United States v. Bramer
| Decision Date | 16 April 2020 |
| Docket Number | Docket No. 18-3782,August Term, 2019 |
| Citation | 956 F.3d 91 |
| Parties | UNITED STATES of America, Appellee, v. Michael BRAMER, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
James P. Egan, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, NY for Defendant-Appellant.
Rajit S. Dosanjh, Assistant United States Attorney (Thomas R. Sutcliffe, Assistant United States Attorney on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, for Appellee.
Before: Katzmann, Chief Judge, Hall, Lynch, Circuit Judges.
On October 13, 2016, Defendant-Appellant Michael Bramer, Jr. received a protective order issued by the Town of Malta Justice Court (the "Justice Court"). On October 24, 2016, Bramer visited a licensed firearms dealer and attempted to purchase a firearm. He completed the required Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Form 4473 that potential firearm buyers must submit. Question 11.h on the form asked whether Bramer was "subject to a court order restraining [him] from harassing, stalking, or threatening [his] child or an intimate partner or child of such partner[.]" Bramer responded by checking the "No" box. Question 11.h refers the applicant to instructions which define a court order in language that is virtually identical to the statutory language defining a relevant order found in 18 U.S.C. § 922(g)(8), which prohibits possession of a firearm by a person subject to certain kinds of protective orders. Based on Bramer’s answer of "No" to Question 11.h, a federal grand jury in the Northern District of New York returned a single-count indictment charging him with providing false information to a licensed dealer in connection with the attempted acquisition of a firearm—a violation of 18 U.S.C. § 922(a)(6). After a two-day trial, Bramer was found guilty, and following denial of his posttrial motions Bramer was sentenced to a term of imprisonment of 43 days (time served) and a three-year term of supervised release. This appeal followed.
Because Bramer’s response to Question 11.h on the Form 4473 was false only if the court order to which he was subject was the type of order specified in the instructions and 18 U.S.C. § 922(g)(8), the government was required to prove that the Justice Court order was "issued after a hearing of which [Bramer] received actual notice, and at which [Bramer] had an opportunity to participate," 18 U.S.C. § 922(g)(8)(A).1 Because the government’s proof at trial was insufficient to show that Bramer "had an opportunity to participate" in the Justice Court, we hold that there was insufficient evidence to find that Bramer’s response to Question 11.h was knowingly false and therefore REVERSE the judgment of conviction.
On October 12, 2016, New York State Trooper Christopher Esposito contacted Bramer via telephone and informed him that an individual with whom Bramer had previously resided and had a child was pressing charges against him for domestic violence.2 At that time, Trooper Esposito informed Bramer of the general nature of the charges, "[m]ost likely" explained to him "what happens during an arraignment," and told Bramer that "if he [came] to [Esposito], then he could sort of start th[e court] process" to deal with the allegation cooperatively. App’x 67–69. Bramer turned himself in to Trooper Esposito the following day. Trooper Esposito then escorted Bramer to the Justice Court for arraignment. According to Trooper Esposito’s initial testimony at Bramer’s federal trial, the court was in session; Town Justice James Fauci was presiding. The Justice Court is "a fairly busy court," and "on court days during court hours, [the] courtroom can be pretty full[.]" App’x 70. Trooper Esposito could not "recall specifically if there were members of the public" present when he and Bramer arrived for Bramer’s arraignment, nor could he recall which or how many members of the court staff were present. App’x 71–72. Bramer did not have a lawyer present at the arraignment.
The Town of Malta typically has an audio recording mechanism to keep records of daily court proceedings, and Trooper Esposito testified that it would be out of the ordinary if there was no recording for a case that took place there. Though the record is unclear as to why, the government did not introduce a recording of Bramer’s arraignment into evidence.
Trooper Esposito could not recall "the specific conversation" between the court and Bramer at the arraignment. App’x 80. He testified that Judge Fauci "explained to [Bramer] the charges against him, [and] explained to him his rights," and that Judge Fauci released Bramer on his own recognizance, setting a date for the next appearance. App’x 55. Trooper Esposito also testified that Judge Fauci issued an order of protection and set a second appearance date for approximately thirty days later. According to Trooper Esposito, the judge "explained to Mr. Bramer what an order of protection is" and provided him a copy of the order. App’x 55.
The protective order, issued under New York Criminal Procedure Law § 530.12(1)(a) and signed by both Bramer and Judge Fauci, indicates that Bramer was "advised in Court of issuance and contents of [the] Order[,]" and that the "Order [was] personally served on [Bramer] in Court." App’x 242. The order also states that "it is a federal crime to ... buy, possess or transfer a handgun, rifle, shotgun or other firearm or ammunition while this Order remains in effect." App’x 242. Although there are different types of orders of protection that may be issued under New York law, see N.Y. C.P.L. §§ 530.12, 530.13, the order issued to Bramer was "a stay-away order of protection[,]" App’x 58, requiring that he stay away from the individual who had made the allegation against him, that he refrain from communicating with her, and that he refrain from engaging in an extensive list of criminal conduct directed at the protected person.3 Trooper Esposito’s testimony and the Justice Court’s order countersigned by Bramer are the only evidence of what happened in court that day.
Nine days later, on October 24, 2016, Bramer entered Frank’s Gun Shop, a federally licensed dealership in Amsterdam, New York. The general manager of the store, Frank J. Havlick, testified that he was working that day but did not recall interacting with Bramer. Havlick did, however, recognize his own handwriting on the Form 4473 and acknowledged that he completed portions of the form with Bramer.
Questions 11.a through 11.l of Form 4473 are a series of yes or no questions to which the potential purchaser must respond by entering check marks. Bramer indicated in response to question 11.a that he was "the actual transferee/buyer of the firearm" at issue on the form. App’x 235. As previously noted, in response to Question 11.h, Bramer checked the "No" box, affirming that he was not "subject to a court order restraining [him] from harassing, stalking, or threatening [his] child or an intimate partner or child of such partner[.]" Id.
Question 11.h directs the buyer to the "instructions" on Page 4 of the Form 4473 for more information regarding the question. App’x 235. To help buyers determine whether they are subject to a qualifying restraining order, such that they should answer "yes" to Question 11.h, the "instructions" define the type of orders that qualify as a restraining order for purposes of the Form 4473. The instructions, which track the language of 18 U.S.C. § 922, provide as follows:
Under 18 U.S.C. § 922, firearms may not be sold to or received by persons subject to a court order that: (A) was issued after a hearing which the person received actual notice of and had an opportunity to participate in; (B) restrains such person from harassing, stalking, or threatening an intimate partner or child or 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.4
App’x 238.
Bramer completed the Form 4473 and submitted it to the dealer, who entered it into the National Instant Background Criminal Check System ("NICS"), which is managed by the Federal Bureau of Investigation. The response to the submission to NICS "was a deny," App’x 93, thereby blocking Bramer’s attempt to purchase a firearm.
Under questioning from an ATF Special Agent prior to his arrest, Bramer indicated that "he answered no to question 11.h because he did not read the fine print on the order of protection, that he had attempted to purchase the firearm for hunting, and that he had not bought the firearm to cause harm to the protected person." App’x 110.
Based on Bramer’s effort to purchase a firearm and his response to Question 11.h on the Form 4473, a federal grand jury returned a single-count indictment charging Bramer with providing false information to a licensed dealer in connection with his attempted acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6). After a two-day jury trial, Bramer was found guilty. At the close of evidence, Bramer moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal, which the district court denied. Bramer renewed this motion after the jury verdict and also moved for a new trial under Federal Rule of Criminal Procedure 33. The district court denied both motions and judgment was entered on December 12, 2018. Bramer timely appealed.
Two subsections of 18 U.S.C. § 922 are relevant to the issues in this case. Bramer was convicted of violating 18...
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