339 F.3d 267 (5th Cir. 2003), 02-41428, U.S. v. Banks

Docket Nº:02-41428
Citation:339 F.3d 267
Party Name:U.S. v. Banks
Case Date:July 15, 2003
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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339 F.3d 267 (5th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellant,


Eric BANKS, Defendant-Appellee.

No. 02-41428.

United States Court of Appeals, Fifth Circuit

July 15, 2003

Alan Reeve Jackson, Asst. U.S. Atty. (argued), Tyler, TX, for Plaintiff-Appellant.

Lisa Beaird Shoalmire (argued), Norton Burgess, Texarkana, TX, for Defendant-Appellee.

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

Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit Judges.

KING, Chief Judge:

Defendant-Appellee Eric Banks was charged with five counts of possession of a firearm while subject to a restraining order in violation of 18 U.S.C.§ 922(g)(8) (2000). The district court dismissed these counts because it found that the restraining order to which Banks was subject was not issued after a "hearing," as § 922(g)(8)(A) requires. The United States now appeals the dismissal of the counts, arguing that Banks did receive a "hearing" within the meaning of § 922(g)(8)(A). We agree, and thus we reverse.


A. Facts

The facts are, for the most part, undisputed. The prosecution in this case arose out of the investigation of an explosion at a trailer home owned by Alisha Barrington in Atlanta, Texas, in January 2002. When Barrington opened the door to enter her trailer home, an explosive device detonated, destroying much of the trailer, knocking Barrington to the ground, and killing her cat. 1 The local police, joined by agents

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from the Bureau of Alcohol, Tobacco, and Firearms (collectively "the police"), concluded that the explosive device was constructed from a metal pipe.

The police investigation soon focused on Defendant-Appellee Eric Banks, Barrington's ex-boyfriend who had previously lived with her. The police visited Banks at his home and asked for consent to search his home and his truck. Banks gave consent, and the police found material implicating Banks in the explosion, including electrical connections for splicing wires and a receipt for electrical supplies and a pipe. The police also found two firearms. The police then obtained a warrant to search Banks's home and his truck. During the warrant search and the search accompanying Banks's subsequent arrest, the police found two other firearms, as well as other evidence implicating Banks in the explosion.

At the time of the explosion, Banks was subject to a temporary protective order obtained by Barrington. On August 1, 2001, after her relationship with Banks ended and Banks threatened her personal safety in numerous ways, 2 Barrington filed an application for a temporary protective order through the Cass County, Texas, District Attorney's Office. Barrington verified the application under oath. The application contained a statement of abuse, which detailed Banks's threats and physical and emotional abuse. A deputy sheriff served Banks with notice, advising him of a hearing scheduled for August 13. Banks, through his attorney, postponed the hearing at least once.

The Assistant District Attorney on the case then became worried for Barrington's safety and obtained a temporary ex parte protective order on October 10. 3 The temporary ex parte order, which lasted for fourteen days, explicitly prohibited Banks from possessing a firearm. Banks was served with a copy of the temporary ex parte order on October 15, when he was in court on charges of making terroristic threats. The presiding district judge, Judge Leon Pesek, gave Banks the ex parte order and advised him that a hearing on the application for the temporary protective order was set for October 22.

On October 22, Banks appeared in court and consented to an agreed temporary protective order. Judge Jack Carter was the presiding judge that day. There is conflicting evidence about who was in court that day. Barrington testified at the hearing on Banks's motion to dismiss the federal indictment that she and the Assistant District Attorney were present, while defense counsel stated that only he, Banks, and the Assistant District Attorney were present. The parties simply informed the court that they had reached a settlement. No witnesses were called and no evidence was presented other than the protective order itself. Banks later signed the agreed order in his attorney's office. Banks's attorney forwarded the signed order to the Assistant District Attorney, who signed the order and forwarded it to Judge Pesek. Judge Pesek then signed the order in his chambers outside the presence of either of the parties and returned it to the District Attorney's office for filing. The agreed order specifically stated that

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Banks could not possess a firearm while subject to the order.

B. Procedural History

Banks was charged with five counts of possession of a firearm 4 while subject to a restraining order in violation of 18 U.S.C. § 922(g)(8) (2000) and one count of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (2000). 5

Banks filed a motion to dismiss the first five counts of the indictment, arguing that he was not subject to a court order issued after a "hearing," as 18 U.S.C. § 922(g)(8)(A) requires. The United States initially opposed the motion, arguing that the matter could not be determined pretrial. The district court agreed and advised the parties it would deny the motion. But, the United States then agreed to waive its opposition to the pretrial determination. The district court held an evidentiary hearing on the motion.

The district court entered an opinion and order dismissing the first five counts of the indictment based on 18 U.S.C. § 922(g)(8). The district court held that the agreed order was not issued after a "hearing" within the meaning of § 922(g)(8)(A). The district court read United States v. Spruill, 292 F.3d 207 (5th Cir. 2002), to require a hearing where evidence is presented and witnesses are called, so that an uncontested order could not be the basis of a § 922(g)(8) prosecution. 6

The United States now appeals, arguing that Banks received a hearing within the meaning of 18 U.S.C. § 922(g)(8)(A).


A challenge to an indictment based on the legal sufficiency of uncontested facts is an issue of law reviewed de novo. See United States v. Moore, 73 F.3d 666, 668 (6th Cir. 1996) (using the de novo standard to review a motion to dismiss an indictment based on undisputed facts).


The counts of the indictment at issue were based on 18 U.S.C. § 922(g)(8), which states:

(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

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(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 ... possess in or affecting commerce[ ] any firearm or ammunition ....

18 U.S.C. § 922(g)(8) (2000) (emphasis added). The only portion of § 922(g)(8) at issue in this appeal is the requirement in subsection (A) that the court order be "issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate." Id.

The question before us is thus whether the process leading up to the agreed temporary protective order 7 in this case qualifies as a "hearing." The statute itself does not define the term "hearing." Our key case addressing the "hearing" requirement is United States v. Spruill. See 292 F.3d 207 (5th Cir. 2002). In that case, Spruill argued that he did not receive a hearing as § 922(g)(8)(A) requires. Id. at 214. The order at issue was an agreed protective order that was issued even though Spruill never appeared before a judge and no evidentiary hearing was held. See id. at 210-11. Further, Spruill was not represented by counsel and was illiterate. See id. Spruill went to see the Assistant District Attorney on the case, who explained the purpose of the protective order to Spruill and told him where to sign if he agreed to the order. See id. Spruill signed the agreed order and it was forwarded to a judge. See id.

The Spruill court determined that this process did not meet the requirements of § 922(g)(8)(A). See id. at 215-21. The court noted that "no hearing was ever set and Spruill received no notice of any hearing." Id. at 217. The court also noted that Spruill never appeared before a judge, stating that "the court's approval of the order agreed to out of court ... clearly does not carry with it the same...

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