant
has “actual notice” and an “opportunity to participate.” Con-
gress’s chosen definition of “hearing” apparently excludes
certain types of restraining orders—such as those issued ex
parte and without notice—however, we do not find any basis
9800 UNITED STATES v. YOUNG
in the statute for requiring that the restraining order issue after
a proceeding with all the due process protections of a criminal
trial.
The Sixth and Eighth Circuits have similarly resisted
attempts to impose greater substantive content on the term
“hearing.” The Sixth Circuit explained that while “hearing”
has a variety of meanings in federal law, “the term is not
ambiguous in this context.” United States v. Calor, 340 F.3d
428, 431 (6th Cir. 2003). Rather, § 922(g)(8) “straightfor-
wardly requires that the subject of the court order be given
actual notice of the proceeding and an opportunity to partici-
pate.” Id. Thus, the Sixth Circuit “declin[ed] to embellish the
hearing requirements explicitly set forth.” Id. (citing Wilson,
159 F.3d at 280). The Eighth Circuit reached the same conclu-
sion. United States v. Lippman, 369 F.3d 1039, 1042 (8th Cir.
2004), cert. denied 543 U.S. 1080 (2005) (“The statute states
what is required for a hearing under § 922(g)(8). A hearing
requires actual notice and an opportunity to be heard, but the
statute does not require that evidence actually have been
offered or witnesses called.”).
[4] We agree with the Eighth and Sixth Circuits that, in
accordance with the plain meaning of the statute, the term
“hearing” refers to a proceeding of which the defendant has
actual notice and an opportunity to participate.16
2
But Young argues that he did not have “actual notice” of
the hearing because his notice was not “meaningful,” as due
process requires. The district court concluded that “actual
notice” requires notice sufficient to satisfy due process, and
therefore requires “advance notice.” The government con-
16
Because the statute’s plain meaning controls, we may not consider the
principle of lenity, whose “touchstone . . . is statutory ambiguity.” Lewis,
445 U.S. at 65.
UNITED STATES v. YOUNG 9801
tends that “actual notice” should be interpreted in light of its
plain meaning.
[5] Young argues that “actual notice” requires notice of the
content of the hearing, rather than simply notice of the hear-
ing itself.17 In essence, Young reads the statute as requiring
“actual notice that a restraining order might issue.” But that
is emphatically not what the statute says. It expressly applies
to any person “who is subject to a court order that . . . was
issued after a hearing of which such person received actual
notice.” The statute does not require notice of the fact that a
restraining order would issue, nor does it require any other
form of “advance” notice. Indeed, Congress chose to modify
“notice” with “actual” rather than “advance,” implying that it
did not intend to require “advance” notice.
[6] Further, this definition of notice tracks the everyday,
common meaning of the term, see, e.g., Webster’s Third New
International Dictionary 1544 (3d ed. 1986) (defining “no-
tice” as “formal or informal warning or intimation of some-
thing: announcement”), and the accepted legal definition of
the term, see, e.g., Black’s Law Dictionary 1090 (8th ed.
2004) (stating that “[a] person has notice of a fact or condition
if that person (1) has actual knowledge of it . . . .”). Here, the
restraining order issued after “a hearing of which [Young]
received actual notice.” Nothing more is required.18
17
We reject Young’s argument, relying on Dusenbery v. United States,
534 U.S. 161, 170 n.5 (2002), that the word “actual” in the statutory term
“actual notice” requires some heightened form of notice. Dusenbery noted
that the term “actual notice” may be ambiguous—sometimes referring to
notice by publication and sometimes referring to actual receipt of notice.
Because Young was personally informed of the December 8 hearing, the
distinction drawn in Dusenbery is irrelevant in this context. Id. Rather, it
is clear that “actual notice” is meant to contrast with “implied notice,”
which would presumably be insufficient. See Black’s Law Dictionary
1090 (8th ed. 2004) (defining “actual notice” as “[n]otice given directly
to, or received personally by, a party”).
18
Young argues that without “advance notice,” he could not effectively
challenge the DVNC order. In some situations, of course, notice may be
9802 UNITED STATES v. YOUNG
Moreover, while Young argues that “actual notice” requires
advance notice satisfying due process, Congress knows how
to define terms when it wants to give them specific definitions
at odds with everyday understanding. For example, 18 U.S.C.
§ 921, defines “person,” “indictment,” “school,” and “inti-
mate partner,” each of which has a plain meaning which Con-
gress rejected. See §§ 921(a)(1), (14), (26) & (32). We apply
the presumption that terms not defined should be given their
common, everyday meaning. See, e.g., Chapman v. United
States, 500 U.S. 453, 462 (1991) (concluding that terms “must
be given their ordinary meaning” where “[n]either the statute
nor the Sentencing Guidelines define the terms ‘mixture’ and
‘substance,’ ” and where they do not “have any established
commonlaw meaning”).19
so deficient that it would deprive a defendant of any ability to challenge
the restraining order. In such a case, however, the hearing would not qual-
ify as a predicate under the statute because the defendant would lack an
“opportunity to participate” in the hearing.
19
Along similar lines, Young argues that “notice” must be “meaningful”
in order to comport with due process. See In re Gault, 387 U.S. 1, 33
(1967) (“Notice, to comply with due process requirements, must be given
sufficiently in advance of scheduled court proceedings so that reasonable
opportunity to prepare will be afforded, and it must set forth the alleged
misconduct with particularity.” (internal quotation omitted)). While this is
correct, for the reasons given above it is also immaterial. Even if Young
is correct that notice must be meaningful to comply with due process, that
does not resolve what the statute requires for a predicate restraining order.
The two issues are not coextensive. See Lewis, 445 U.S. at 65; Hicks, 389
F.3d at 535 (“[N]othing in the language of 18 U.S.C. § 922(g)(8) indicates
that it applies only to persons subject to a valid, as opposed to an invalid,
protective order.”).
Further, only terms with “established commonlaw meaning[s]” should
be interpreted in the light of those meanings. Chapman, 500 U.S. at 462;
see also, e.g., Moskal, 498 U.S. 103, 121—22 (1990). Due process notice
“is not a technical conception with a fixed content unrelated to time, place
and circumstance.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895
(1961) (quotation omitted). Rather, “[t]he very nature of due process
negates any concept of inflexible procedures universally applicable to
every imaginable situation.” Id. (citing FCC v. WJR, Goodwill Station,
Inc., 337 U.S. 265, 275—76 (1949)). Because “notice” lacks a fixed
meaning in due process literature, the statutory term should be given its
plain meaning.
UNITED STATES v. YOUNG 9803
The district court relied on the Seventh Circuit’s decision
in Wilson, 159 F.3d at 289, to conclude that “actual notice”
requires “advance notice” sufficient to comport with due pro-
cess. Wilson, however, discussed due process because the
defendant there challenged the state court hearing itself as
violating due process. Id. (“Wilson asserts that . . . the hearing
he was given . . . did not meet the requirements of the Due
Process Clause.”). In contrast, our narrow focus is to divine
Congressional intent by considering whether Young’s predi-
cate DVNC falls within the federal statutory text; Young,
unlike Wilson, does not contend that the state court hearing
violated due process. In short, Wilson did not address whether
“actual notice”—as the term exists in § 922(g)(8)(A)—
requires a due process hearing.20
We agree with Young that some other Circuits have applied
this provision to defendants who were both informed of the
hearing and knew that the hearing would involve the restrain-
ing order. See, e.g., Wilson, 159 F.3d at 284 (noting that the
emergency protective order set a date for a second hearing);
United States v. Banks, 339 F.3d 267, 268 (5th Cir. 2003)
(judge advised defendant that second hearing would discuss
protective order).21 But again, Young conflates two issues:
Washington law required Judge Schwab to reissue the DVNC
order at the December 8 arraignment, see Rev. Code Wash.
10.99.040(3), so it is very likely that Young did have notice
20
As noted above, by entertaining a due process challenge to the state
court proceedings, Wilson may be in tension with Lewis. See supra n.14.
21
One sentence in a Ninth Circuit opinion gives some support to
Young’s view. In Kafka, the court stated that § 922(g)(8) required only
that “[a]n individual charged under this statute must have received actual
notice of the restraining order hearing and must have had an opportunity
to participate in the hearing.” 222 F.3d at 1130 (citing § 922(g)(8))
(emphasis added). However, this is simply a passing statement not “sup-
ported by reasoned analysis” and therefore has no precedential value.
United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)
(Kozinski, J., concurring); see also Miller v. Gammie, 335 F.3d 889 (9th
Cir. 2003) (en banc).
9804 UNITED STATES v. YOUNG
that the DVNC order would reissue at the December 8 hear-
ing, just like the defendants did in Wilson and Banks. But that
inquiry is irrelevant; the proper question is whether the evi-
dence presented in federal court shows that Young’s DVNC
met § 922(g)(8)’s requirement that Young had notice of the
fact of the hearing.
[7] A judgment of acquittal is improper if “ ‘any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’ ” Tisor, 96 F.3d at 379
(quoting Jackson, 443 U.S. at 319). On December 6, the court
appointed an attorney and told Young that he would be
arraigned on December 8. Thus, Young had actual notice of
the December 8 hearing at which the predicate DVNC was
issued, and the judgment of acquittal on this ground was improp-
er.22
3
Finally, Young argues that the term “opportunity to partici-
pate” requires actual participation sufficient to meet the
requirements of due process. The government contends that
the statute’s plain meaning controls, and the defendant must
have only an opportunity to participate.
The district court concluded that Young did not have an
“opportunity to participate” in the December 8 hearing, noting
that Young did not have an opportunity to consult with his
attorney during the December 8 hearing; that Young was not
22
Moreover, even if the statute did require advance notice of the content
of the hearing, we still doubt that a judgment of acquittal would be proper.
The jury heard evidence that Yakima County Superior Court judges
always reconsider DVNC orders at an arraignment. The jury here could
reasonably have inferred that Young and his attorney—who was surely
aware that Judge Schwab would be required to reissue the DVNC order—
discussed these matters between December 6 and December 8, thereby
providing notice that a new restraining order would issue during the
arraignment.
UNITED STATES v. YOUNG 9805
asked whether he wished to dispute the contents of the police
report; that Young was not asked if he had evidence to pre-
sent; and that Young was not asked if he objected to the issu-
ance of the December 8 DVNC order. While the district court
noted that none of these facts is dispositive, it concluded that
“the judge’s principal concern was whether Mr. Young under-
stood he was bound by the order. While significant, the
inquiry prompted by this concern did not satisfy
§ 922(g)(8)(A).”
[8] We disagree. From the plain text of the statute “actual
participation” is not necessary; the statute requires only the
mere “opportunity to participate.” Other circuits—following
the plain language of the statute—have reasoned that very lit-
tle is required to satisfy the “opportunity to participate” prong.
For example, in Wilson the Seventh Circuit found that the
defendant—who represented himself pro se—had an opportu-
nity to participate in the hearing. 159 F.3d at 284 (“Wilson
was competent to lodge an objection to the protective order,
and he was given the ability to do so.”); id. at 290 (“An
opportunity to respond is afforded when a party has ‘the
opportunity to present reasons, either in person or in writing,
why proposed action should not be taken.’ ” (quoting Louder-
mill, 470 U.S. at 546) (emphasis added)). Similarly, in Banks,
the defendant appeared in court and consented to an agreed
temporary protective order.23 339 F.3d at 267, 268. The par-
ties then informed the court that they had reached a settle-
ment, so neither side presented witnesses or evidence and the
presiding judge signed the temporary protective order outside
the presence of the parties. Id. Yet the Fifth Circuit concluded
that Banks had an opportunity to participate: “Banks had an
opportunity to put on evidence, but he did not avail himself
of that opportunity.” Id. at 271.
23
Banks also distinguished and limited the earlier case of United States
v. Spruill, 292 F.3d 207 (5th Cir. 2002). In Spruill, the court decided that
the § 922(g)(8) requirements were not met because Spruill “never
appeared before a judge and no evidentiary hearing was held.” Banks, 339
F.3d 270 (citing Spruill, 292 F.3d at 210-11).
9806 UNITED STATES v. YOUNG
[9] Joining the Fifth and Seventh Circuits, we agree that the
plain text of the statute indicates that the “opportunity to par-
ticipate” requirement is a minimal one. The prosecution must
only show an opportunity to participate; that is, a proceeding
during which the defendant could have objected to the entry
of the order or otherwise engaged with the court as to the mer-
its of the restraining order.
[10] Again, a judgment of acquittal is improper if “ ‘any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ ” Tisor, 96 F.3d at
379 (quoting Jackson, 443 U.S. at 319). Here, the jury was
presented evidence sufficient to conclude that Young had an
“opportunity to participate”: Young was present when Judge
Schwab issued the DVNC order and presented no evidence
showing that he could not have further participated in the
hearing; indeed, Young and Judge Schwab engaged in a
lengthy dialogue, and at least once Young questioned Judge
Schwab when he had a concern or required clarification.
Indeed, by the end of the December 6 hearing, Young had
counsel appointed who could have accompanied him on
December 8th. Finally, Young and Judge Schwab had
engaged in a lengthy colloquy during the December 6 hearing,
again indicating that Young was capable of participating in
the December 8 hearing to whatever extent he felt was neces-
sary. That Young chose not to participate more fully is not
relevant to understanding whether he had an “opportunity to
participate.” Thus, the judgment of acquittal on this ground
was also improper.
III
The government contends that the jury instructions were
sufficient and that the district court’s alternative holding
granting the motion for a new trial on such grounds was errone-
ous.24 Young argues that the district court properly concluded
24
“In reviewing jury instructions, the relevant inquiry is whether the
instructions as a whole are misleading or inadequate to guide the jury’s
UNITED STATES v. YOUNG 9807
that the jury should have been instructed on the due process
meanings of “hearing,” “actual notice,” and “opportunity to
participate.”
[11] Jury instructions need not define common terms that
are readily understandable by the jury. See United States v.
Dixon, 201 F.3d 1223, 1231 (9th Cir. 2000) (holding that “the
court did not err by failing to define ‘commercial advantage’
and ‘private financial gain’ because these are common terms,
whose meanings are within the comprehension of the average
juror”); United States v. Moore, 921 F.2d 207, 210 (9th Cir.
1990) (holding that, “since ‘violence’ is a concept within the
jury’s ordinary experience, there is no prejudice in failing to
define it”). Here, the jury instructions explained that a convic-
tion under § 922(g)(8) requires finding beyond a reasonable
doubt that, “at the time the defendant possessed the firearm,
the defendant was subject to a court order dated December 8,
2004, that: (A) was issued after a hearing of which such per-
son received actual notice, and at which such person had an
opportunity to participate” (emphasis added).
[12] As discussed above, the terms “hearing,” “actual
notice,” and “opportunity to participate,” should be given
their ordinary meaning, and therefore did not require further
elaboration. The meaning of “hearing” is provided by the stat-
ute and was given a parallel definition in the jury instructions.
Similarly, unless “actual notice” means something other than
“actual notice”—such as “advance notice” or “meaningful
notice”—then this term would also be apparent to a jury.
Finally, the statutory term “opportunity to participate”
requires only an opportunity to participate; the term has no
deliberation.” United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir.
1999) (citing United States v. Moore, 109 F.3d 1456, 1465 (9th Cir. 1997)
(en banc)). Whether a jury instruction properly states the elements of a
statutory crime is a question of law reviewed de novo. United States v.
Phillips, 367 F.3d 846, 854 (9th Cir.), cert. denied, 543 U.S. 980 (2004).
9808 UNITED STATES v. YOUNG
greater import than its plain meaning. We conclude that a jury
instruction defining an “opportunity to participate” more spe-
cifically is unnecessary. See Wilson, 159 F.3d at 291; id. at
292 (“The terms ‘hearing’ and ‘opportunity to participate’ are
not arcane legal terms that the general public does not under-
stand, and we do not believe that any special attention had to
be given to them in the jury instructions.”). Thus, the jury
instructions as to these terms were not “inadequate to guide
the jury’s deliberation.” Frega, 179 F.3d at 806 n.16. Because
the statutory requirements were properly presented to the jury,
no new trial is necessary.
IV
The judgment of the district court is REVERSED and this
case is REMANDED for proceedings consistent with this
opinion.