U.S. v. Young

• Decision Date: 17 August 2006
• Docket Number: No. 05-30313.,05-30313.
• Citation: 458 F.3d 998
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Brad Wayne YOUNG, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

458 F.3d 998

UNITED STATES of America, Plaintiff-Appellant, v. Brad Wayne YOUNG, Defendant-Appellee.

No. 05-30313.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2006.

Filed August 17, 2006.

K. Jill Bolton, Assistant United States Attorney, Spokane, WA, argued the cause for the appellant. James A. McDevitt, United States Attorney, was on the briefs.

Rebecca L. Pennell, Federal Defender, Yakima, WA, argued the cause and was on the brief for the appellee.

Appeal from the United States District Court for the Eastern District of Washington; Fred L. Van Sickle, Chief Judge, Presiding. D.C. No. CR-05-02007-FVS.

Before: O'SCANNLAIN, SILVERMAN, and GOULD, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We consider the conditions under which federal criminal law prohibits an individual from possessing a firearm if he is the subject of a state domestic violence restraining order.

I

City of Union Gap, Washington, police arrested Brad Young, the defendant-appellee, on December 29, 2004, based on his violation of a Washington state Domestic Violence No Contact ("DVNC") order. Police searched Young and located a .22 caliber pistol in his pocket. After having been read his Miranda rights, Young admitted that the gun was his.¹

It is a federal offense for those against whom a domestic violence restraining order has been issued "after a hearing of which such person received actual notice, and at which such person had an opportunity to participate," to possess a firearm. 18 U.S.C. § 922(g)(8)(A). Young was indicted by an Eastern District of Washington federal grand jury two weeks after his Union Gap arrest and was later tried for possessing a firearm in violation of § 922(g)(8).²

A

Because § 922(g)(8) only applies to certain restraining orders and significant interplay between state and federal court proceedings is involved, we review the facts relating to the issuance in state court of the predicate DVNC order, which stems from an arrest earlier in December 2004 for Young's violation of a protective order and for felony harassment under Washington state law.³ As a result of the earlier arrest, a Washington state court issued two separate DVNC orders against Young.

The first DVNC order was issued at Young's December 6, 2004, preliminary hearing. Yakima County Superior Court Judge Michael Schwab concluded that there was "probable cause to believe that [Young] may have been involved in the offense of felony violation of a no contact order." Judge Schwab explained to Young, "This does not mean that you're guilty of anything. On Wednesday morning [December 8, 2004] you'll be advised officially of any charges." Judge Schwab appointed Young counsel and issued a DVNC order ("the December 6 DVNC order"): "I'm going to issue a domestic violence no contact order which requires you to stay away from Lena [sic⁴] Emily Perez, whether she wants you to have contact with her or not. We'll give you a copy of this and you need to read it carefully." At the close of the hearing, Judge Schwab stated that he might reconsider the bail amount at the December 8 arraignment, but he did not indicate whether he would reconsider the DVNC order.

At the conclusion of the preliminary hearing, the prosecuting attorney handed Young a copy of the December 6 DVNC order and a copy of the court order containing the contact information for Young's court-appointed attorney. The DVNC order further stated: "This order is entered together with the order setting conditions of release in this case. ([Rev.Code Wash.] 10.99.040; 10.99.045.) It shall remain in effect until further order by this Court."⁵

The second DVNC order—identical to the first, and the predicate order for the federal offense—was issued on December 8, two days after Young's preliminary hearing, when Judge Schwab began the formal arraignment under the state felony harassment charge by again advising Young of his rights, including his right to counsel.⁶

Susan Arb—a Senior Deputy Prosecuting Attorney with the Yakima County Prosecuting Attorney's Office recognized as an expert in preliminary hearings and arraignments in Yakima County Superior Court—later related in Young's federal trial that "during the arraignment the Court will consider conditions of release.... One of the conditions of release is often a No Contact Order. And that's always considered in domestic violence cases, even if other conditions of release are not."⁷ Arb also explained that "Any time [the state prosecutors] file a domestic violence charge, ... the prosecutors also request a No Contact Order, ask the judge to issue that No Contact Order."

Young's counsel was not present at the December 8 state court hearing, but an attorney from the county prosecutor's office gave Young a copy of the criminal information and Judge Schwab explained the charges to him. After reducing the bail amount to $5,000, Judge Schwab issued a new DVNC order ("the December 8 DVNC order"):

Court: I'm also issuing a new domestic violence no contact order which requires you to stay away from Lena [sic] Perez whether she wants to have contact with you or not; do you understand that?

Young: No problem.

Court: This is a very serious matter. We expect people to obey these orders. We hope you'll read this carefully. It contains very specific warnings.⁸

Young then expressed some confusion as to the nature of the charges against him. Judge Schwab explained:

Count one is a charge of assault in violation of a protection order. The allegation is that you assaulted Lena [sic] Perez. That doesn't mean that you're guilty of it. That's what they're saying happened. It remains to be seen whether or not you did it. So the purpose of this is just to advise you about what they're claiming. The mere fact that they say it doesn't make it so.

The prosecuting attorney then explained the terms of the new DVNC order to Young and gave him a copy. Like the prior order, the December 8 order indicated that it would remain in effect until lifted by the court and specifically noted that federal law prohibited Young from possessing a firearm. The DVNC order stated that "[t]he court finds probable cause to believe that this case involves a threat of domestic violence, the defendant is a credible threat to the physical safety of the victim, and that the following order is necessary to protect the victim."

At the conclusion of the December 8 hearing, Judge Schwab set a date for trial, as well as a date for a pre-trial omnibus hearing.

B

In relevant part, 18 U.S.C. § 922(g)(8)⁹ makes it a federal crime for 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 partner¹⁰ of such person or child of such 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; ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.¹¹

At Young's trial in federal district court, Judge Van Sickle instructed the jury on the elements of "actual notice" and "opportunity to participate." The jury instructions, tracking the statutory text, stated that the statute required the jury to find beyond a reasonable doubt that, "at the time the defendant possessed the firearm, the defendant was subject to a court order dated December 8, 2004, that: (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate." The district court further instructed the jury:

It can be legal for a court to issue a no-contact order against an individual in emergency circumstances, before allowing the individual notice and an opportunity to participate. However, the federal criminal law at issue in this case only applies to those no contact orders that have been issued after the individual who is subject to the order has been provided notice and an opportunity to participate.

The jury found Young guilty of violating § 922(g)(8), but the district court overturned the jury verdict based on Young's Federal Rule of Criminal Procedure 29 motion, concluding that the prosecution had presented insufficient evidence that Young's December 8 DVNC order met the terms of § 922(g)(8)(A). The district court explained that "advance notice is an important component of due process." (Citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). The district court reasoned that "[w]ithout advance notice, a party is unable to consult an attorney, evaluate allegations or marshal evidence. In view of these considerations, it is reasonable to conclude that § 922(g)(8) requires advance notice of a judge's intention to extend a no-contact order." Because the government presented no evidence that Young was actually aware that the December 6 DVNC order would be extended at the December 8 arraignment, the district court concluded that Young lacked sufficient notice of the proceedings.

Similarly, the district court reasoned that an "opportunity to respond" requires "`the opportunity to present reasons, either in person or in writing, why proposed action should not be taken.'" (Quoting United States v. Wilson, 159 F.3d 280, 290 (7th Cir.1998)). The district court explained that:

The judge who...