United States v. Spruill

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-50827
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRIAN SCOTT SPRUILL,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before GARWOOD, BARKSDALE, and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Brian Scott Spruill (Spruill) appeals his

guilty plea conviction for violating 18 U.S.C. § 922(g)(8).

Notwithstanding his plea agreement’s waiver of appellate rights to

challenge the conviction on grounds other than the Fifth and Second

Amendments, we vacate and remand because the record clearly

reflects and the district court found that the predicate court

order was not “issued after a hearing of which such person received

actual notice” as required by section 922(g)(8).
 Facts and Proceedings Below

Spruill was charged in a two count indictment with violations

of 18 U.S.C. § 922(g). Each count charged that Spruill on July 20,

1998 “did knowingly possess in and affecting commerce

firearms[sic], to wit: a Largo, 9mm semi-automatic pistol,

manufactured by Star, which had been shipped and transported in

interstate commerce.” Count one alleged that this possession

violated section 922(g)(8) in that at the time Spruill was subject

to a February 11, 1998 order of the County Court at Law of Midland

County, Texas, issued after a hearing of which Spruill had notice

and an opportunity to participate, which restrained him from

harassing, stalking and threatening his intimate partner and her

child and by its terms explicitly prohibits the use, attempted use,

and threatened use of physical force against his intimate partner

and her child. Count two alleged that this possession violated

section 922(g)(3) in that Spruill “is an unlawful user of or

addicted to a controlled substance.”

Spruill filed a motion, and a second motion, to dismiss each

count of the indictment on various grounds. The second motion was

predicated on the district court’s opinion in USA v. Emerson, 46

F.Supp.2d 589 (N.D. Tex. 1999) (which this court subsequently

reversed, USA v. Emerson, 270 F.3d 203 (5th Cir. 2001)), and urged

that sections 922(g)(8) and 922(g)(3) violated the Second and Fifth

Amendments. The supporting memorandum filed with the second motion

2
to dismiss attached a copy of the February 11, 1998 order and

alleged, inter alia:

“Although the boilerplate order issued under these
circumstances was signed by Judge Royal Hart, there was
no evidentiary hearing about the circumstances leading to
the issuance of said order and Defendant never appeared
before said judge. Defendant was not represented by
counsel and could not read the Protective Order presented
to him. Mr. Spruill appeared before Assistant District
Attorney David Watson, who represented the interest of
the Petitioner in that matter, but, who nevertheless,
explained the purpose of the Protective Order and at
least some of its requirements to the Defendant. No
mention about Defendant’s ability to own, possess or
lawfully use a weapon was made at that time and said
Protective Order, while admonishing the Defendant about
other prohibitions required by state law, does not
mention any prohibition of weapon possession of any kind.
The issuance of the Protective Order was a precursor to
the filing of a Petition for Divorce in the state court.”

. . .

“. . . the party potentially subject to the order may
agree to be bound by said order without a hearing of
record before a Judge, and without representation by an
attorney. In the present case, there is no question that
there was not a hearing before Judge Hart, that the
defendant was not admonished with regard to his ability
to possess a gun. Mr. Spruill appeared Pro Se, and was
presented with a form order provided by the Midland
County District Attorneys office where he was told ‘where
to sign,’ if he did not oppose the motion by the State.
(see Protective Order attached as exhibit “B”).”1

1
The state court order is stamped as filed February 11, 1998,
is entitled “Protective Order” and commences as follows:

“ On 11 [handwritten] day of February, 1998, the Court
heard the Application of REBECCA LEA SPRUILL, Applicant,
for a Protective Order.

APPEARANCES

Applicant, REBECCA LEA SPRUILL, appeared in person and by

3
attorney and announced ready.

Respondent, BRIAN SCOTT SPRUILL, appeared in person and
announced ready.

AGREED ORDER

The parties have agreed, as evidenced by their signatures
and subject to the approval of the Court, to the terms
and conditions set below, and such agreement shall be a
part of this Protective Order.

JURISDICTION

The Court, having considered the pleadings and heard the
evidence and argument of counsel, finds that all
necessary prerequisites of the law have been satisfied
and that this Court has jurisdiction over the parties and
the subject matter of this cause.

FINDINGS AND ORDERS

The Court finds that Applicant and Respondent are husband
and wife.
The Court finds that family violence has occurred and
that family violence is likely to occur in the future.
The Court finds that Respondent, BRIAN SCOTT SPRUILL, has
committed family violence. The Court finds that the
following protective orders are for the safety and
welfare and in the best interest of Applicant and other
members of the family or household and are necessary for
the prevention of family violence.
It is ORDERED that Respondent, BRIAN SCOTT SPRUILL, is
prohibited from doing and/or required to do the
following:
PROHIBITED FROM COMMITTING FAMILY VIOLENCE.
FAMILY VIOLENCE IS DEFINED IN SECTION
71.01(b)(2) OF THE TEXAS FAMILY CODE AS ‘AN
ACT BY A MEMBER OF A FAMILY OR HOUSEHOLD
AGAINST ANOTHER MEMBER OF THE FAMILY OR
HOUSEHOLD THAT IS INTENDED TO RESULT IN
PHYSICAL HARM, BODILY INJURY, OR ASSAULT, OR
THAT IS A THREAT THAT REASONABLY PLACES THE
MEMBER IN FEAR OF IMMINENT PHYSICAL HARM,
BODILY INJURY, ASSAULT, OR SEXUAL ASSAULT. . .
.’

4
 . . .

ENGAGING IN CONDUCT DIRECTED SPECIFICALLY
TOWARD A PERSON WHO IS A MEMBER OF THE FAMILY
OR HOUSEHOLD, INCLUDING FOLLOWING THE PERSON,
THAT IS REASONABLY LIKELY TO HARASS, ANNOY,
ALARM, ABUSE, TORMENT, OR EMBARRASS THAT
PERSON.”

The order also specifies various other prohibitions, including
directly communicating with the applicant “except through her
divorce attorney, Tom Morgan”. The last two prohibitions preclude
Spruill from going within 200 yards of the family residence or his
wife’s place of employment or the children’s schools.
The order then grants the wife exclusive possession of the
residence, use and possession of various items of furniture,
fixtures, appliances, personal effects and a particular motor
vehicle, and provides that the order “is effective immediately” and
will continue in force “through 11th [handwritten] February 1999.”
The order concludes “SIGNED the 11 [handwritten] day of Feb
[handwritten], 1998" followed by the judge’s signature and hand
printed name.
There then appears a heading “WARNINGS” which states that,
inter alia, any violation of the order is punishable by contempt
(and otherwise), and concludes “NO PERSON, INCLUDING A PERSON WHO
IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE
OR VIOLATE ANY PROVISION OF THIS ORDER . . . UNLESS A COURT CHANGES
THE ORDER.”
There follows a signed signature line under which is typed
“David Watson Assistant District Attorney.” Below that there is
the typed statement “Approved As To Form Only” followed by a
signature line on which is handwritten “Pro Se” and below which is
typed “Attorney for Respondent.” Below that appears the typed
statement “I have been given a copy of the protective order that
has been filed in this cause. I hereby enter my appearance in this
cause and waive the issuance and service of process.” This is
followed by two signature lines, one before the typed word
“Respondent” and the other before the typed word “Applicant;” the
latter is blank and the former bears Spruill’s signature. There is
no verification (or acknowledgment) of Spruill’s signature. Cf.
Tex. R. Civ. P., Rules 119 (waiver of issuance or service of
process must be verified before a proper officer other than an
attorney in the case and be accompanied by and acknowledge receipt
of a copy of the petition); 120 (“enter an appearance in open
court”); 121 (answer is appearance).
The order is seven pages long, the judge’s signature appearing

5
 The district court held a hearing on the motions to dismiss on

May 7, 1999, and overruled them “without prejudice,” stating “I’m

going to give full consideration to the motion, but I’m going to do

it only after a trial.”

The case was subsequently set for a bench trial June 10, 1999.

On that date the parties appeared before the court and defense

counsel announced “subject to your approval, we have entered into

this conditional plea and we would like to perfect the record by

adducing evidence . . . we would like then to reurge the last

Motion to Dismiss that we previously presented to the Court after

we present that evidence.”

Evidence was then presented. Assistant District Attorney

Watson testified that his office handled protective orders for

indigents (see Tex. Family Code § 82.002(d)(1)), and he had been

the person assigned to do so for the previous two years. He

brought with him the file in the Spruill protective order and

“somewhat” remembered it. He stated that “Spruill came to the

District Attorney’s office, but I don’t believe we ever entered a

courtroom.” He said he “believe[d]” Spruill “mentioned to me that

he couldn’t read,” and indicated “he was going to agree to the

on the sixth page, followed by the “Warnings,” and the seventh page
is that on which the signatures of Watson and Spruill appear.
The order does not purport to prohibit possession of a firearm
or in any way state that such is its effect under state or federal
law, and it is not suggested that the charged possession occurred
in connection with or in relation to any violation or attempted
violation of the order.

6
protective order.” The practice of the District Attorney’s Office

was that the form order was prepared by the “staff;” “[i]f they’re

going to agree to it, discuss it with their attorney or with them,

then we’ll strike out certain things in the canned protective

orders in the computer and add whether or not its agreed or

contested or if there was pro se or whether or not an attorney was

present.” Spruill “agreed with this.” As far as Watson knew,

Spruill did so without “the benefit of a lawyer.” Watson “read

parts of it to him and explained what it meant and what the

implications of the order would be.” Watson “believe[d]” he

“emphasized the fact that the only person that could allow him to

go within 200 yards of the residence, its in the protective order,

or go against any of the orders or protective order was the judge

. . . that Ms. Spruill couldn’t give him authority to come to the

home or whatever”, and stated “I believe I emphasized that. I

recall sitting and talking with Mr. Spruill.” Watson did not

mention any other part of the order read or explained to Spruill.

He further stated “I do recall Mr. Spruill, speaking with him, and

the fact that he couldn’t read was one thing that reminded me of it

and I do attempt whenever there’s an agreed protective order with

a pro se individual to explain the protective order fairly

thoroughly.” Watson agreed that if one in Spruill’s position had

said he didn’t want to sign or agree to the order, or wanted to see

a lawyer or go see the judge about it “they would have been

7
provided an opportunity for that hearing.” He also stated that

“whenever I deal with a pro se respondent, I list the options they

have available, representing themselves, hiring an attorney,

agreeing to an order or default.” Watson also testified:

“I have a handwritten note in the file stating that we
had contacted him and he was going to agree to the order,
some of the conditions, to prepare the agreed order, and
Mr. Spruill would come in and speak to me. When he came
in exactly I don’t recall the time or the exact date, but
in routine practice whenever an agreed order is gone
over, it’s presented right then to the judge.”

Spruill then testified. He responded “no, sir” when asked

“can you read the English language well”, and “yes, sir” when asked

“you just can’t read. Is that correct.” He testified that before

his wife filed for divorce he was called by the District Attorney’s

office and they “told me that they had a paper for me to come down

. . . it was going to be a filing of a protective order on me,” and

“I told them I would come down and take care of that.” He went to

the District Attorney’s office, talked with Watson there and “told

him I would just like to go ahead and sign the order and get it

over with.” When asked if Watson told him that his signing the

protective order would give up certain of his rights, Spruill

responded “Yes, sir. He told me that–well, basically what he told

me was that I wasn’t supposed to be in so close of her or the

school or her mother’s house where she would be staying.” He

testified that he did not ever appear before a judge and that he

did not then have an attorney. Spruill further testified that

8
Watson never told him, and he was unaware, that by virtue of the

protective order he could not possess a handgun or weapon or that

he needed to check federal statutes in that respect.2

The court was presented with the written plea agreement and

attached written “Factual Basis” for it. The plea agreement

provides Spruill would plead guilty to the section 922(g)(8) count

(count one) and the remaining count (count two, section 922(g)(3))

would be dismissed, that the Government would not oppose maximum

points for acceptance of responsibility or move for upward

departure, and that Spruill waived the right to appeal his

conviction and sentence:

“except for the following two matters that were raised
via pre-trial motion and overruled by the Court.[3] First,
the Defendant may appeal the issue of whether 18 U.S.C.
§ 922(g)(8), taking into account the Protective Order at
issue in this case (a true copy of which is part of the
attached Factual Basis as Exhibit A thereto), violates
the Second Amendment and other provisions of the United
States Constitution as set forth in United States v.
Emerson, No. 6:98-CR-103-C (N.D. Tex. March 30, 1998).

2
Watson testified that at the time he was unaware of §
922(g)(8) and did not admonish Spruill in that connection, and that
of the some five judges to whom he presented protective orders he
could not recall that any “admonish[ed] anybody in court that they
would be violating this statute or one like it if they possessed a
firearm.” The prosecution subsequently stated “we will freely
stipulate that we do not have evidence that Mr. Spruill was aware
of the existence of this law or that he specifically knew it was
illegal under a protective order like this one, that it was illegal
to possess a weapon.” There was no evidence Spruill had ever
signed (or saw) a BATF Form 4473 (or similar document) so advising.
3
The motions to dismiss were not actually overruled until
August 13, 1999, though at the June 10, 1999 hearing the district
court indicated that would likely be its ruling.

9
 Second, the Defendant may appeal the issue of whether 18
U.S.C. § 922(g)(8), given the Government’s stipulation
(set forth in the Factual Basis) that it cannot prove
beyond a reasonable doubt that Defendant was aware that
he could not legally possess a weapon, violates the Fifth
Amendment to the United States Constitution.”4

The Factual Basis states that the February 11, 1998 order was

entered that date and was still in effect on July 20, 1998, it

attaches and incorporates a true copy of the entire order, and also

summarizes some of its provisions. It goes on to recite that on

July 20, 1998 Spruill, in the parking lot of a restaurant in

Midland, Texas, got out of his car and carried the 9mm Largo semi-

automatic pistol, which was unloaded, from his car to the car of a

“reporting individual,” and was then arrested.5 It is stated that

this pistol “was manufactured in Spain, and so necessarily would

have had to have been shipped or transported in interstate and

foreign commerce to have arrived in Texas,” and that “DPS tests

indicate that this weapon was operational.”

With respect to how the protective order came about, the

Factual Basis recites

4
The agreement also said it did not preclude challenge to the
conviction or sentence for ineffective assistance of counsel or
certain prosecutorial misconduct.
5
The Factual Basis further recites that the “reporting
individual” had previously traded the Largo to Spruill for another
pistol and on July 17, 1998, in a consensually recorded telephone
call monitored by the DPS, had offered to trade the other pistol
back to Spruill in exchange for the Largo and resolution of an
outstanding debt between the two, Spruill had agreed, and the two
were to meet at the restaurant July 20, 1998 to effectuate the
transaction. In this July 17, 1998 conversation “officers heard
Spruill state an intention to shoot Rebecca Lea Spruill.”

10
 “Defendant appeared before the Court when this Protective
Order was issued, and had the opportunity to be heard on
the matter. Indeed, Defendant signed the Protective
Order acknowledging his receipt of it, and agreed to its
terms.”

Based on the earlier testimony at the hearing, the Government and

defense counsel agreed, and stated in open court, that the first

sentence in the above quoted passage would be changed to read

(after “Defendant”) “came to the District Attorney’s office and

agreed to the order and he had the opportunity to be heard on this

matter had he chosen to.” Later in the hearing the district court

ascertained from Spruill that he agreed to this change, the court

explaining it to him as follows: “There’s a little bit of a change

in the factual basis and the change is that you didn’t go to court

before a judge, that you just signed the protective order in Mr.

Watson’s presence and then left.” After going over the plea

agreement and factual basis and questioning and advising Spruill

and counsel pursuant to Rule 11, Fed. R. Crim. Pro., the district

court accepted the plea and found Spruill guilty of the offense

“subject to my final decision on the issue of constitutionality.”6

On August 13, 1999, the district court issued its opinion and

order overruling Spruill’s motion to dismiss the indictment. U.S.

v. Spruill, 61 F.Supp.2d 587 (W.D. Tex. 1999). Concerning the

protective order, the opinion states in relevant part:

6
The court found the plea “a knowing and voluntary plea
supported by an independent basis in fact containing each of the
essential elements of the offense.”

11
 “The Defendant informed the ADA that he would agree to
the entry of the order. Based on that representation,
the ADA printed a standard restraining order and invited
the Defendant to come sign that order. The Defendant
came in to the ADA’s office for that purpose. The
Defendant informed the ADA that he could not read. The
ADA explained the restraining order to the Defendant. In
particular, the ADA informed the Defendant that he could
not go within a set distance of his spouse, children or
mother-in-law’s home. The ADA did not inform the
Defendant that, upon entry of the order, the Defendant
would not be able to possess a firearm. The ADA was not
aware of this federal law and has never heard a party
admonished to that effect in over one hundred protective
orders he has handled.

The ADA also explained to the Defendant that he could
choose to hire counsel, object to the entry of the order,
and appear before a state court judge. The Defendant
stated that he would agree to the order, signed the
order, and left. Although the language in this
protective order states that the Defendant appeared in
person, the Defendant never appeared before a judge, nor
was a hearing (at least as this Court would define one)
apparently ever held. Despite this, the order purported
to find that family violence had occurred. This
language, however, was contained in the proposed order
which the Defendant signed without protest and the
Defendant did have the opportunity to participate in a
hearing, thus satisfying any procedural due process
concerns.” Id. at 588 (emphasis added).7

7
The district court also stated that “[d]efendant’s wife filed
for a divorce and a restraining order” and that “[t]he Assistant
District Attorney . . . contacted the Defendant to notify him of
the application for a restraining order and a hearing to be held on
same.” Id. We note, however, that there is no evidence a divorce
had actually been filed (as opposed to about to be filed) before
Spruill signed the Protective Order, that Spruill testified this
was “[p]rior to her filing for a divorce”, and that the memorandum
in support of the motion to dismiss alleges that “[t]he issuance of
the Protective Order was a precursor to the filing of a Petition
for Divorce.” There is no evidence that any hearing was ever set
or that Spruill was ever notified of any such setting; nor is there
any evidence that a restraining order–as distinguished from a
protective order–was ever requested or involved, or that there was
then or ever any written application for either; nor is there any

12
 The district court subsequently sentenced Spruill to twenty-

one months’ confinement and three years’ supervised release.

Spruill timely brought this appeal.8 In his initial brief as

appellant Spruill urged that the application to him of section

922(g)(8) violated his rights under the Fifth and Second

Amendments, relying on the district court opinion in United States

v. Emerson, 46 F.Supp.2d 598 (N.D. Tex. 1999). The Government in

appellee’s brief urged that section 922(g)(8) was constitutional

facially and as applied. We held Spruill’s appeal in abeyance

pending our resolution of the Government’s appeal in Emerson.

After issuance of our decision in that appeal, United States v.

Emerson, 270 F.3d 203 (5th Cir. 2001), we requested the parties to

each file a supplemental brief addressing the following questions,

viz:

“(1) Does the evidence at the Rule 11 hearing, as well as
the facts found by the district court in its order dated

evidence that before coming to the District Attorney’s office
Spruill had been contacted or called by an Assistant District
Attorney, as opposed to someone else from that office. We also
note that the Protective Order is not styled as a divorce action
would be (Tex. Family Code § 6.401(a) states “Pleadings in a suit
for divorce or annulment shall be styled ‘In the Matter of the
Marriage of ______ and ______’”) but rather as appropriate for an
independent Protective Order proceeding under Chapter 85 of the
Texas Family Code (the Protective Order is styled “In the Matter Of
Rebecca Lea Spruill, Applicant And Brian Scott Spruill, Respondent
And In the Interest of Minor Children Kelsee West Shelby West”).
8
Because he had been in pre-trial confinement since July 1998
Spruill had served his entire confinement sentence by the time he
filed his initial brief as appellant in this Court.

13
 August 13, 1999, reflect that the predicate state court
order alleged in count one of the indictment was not
‘issued after a hearing’ as provided in 18 U.S.C. §
922(g)(8)(A):

(2) If so, did the district court err in accepting the
plea of guilty to count one, and should this court vacate
the conviction?”

In his supplemental brief, Spruill contends that each such

question should be answered in the affirmative, and that his

conviction should accordingly be vacated. The Government argues

that as Spruill had, but waived, an opportunity to appear before

the state judge and present evidence, any “hearing” requirement of

section 922(g)(8) was satisfied, and that in any event that issue

is not within any exception to the waiver of appeal in Spruill’s

plea agreement.

Discussion

We turn to the issues addressed in the supplemental briefing,

namely: (1) whether the evidence at the Rule 11 hearing and the

facts found by the district court reflect that the predicate

February 11, 1998 order was without the scope of section 922(g)(8)

because it was not “issued after a hearing of which such person

received actual notice” as required by section 922(g)(8)(A);9 and

9
Section 922(g)(8) provides:

“(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 such person had

14
(2) if so, whether the trial court erred by accepting Spruill’s

guilty plea and whether this court should accordingly vacate his

conviction.

1. Initially addressing the second issue, it is undisputed

that if the February 11, 1998 order is not within the class of

orders embraced in paragraph (A) of section 922(g)(8) that

Spruill’s possession of the firearm did not constitute a violation

of section 922(g)(8). Accordingly, if the facts as shown at the

Rule 11 hearing, and as found by the district court, do not reflect

that the order was within the scope of paragraph (A) of section

922(g)(8), then it is clear the district court should not have

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 ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.”

15
accepted the guilty plea. As we said in United States v. Johnson,

194 F.3d 657, 659 (5th Cir. 1999), vacated and remanded, 120 S.Ct.

2193 (2000), prior opinion reinstated with modification, 246 F.3d

749 (5th Cir. 2001):

“A trial court cannot enter judgment on a plea of guilty
unless it is satisfied that there is a factual basis for
the plea. See Fed. R. Crim. P. 11(f). ‘The purpose
underlying this rule is to protect a defendant who may
plead with an understanding of the nature of the charge,
but “without realizing that his conduct does not actually
fall within the definition of the crime charged.”’ United
States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984)
(quoting United States v. Johnson, 546 F.2d 1225, 1226-27
(5th Cir. 1977)). This factual basis must appear in the
record and must be sufficiently specific to allow the
court to determine that the defendant’s conduct was
‘within the ambit of that defined as criminal.’ Id.”

The fact that Spruill’s guilty plea reserved only the

constitutional issues, and not whether the defendant’s conduct

constituted an offense under the statute, neither lessens the

foregoing Rule 11(f) requirement nor precludes reversal on appeal

for failure to meet it. Thus, in Johnson, although we opined that

the defendant, charged with arson under 18 U.S.C. § 844(i), had, by

unconditionally pleading guilty, “waived his as-applied

constitutional challenge to § 844(i)”, id. at 659, we nevertheless

vacated the conviction “[b]ecause the factual basis presented to

the district court fails to establish the interstate commerce

element of 18 U.S.C. § 844(i).” Id. at 662-63. We reaffirmed our

opinion and holding in this respect on remand from the Supreme

Court and also held that vacation was additionally required because

16
“the factual basis for the plea as shown by the record likewise

does not suffice” to establish that the burned “building was being

actively employed for commercial purposes so as to be within the

terms of section 844(i).” Johnson, 246 F.3d at 752. See also

United States v. White, 258 F.3d 374, 380 (5th Cir. 2001)

(“notwithstanding an unconditional plea of guilty, we will reverse

on direct appeal where the factual basis for the plea as shown of

record fails to establish an element of the offense of

conviction”).10

Nor do we conclude that review at this stage is barred by the

waiver of appeal provisions in Spruill’s plea agreement. In White

we noted that a similar appeal waiver–as here, of issues not raised

in this motion to dismiss the indictment–was “insufficient to

accomplish an intelligent waiver of the right not to prosecuted

(and imprisoned) for conduct that does not violate the law” and

“[w]e reject[ed] the government’s waiver argument, especially since

failure to do so risks depriving a person of his liberty for

conduct that does not constitute an offense.” Id. at 380. We are

cited to no opinion of this court which has enforced such an appeal

waiver in analogous circumstances.

10
The fact that the particular factual and legal scenario here
presented does not appear to have been addressed in any other
reported opinion does not preclude the asserted error in this
respect from being sufficiently clear or plain to authorize
vacation of the conviction on direct appeal. The factual and legal
scenarios in Johnson and White were each at least as novel.

17
 2. Accordingly, it is appropriate for us to rule on the first

issue presented in the supplemental briefing, essentially whether

the predicate February 11, 1998 order was not “issued after a

hearing of which such person received actual notice”, and was hence

not within the scope of section 922(g)(8)(A).

As the government recognizes, “[t]he term ‘hearing’ in its

legal context undoubtedly has a host of meanings.” United States

v. Florida East Coast Railway Company, 93 S.Ct. 810, 818 (1973).

The same general thought is reflected in United States v.

Tannehill, 49 F.3d 1049, 1053 (5th Cir. 1995), where, addressing

the meaning of the term “hearing” in the Speedy Trial Act, we

stated:

“The Act does not define what constitutes a ‘hearing’, .
. . In other contexts, ‘hearing’ has been defined in
various ways. See, e.g., Buxton v. Lynaugh, 879 F.2d
140, 144-45 (5th Cir. 1989) (‘hearing’, as used in habeas
corpus statute, 28 U.S.C. § 2254(d), ‘does not
necessarily require an evidentiary hearing and . . .
factfinding based on a record can in some circumstances
be adequate’), cert. denied, 497 U.S. 1031, 110 S.Ct.
3295, 111 L.Ed.2d 803 (1990); State v. Orris, 26 Ohio
App.2d 87, 269 N.E.2d 623, 624 (1971) (the term ‘hearing’
suggests ‘to “give audience to”’); Black’s Law Dictionary
721 (6th ed. 1990) (defining ‘hearing’ as ‘[a] proceeding
of relative formality (though generally less formal than
a trial), generally public, with definite issues of fact
or law to be tried, in which witnesses are heard and
evidence presented’).”11

11
With respect to this Black’s Law Dictionary definition, see
also Willimatic Car Wash Inc. v. Zoning Board, 247 Conn. 732, 724
A2d 1108, 1110 (1999):

“Section 8-8(N) does not specify the nature of the
hearing that it requires. We begin, therefore, by

18
Similarly, “hearing” is not defined in 18 U.S.C. § 921(a) (defining

terms for purposes of chapter 44) or in chapter 1 of Title 18.

It is evident from the record, the district court’s findings

and the “Agreed Order” recitals in the protective order (see note

1 supra), that that order was issued as an “Agreed Order” pursuant

to section 85.005 of the Texas Family Code,12 without process having

been issued or served, without any time or place for hearing having

considering the term ‘hearing’ according to its common,
generally understood meaning. [citation]. We
consistently have acknowledged the definition of a
hearing provided in Black’s Law Dictionary, as ‘[a]
proceeding of relative formality . . . generally public,
with definite issues of fact or of law to be tried, in
which witnesses are heard and evidence presented’ . . .“
12
Section 85.005 provides as follows:

Ҥ 85.005. Agreed Order

(a) To facilitate settlement, the parties to a proceeding
may agree in writing to the terms of a protective order
as provided by Section 85.021. An agreement under this
subsection is subject to the approval of the court.
(b) To facilitate settlement, a respondent may agree in
writing to the terms of a protective order as provided by
Section 85.002, subject to the approval of the court.
The court may not approve an agreement that requires the
applicant to do or refrain from doing an act under
Section 85.022.
(c) If the court approves an agreement between the
parties, the court shall render an agreed protective
order that is in the best interest of the applicant, the
family or household, or a member of the family or
household.
(d) An agreed protective order is not enforceable as a
contract.
(e) An agreed protective order expires on the date the
court order expires.”

19
previously been set, and, thus necessarily, without any notice of

hearing having been issued or been received by Spruill, without

Spruill ever appearing before the judge, without any presentation

of evidence to the judge and without any hearing. The special

procedure contemplated by section 85.005 is in contrast to those

required in the Texas Family Code provisions for other protective

orders, which require issuance and service of notice of the

application, sections 82.042, 82.043, that the court set a date and

time for hearing, section 84.001, that the notice of application

show the date, time and place of the hearing, section 82.041, that

“[a]t the close of a hearing” the court “shall” make findings as to

whether family violence had occurred and is likely to occur in the

future and, if so, “shall render a protective order,” section

85.001, and that a protective order may be issued “on a respondent

who does not attend a hearing if the respondent received service of

the application and notice of the hearing.” Section 85.006.13 Here

no hearing was ever set and Spruill received no notice of any

hearing.

13
There are also procedures for temporary “ex parte” protective
orders which may be issued “without further notice to” the
respondent “and without a hearing” if “the court finds from the
information contained in an application . . . that there is a clear
and present danger of family violence,” § 83.001, such orders to
remain in effect “not to exceed 20 days,” subject to being
“extended for additional 20 day periods.” § 83.002. The order in
question here is obviously not such an order (and such orders are
clearly not within § 922(g)(8)(A), see United States v. Emerson,
270 F.3d 203, 211 n.2 (5th Cir. 2000)).

20
 Significantly, the court’s approval of the order agreed to out

of court by Spruill under section 85.005 “to facilitate settlement”

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. In Emerson we noted Second Amendment concerns

respecting section 922(g)(8), but concluded that where the state

law and procedures were such that the order should not issue unless

the issuing court actually concluded that absent the order there

was a realistic threat of imminent physical injury to the protected

party, such concerns were not controlling, for “[i]n such a case,

we conclude that the nexus between firearm possession by the party

so enjoined and the threat of lawless violence, is sufficient,

though likely barely so, to support the deprivation, while the

order remains in effect, of the enjoined party’s Second Amendment

right to keep and bear arms.” Id. at 264. Where the court,

without any setting or hearing and without the parties being before

it, merely approves and issues an order because the parties have

agreed to it “to facilitate settlement” and it “is in the best

interest of the applicant, the family or household, or a member of

the family or household” (section 85.005), there would be a real

question as to whether the requisite nexus has been established.

As the court explained in Janus Films Inc. v. Miller, 801 F.2d 578,

583 (2d Cir. 1986):

21
 “. . . With a true ‘consent judgment’ all of the relief
to be provided by the judgment and all of the wording to
effectuate that relief is agreed to by the parties. The
court makes no determination of the merits of the
controversy or of the relief to be awarded. With a
‘settlement judgment’ the parties have agreed on the
components of a judgment, including the basis aspects of
relief, but have not agreed on all the details or the
wording of the judgment. The components of the agreement
are usually reported to the court on the record. As with
a consent judgment, the judge makes no determination of
the merits of the controversy. With respect to relief,
however, the judge’s role in a settlement judgment is
slightly broader. Since the parties have agreed only
upon the basic aspect of relief, the judge is obliged to
determine the detailed terms of the relief and the
wording of the judgment. In determining the details of
relief, the judge may not award whatever relief would
have been appropriate after an adjudication on the
merits, but only those precise forms of relief that are
either agreed to by the parties . . . or fairly implied
by their agreement.

. . .

In deciding whether to approve agreements calling for
entry of either a consent judgment or a settlement
judgment, a court normally has only a limited role so
long as the dispute affects only private interests. See
United States v. City of Miami, 614 F.2d 1322, 1330 (5th
Cir. 1980). Though the judge does not ‘merely sign on
the line,’ United States v. City of Miami, 664 F.2d 435,
440 (5th Cir. 1981), he or she normally makes only the
minimal determination of whether the agreement is
appropriate to be accorded the status of a judicially
enforceable decree.” (Emphasis added)

Similarly, in Commonwealth v. Davis, 531 Pa. 272, 612 A2d 426, 429

(1992), the court stated:

“We have held in the past, and we do so again, that 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,

22
 is not a hearing.”

See also, e.g., Willimatic Car Wash, Inc. supra, 724 A.2d at 1113-

14 (announcement of zoning appeal settlement at pretrial

conferences before court, with court ascertaining that all agreed,

and subsequent enforcement evidentiary hearing, did not meet

requirement of a statute requiring that court action on zoning

appeal be “after a hearing”).

The district court held that the entry of the February 11,

1998 order did not deny Spruill procedural due process because he

did not have to sign and consent to it and had he not done so a

hearing would have been set and he would have had notice thereof

and an opportunity to participate and present evidence. 61 F.Supp.

at 588.14 But the issue we address is not whether the state court

14
The district court cited in this connection United States v.
Falzone, 1998 W.L. 351471 (D. Conn. 1998), a § 922(g)(8)
prosecution in which the defendant did not claim that the predicate
state court order was issued without a hearing, or that he did not
have adequate notice of the hearing, but rather that “he did not
receive an opportunity to participate in the state court hearing at
the conclusion of which the protection order was issued against
him.” The defendant appeared in person and with his lawyer at the
hearing, and his lawyer “had the opportunity to raise objections to
the entry of the protective order.” The only contention in the
federal prosecution was that defendant had had inadequate time to
consult with his lawyer prior to the latter’s “‘snap’ decision not
to contest the entry of the protective order.” It is evident that
no request for a recess or continuance was made in the state
proceedings, and the district court found that the lawyer’s action
“was certainly reasonable.” It concluded that the protective order
hearing was one “at which” the defendant “had an opportunity to
participate” within the meaning of § 922(g)(8)(A), and that the
entry of the protective order did not violate defendant’s
procedural due process rights. Here, however, there was no hearing
and no notice of hearing, Spruill did not appear before the court

23
order was itself valid or its terms enforceable against

Spruill–that order does not address firearm possession by Spruill

and his possession of the firearm did not violate the order.

Rather, the relevant issue is whether the protective order

here–issued under section 85.005 without any prior setting or

hearing and without the parties being before it–is within the scope

of section 922(g)(8)(A)’s requirement that the order have been

“issued after a hearing of which such person received actual

notice.” Obviously, the mere fact that the protective order may

itself be enforced without violating the respondent’s procedural

due process rights does not mean that it is within the scope of

section 922(g)(8)(A). For example, once a respondent receives

proper notice of a temporary protective order against him that has

been issued without prior notice to him, that order can, consistent

with due process, thereafter be enforced against him even though he

had no notice prior to its entry. Yet such an order is plainly

outside the scope of section 922(g)(8)(A). We believe that section

922(g)(8)(A) is best understood as not directed only to procedural

due process concerns but as well to the concept that federal

legislation should not affix to state court domestic relation

protective orders the collateral effect of imposing serious federal

felony penalties for conduct not violative of the order itself or

otherwise illegal, unless a judge has conscientiously indeed

and was not represented by counsel.

24
concluded, after an actual hearing, that such was reasonably

necessary to prevent otherwise likely conduct as described in

section 922(g)(8)(B) and (C), as opposed to the judge merely

approving without an actual hearing an order agreed to by parties

out of court “to facilitate settlement,” a process in which, as

stated in Janus Films, supra, the judge “normally has only a

limited role,” generally “makes no determination of the merits,”

and “normally makes only the minimal determination of whether the

agreement is appropriate to be accorded the status of a judicially

enforceable decree.”

The government urges that “hearing” as used in section

922(g)(8)(A) means “an opportunity to be heard, to present one’s

side of the case, or to be generally known or appreciated,” one of

the definitions given in Webster’s Collegiate Dictionary 535 (10th

ed. 1996).15 We decline to adopt this definition. For the reasons

15
This definition is cited in United States v. Wilson, 159 F.3d
280, 292 (7th Cir. 1998), in connection with the court’s rejection
of the contention in a § 922(g)(8) prosecution that the trial court
erred by refusing defendant’s two requested instructions which
stated that “a hearing includes a defendant’s right to be heard at
a meaningful time and in a meaningful manner” and that “an
opportunity to participate at a hearing includes the defendant’s
right to a fair and meaningful opportunity to present his defense,”
the Seventh Circuit concluding that these instructions were
adequately covered in the court’s charge which required the jury to
find that “[t]he Order of Protection was issued after a hearing of
which defendant received actual notice” and that “[d]efendant had
an opportunity to participate at said hearing.” Id. at 291.
Wilson, the defendant in that case, also contended that he was
entitled to acquittal “because the hearing he was given [on the
protective order] did not meet the requirements of the Due Process
Clause,” but the Seventh Circuit rejected that contention. Id. at

25
stated, and particularly as applied in this case, it would not

address the hearing concerns which we believe are implicit in

section 922(g)(8)(A), and might well raise serious Second Amendment

issues. Moreover, the government’s proffered definition is

obviously not directed primarily at judicial (or even quasi-

judicial) proceedings but extends as much to purely social or other

non-governmental situations (e.g., “to be generally known or

appreciated”). In Florida East Coast Railway the Supreme Court

289-90. Its recital of the facts reflects that Wilson’s wife (or
former wife) had obtained an ex parte emergency protective order
against Wilson and this was served on Wilson, the order stating
that a hearing would be held on a plenary protection order on
September 1, at 1 p.m., and thereafter Wilson, his wife and her
attorney appeared in court on that day and time. Wilson, pro se,
then filed a motion to vacate a default dissolution of marriage
previously entered by the judge, Hill, and a motion for Judge Hill
to recuse himself. Both motions were granted “and Judge David
Correll took over the case. Wilson, Thomas [the wife’s lawyer] and
Judge Correll then retired to Judge Correll’s chambers for the
scheduled hearing on the entry of a plenary order of protection .
. . against Wilson while Angela [the wife] and Wilson’s mother . .
. waited outside.” The “meeting in Judge Correll’s chambers lasted
no more than ten minutes. During the meeting, Judge Correll
explained the proposed order of protection to Wilson, who indicated
he did not have a problem with any of its terms.” Id. at 284. In
rejecting the “Due Process” challenge to the order, the Seventh
Circuit stated that “Wilson had notice of the hearing that took
place on September 1,” that he was afforded an “opportunity at the
hearing” before Judge Correll to present reasons why the order
should not issue, and “that Wilson, although proceeding pro se at
the time, had successfully persuaded another judge to vacate a
default divorce that had been entered and then recuse himself from
the case. Wilson was thus competent to lodge an objection to the
protective order, and he was given the ability to do so. This is
all that due process requires . . .” Id. at 290. We note in
passing 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.

26
gave “a broad definition of the term ‘hearing’”, which did not

include the right to present evidence orally, cross-examine

witnesses or present oral argument, because “the term was used in

granting authority to the Commission to make rules and regulations

of a prospective nature” (id. 93 S.Ct. at 818-19) which were of a

general character applicable to numerous parties (id. at 820). The

Court there specifically distinguished other of its decisions as to

what constituted a “hearing” on the basis that they involved

“‘quasi-judicial’ proceedings.” Id. at 819, 820. Here, section

922(g)(8)(A) is plainly directed to judicial proceedings, pointing

to a narrower, rather than a broader, meaning of “hearing.”

Further, the government’s suggested definition of hearing would in

essence have section 922(g)(8)(A) say that an opportunity for a

noticed hearing must have been afforded, or that the order be one

that was issued after the person had been afforded the opportunity

to be heard on actual notice with right to participate. But, that

is not what section 922(g)(8)(A) says. What section 922(g)(8)(A)

actually says is that the order must be one “issued after a hearing

of which such person received actual notice, and at which such

person had an opportunity to participate.” The ordinary, natural

meaning of this is that there must have been an actual hearing–as

we said in Emerson, 270 F.3d at 261, and as the district court

stated here (“[d]efendant never appeared before a judge, nor was a

hearing (at least as this court would define one) apparently ever

27
held,” 61 F.Supp.2d at 588). See also Willimatic Car Wash, Inc.,

724 A2d at 1110, as to the “common, generally understood meaning”

of “hearing” (quoted in note 11 supra). Moreover, the wording of

section 922(g)(8)(A) likewise expressly requires that the defendant

have “received actual notice” of the hearing, which necessarily

means 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 been held at that time and place.

None of these things occurred here.

In construing section 922(g)(8)(A) we are likewise influenced

by two other considerations to give it a narrower rather than a

broader scope. First, the scope of a criminal statute, unless it

is clear and unambiguous (an attribute the government does not

claim for section 922(g)(8)(A)), is to be strictly, and not

expansively, construed. See Jones v. United States, 120 S.Ct.

1904, 1912 (2000).16 A narrower, rather than a broader,

construction of section 922(g)(8)(A) is likewise indicated because

16
In Jones the Court stated:

“We have instructed that ‘ambiguity concerning the ambit
of criminal statutes should be resolved in favor of
lenity,’ Rewis v. United States, 401 U.S. 808, 812, 91
S.Ct. 1056, 28 L.Ed.2d 493 (1971), and that ‘when choice
has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we
choose the harsher alternative, to require that Congress
should have spoken in language that is clear and
definite,” United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 97 L.Ed. 260
(1952).” Id.

28
that enactment affixes to state court domestic relations orders the

collateral effect of imposing serious federal felony penalties for

conduct not violative of the order itself or otherwise illegal

(indeed even for conduct which the order might expressly

authorize), and hence intrudes into the regulation of domestic

relations and court orders related thereto that are paradigmatic

areas of state concern and control, all with only the most remote

and attenuated relation to interstate commerce. To avoid expanding

that intrusion the class of orders covered by section 922(g)(8)(A)

should be narrowly, not broadly, construed under the principle that

“unless Congress conveys its purpose clearly, it will not be deemed

to have significantly changed the federal-state balance.” United

States v. Bass, 92 S.Ct. 515, 523 (1971). See also Jones at 1912

(quoting Bass in this respect).

For the foregoing reasons, we conclude that the February 11,

1998 order was not one entered “after a hearing of which” Spruill

“received actual notice” and accordingly was not within the scope

of section 922(g)(8).

The judgment of conviction is therefore vacated and the cause

is remanded for proceedings consistent herewith.

VACATED and REMANDED

29