USA v. Napier, 00-5290

Citation233 F.3d 394
Decision Date20 September 2000
Docket NumberNo. 00-5290,00-5290
Parties(6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Harvey Lloyd Napier, Defendant-Appellant. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 99-00032--Jennifer B. Coffman, District Judge.

James E. Arehart, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky, Martin L. Hatfield, ASSISTANT UNITED STATES ATTORNEY, London, Kentucky, for Appellee.

Robert I. Cusick, Jr., Pamela J. Ledford, WYATT, TARRANT & COMBS, Louisville, Kentucky, Warren N. Scoville, SCOVILLE, CESSNA & ASSOCIATES, London, Kentucky, for Appellant.

Before: MERRITT and GILMAN, Circuit Judges; BELL, District Judge*.

OPINION

BELL, District Judge.

Defendant-Appellant Harvey Lloyd Napier appeals his conviction under 18 U.S.C § 922(g)(8) for possession of firearms while subject to a domestic violence order. For the reasons set forth below, we AFFIRM Napier's conviction.

I.

The essential facts are not in dispute1. On January 30, 1999, Napier's estranged wife called the Corbin, Kentucky, Police Department to report an assault by Napier. When Napier's vehicle was stopped, the officers found a 10 mm Glock Model 20 semi-automatic pistol and twenty-two rounds of 10 mm ammunition on the floorboard in the rear of the vehicle. Napier was arrested.

At the time of his arrest Napier was subject to two domestic violence orders. One domestic violence order was entered by the Harlan County Circuit Court on December 9, 1996. The other domestic violence order was entered by the Whitley County District Court on September 28, 1998. Both domestic violence orders contained a finding that acts of domestic violence had occurred and may occur again, and restrained Napier from committing further acts of domestic violence against his spouse and their children. Both orders contained the following notice in boldface type: "Pursuant to 18 U.S.C. § (section) 922(g), it is a federal violation to purchase, receive or possess a firearm while subject to this order." Napier had received actual notice and had an opportunity to participate in both hearings prior to issuance of the orders.

Napier was indicted by a federal grand jury on two counts of possession of firearms by a person subject to a domestic violence order in violation of 18 U.S.C. § 922(g)(8)2. Count One of the indictment charged him with possession of a semi-automatic handgun on January 30, 1999, while he was subject to two domestic violence orders, and Count Two charged him with possession of twenty-two rounds of 10 mm ammunition on the same date, while he was subject to the same domestic violence orders.

Napier filed three motions to dismiss the indictment. In his first motion he argued that § 922(g)(8) violates the Second and Fifth Amendments of the Constitution and is an unconstitutional exercise of the commerce power. In his second motion he argued that the underlying domestic violence orders were either void or did not qualify as predicate offenses. In his third motion he argued that the domestic violence orders do not fulfill the substantive requirements of 18 U.S.C. §922(g)(8)(i) and (ii). The district court denied all three motions. On the eve of trial the government made two oral motions in limine to exclude evidence regarding the validity of the domestic violence orders and regarding Napier's belief as to the existence of the domestic violence orders at the time of the instant offense. The district court granted the government's motions.

In light of the district court's rulings, Napier entered a conditional plea of guilty to both counts of the indictment. He admitted that on January 30, 1999, in Knox County, in the Eastern District of Kentucky, he knowingly possessed the gun and ammunition. He further admitted that at the time he possessed the firearm and ammunition, he was subject to domestic violence orders in Whitley County, Kentucky, and Harlan County, Kentucky. Finally, Napier admitted that the firearm and ammunition he possessed at the time of the instant offenses were manufactured outside the Commonwealth of Kentucky, and therefore traveled in interstate commerce prior to coming into his possession. As a condition of the plea of guilty, Napier reserved the right to appeal the orders of the district court denying his motions to dismiss the indictment.

II.

We review the district court's determination of the constitutionality of a federal statute de novo. United States v. Baker, 197 F.3d 211, 215 (6th Cir. 1999), cert. denied, --- U.S. ----, 120 S. Ct. 1262, 146 L.Ed.2d 117 (2000).

Napier's contention that § 922(g)(8) violates the Due Process Clause and the Commerce Clause of the United States Constitution are not unprecedented. This Circuit previously upheld § 922(g)(8) against similar attacks in Baker, supra.

"A fundamental principle of this court is that '[a] panel ... cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.'" United States v. Ables, 167 F.3d 1021, 1027 (6th Cir. 1999) (quoting Salmi v. Secretary of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). Accordingly, unless Baker is distinguishable, or if there are inconsistent decisions of the Supreme Court that require modification of Baker, Baker precludes us from ruling in Napier's favor on his Due Process and Commerce Clause challenges to § 922(g)(8).

III.

Napier challenges § 922(g)(8) on due process grounds on its face because it fails to require notice of its prohibitions. Napier also challenges the statute as applied because he contends he did not in fact receive notice that his conduct violated federal law.

According to Napier, § 922(g)(8) is a technical, obscure statute which punishes conduct that a reasonable person ordinarily would not consider to be criminal. In support of this contention, Napier relies on Judge Posner's dissent in United States v. Wilson, 159 F.3d 280 (7th Cir. 1998), cert. denied, 119 S.Ct. 2371 (1999), and the determination in United States v. Emerson, 46 F.Supp.2d 598 (N.D. Tex. 1999), that §922(g)(8) violates the Fifth Amendment because it is an obscure, highly technical statute with no mens rea requirement that renders a person subject to prosecution without proof of knowledge that he was violating the statute.

We rejected just such a challenge to § 922(g)(8) in Baker, supra. The defendant in Baker argued that the district court erred in failing to instruct the jury that it could not convict him of violating § 922(g)(8) unless he knew that the law forbade him to possess firearms while subject to a domestic violence order. 197 F.3d at 218. We noted the general rule that citizens are presumed to know the requirements of the law. We also noted that this rule is not absolute, and may be abrogated when a law is "so technical or obscure that it threatens to ensnare individuals engaged in apparently innocent conduct," because to presume knowledge of such a law would violate a core due process principle, namely that citizens are entitled to fair warning that their conduct may be criminal. 197 F.3d at 218-19. We ultimately determined, however, that it was not necessary to interpret the statute to recognize ignorance of the law as an excuse because Baker did receive adequate notice with respect to the requirements of § 922(g)(8). Id. at 219. Each of the domestic violence orders entered against Baker featured a bold print warning that he could not lawfully possess firearms. Id.

Although the domestic violence orders entered against Napier contained the same bold print warning that was found adequate in Baker, Napier contends that his case is distinguishable from Baker because he never received a copy of either domestic violence order entered against him.

The defendant in Baker made a similar argument, which this court held was "of no moment." Id. at 220 n. 6. Even if Baker had not received direct notice of his firearms disability, his prosecution under § 922(g)(8) would still not have resulted in a violation of his due process rights:

The fact that Baker had been made subject to a domestic violence protection order provided him with notice that his conduct was subject to increased government scrutiny. Because it is not reasonable for someone in his position to expect to possess dangerous weapons free from extensive regulation, Baker cannot successfully claim a lack of fair warning with respect to the requirements of § 922(g)(8).

197 F.3d at 220.

Although this language in Baker might be considered dicta, its reasoning was adopted in United States v. Beavers, 206 F.3d 706 (6th Cir. 2000), to support the determination that §922(g)(9), which makes it a crime for one who has been convicted of a misdemeanor crime of domestic violence to possess a firearm, is constitutional even though it does not require the government to prove that the defendant had actual knowledge that his possession of a firearm was illegal. Id. at 709-10. We concluded in Beavers that the defendant's conviction on a domestic violence offense sufficiently placed him on notice that the government might regulate his ability to own or possess a firearm. Id. at 710.

Napier suggests that in considering whether the domestic violence order proceeding should have put him on notice that the government might regulate his possession of a firearm, the Court should consider the fact that domestic violence order proceedings are often informal and uncounseled.

While there are procedural differences between a domestic violence order and a misdemeanor conviction on a domestic violence offense, we do not find those procedural differences significant. As we pointed out in Baker, the nature of the...

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