United States v. Bethurum

United States Court of Appeals
Fifth Circuit
F I L E D
Revised September 17, 2003
August 20, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 02-10962
_____________________

UNITED STATES OF AMERICA

Plaintiff – Appellant

v.

BRETT ALDEN BETHURUM

Defendant – Appellee

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.

KING, Chief Judge:

The United States appeals the district court’s order

granting Defendant-Appellee Brett Alden Bethurum’s motion for

judgment of acquittal pursuant to Rule 29(a) of the Federal Rules

of Criminal Procedure. We vacate the order and remand for

reinstatement of the jury verdict finding Bethurum guilty on

eight counts of possessing a firearm in and affecting interstate

commerce after being convicted of a misdemeanor crime of domestic
violence in violation of 18 U.S.C. § 922(g)(9) and 18 U.S.C. §

924(a)(2).

I. FACTS AND PROCEDURAL HISTORY

On June 9, 1997, Defendant-Appellee Brett Alden Bethurum was

convicted of misdemeanor attempted assault with bodily injury for

kicking Rebecca Bethurum, his wife. At that time, Bethurum chose

to enter a plea of guilty to the offense. To that effect, he

signed a document entitled “Waiver of Appointment of Attorney and

Waiver of Jury Trial by Defendant Entering Plea of Guilty” which

states:

Now comes the undersigned Defendant in this cause and
represents to the Court that I have no attorney, that I
do not intend to employ counsel herein, and that I waive
any right I may have to have the Court appoint an
attorney to defend me in this cause.

I acknowledge that I have been advised by the Court of my
right to representation by counsel in the trial of the
charge pending against me. I have been further advised
that if I am unable to afford counsel, one will be
appointed for me free of charge. Understanding my right
to have counsel appointed free of charge if I am not
financially able to employ counsel, I wish to waive that
right and request the Court to proceed with my case
without an attorney being appointed for me. I hereby
waive my right to counsel.

I further represent to the Court that I desire to make
immediate disposition of this case by here and now
entering my plea of guilty, waiving trial by jury and
submitting it to the Court on all issues of law and fact.

WHEREFORE, premises considered, Defendant prays the Court
to proceed immediately to arraign me in this cause,
accept my plea of guilty and waiver of jury trial, to
enter judgment thereon and, having entered the same, to
immediately sentence me in the manner provided by law,
waiving for said purpose every provision of the law the

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 effect of which would delay of [sic] arrest entry of
judgment or imposition of sentence.

This document was also signed by the presiding judge, Judge J.R.

Adcock, indicating that it was “approved and granted.” The state

court deferred adjudication for twenty-four months and placed

Bethurum on probation. However, he violated the terms of his

probation when he was convicted for driving while intoxicated.

As a result of the DWI conviction, Bethurum’s probation was

revoked and he was adjudicated guilty of misdemeanor assault

against his wife.

In April 2002, Bethurum was indicted on eight counts of

possessing a firearm in and affecting interstate commerce in

violation of a federal statute making it “unlawful for any person

who has been convicted in any court of a misdemeanor crime of

domestic violence to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or

ammunition.” 18 U.S.C. § 922(g)(9) (2000). Bethurum pleaded not

guilty to all eight counts of the indictment.

Prior to trial, Bethurum moved to dismiss the indictment on

the grounds that he had not been convicted of a “misdemeanor

crime of domestic violence” because he had pleaded guilty to the

alleged predicate offense without “knowingly and intelligently”

waiving either his right to counsel or his right to a jury trial.

See 18 U.S.C. § 921(a)(33)(B)(i):

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 A person shall not be considered to have been convicted
of [a misdemeanor crime of domestic violence] for
purposes of this chapter, unless –

(I) the person was represented by counsel in the
case, or knowingly and intelligently waived
the right to counsel in the case; and

(II) in the case of a prosecution for an offense
described in this paragraph for which a person
was entitled to a jury trial in the
jurisdiction in which the case was tried,
either

(aa) the case was tried by jury, or

(bb) the person knowingly and intelligently
waived the right to have the case tried
by a jury, by guilty plea or otherwise.

Id. After considering Bethurum’s motion and the government’s

response in opposition, the district court ruled that the

validity of Bethurum’s waivers was an element of the alleged

violation of § 922(g)(9) that the government had to prove to the

trier-of-fact at trial.

The case was tried to a jury on June 17, 2002. Prior to

trial, the parties stipulated that: (1) Bethurum knowingly

possessed the firearms alleged in each count of the indictment;

(2) the firearms alleged in each count had traveled across state

lines and thereby affected commerce prior to the time of the

alleged violation of § 922(g)(9); and (3) Bethurum had been

adjudicated guilty in 1999 of the misdemeanor assault charge for

kicking his wife. Thus, the only question remaining before the

jury was whether Bethurum “knowingly and intelligently” waived

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his rights to counsel and a jury trial when he pleaded guilty pro

se to the previous assault charge.

The government at trial introduced into evidence a copy of

the waiver form quoted above. The government also called Judge

Adcock, who testified that, while he did not specifically recall

Bethurum’s case, his routine procedures during pro se cases

included counseling the defendant as to the advantages of an

attorney and reviewing the written waiver form with each

defendant on an individual basis. Judge Adcock also testified

that he routinely would advise the defendant that a conviction in

some circumstances could have collateral consequences down the

line, such as losing the right to vote. However, Judge Adcock

testified that he doubted that he specifically warned Bethurum

that conviction on the domestic relations misdemeanor would

affect his rights concerning firearms use and possession,

remarking that “there’s no way that I can go over all of the

ramifications of a plea of guilty.” A former district attorney

assigned to Judge Adcock’s court corroborated the judge’s

testimony as to the court’s routine procedures.

At the conclusion of the government’s case-in-chief,

Bethurum moved for judgment of acquittal pursuant to Rule 29(a)

of the Federal Rules of Criminal Procedure. After arguments on

the motion, the court reserved ruling on the motion. Bethurum

then testified in his own defense, confirming that Judge Adcock

had given him the routine admonitions about which the judge had

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testified. Bethurum also testified that, as an employee of his

family’s gun dealership, he would not have pleaded guilty to the

offense had he known that the conviction would affect his ability

to possess firearms.

On cross-examination, the government elicited testimony that

Bethurum, as an employee of a licensed firearm dealer, was

familiar with Form 4473 of the Bureau of Alcohol, Tobacco and

Firearms. Form 4473 is a standard form used by firearms dealers

to record firearms transactions; after § 922(g) was enacted in

1996, Form 4473 was revised to include a specific question about

whether the recipient of the firearm had ever been convicted of a

misdemeanor crime of domestic violence. While Bethurum admitted

being familiar with the form, he testified that he never had

considered whether the form would apply to him.

At the close of all evidence, Bethurum renewed his Rule

29(a) motion. At that time, the judge denied the motion without

specific reference to the reserved Rule 29(a) motion that

Bethurum had made at the close of the government’s case-in-chief.

After closing arguments, the court charged the jury that the

government was required to prove beyond a reasonable doubt that

Bethurum had knowingly and intelligently waived his rights to

counsel and trial by jury at the time he pleaded guilty to the

prior misdemeanor assault charge.

The jury returned a verdict of guilty on all eight counts of

violating § 922(g)(9). After the verdict, Bethurum moved for a

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judgment of acquittal pursuant to Rule 29(c) of the Federal Rules

of Criminal Procedure. Bethurum’s Rule 29(c) motion requested

that the district court: (1) revive the possibly pending Rule

29(a) motion made at the close of the government’s case-in-chief;

(2) revive the Rule 29(a) motion made at the close of all

evidence; and (3) grant a judgment of acquittal pursuant to Rule

29(c). The district court granted Bethurum’s motion, set aside

the jury verdict, and entered a judgment of acquittal. United

States v. Bethurum, 213 F.

Supp.2d 679, 691 (N.D. Tex. 2002). The court held that the

initial Rule 29(a) motion was still pending and ruled on it in

accordance with the standards set out in Rule 29(b). See FED. R.

CRIM. P. 29(b) (stating that, when the court reserves ruling on a

Rule 29(a) motion but later chooses to rule on the motion, the

court must decide the motion “on the basis of the evidence at the

time the ruling was reserved”). Considering only the evidence

presented during the government’s case-in-chief, the court held

that Bethurum could not reasonably have been found to make a

knowing and intelligent waiver of his rights without direct proof

that Bethurum actually knew that a specific consequence of his

waivers would be the deprivation of his future right to possess a

firearm. Bethurum, 213 F. Supp.2d at 688.

The government now appeals the district court’s order

granting Bethurum’s motion for judgment of acquittal. This court

reviews a trial court’s order granting a motion for judgment of

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acquittal de novo, applying the same standard as the district

court. United States v. Sanchez, 961 F.2d 1169, 1179 (5th Cir.

1992).

II. THE ELEMENTS OF A VIOLATION OF § 922(g)(9)

By its text, § 922(g)(9) states three required elements: (1)

the accused possessed, shipped, or transported a firearm (2) that

had traveled in or affected interstate commerce (3) after the

accused had been convicted of a misdemeanor crime of domestic

violence. 28 U.S.C. § 922(g)(9); cf. United States v. Daugherty,

264 F.3d 513, 515 (5th Cir. 2001) (“Section 922(g)(1) has three

requirements: (1) that the defendant previously have been

convicted of a felony; (2) that he possessed a firearm; and (3)

that the firearm traveled in or affected interstate commerce.”)

(internal quotations and citations omitted). Prior to trial, the

district court ruled that the government had to prove to the jury

as an additional element of a § 922(g)(9) violation that Bethurum

also knowingly and intelligently waived his rights to counsel and

a jury trial when he pleaded guilty to his prior domestic

violence misdemeanor. The government argues that this finding

was incorrect; instead, the district court should have found that

the question of Bethurum’s waivers was a question of law that the

district court should have decided, not the jury. We agree with

the government’s argument.

While this court has never considered whether the waiver

requirements set forth in § 922(a)(33)(B)(i) are essential

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elements of a violation of § 922(g)(9), those courts which have

considered the question have unanimously concluded that the

requirements of § 922(a)(33)(B)(i) are part of the legal

definition of a “misdemeanor crime of domestic violence” to be

decided by the court as a matter of law rather than a separate

and essential element of a violation of § 922(g)(9) which must be

proved to the jury beyond a reasonable doubt. See United States

v. Akins, 276 F.3d 1141, 1146 (9th Cir. 2002) (“Because

§ 921(a)(33)(B)(i)(I) is a legal definition, its application

presents a question of law to be decided by the trial judge.”);

United States v. Hartsock, 253 F. Supp.2d 24, 34-35 (D. Me. 2003)

(rejecting the reasoning employed by the district court in

Bethurum and holding that “[w]hile the question of whether those

rights [to counsel and a jury trial] have been intelligently and

knowingly waived may be more fact intensive, the ultimate

resolution of the issue still involves a question of law that

must be determined by the judge”); United States v. Pfeiffer, 206

F. Supp.2d 1002, 1007-08 (D.S.D. 2002) (ruling as a matter of law

on the § 922(a)(33)(B)(i) waiver question); United States v.

Thompson, 134 F. Supp.2d 1227, 1231 (D. Utah 2001) (“[B]ecause of

the intensive factual and legal examination required to determine

whether Defendant knowingly and intelligently waived his right to

counsel when he plead guilty to battery . . . the court should

conduct such a determination prior to trial.”); see also United

States v. Smith, 171 F.3d 617, 621-22 (8th Cir. 1999) (treating

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the requirements of § 921(a)(33)(B)(i) as part of the legal

definition of a “misdemeanor crime of domestic violence” without

further elaboration and concluding, as a matter of law, that a

particular conviction and waiver of rights satisfied the

requirements of § 922(a)(33)(B)(i)).1

We agree with these courts. The essential elements of a

violation of § 922(g)(9) are set forth in § 922(g)(9) itself;

§ 921(a)(33) simply provides a legal definition of the term

“misdemeanor crime of domestic violence” used in § 922(g)(9). We

look first to the fact that § 921 is entitled “Definitions.” 18

U.S.C. § 921. Second, § 921(a)(33) states, “the term

‘misdemeanor crime of domestic violence’ means an offense that .

. . .” 18 U.S.C. § 921(a)(33)(A) (emphasis added).

Furthermore, in other cases involving weapons-related

offenses under § 922(g), the Supreme Court, this court, and

numerous other federal courts have treated questions regarding

the requirements of § 921(a) as purely legal questions about what

constitutes a prior “conviction” under § 922(g). See Beecham v.

United States, 511 U.S. 368, 370-71 (1994) (choice-of-law clause

in § 922(a)(20) defines the legal rule for determining what

1
Akins is particularly illuminating in that the court’s
opinion replaces and supercedes an earlier opinion in the same
case, which had held that the knowing and intelligent waiver
required by § 922(a)(33)(B)(i) was an element of the § 922(g)(9)
offense. United States v. Akins, 243 F.3d 1199, 1202 (9th Cir.
2001), amended and superceded on denial of reh’g by 276 F.3d 1141
(9th Cir. 2002).

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constitutes a conviction under § 922(g)); Daugherty, 264 F.3d at

514 (“The question whether a felony conviction may serve as a

predicate offense for a prosecution for being a felon in

possession of a firearm pursuant to § 922(g)(1) is purely a legal

one.”) (citations omitted); United States v. Bartelho, 71 F.3d

436, 439-40 (1st Cir. 1995) (expressly holding that § 921(a)(20)

sets forth a purely legal definition of what constitutes a

conviction for a predicate offense under § 922(g) and not

essential elements of a § 922(g) offense); United States v.

Jackson, 57 F.3d 1012, 1016-17 (11th Cir. 1995) (same); United

States v. Flower, 29 F.3d 530, 534 (10th Cir. 1994) (same);

United States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993) (same).

Because § 921(a)(33) sets forth a legal definition, the

trial judge rather than the jury should determine whether a

particular conviction is admissible as relevant evidence of a

misdemeanor crime of domestic violence. See FED. R. EVID. 104;

see also Hartsock, 253 F. Supp. 2d at 35; Thompson, 134 F. Supp.

2d at 1230-31. This is true even though the trial judge’s

ultimate decision to admit or not to admit a prior conviction may

require a factual showing.

We conclude that the district court erred in ruling that the

burden fell on the government to prove to the jury, beyond a

reasonable doubt, that Bethurum had knowingly and intelligently

waived his rights at the time of his prior domestic violence

conviction. The question of the effectiveness of the waivers

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should have been determined as a matter of law by the trial judge

pursuant to Rule 104.

The record is fully developed on this point, and we can

decide the question as a matter of law on the evidence before us

in the record. We find that Bethurum knowingly and intelligently

waived his rights to counsel and trial by jury at the time of his

misdemeanor domestic violence conviction. Judge Adcock’s routine

procedures – which include having the defendant sign the detailed

waiver form, thoroughly explaining that form to each defendant,

and specifically warning the defendant about the advantages of

being represented by counsel – adequately ensure that a

defendant’s waiver of his rights is both knowing and intelligent.

See United States v. Davis, 269 F.3d 514, 518-19 (5th Cir. 2001)

(stating that, while there is “no sacrosanct litany for warning

defendants against waiving” their rights, the presiding judge

must make the defendant aware of the “dangers and disadvantages

of self-representation so that the record will establish that ‘he

knows what he is doing and his choice is made with his eyes

open’”) (quoting Faretta v. California, 422 U.S. 806, 835

(1975)).

Bethurum testified that Judge Adcock apparently followed

these routine procedures in his case but that Bethurum chose to

proceed pro se because he believed he would be able to avoid

further legal problems while on probation. While he may now

regret that decision, Bethurum has not demonstrated that, at the

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time he pleaded guilty, his waiver of his rights was not knowing

and intelligent.

Bethurum also argues that his waivers could not have been

knowing and intelligent because he was not specifically warned

about the effect that a guilty plea would have on his ability to

possess a firearm. While the district court found this argument

persuasive, we do not.

We have previously stated that a defendant can effectively

waive his rights even if not informed of “all the consequences

that may flow from conviction or from the imposition of

sentence.” United States v. Edwards, 911 F.2d 1031, 1035 (5th

Cir. 1990). For example, we have held that a defendant’s waivers

can be knowing and voluntary even when the defendant was not

warned that her conviction could be used as a sentence

enhancement in a subsequent trial, id. at 1035; that his driver’s

license could be forfeited, Moore v. Hinton, 513 F.2d 781, 782

(5th Cir. 1975); that he was ineligible for parole, Trujillo v.

United States, 377 F.2d 266, 269 (5th Cir. 1967); or that his

guilty plea would result in a loss of voting rights and right to

travel abroad, Meaton v. United States, 328 F.2d 379 (5th Cir.

1964). The Seventh Circuit, among others, has held that a guilty

plea is knowing and voluntary even where the defendant was not

advised that he could be deported as a result of pleading guilty.

Santos v. Kolb, 880 F.2d 941, 943-44 (7th Cir. 1989).

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 In fact, we have held that “if a sentencing court informs a

defendant of the requirements of rule 11 [of the Federal Rules of

Criminal Procedure], he need be informed of no others. All other

matters are collateral consequences . . . ." Edwards, 911 F.2d

at 1035 (internal quotations and citations omitted). This

principle applies to warnings given by state courts as well:

“Having complied with rule 11, the state court necessarily

complied with the Constitution.” Id.

As Rule 11 does not require a defendant to be warned of the

effect his plea could have on his ability to possess a firearm,

see FED. R. CRIM. P. 11, we hold that the ability to possess a

firearm is a collateral matter. Thus, Bethurum’s waivers were

not rendered unknowing or involuntary by the absence of a warning

on this matter. Our holding is in agreement with numerous state

cases. See, e.g., Polk v. State, 405 So. 2d 758, 762 (Fla. Dist.

Ct. App. 1981); Saadiq v. State, 387 N.W.2d 315, 325 (Iowa 1986);

State v. Rodriguez, 590 N.W.2d 823, 825 (Minn. Ct. App. 1999);

State v. Liefert, 43 P.3d 329 (Mont. 2002); Matter of Ness, 855

P.2d 1191, 1195 (Wash. Ct. App. 1993).

We conclude that the district court erred in submitting the

issue of the validity of Bethurum’s waivers to the jury.

Further, as a matter of law we find that Bethurum knowingly and

intelligently waived his rights to counsel and a jury trial at

the time he pleaded guilty to a misdemeanor crime of domestic

violence. We therefore vacate the district court’s entry of

14
judgment of acquittal and remand for reinstatement of the jury

verdict.

IV. CONCLUSION

We VACATE the district court’s order granting Bethurum’s

motion for judgment of acquittal and REMAND for reinstatement of

the jury verdict finding Bethurum guilty on all counts alleged in

the indictment and for further proceedings.

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