U.S. v. Bethurum

• Decision Date: 20 August 2003
• Docket Number: No. 02-10962.,02-10962.
• Citation: 343 F.3d 712
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Brett Alden BETHURUM, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

343 F.3d 712

UNITED STATES of America, Plaintiff-Appellant, v. Brett Alden BETHURUM, Defendant-Appellee.

No. 02-10962.

United States Court of Appeals, Fifth Circuit.

August 20, 2003.

Revised September 17, 2003

Renee E. Harris (argued), Fort Worth, TX, for Plaintiff-Appellant.

Lawrence Brown (argued), The Brown Firm, Fort Worth, TX, for Defendant-Appellee.

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

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit Judges.

KING, Chief Judge:

The United States appeals the district court's order granting Defendant-Appellee Brett Alden Bethurum's motion for judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. We vacate the order and remand for reinstatement of the jury verdict finding Bethurum guilty on eight counts of possessing a firearm in and affecting interstate commerce after being convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9) and 18 U.S.C. § 924(a)(2).

I. FACTS AND PROCEDURAL HISTORY

On June 9, 1997, Defendant-Appellee Brett Alden Bethurum was convicted of misdemeanor attempted assault with bodily injury for kicking Rebecca Bethurum, his wife. At that time, Bethurum chose to enter a plea of guilty to the offense. To that effect, he signed a document entitled "Waiver of Appointment of Attorney and Waiver of Jury Trial by Defendant Entering Plea of Guilty" which states:

Now comes the undersigned Defendant in this cause and represents to the Court that I have no attorney, that I do not intend to employ counsel herein, and that I waive any right I may have to have the Court appoint an attorney to defend me in this cause.

I acknowledge that I have been advised by the Court of my right to representation by counsel in the trial of the charge pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed free of charge if I am not financially able to employ counsel, I wish to waive that right and request the Court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel.

I further represent to the Court that I desire to make immediate disposition of this case by here and now entering my plea of guilty, waiving trial by jury and submitting it to the Court on all issues of law and fact.

WHEREFORE, premises considered, Defendant prays the Court to proceed immediately to arraign me in this cause, accept my plea of guilty and waiver of jury trial, to enter judgment thereon and, having entered the same, to immediately sentence me in the manner provided by law, waiving for said purpose every provision of the law the effect of which would delay of [sic] arrest entry of judgment or imposition of sentence.

This document was also signed by the presiding judge, Judge J.R. Adcock, indicating that it was "approved and granted." The state court deferred adjudication for twenty-four months and placed Bethurum on probation. However, he violated the terms of his probation when he was convicted for driving while intoxicated. As a result of the DWI conviction, Bethurum's probation was revoked and he was adjudicated guilty of misdemeanor assault against his wife.

In April 2002, Bethurum was indicted on eight counts of possessing a firearm in and affecting interstate commerce in violation of a federal statute making it "unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(9) (2000). Bethurum pleaded not guilty to all eight counts of the indictment.

Prior to trial, Bethurum moved to dismiss the indictment on the grounds that he had not been convicted of a "misdemeanor crime of domestic violence" because he had pleaded guilty to the alleged predicate offense without "knowingly and intelligently" waiving either his right to counsel or his right to a jury trial. See 18 U.S.C. § 921(a)(33)(B)(i):

A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] for purposes of this chapter, unless —

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

Id. After considering Bethurum's motion and the government's response in opposition, the district court ruled that the validity of Bethurum's waivers was an element of the alleged violation of § 922(g)(9) that the government had to prove to the trier-of-fact at trial.

The case was tried to a jury on June 17, 2002. Prior to trial, the parties stipulated that: (1) Bethurum knowingly possessed the firearms alleged in each count of the indictment; (2) the firearms alleged in each count had traveled across state lines and thereby affected commerce prior to the time of the alleged violation of § 922(g)(9); and (3) Bethurum had been adjudicated guilty in 1999 of the misdemeanor assault charge for kicking his wife. Thus, the only question remaining before the jury was whether Bethurum "knowingly and intelligently" waived his rights to counsel and a jury trial when he pleaded guilty pro se to the previous assault charge.

The government at trial introduced into evidence a copy of the waiver form quoted above. The government also called Judge Adcock, who testified that, while he did not specifically recall Bethurum's case, his routine procedures during pro se cases included counseling the defendant as to the advantages of an attorney and reviewing the written waiver form with each defendant on an individual basis. Judge Adcock also testified that he routinely would advise the defendant that a conviction in some circumstances could have collateral consequences down the line, such as losing the right to vote. However, Judge Adcock testified that he doubted that he specifically warned Bethurum that conviction on the domestic relations misdemeanor would affect his rights concerning firearms use and possession, remarking that "there's no way that I can go over all of the ramifications of a plea of guilty." A former district attorney assigned to Judge Adcock's court corroborated the judge's testimony as to the court's routine procedures.

At the conclusion of the government's case-in-chief, Bethurum moved for judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. After arguments on the motion, the court reserved ruling on the motion. Bethurum then testified in his own defense, confirming that Judge Adcock had given him the routine admonitions about which the judge had testified. Bethurum also testified that, as an employee of his family's gun dealership, he would not have pleaded guilty to the offense had he known that the conviction would affect his ability to possess firearms.

On cross-examination, the government elicited testimony that Bethurum, as an employee of a licensed firearm dealer, was familiar with Form 4473 of the Bureau of Alcohol, Tobacco and Firearms. Form 4473 is a standard form used by firearms dealers to record firearms transactions; after § 922(g) was enacted in 1996, Form 4473 was revised to include a specific question about whether the recipient of the firearm had ever been convicted of a misdemeanor crime of domestic violence. While Bethurum admitted being familiar with the form, he testified that he never had considered whether the form would apply to him.

At the close of all evidence, Bethurum renewed his Rule 29(a) motion. At that time, the judge denied the motion without specific reference to the reserved Rule 29(a) motion that Bethurum had made at the close of the government's case-in-chief. After closing arguments, the court charged the jury that the government was required to prove beyond a reasonable doubt that Bethurum had knowingly and intelligently waived his rights to counsel and trial by jury at the time he pleaded guilty to the prior misdemeanor assault charge.

The jury returned a verdict of guilty on all eight counts of violating § 922(g)(9). After the verdict, Bethurum moved for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. Bethurum's Rule 29(c) motion requested that the district court: (1) revive the possibly pending Rule 29(a) motion made at the close of the government's case-in-chief; (2) revive the Rule 29(a) motion made at the close of all evidence; and (3) grant a judgment of acquittal pursuant to Rule 29(c). The district court granted Bethurum's motion, set aside the jury verdict, and entered a judgment of acquittal. United States v. Bethurum, 213 F.Supp.2d 679, 691 (N.D.Tex.2002). The court held that the initial Rule 29(a) motion was still pending and ruled on it in accordance with the standards set out in Rule 29(b). See FED.R.CRIM.P. 29(b) (stating that, when the court reserves ruling on a Rule 29(a) motion but later chooses to rule on the motion, the court must decide the motion "on the basis of the evidence at the time the ruling was reserved"). Considering only the evidence presented during the government's case-in-chief, the court held that Bethurum could not reasonably have been found to make a knowing and intelligent waiver of his rights without direct proof that Bethurum actually knew that a specific consequence of his waivers would be the deprivation of his future right to possess a firearm. Bethurum, 213 F.Supp.2d at 688.

The government now appeals the district court's order...