270 F.3d 203 (5th Cir. 2001), 99-10331, United States v Emerson

Docket Nº:99-10331
Citation:270 F.3d 203
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellant, v. TIMOTHY JOE EMERSON, Defendant-Appellee.
Case Date:October 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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270 F.3d 203 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellant,


TIMOTHY JOE EMERSON, Defendant-Appellee.

No. 99-10331

United States Court of Appeals, Fifth Circuit

October 16, 2001

Revised November 2, 2001

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

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

The United States appeals the district court's dismissal of the indictment of Defendant-Appellee Dr. Timothy Joe Emerson (Emerson) for violating 18 U.S.C. § 922(g)(8)(C)(ii). The district court held that section 922(g)(8)(C)(ii) was unconstitutional on its face under the Second Amendment and as applied to Emerson under the Due Process Clause of the Fifth Amendment. We reverse and remand.

Facts and Proceedings Below

On August 28, 1998, Sacha Emerson, Emerson's wife, filed a petition for divorce in the 119th District Court of Tom Green County, Texas. The petition also requested, inter alia, a temporary injunction enjoining Emerson from engaging in any of twenty-nine enumerated acts. On September 4, 1998, Judge Sutton held a temporary orders evidentiary hearing. Sacha Emerson was represented by counsel while Emerson appeared pro se. There is no evidence that Emerson was unable (financially or otherwise) to retain counsel for the hearing or that he desired representation by counsel on that occasion. He announced ready at the beginning of the September 4 hearing. Almost all of Sacha Emerson's direct testimony concerned financial matters, but the following relevant

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exchange took place on direct examination by her attorney:

Q You are here today asking the Court for temporary orders regarding yourself and your daughter; is that correct?

A Yes.

Q You have asked in these restraining orders regarding Mr. Emerson in that he not communicate with you in an obscene, vulgar, profane, indecent manner, in a coarse or offensive manner?

A Yes.

Q He has previous to today threatened to kill you; is that correct?

A He hasn't threatened to kill me. He's threatened to kill a friend of mine.

Q Okay. And he has threatened - he has made some phone calls to you about that?

A Yes.1

Emerson declined an opportunity to cross-examine Sacha and presented no evidence tending to refute any of her above quoted testimony or to explain his conduct in that respect. In his testimony he stated in another connection, among other things, that he was suffering from "anxiety" and was not "mentally in a good state of mind."

On September 14, 1998, Judge Sutton issued a temporary order that included a "Temporary Injunction" which stated that Emerson "is enjoined from" engaging in any of twenty-two enumerated acts, including the following:

"2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person."

"4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party."

"5. Threatening Petitioner or a child of either party with imminent bodily injury."

The order provides that it "shall continue in force until the signing of the final decree of divorce or until further order of this court." The September 14, 1998 order did not include any express finding that Emerson posed a future danger to Sacha or to his daughter Logan.2 There is nothing to indicate that Emerson ever sought to modify or challenge any of the provisions of the September 14, 1998 order.

On December 8, 1998, the grand jury for the Northern District of Texas, San Angelo division, returned a five-count indictment against Emerson. The government moved to dismiss counts 2 through 5, which motion the district court subsequently

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granted.3 Count 1, the only remaining count and the count here at issue, alleged that Emerson on November 16, 1998, unlawfully possessed "in and affecting interstate commerce" a firearm, a Beretta pistol, while subject to the above mentioned September 14, 1998 order, in violation of 18 U.S.C. § 922(g)(8). It appears that Emerson had purchased the pistol on October 10, 1997, in San Angelo, Texas, from a licensed firearms dealer. Emerson does not claim that the pistol had not previously traveled in interstate or foreign commerce. It is not disputed that the September 14, 1998 order was in effect at least through November 16, 1998.

Emerson moved pretrial to dismiss the indictment, asserting that section 922(g)(8), facially and as applied to him, violates the Second Amendment and the Due Process Clause of the Fifth Amendment. He also moved to dismiss on the basis that section 922(g)(8) was an improper exertion of federal power under the Commerce Clause and that, in any case, the law unconstitutionally usurps powers reserved to the states by the Tenth Amendment. An evidentiary hearing was held on Emerson's motion to dismiss.

The district court granted Emerson's motions to dismiss. Subsequently, the district court issued an amended memorandum opinion reported at 46 F.Supp.2d 598 (N.D. Tex. 1999). The district court held that dismissal of the indictment was proper on Second or Fifth Amendment grounds, but rejected Emerson's Tenth Amendment and Commerce Clause arguments.

The government appealed. Emerson filed a notice of cross-appeal, which was dismissed by this Court. The government challenges the district court's dismissal on Second and Fifth Amendment grounds. Emerson defends the district court's dismissal on those grounds and also urges that dismissal was in any event proper under the Commerce Clause and on statutory grounds.


I. Construction of 18 U.S.C. § 922(g)(8)

18 U.S.C. § 922 provides in relevant part:

"(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 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; or


to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition;

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or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

Emerson argues that section 922(g)(8)(C)(ii) should be construed to require that the particular predicate court order include an explicit finding that the person enjoined posed a credible threat of violence to his spouse or child. Emerson further argues that the statute must also be read to require that the predicate order be supported by sufficient evidence before the court entering it to sustain such a finding, so that the court in the criminal prosecution must examine the record in the proceeding before the court entering the predicate order and must acquit the defendant in the criminal case if the evidence before the court entering the predicate order was not sufficient to sustain such a finding. It is, of course, our duty to construe a statute so as to avoid any serious constitutional questions. However, the statute must be susceptible to that construction, i.e. our construction must be fairly possible; the duty to avoid constitutional questions is not a license to rewrite the statute. Jones v. United States, 119 S.Ct. 1215, 1222 (1999); Feltner v. Columbia Pictures Television, Inc., 118 S.Ct. 1279, 1283 (1998); United States v. Albertini, 105 S.Ct. 2897, 2902 (1985). "If the statutory language is unambiguous, in the absence of 'a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.'" Russello v. United States, 104 S.Ct. 296, 299 (1983) (quoting United States v. Turkette, 101 S.Ct. 2524, 2527 (1981)). In addition, if uncertainty remains after an examination of the statute's text, its legislative history and the policies it advances, the rule of lenity requires this uncertainty to be resolved in favor of Emerson. United States v. Prestenbach, 230 F.3d 780, n.23 (5th Cir. 2000).

Turning first to Emerson's second statutory argument, there is nothing in the text of the statute to support it. Moreover, it is contrary to uniform construction of section 922(g) and its predecessors under which the courts have construed this and other similar subsections of section 922. See, e.g., Lewis v. United States, 100 S.Ct. 915 (1980); United States v. Chambers, 922 F.2d 228, 232-40 (5th Cir. 1991). Just as Lewis observed that "nothing [in the statutory text] suggests any restriction on the scope of the term 'convicted,'" id. at 918, so also nothing in section 922(g)(8) suggests that the validity of the particular predicate court order may be inquired into in the section 922(g)(8) criminal prosecution. Moreover, this is consistent with the long standing federal rule that violation of an injunction that is subsequently invalidated may, at least...

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