U.S. v. White

• Decision Date: 13 July 2001
• Docket Number: No. 00-40393,00-40393
• Citation: 258 F.3d 374
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT WHITE, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 374

258 F.3d 374 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT WHITE, Defendant-Appellant.

No. 00-40393

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

July 13, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Texas

Before GARWOOD, HALL,¹ and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-Appellant Robert Alan White appeals his conviction, pursuant to his guilty plea, of one count of violating 18 U.S.C. § 922(g)(9). He asserts that the count of which he was convicted fails to state an offense and that his motion to dismiss the superseding indictment should have been granted. We conclude the count of conviction does not state an offense because neither of the predicate offenses alleged constitutes "a misdemeanor crime of domestic violence," under section 922(g)(9), in that neither "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon" as required by 18 U.S.C. § 921(a)(33)(A)(ii). We accordingly reverse and remand.

Facts and Proceedings Below

White was charged in an August 3, 1999, nine count superseding indictment. Each count charged a violation of 18 U.S.C. § 922(g)(9)² based on White's possession on May 3, 1999, in Collin County, Texas, of a firearm, after having been convicted on August 1, 1994, of two specified offenses, each asserted to be "a misdemeanor crime of domestic violence" as defined in 18 U.S.C. § 921(a)(33)(A).³ Each of the nine counts relies on the same two August 1, 1994, predicate convictions, which are alleged in paragraphs 1 and 2 of the indictment's "introduction," those paragraphs being incorporated by reference in each of the nine counts. And, each of the nine counts is otherwise identical except only that each alleges a different firearm. The indictment's two introductory paragraphs are as follows:

"1. On or about August 1, 1994, the Defendant, ROBERT WHITE, was convicted of the offense of reckless conduct, in violation of Section 22.05, Texas Penal Code, in Cause No. 2-80456-94, in the County Court at Law Number 2, Collin County, Texas. Section 22.05(a), Texas Penal Code, as it existed on August 1, 1994, provided, in part: 'A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.' The information on which Defendant, ROBERT WHITE, was convicted, charged, in part, that the defendant '[D]id then and there recklessly engage in conduct that placed Shaun O'Neal White in imminent danger of serious bodily injury by then and there knowingly pointing a firearm at and in the direction of the said Shaun O'Neal White.' Defendant, ROBERT WHITE, was, at the time the offense was committed, the spouse of Shaun O'Neal White.

2. On or about August 1, 1994, the Defendant, ROBERT WHITE, was convicted of the offense of terroristic threat, in violation of Section 22.07, Texas Penal Code, in Cause No. 2-84294-93, in the County Court at Law Number 2, Collin County, Texas. Section 22.07, Texas Penal Code, as it existed on August 1, 1994, provided, in part: '(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: . . . (2) place any person in fear of imminent serious bodily injury . . .' The information on which Defendant, ROBERT WHITE, was convicted, charged, in part, that the defendant '[D]id then and there intentionally and knowingly threaten to commit an offense involving violence to Valerie Martinico, namely, threatened to kill Valerie Martinico, with intent to place Valerie Martinico in fear of imminent serious bodily injury.' Defendant, ROBERT WHITE, was, at the time the offense was committed, the former spouse of Valerie Martinico."

Count 4 of the indictment-the count White was convicted of on his guilty plea, the other counts being dismissed pursuant to the plea agreement-reads as follows:

"The Grand Jury realleges paragraphs 1 and 2 of the Introduction.

On or about the 3rd day of May, 1999, in Collin County, Texas, in the Eastern District of Texas, ROBERT WHITE, Defendant herein, having been convicted of a misdemeanor crime of domestic violence, specifically, 1) Reckless conduct, in Cause No. 2-80456-94, in the County Court at Law Number 2, Collin County, Texas, on August 1, 1994, and 2) Terroristic threat, in Cause No. 2-84294-93, in the County Court at Law Number 2, Collin County, Texas, on August 1, 1994, did knowingly and unlawfully possess in and affecting commerce, and receive a firearm, specifically, a Remington semi-automatic shotgun, Model SP-10 Mag, 10 gauge, displaying serial number RMO33655, which had been shipped and transported in interstate commerce, in violation of Title 18, United States Code, Sections 922(g)(9) and 924(a)(2)."⁴

On October 20, 1999, White filed an extensive motion to dismiss the indictment, asserting: that the May 3, 1999, federal search of his Collin County home during which the nine firearms charged in the indictment were found was pursuant to an invalid warrant as the warrant was based on his deposition testimony which was compelled contrary to his Fifth Amendment rights; that "[t]he alleged prior convictions the government intends to use to prove its charges are not 'misdemeanor crimes of domestic violence' under section 921(a)(33)(A);" that his guilty plea, and waiver of jury trial, to the predicate offenses was not "knowing and intelligent" as required by 18 U.S.C. § 921(a)(33)(B); that section 922(g)(9) violated White's rights under the Second Amendment, the Due Process Clause of the Fifth Amendment and the Ninth Amendment; and that section 922(g)(9) violates the Tenth Amendment and exceeds Congress's power under the Commerce Clause.

On November 1, 1999, the district court held an evidentiary hearing on White's motion to dismiss. It denied the motion in a November 4, 1999, order, without stating reasons. On November 5, 1999, White and the government executed a plea agreement pursuant to which White agreed to plead guilty to count 4 and the government agreed to dismiss the remaining counts (and not to prosecute White for any statements made in connection with his acquisition of the firearm alleged in count 4). There was no agreement as to sentence. On the same day, and pursuant to the written consent of White and the government, the magistrate judge held a Fed.R.Crim.P. Rule 11 hearing and recommended that White's plea be accepted. The district court subsequently adopted the magistrate judge's report, and pursuant thereto accepted White's plea and found him guilty of count 4.

The evidence at the hearing on the motion to dismiss and at the Rule 11 hearing reflected the following. White was convicted on August 1, 1994, in the County Court at Law No. 2 of Collin County, Texas, of one offense of reckless conduct, in violation of Section 22.05(a) of the Texas Penal Code and of one offense of terroristic threat, in violation of Section 22.07(a)(2), Texas Penal Code. In each case the conviction was by plea (of guilty to reckless conduct and of no contest to terroristic threat) to an information alleging that the offense was committed in Collin County. White was represented by counsel. The section 22.05(a) information alleged that on July 7, 1993, White did: "recklessly engage in conduct that placed Shaun O'Neal White in imminent danger of serious bodily injury by then and there knowingly pointing a firearm at and in the direction of the said Shaun O'Neal White." The section 22.07(a)(2) information alleged that on September 27, 1993, White did "intentionally and knowingly threaten to commit an offense involving violence to Valerie Martinico, namely, threatened to kill Valerie Martinico, with intent to place Valerie Martinico in fear of imminent serious bodily injury."

The Rule 11 and motion to dismiss evidence likewise showed that on July 7, 1993, White and Shaun O'Neal White (the victim named in the section 22.05(a) charge) were married to each other, and that White had married Valerie Martinico (the victim named in the section 22.07(a)(2) charge) in October 1989 and their marriage was annulled in March 1990. The evidence also showed that on September 14, 1998, White purchased the firearm alleged in count 4 from a licensed federal firearms dealer in Garland, Texas, executing an ATF form 4473, that this weapon was manufactured outside of the state of Texas, and that it (together with the firearms charged in the other counts) was found in White's home in Collin County, Texas, in the search thereof by Federal officers on May 3, 1999.⁵

White was sentenced to forty-one months' confinement, a $7,500 fine and three years' supervised release. He timely brings this appeal.⁶

Discussion

White raises several contentions on appeal. We consider only the argument that neither of the two August 1, 1994, predicate convictions was a conviction of a "misdemeanor crime of domestic violence" under section 922(g)(9) (see note 2 above) because neither "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon" against the victim as required by section 921(a)(33)(A)(ii) (see note 3 above).

Because White first advanced this argument on appeal in his reply brief, we allowed the government to file a supplemental brief in response. In it, the government urges that White has waived this argument and that, in any event, the Texas predicate offenses of which White was convicted each constituted a misdemeanor crime of domestic violence. We first address the government's waiver arguments.

I. Waiver

The government offers three bases for finding waiver: 1) White's failure to raise the argument in his initial appellate brief; 2) White's plea of guilty admitted that the predicate offenses were misdemeanor crimes of domestic violence; and 3) the provision of the plea agreement waiving the right to appeal.

The government's...