U.S.A v. Dubose

• Decision Date: 01 March 2010
• Docket Number: No. 09-11400,09-11400
• Citation: 598 F.3d 726
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stuart Craig DUBOSE, DefendantAppellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

598 F.3d 726

UNITED STATES of America, Plaintiff-Appellee, v. Stuart Craig DUBOSE, DefendantAppellant.

No. 09-11400

United States Court of Appeals Eleventh Circuit.

Date : March 1, 2010.

COPYRIGHT MATERIAL OMITTED

James E. Kimbrough, Jr., Mobile, AL for DuBose.

William C. Brown, U.S. Dept. of Justice/App. Section/Crim. Div., Washington DC, Steven E. Butler, Mobile, AL, for U.S.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Stuart Craig DuBose appeals his convictions for making a false statement in connection with the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6), and for possessing a firearm while subject to a protective order, in violation of 18 U.S.C § 922(g)(8). Specifically, DuBose argues that (1) the protective order underlying his conviction does not satisfy the requirements of Section 922(g)(8); (2) the district court abused its discretion by refusing to admit into evidence the entire transcript of the divorce hearing at which the protective order was entered; and (3) his conviction is invalid because the order-was void when he purchased the firearm.

On March 25, 2008, in the midst of divorce proceedings, Alabama Circuit Judge Thomas Baxter issued a domestic violence protective order against Defendant DuBose following an ex parte hearing on a motion by DuBose's wife, Allison T. DuBose. The Order stated:

Stuart DuBose is hereby specifically restrained and enjoined from intimidating threatening, hurting, harassing, or in any way putting the plaintiff, Allison T DuBose, her daughters and/or her attorney in fear of their lives, health, or safety pending final hearing of this suit. Otherwise, he should be held in direct contempt of the orders of this Court.

Within several days of the hearing, Sheriff of Clarke Country, Alabama, personally served the protective order on DuBose. On April 7, 2008, another hearing was held before Marengo County District Court Judge Wade Drinkard, who explained that he had been appointed by the Alabama Chief Justice to preside over the DuBose divorce case following Judge Baxter's recusal. Defendant DuBose, a lawyer and Alabama judge, represented himself at the hearing and moved to set aside the previously issued protective order. Judge Drinkard denied the motion and orally reaffirmed the March 25 order.

On April 18, 2008, DuBose purchased a Ruger compact rifle, a scope, and a box of ammunition at Quint's Hardware in Sara-land, Alabama. At the time of purchase, DuBose completed ATF Form 4473, which informed him that he would not receive a firearm if he was prohibited from doing so by Federal or State Law. The form asked DuBose, among other things, "Are you subject to a court order restraining you from harassing, stalking, or threatening your child or an intimate partner or child of such partner?" DuBose answered "no" to this question.

DuBose was charged in a two-count indictment alleging that he made a false statement on an ATF Firearms Transaction Record Form in connection with his purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6) (Count 1); and that he unlawfully possessed a firearm while he was subject to a protective order, in violation of 18 U.S.C. § 922(g)(8) (Count 2). At trial, the government presented testimony from the following people: the sheriff who served the written protective order on the Defendant after the March 25th hearing; Judge Drinkard; Alabama Judge J. Donald Banks, who testified that Judge Drinkard's April 7th order went into effect immediately upon oral reaffirmation of the March 25 order; the store owner who sold the firearm to DuBose; and the ATF agent who arrested DuBose and established that the Ruger had previously traveled in interstate commerce. The government also introduced into evidence a redacted transcript of the April 7th hearing. The district court, upon determining that many of the issues discussed in the transcript were irrelevant, denied DuBose's request to admit the entire 103page transcript. The court instead offered DuBose the opportunity to introduce relevant excerpts.

DuBose argued that, at the time he purchased the Ruger rifle, the orders against him were invalid on various procedural grounds under Alabama law. The district court, citing United States v. Hicks, 389 F.3d 514 534-36 (5th Cir.2004), ruled that DuBose could not collaterally attack the April 7 order "if the order was issued after a hearing in which he had an opportunity to participate." DuBose was convicted on both counts. This appeal followed.

I. Requirements of 18 U.S.C. § 922(g)(8) (Count 2)

DuBose argues that the district court erred by denying his motion for a judgment of acquittal. He argues that the protective order against him failed to satisfy the criteria set forth in 18 U.S.C § 922(g)(8), because it did not contain an explicit prohibition on the use of "physical force" necessary to satisfy the requirement of Section 922(g)(8)(C)(ii). DuBose claims that, because of this omission, the order did not make it illegal for him to purchase a firearm under Section 922(g)(8).

We review a district court's denial of a motion for judgment of acquittal de novo. United States v. Hunt, 526 F.3d 739, 744 (11th Cir.2008). In reviewing the sufficiency of the evidence underlying a conviction, we consider the evidence "in the light most favorable to the government, with all inferences and credibility choices drawn in the government's favor." United States v. LeCroy, 441 F.3d 914, 924 (11th Cir.2006).

DuBose was convicted under Count 2 of his indictment for violating 18 U.S.C. § 922(g)(8), which bars firearms possession by any person "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 ofsuch 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.

18 U.S.C. § 922(g)(8).

DuBose argues that he cannot be convicted under that statute because, at the time he purchased the Ruger rifle, he was not under a protective order that satisfied the requirements of Section 922(g)(8). Here, there is no doubt that the protective order in question meets the requirements of Section 922(g)(8)(A), because the April 7 order was entered after a hearing at which DuBose both was present and had an opportunity to respond. There is also no doubt that the order meets the requirements of subsection (B) of that statute, because it restrained DuBose from "intimi dating, threatening, hurting, [or] harass ing" his wife and her daughters. Finally, the order does not make any finding that DuBose represents a credible threat to the physical safety of his wife or her daughters, as required by Section 922(g)(8)(C)(i). Therefore, in order for DuBose's conviction under 922(g)(8) to be valid, the April 7 order must comply with 922(g)(8)(C)(ii) by explicitly prohibiting "the use, attempted use, or threatened use of physical force against [his wife and her daughters] that would reasonably be expected to cause bodily injury." DuBose argues that the order does not meet this requirement because the protective order does not use the terms "use" or "attempted use" or "threat-

ened use" of "physical force." We have never addressed whether a protective order that does not contain the precise statutory language of Section 922(g)(8)(C)(ii) can subject a defendant to criminal punishment under Section 922(g)(8). We therefore rely on the guidance of other circuits and of common sense in making our determination.

In United States v. Bostic, the Fourth Circuit summarily held that an orderthat did not contain the precise statutory language, but ordered an individual to "refrain from abusing" his wife, "unambiguously satisfies" the requirements of subsection (C)(ii) that the court orderprohibit the use, attempted use, or threatened use of "physical force." 168 F.3d 718, 721-22 (4th Cir.1999). In United States v. Coccia, the First Circuit became the only other-circuit to address whether a protective order-must contain the identical language of subsection (C)(ii) to meet the statute's requirements. 446 F.3d 233, 241-12 (1st Cir.2006). The court, citing Bostic, held that a protective order that directed "the defendant to 'refrain from abusing' his wife" was sufficient to satisfy the statute's provisions. Coccia, 446 F.3d at 242. The court noted that the "definition of 'abuse' as a verb includes 'to injure (a person) physi cally or mentally'" and that " '[a]buse' as a noun includes 'physical or mental maltreatment, often resulting in mental, emotional, sexual, or physical injury.'" Id. Thus, the court concluded that the "commonly understood definition of 'abuse' includes violent acts involving physical force within the definition, " and that a commonsense reading of the statute belied Coccia's narrower-interpretation. See id.

Following the analysis of our sis ter circuits, we conclude that a conviction under 18 U.S.C. § 922(g)(8) does not re-quire that the precise language found in subsection (C)(ii) must be used in a protective order for it to qualify under the statute. See Bostic, 168 F.3d at 721-22; Coccia, 446 F.3d at 241-42. When interpreting a statute, we rely on the "ordinary, contemporary, common meaning" of its words. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979); United States v. Haun, 494 F.3d 1006, 1009 (...