[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 1, 2010
No. 09-11400
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 08-00196-CR-1-KD-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STUART CRAIG DUBOSE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 1, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Stuart Craig DuBose appeals his convictions for making a false statement in
connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6),
and for possessing a firearm while subject to a protective order, in violation of
18 U.S.C. § 922(g)(8). Specifically, DuBose argues that (1) the protective order
underlying his conviction does not satisfy the requirements of Section 922(g)(8);
(2) the district court abused its discretion by refusing to admit into evidence the
entire transcript of the divorce hearing at which the protective order was entered;
and (3) his conviction is invalid because the order was void when he purchased the
firearm.
On March 25, 2008, in the midst of divorce proceedings, Alabama Circuit
Judge Thomas Baxter issued a domestic violence protective order against
Defendant Dubose following an ex parte hearing on a motion by DuBose’s wife,
Allison T. DuBose. The Order stated:
Stuart DuBose is hereby specifically restrained and enjoined from
intimidating, threatening, hurting, harassing, or in any way putting the
plaintiff, Allison T. DuBose, her daughters and/or her attorney in fear
of their lives, health, or safety pending final hearing of this suit.
Otherwise, he should be held in direct contempt of the orders of this
Court.
Within several days of the hearing, Sheriff of Clarke Country, Alabama,
personally served the protective order on DuBose. On April 7, 2008, another
hearing was held before Marengo County District Court Judge Wade Drinkard,
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who explained that he had been appointed by the Alabama Chief Justice to preside
over the DuBose divorce case following Judge Baxter’s recusal. Defendant
DuBose, a lawyer and Alabama judge, represented himself at the hearing and
moved to set aside the previously issued protective order. Judge Drinkard denied
the motion and orally reaffirmed the March 25 order.
On April 18, 2008, DuBose purchased a Ruger compact rifle, a scope, and a
box of ammunition at Quint’s Hardware in Saraland, Alabama. At the time of
purchase, DuBose completed ATF Form 4473, which informed him that he would
not receive a firearm if he was prohibited from doing so by Federal or State Law.
The form asked DuBose, among other things, “Are you subject to a court order
restraining you from harassing, stalking, or threatening your child or an intimate
partner or child of such partner?” DuBose answered “no” to this question.
DuBose was charged in a two-count indictment alleging that he made a false
statement on an ATF Firearms Transaction Record Form in connection with his
purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6) (Count 1); and that he
unlawfully possessed a firearm while he was subject to a protective order, in
violation of 18 U.S.C. § 922(g)(8) (Count 2). At trial, the government presented
testimony from the following people: the sheriff who served the written protective
order on the Defendant after the March 25th hearing; Judge Drinkard; Alabama
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Judge J. Donald Banks, who testified that Judge Drinkard’s April 7th order went
into effect immediately upon oral reaffirmation of the March 25 order; the store
owner who sold the firearm to Dubose; and the ATF agent who arrested DuBose
and established that the Ruger had previously traveled in interstate commerce.
The government also introduced into evidence a redacted transcript of the April
7th hearing. The district court, upon determining that many of the issues
discussed in the transcript were irrelevant, denied DuBose’s request to admit the
entire 103-page transcript. The court instead offered DuBose the opportunity to
introduce relevant excerpts.
DuBose argued that, at the time he purchased the Ruger rifle, the orders
against him were invalid on various procedural grounds under Alabama law. The
district court, citing United States v. Hicks, 389 F.3d 514 534-36 (5th Cir. 2004),
ruled that DuBose could not collaterally attack the April 7 order “if the order was
issued after a hearing in which he had an opportunity to participate.” DuBose was
convicted on both counts. This appeal followed.
I. Requirements of 18 U.S.C. § 922(g)(8) (Count 2)
DuBose argues that the district court erred by denying his motion for a
judgment of acquittal. He argues that the protective order against him failed to
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satisfy the criteria set forth in 18 U.S.C. § 922(g)(8), because it did not contain an
explicit prohibition on the use of “physical force” necessary to satisfy the
requirement of Section 922(g)(8)(C)(ii). DuBose claims that, because of this
omission, the order did not make it illegal for him to purchase a firearm under
Section 922(g)(8).
We review a district court’s denial of a motion for judgment of acquittal de
novo. United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008). In reviewing the
sufficiency of the evidence underlying a conviction, we consider the evidence “in
the light most favorable to the government, with all inferences and credibility
choices drawn in the government’s favor.” United States v. LeCroy, 441 F.3d
914, 924 (11th Cir. 2006).
Dubose was convicted under Count 2 of his indictment for violating 18
U.S.C. § 922(g)(8), which bars firearms possession by any person “who is subject
to a court order that”:
(A) was issued after a hearing of which such person
received actual notice, and at which such 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
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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.
18 U.S.C. § 922(g)(8).
DuBose argues that he cannot be convicted under that statute because, at the
time he purchased the Ruger rifle, he was not under a protective order that
satisfied the requirements of Section 922(g)(8). Here, there is no doubt that the
protective order in question meets the requirements of Section 922(g)(8)(A),
because the April 7 order was entered after a hearing at which DuBose both was
present and had an opportunity to respond. There is also no doubt that the order
meets the requirements of subsection (B) of that statute, because it restrained
DuBose from “intimidating, threatening, hurting, [or] harassing” his wife and her
daughters. Finally, the order does not make any finding that DuBose represents a
credible threat to the physical safety of his wife or her daughters, as required by
Section 922(g)(8)(C)(i). Therefore, in order for DuBose’s conviction under
922(g)(8) to be valid, the April 7 order must comply with 922(g)(8)(C)(ii) by
explicitly prohibiting “the use, attempted use, or threatened use of physical force
against [his wife and her daughters] that would reasonably be expected to cause
bodily injury.” DuBose argues that the order does not meet this requirement
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because the protective order does not use the terms “use” or “attempted use” or
“threatened use” of “physical force.” We have never addressed whether a
protective order that does not contain the precise statutory language of Section
922(g)(8)(C)(ii) can subject a defendant to criminal punishment under Section
922(g)(8). We therefore rely on the guidance of other circuits and of common
sense in making our determination.
In United States v. Bostic, the Fourth Circuit summarily held that an order
that did not contain the precise statutory language, but ordered an individual to
“refrain from abusing” his wife, “unambiguously satisfies” the requirements of
subsection (C)(ii) that the court order prohibit the use, attempted use, or threatened
use of “physical force.” 168 F.3d 718, 721-22 (4th Cir. 1999). In United States v.
Coccia, the First Circuit became the only other circuit to address whether a
protective order must contain the identical language of subsection (C)(ii) to meet
the statute’s requirements. 446 F.3d 233, 241-42 (1st Cir. 2006). The court, citing
Bostic, held that a protective order that directed “the defendant to ‘refrain from
abusing’ his wife” was sufficient to satisfy the statute’s provisions. Coccia, 446
F.3d at 242. The court noted that the “definition of ‘abuse’ as a verb includes ‘to
injure (a person) physically or mentally’” and that “‘[a]buse’ as a noun includes
‘physical or mental maltreatment, often resulting in mental, emotional, sexual, or
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physical injury.’” Id. Thus, the court concluded that the “commonly understood
definition of ‘abuse’ includes violent acts involving physical force within the
definition,” and that a commonsense reading of the statute belied Coccia’s
narrower interpretation. See id.
Following the analysis of our sister circuits, we conclude that a conviction
under 18 U.S.C. § 922(g)(8) does not require that the precise language found in
subsection (C)(ii) must be used in a protective order for it to qualify under the
statute. See Bostic, 168 F.3d at 721-22; Coccia, 446 F.3d at 241-42. When
interpreting a statute, we rely on the “ordinary, contemporary, common meaning”
of its words. Perrin v. United States, 444 U.S. 37, 42, 100 S. Ct. 311, 314 (1979);
United States v. Haun, 494 F.3d 1006, 1009 (11th Cir. 2007). Moreover, we are
not required to interpret a statute “in such a narrow fashion as to defeat what we
conceive to be its obvious and dominating general purpose.” See Miller v.
Amusement Enterprises, Inc., 394 F.2d 342, 350 (5th Cir. 1968)1.
The April 7 order “restrained and enjoined” DuBose “from intimidating,
threatening, hurting, harassing, or in any way putting the plaintiff, Allison T.
DuBose, her daughters and/or her attorney in fear of their lives, health, or
1
Fifth Circuit decisions rendered prior to September 30, 1981 are binding
precedent on the Eleventh Circuit. See Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
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safety[.]” The definition of “hurt” as a verb includes “[t]o inflict with physical
pain.” Webster’s New Collegiate Dict. (1979). Thus, the order’s language
restraining DuBose from “hurting” his wife or her daughters, at the very least,
satisfies subsection (C)(ii)’s requirement that the order explicitly prohibit the use,
attempted use, or threatened use of “physical force” that would reasonably be
expected to cause bodily injury. A narrower interpretation would defeat what we
conceive to be the obvious and general purpose of the statute.
Therefore, we hold that the order to which DuBose was subjected, with its
prohibition on “hurting” his wife or her children, fell within the parameters of 18
U.S.C. § 922(g)(8). Accordingly, we affirm the judgment of conviction on Count
2 (alleging that DuBose unlawfully possessed a firearm while he was subject to a
protective order in violation of Section 922(g)(8)).2
II. Admission of Redacted Transcript
DuBose next argues that the district court erred by denying his motion to
2
DuBose also argues that, because he was not subject to a court order prohibiting
him from purchasing a firearm at the time of his purchase, he is not guilty of Count 1 (knowingly
making a false statement with the intent to deceive a firearms dealer with respect to a fact
material to the lawfulness of the sale, in violation of Section 922(a)(6)). Because we have held
that DuBose was in fact subject to a court order prohibiting him from purchasing a firearm at the
time of his purchase, we also reject his challenge to Count 1, and affirm his conviction on Count
1.
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admit into evidence the entire transcript of the April 7, 2008 divorce hearing,
while admitting the government’s eight-page redacted version instead. He argues
that the entire context in which he was apprised of the order was relevant to
whether he was under a protective order covered by § 922(g)(8). He also argues
that the entire transcript constituted relevant evidence that could have assisted the
jury when making the determination of whether he knowingly violated § 922(a)(6)
when he filled out a form to purchase a firearm.
We review the district court’s rulings on admission of evidence for abuse of
discretion. United States v. Jimenez, 224 F.3d 1243, 1249 (11th Cir. 2000).
“[W]hen employing an abuse-of-discretion standard, we must affirm unless we
find that the district court has made a clear error of judgment, or has applied the
wrong legal standard.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.
2004). Pursuant to Rule 402 of the Federal Rules of Evidence, evidence that is not
relevant is not admissible. Fed. R. Evid. 402.
In the present case, the hearing at issue before Judge Drinkard concerned
the divorce between DuBose and his wife. The transcript therefore covered a
variety of issues, such as property division and custody. The district court allowed
a redacted portion of the hearing’s 110-page transcript into evidence, explaining
that it did not want the jury to consider “irrelevant” issues. The court also allowed
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DuBose to extract any portions of the hearing that were relevant to the protective
order so that he could enter those portions into evidence to establish context.
DuBose did not take this opportunity. The court’s prohibition of irrelevant
evidence complied with Rule 402 and was not clear error. See Fed. R. Evid. 402.
Therefore, the court did not abuse its discretion by refusing to admit the entire
transcript into evidence.
III. Validity of Underlying Protective Order
In his last point of error, DuBose attacks the validity of his underlying
protective order, entered on April 7, 2008, arguing that the order was void when
he purchased the firearm because: (1) the government failed to prove that
Drinkard, a district court judge in Marengo County, had the authority to enter any
orders in a domestic relations case in the Circuit Court of Clarke County; and (2)
any orders issued in the March 25, 2008 hearing before Judge Baxter were void
because they were entered prior to the payment of a filing fee or the case being
filed. We need not address the merits of DuBose’s arguments because we hold
that he cannot challenge the validity of the underlying protective order as a means
of collaterally attacking his 18 U.S.C. § 922(g)(8) prosecution.
Whether a defendant can collaterally attack a protective order is a question
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of law we review de novo. Cf. United States v. Mikell, 102 F.3d 470, 474 (11th
Cir. 1996) (stating that whether a defendant can collaterally attack a prior
conviction is a question of statutory interpretation reviewed de novo).
Whether a defendant may challenge the validity of the underlying state court
protective order in a 18 U.S.C. § 922(g)(8) prosecution is an issue of first
impression in this court. Every other circuit to address this issue, however, has
held that a defendant may not collaterally attack the underlying protective order in
a Section 922(g)(8) prosecution. See United States v. Wescott, 576 F.3d 347, 354
(7th Cir. 2009); United States v. Young, 458 F.3d 998, 1005 (9th Cir. 2006);
United States v. Hicks, 389 F.3d 514, 534 (5th Cir. 2004); United States v. Baker,
197 F.3d 211, 216-17 (6th Cir. 1999). In each of those cases, the court relied on
the Supreme Court’s decision in Lewis v. United States, 445 U.S. 55, 100 S. Ct.
915 (1980). In Lewis, the defendant was convicted of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 1202(a)(1). 445 U.S. at 56, 100 S. Ct.
at 916. The defendant argued that his predicate felony conviction was invalid
because he was not represented by counsel at the time of his conviction. Id. at 56-
58, 100 S. Ct. at 916-18. The Supreme Court disagreed, determining that under
the plain meaning of the statute “the fact of a felony conviction imposes a firearm
disability until the conviction is vacated or the felon is relieved of his disability by
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some affirmative action.” Id. at 60-61, 100 S. Ct. at 918. The Court thus held that
the federal firearms statute intended to prevent all convicted felons from
possessing firearms, even if the underlying “felony conviction ultimately might
turn out to be invalid.” Id. at 62, 100 S. Ct. at 919.
In Baker, the Sixth Circuit applied Lewis’s reasoning to affirm the
conviction of a defendant who possessed a firearm while subject to a domestic
violence protection order. 197 F.3d at 217. Baker attacked his Section 922(g)(8)
conviction on the grounds that the civil proceeding by which he was made subject
to the order did not afford him the constitutional safeguards associated with a
criminal proceeding. Id. at 216. Calling the Supreme Court’s decision in Lewis
“instructive,” the court held that “[r]egardless as to how Baker became subject to a
domestic violence protection order, he attained that status and thus must comply
with § 922(g)(8).” Id. at 217. Because “[a] jury, after a criminal trial featuring all
required constitutional safeguards, found Baker had failed to do so,” the court
upheld Baker’s conviction. Id.
Three other circuits have since agreed. In Hicks, the defendant argued that
his conviction under Section 922 (g)(8) was invalid because the state court that
issued the underlying protective order lacked subject matter jurisdiction. 389 F.3d
at 534. The Fifth Circuit, relying on Lewis, affirmed Hick’s conviction upon
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determining that “nothing 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.” Id. at 535 (emphasis in original). The court then pointed out that “[i]f
Hicks truly believed that [the order] was invalid, he should have objected to the
[county court]’s subject-matter jurisdiction at the original court hearing, appealed
the order for lack of jurisdiction, or sought a writ of mandamus from the local
appellate court before possessing either firearms or ammunition.” Id. at 536
(emphasis in original); accord Young, 458 F.3d at 1005 (holding that defendants
prosecuted under Section 922(g)(8) may only attack the validity of the underlying
protective order on the grounds that they were not provided a hearing of which
they were given “actual notice and an opportunity to participate”); Wescott, 576
F.3d at 353 (determining that, because the protective order against the defendant
was issued after a hearing in compliance with Section 922(g)(8)(A), “[s]o long as
the Order was in effect, [the defendant] could not lawfully possess firearms or
ammunition”).
We follow our sister circuits and hold that protective orders satisfying the
Section 922(g)(8) requirements are analogous to felony convictions for the
purposes of the statute’s restraint on the possession of firearms. Reasoning from
Lewis, the validity of an underlying protective order is therefore irrelevant to a
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defendant’s conviction under Section 922(g)(8). Here, it is uncontested that a
protective order was entered against Defendant DuBose on April 7, 2008. It is
also uncontested that DuBose was present and represented himself at the hearing.
Thus, the requirements that DuBose receive a hearing with actual notice and an
opportunity to respond have been met.
DuBose cites no authority suggesting that an invalid underlying protective
order would nullify his conviction. Moreover, his attempts to distinguish the
relevant precedent fail. At the time it was entered, the protective order against
DuBose had as much force as the defendant’s protective order in Hicks. As with
the Hicks defendant, if DuBose truly believed that the order was invalid, he should
have objected to the court’s subject-matter jurisdiction before possessing either
firearms or ammunition.
Because DuBose purchased a firearm while subject to a domestic violence
protective order issued after a hearing of which DuBose had actual notice and at
which he had an opportunity to respond, the jury properly convicted him under
Section 922(g)(8). Thus, we affirm the district court’s denial of DuBose’s motion
for a judgment of acquittal.
AFFIRMED.3
3
Appellant’s request for oral argument is DENIED.
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