U.S. v. Reese

• Decision Date: 10 December 2010
• Docket Number: No. 10-2030,10-2030
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. James Oliver REESE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

627 F.3d 792 UNITED STATES of America, Plaintiff-Appellant, v. James Oliver REESE, Defendant-Appellee. No. 10-2030. United States Court of Appeals, Tenth Circuit. Dec. 10, 2010.

Elizabeth D. Collery, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C., (Lanny A. Breuer, Assistant Attorney General; Greg D. Andres, Acting Deputy Assistant Attorney General; Kenneth J. Gonzales, United States Attorney, District of New Mexico; Louis E. Valencia, Assistant United States Attorney, District of New Mexico, with her on the briefs), for Plaintiff-Appellant.

Jason Bowles of Bowles and Crow, (B.J. Crow of Bowles and Crow; William Marchiondo of Marchiondo Law Office, with him on the brief), Albuquerque, NM, for Defendant-Appellee.

Before BRISCOE, Chief Judge, HOLLOWAY, and MURPHY, Circuit Judges.

BRISCOE, Chief Judge.

This appeal presents a single issue, whether the district court erred in granting defendant James Reese's motion to dismiss an indictment which charged Reese with three counts of possessing firearms while subject to a domestic protection order, in violation of 18 U.S.C. § 922(g)(8). Reese successfully raised an as-applied challenge to the indictment on the grounds that § 922(g)(8) violated his Second Amendment right to keep and bear arms. The United States now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the decision of the district court and remand for further proceedings.

I

Factual background

In July 2003, Reese, his then-wife Jennifer Reese (Jennifer), and their three minor children moved to Honolulu, Hawaii, where Reese served in the Navy. In August 2004, Reese and Jennifer separated. On November 29, 2004, Jennifer filed in the State of Hawaii Family Court of the First Judicial Circuit (Hawaii Family Court) an "Ex Parte Petition For A Temporary Restraining Order For Protection And Statement" on behalf of herself and her three minor children. Aplt.App. at 104. In the petition, Jennifer alleged that she and Reese were "intimate partners" as defined by 18 U.S.C. § 921(a)(32), Aplt.App. at 105, that Reese had "physically harmed, injured or assaulted" her by "pushing, grabbing, [and] shoving her" as well as "breaking [her] finger" by "holding [her] hand against [a] doorknob," id., that Reese had "pointed a handgun at [her]" and threatened to kill her, id., and that Reese "ha[d] subjected [her] to extreme psychological abuse by ... yelling, refusing to allow sleep or waking repeatedly, repeated phone calls, threaten[ing] to take children if [she] left him," id. at 106. Jennifer further alleged that Reese was "an alcoholic," "ha[d] a history of domestic violence," was "extremely controlling," "ha[d] a bad temper," and "d[id] not accept the separation." Id. Jennifer also alleged that Reese owned firearms that could be used to threaten, injure or abuse another person. Less than a week after filing the motion for protective order, Jennifer formally filed for divorce in the Hawaii Family Court.

On February 23, 2005, the Hawaii Family Court held a hearing on Jennifer's motion for protective order. During the hearing, Reese "denie[d] [Jennifer's] allegations of domestic abuse," but nevertheless "agreed to [the imposition] of a restraining order...." Id. at 109. Consequently, the Hawaii Family Court did not hear evidence from the parties or make any findings regarding Jennifer's allegations. Instead, the Hawaii Family Court concluded that Jennifer and Reese were "intimate partners," as defined in 18 U.S.C. § 921(a)(32), and issued a protective order in favor of Jennifer and against Reese. The order, which expressly stated it did not expire "until further order of the court," Aplt.App. at 109, prohibited Reese, in pertinent part, from (a) threatening or physically abusing Jennifer or their minor children, (b) contacting Jennifer or their minor children, and (c) "possessing, controlling, or transferring ownership of any firearm, ammunition, firearm permit or license for the duration of th[e] Order or extension thereof," id. at 112. The order further revoked "[a]ll permits/licenses" that Reese had for firearms and required Reese to "immediately turn over all firearms, ammunition, permits and/or licenses to the Honolulu Police Department ... for the duration of th[e] Order or extension thereof." Id. The order also stated that "[t]he terms and conditions of this Order were explained by the Court to the parties in open court" and that "[t]he parties acknowledged that they understood the terms and conditions of the order and the possible criminal sanctions for violating it." Id.

On March 17, 2005, the Hawaii Family Court held a final hearing on Jennifer's divorce petition, at the conclusion of which it found that the "marriage [wa]s irretrievably broken" and thus "dissolved" the marriage. Id. at 138. The Hawaii Family Court also signed a copy of a motion to amend the protective order that Reese had filed on February 23, 2005. In that motion, Reese's attorney handwrote a number of sentences modifying the terms under which Reese could contact Jennifer and the minor children. Most notably, the last handwritten sentence stated as follows: "The order for protection shall expire in 50 years or until either party modifies the same." Id. at 116.

In mid-2005, Jennifer and the three minor children moved to Maryland. At some point thereafter, Jennifer remarried. Reese relocated to Milan, New Mexico, and began working with his father, Oliver Reese, at his mining and exploration business in Milan. Reese also remarried.

In May 2009, Jennifer called Brandon Garcia, a special agent with the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF). Jennifer "was concerned because she thought her children were ... scheduled to visit ... their father, ... Reese, in Milan, and she had reason to believe that he had firearms and was under an order of protection and prohibited from possessing firearms, and she was fearful for her children's safety." Id. at 63. Jennifer subsequently e-mailed Garcia a copy of the protective order issued by the Hawaii Family Court. Garcia "pulled some background information and looked into it as best [he] could," but "didn't find anything that would show that [Reese] was currently in possession of firearms...." Id. Accordingly, Garcia called Jennifer back and "told her if there was anything [he] could do in the future to give [him] a call, but as of [that moment, he] couldn't really do anything." Id. at 63-64.

On June 27, 2009, a New Mexico State Police officer, Aaron Hammond, was dispatched to the New Mexico Police Department in Milan (Milan Police Department)"to take a report of domestic violence or domestic disturbance occurrence or report that had occurred the prior night...." Id. at 32. At the police department, Hammond encountered Reese's new wife, Danielle Boucher-Reese (Danielle), sitting with her disabled son, who was in a wheelchair. Danielle was "noticeably upset" and "had been crying." Id. Hammond observed that there were "bruises on [Danielle's] arms and on her hands" and that "she was noticeably trembling and shaking." Id. Hammond proceeded to interview Danielle, who "related a sequence of events of the previous night in which she and her family[, Danielle's two sons and Reese's seventeen-year-old daughter, J.M.,] were traveling from their residence in the Milan area to Albuquerque." Id. at 33. According to Danielle, she and Reese began arguing while en route to Albuquerque. At a certain point, Reese stopped the car, Danielle got out, and she and Reese proceeded to "g[e]t into a fight on the side of the road." Id. Ultimately, Reese "forced [Danielle] back in the vehicle, took away her cell phone, and wouldn't let her call the police." Id. J.M. "used her cell phone to contact her mother[, Jennifer,] back in Maryland," and Jennifer in turn contacted the Albuquerque police "to find out if they were all okay." Id. According to Danielle, the Albuquerque police pulled their car over in Albuquerque, but "she was too terrified to tell the police what was going on because she felt that he may hurt herself and her boys." Id. at 34. Danielle indicated that "[w]hen they did make it back to their residence later that night, she packed up the van and wanted to take both of her boys with her," but Reese "only allowed her to take her older disabled son and wouldn't let her take her two-year-old [son] with her." Id. J.M. also remained in the residence with Reese. Danielle further indicated that she spoke with Jennifer later that evening and learned, for the first time, about Reese's alleged mistreatment of Jennifer and the existence of the protective order. Danielle then discussed the protective order with Hammond, and Danielle informed Hammond that there "were [guns] all over the[ir] house" and that she had "been purchasing guns for [Reese] because he ha[d] asked [her] to." Id. at 36. Danielle also described "a Smith & Wesson .50 cal[iber] Magnum handgun," which she said she had just purchased for Reese at a gun show in Arizona. Id.

Danielle consented to Hammond entering her residence and examining the guns. However, "she was concerned about [Hammond's] safety going into the house because she thought ... Reese would become violent with [Hammond] if ... [Hammond] knew of the [protective] order against [Reese]." Id. Danielle was also concerned about Reese abusing the children in the residence.

Hammond, together with an officer from the Milan Police Department, went to Reese's residence. Hammond knocked on the door of the residence, and Reese responded. Hammond "asked [Reese] if he wanted to go in and talk, and [Reese] said he would prefer if [they] could stand out ... on the porch" of the residence. Id. at 38-39. Reese "said nothing had happened" the night before. Id. at 39. Reese conceded, upon questioning by Hammond, that he had "several" firearms in his house. Id. Hammond advised Reese of his Miranda rights and, with Reese's consent, continued the...