292 F.3d 207 (5th Cir. 2002), 99-50827, U.S. v. Spruill

Docket Nº:99-50827
Citation:292 F.3d 207
Party Name:U.S. v. Spruill
Case Date:May 15, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 207

292 F.3d 207 (5th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Brian Scott SPRUILL, Defendant-Appellant.

No. 99-50827

United States Court of Appeals, Fifth Circuit

May 15, 2002

Joseph H. Gay, Jr., Asst. U.S. Atty., Angela S. Raba, San Antonio, TX, for Plaintiff-Appellee.

Page 208

Evers Jason Leach, Odessa, TX, for 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 598 (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 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

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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

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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 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

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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 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 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

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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, 1999 WL 181663, No. 6:98-CR-103-C (N.D.Tex. March 30, 1998). 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...

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