369 F.3d 1039 (8th Cir. 2004), 03-3275, United States v. Lippman

Docket Nº:03-3275.
Citation:369 F.3d 1039
Party Name:UNITED STATES of America, Plaintiff--Appellee, v. Robert F. LIPPMAN, Defendant--Appellant.
Case Date:May 27, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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369 F.3d 1039 (8th Cir. 2004)

UNITED STATES of America, Plaintiff--Appellee,


Robert F. LIPPMAN, Defendant--Appellant.

No. 03-3275.

United States Court of Appeals, Eighth Circuit

May 27, 2004

Submitted: March 11, 2004.

Rehearing and Rehearing En Banc Denied July 29, 2004.

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Leonard H. MacPhee, argued, Denver, CO (Richard S. Vermeire, on the brief), for appellant.

Cameron W. Hayden, Bismarck, ND, argued, for appellee.

Before MURPHY, SMITH, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

Robert F. Lippman was convicted by a jury of possession of a firearm by an individual subject to a domestic violence restraining order, in violation of 18 U.S.C. § 922(g)(8). After granting a downward departure, the district court 1 sentenced Lippman to eight months imprisonment. On his appeal, Lippman argues that the district court should have given two jury instructions he requested and that § 922(g)(8) is unconstitutional. We affirm.

Lippman and Edward Johannesen attempted to drive into Canada from Portal, North Dakota shortly after midnight on May 3, 2002, but they were denied entry. United States customs agents suspected

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that the two were drunk or under the influence of some other substance, and they conducted a routine customs inspection. They discovered two loaded firearms in Johannesen's van. A 9mm KELTEC pistol was found under the front passenger seat where Lippman was sitting, and a .410 gauge revolver was discovered in a green duffle bag behind that seat. Johannesen told the agents that the firearms were his and later produced receipts showing that he had purchased them. Lippman admitted that he owned the green duffle bag.

After the firearms were discovered, customs officials contacted the Burke County Sheriff's Department, which did a background check on the two men. It revealed a domestic violence restraining order entered against Lippman on February 3, 2000 in California and a misdemeanor arrest warrant for his arrest. Lippman and Johannesen were arrested for carrying loaded firearms in a vehicle and transported to the Mountrail County jail. Lippman was released from jail the next day after pleading guilty to a state charge of possession of a loaded .410 gauge Thunder Fire revolver in a motor vehicle.

Agents from the federal Bureau of Alcohol, Tobacco, and Firearms interviewed Lippman and Johannesen on August 6, 2002, after learning that Lippman had been convicted of possessing a firearm while he was subject to a domestic violence restraining order. Lippman told the agents that the green bag was his and that he had known Johannesen's firearms were in the vehicle. When asked about the restraining order, Lippman admitted that he was aware of it but that he did not think it prohibited him from possessing a firearm.

The restraining order against Lippman was the result of an application and declaration his former girlfriend had filed on January 13, 2000. Lippman was served with notice of the application and appeared with the applicant before a California state judge on February 3, 2000. The court was prepared to hear evidence at that time, but Lippman agreed to stipulate to entry of a restraining order even though he said he disagreed with the factual allegations in the application. The judge took note of his statement and issued the restraining order based on Lippman's stipulation. Lippman says that the judge did not inform him that possessing firearms while subject to the restraining order would violate federal law, but he admits that he was given a copy of the order and that it included notice of the firearms restriction. 2 Since the expiration date of the restraining order was February 2, 2003, it still was in effect on May 3, 2002 when the guns were found under Lippman's seat and in his duffle bag.

On September 13, 2002 Lippman was indicted for possession of firearms by a person subject to a domestic violence restraining order, in violation of 18 U.S.C. § 922(g)(8). A jury returned a guilty verdict, and the district court sentenced him to eight months imprisonment after finding his case to be outside the heartland of such offenses and granting a downward departure under United States Sentencing Guidelines § 5K2.0. Lippman appeals, arguing

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that his conviction should be overturned because the court failed to give two jury instructions he proposed and because the statute under which he was convicted is unconstitutional.

Section 922(g)(8) states that it is unlawful for a person to possess a firearm when that individual is subject to a domestic violence restraining order "issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate."

Lippman requested that the district court instruct the jury that the hearing required under 18 U.S.C. § 922(g)(8) is a proceeding in which witnesses testify and evidence is received. 3 The court's instruction defined hearing in this way:

The term "hearing" means an actual judicial proceeding, usually open to the public, held for the purpose of deciding issues of fact or law, sometimes with witnesses testifying, during which the parties had notice and opportunity to participate.

Lippman contends that the jury instruction should have required that evidence actually have been presented at the hearing. We review the denial of a requested jury instruction for abuse of discretion. United States v. Gary, 341 F.3d 829, 834 (8th Cir.2003).

The statute states what is required for a hearing under § 922(g)(8). A hearing requires actual notice and an opportunity to be heard, but the statute does not require that evidence actually have been offered or witnesses called. As the Seventh Circuit explained in United States v. Wilson, 159 F.3d 280, 291-92 (7th Cir.1998), "hearing" and "opportunity to participate" are not arcane legal terms incomprehensible to the general public, and no further definition is needed for the jury. We agree. The district court did not abuse its discretion by its instruction or by refusing to give the one proposed by Lippman.

Lippman relies on a Fifth Circuit decision, United States v. Spruill, 292 F.3d 207 (5th Cir.2002), to support his argument that § 922(g)(8) requires that an evidentiary hearing have actually been held. The restraining order in Spruill had not been issued after a hearing of which the respondent had received actual notice as required by § 922(g)(8), and the court did not rule that an evidentiary hearing must have been held. See id. at 208. The defendant there had never received notice of a hearing, never appeared before a judge, and never had any opportunity to participate because a hearing was not scheduled or convened. Id. at 216-17. Here, Lippman received notice of the hearing and appeared before a judge who was prepared to hear evidence. More on point is another Fifth Circuit case which held that a hearing had been held even though no witnesses had been called and no evidence had been presented, but the defendant had had the opportunity to put on evidence. United States v. Banks, 339 F.3d 267, 271 (5th Cir.2003).

Lippman's other complaint about the jury instructions is that the district court should have given his proposed instruction that the United States had to prove that he knew both that he possessed a firearm and that such possession was prohibited by his restraining order. 4 He contends that

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the penalty section of the statute, § 924(a)(2), requires that the defendant have knowingly violated § 922(g)(8).

We have already held in United States v. Hutzell, 217 F.3d 966, 968 (8th Cir.2000), that the penalty provisions in § 924(a)(2) do not " 'require knowledge of the law nor an intent to violate it' " for a defendant to be convicted under § 922(g). The defendant in Hutzell was convicted under § 922(g)(9) for possessing a firearm after having been convicted of a domestic violence offense, and that conviction, just like Lippman's offense under § 922(g)(8), was...

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