Opinion
Case No. C4-02-82, Docket Number: 54
October 2, 2003
ORDER DENYING MOTION FOR STAY OF SENTENCE AND RELEASE PENDING APPEAL
Summary: Defendant, Robert Lippman is appealing his conviction of the offense of possession of firearms by a person subject to a court order in violation of 18 U.S.C. § 922(g)(8). He filed a Motion for Stay of Sentence and Release Pending Appeal, under 18 U.S.C. § 3143(b). The Court denied his motion, finding that the he had not satisfied the requirements of 18 U.S.C. § 3143(b)(1)(B).
Before the Court is Defendant's Motion for Stay of Sentence and Release Pending Appeal, under 18 U.S.C. § 3143(b). For the reasons set forth below, the Court denies the Defendant's motion.
I. BACKGROUND
On September 13, 2002, the Defendant, Robert Lippman, was charged with possession of firearms by a person subject to a court order in violation of 18 U.S.C. § 922(g)(8). Lippman filed a Motion to Dismiss on November 22, 2002, alleging that 18 U.S.C. § 922(g)(8) is unconstitutional. On January 6, 2003, this Court denied Lippman's Motion to Dismiss. A two-day jury began on April 21, 2003 and a guilty verdict was returned by the jury on April 22, 2003. Lippman was sentenced on September 9, 2003, to 8 months of imprisonment, 2 years of supervised release, and a $100 special assessment. On September 11, 2003, Lippman filed a Motion for Stay of Sentence and Release Pending Appeal. That same day, Lippman filed a Notice of Appeal. Lippman is scheduled to voluntarily surrender on October 9, 2003.
II. LEGAL ANALYSIS
The release of a convicted defendant pending appeal is governed by 18 U.S.C. § 3143 (b)(1), which provides:
Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds —
(A)by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title and
(B)that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in —
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title, expect that in the circumstances described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence.18 U.S.C. § 3143(b)(1).
Neither party disputes that Lippman has been found guilty of an offense and sentenced to a term of imprisonment. Accordingly, the provisions of 18 U.S.C. § 3143(b)(1) apply to Lippman.
Lippman contends, and the Government does not object, that he does not pose a danger to the community or is likely to flee. The Court agrees. The Court granted Lippman both pre-trial and pre-sentence release and has allowed him to voluntarily surrender himself to begin serving his sentence. Implicit in the Court's earlier findings was a determination that Lippman did not pose a danger to the community and that he was unlikely to flee. Nothing has been presented to the Court to alter its previous findings. Thus, the Court finds that Lippman has met the requirements of Section 3143(b)(1)(A).
The crucial issue is whether Lippman has met the requirements of Section 3143(b)(1)(B). In United States v. Powell, 761 F.2d 1227, 1233-34 (8th Cir. 1985), the Eighth Circuit interpreted 18 U.S.C. § 3143(b) and set forth the following standard to determine whether a defendant has met the requirements of Section 3143(b)(1)(B). We hold that a defendant who wishes to be released on bail after the imposition of a sentence including a term of imprisonment must first show that the question present by the appeal is substantial, in the sense that it is a close question or one that could go either way. It is not sufficient to show simply that reasonable judges could differ (presumably every judge who writes a dissenting opinion is still "reasonable") or that the issue is fairly debatable or not frivolous. On the other hand, the defendant does not have to show that it is likely or probable that he or she will prevail on the issue on appeal. If this part of the test is satisfied, the defendant must then show that the substantial question he or she seeks to present is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor. In deciding whether this part of the burden has been satisfied, the court or judge to whom application for bail is made must assume that the substantial question presented will go the other way on appeal and then assess the impact of such assumed error on the conviction. This standard will, we think, carry our the manifest purpose of Congress to reduce substantially, the numbers of convicted persons released on bail pending appeal, without eliminating such release entirely or limiting it to a negligible number of appellants. Id.
Lippman has advanced three issues on appeal:
(1) whether 18 U.S.C. § 922(g)(8) is constitutional,
(2) whether under 18 U.S.C. § 922(g)(8) the government must prove and the Court must instruct as an essential element that Lippman knew he was subject to the court order in question, and
(3) whether the Court erred in instructing the jury on the definition of "hearing" as it relates to the court order in question. As Powell instructs, this Court must determine whether these questions presented by the appeal are substantial in the sense that they are close questions or ones that could go either way.761 F.2d 1227, 1233.
A. CONSTITUTIONALITY OF 18 U.S.C. § 922(g)(8)
On November 22, 2003, Lippman filed a Motion to Dismiss alleging that 18 U.S.C. § 922(g)(8) was unconstitutional. This Court denied his Motion stating:
Even assuming for the sake of argument that the Eighth Circuit adopted a position similar to the Fifth Circuit and held that the Second Amendment does protect an individual right to bear arms regardless of militia purpose, Lippman would still have to show that the restriction of his right to bear arms was not narrowly tailored or was unreasonable in scope in order to even assert a legitimate claim of any Second Amendment violation. U.S. v. Emerson, 270 F.3d 203, 261. It is clear that a person may still be constitutionally prohibited from possessing a firearm under 18 U.S.C. § 922(g)(8). In fact, other courts that have considered the issue have consistently upheld the constitutionality of Section 922(g)(8). See United States v. Bayles, 2002 WL 31529012, 310 F.3d 1302 (10th Cir. Nov. 15, 2002); United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002); United Sates v. Napier, 233 F.3d 394, 402-404 (6th Cir. 2000); United States v. Henson, 55 F. Supp.2d 528 (S.D. W. Va. 1999). Lippman has not cited to any case that has held that 18 U.S.C. § 922(g)(8) is unconstitutional. . . . The Court concludes that such a prohibition is sufficiently tailored to support a compelling government interest. As such, the motion for dismissal of the indictment on the grounds that the statute under which Lippman was charged ( 18 U.S.C. § 922(g)(8)) violates the Second Amendment is without merit. The Court concludes as a matter of law that 18 U.S.C. § 922(g)(8) is constitutional on its face and as applied to the defendant. Order Denying Motion to Dismiss (Doc. No. 22). As stated above, this Court is unaware of any other court that has held that 18 U.S.C. § 922(g)(8) is unconstitutional. All of the courts that have considered such an argument have consistently upheld 18 U.S.C. § 922(g)(8). Thus, the Court finds that the appeal issue that 18 U.S.C. § 922(g)(8) is unconstitutional is not a "close question or one that could go either way."
Powell, 761 F.2d 1227, 1233.
B. INTENT REQUIRED BY 18 U.S.C. § 922(g)(8)
As his second basis for appeal, Lippman contends that the Court erred in refusing to give a jury instruction to the effect that the jurors were required to find, beyond a reasonable doubt, that Lippman knew he was subject to the court order in question at the time of the offense. Lippman offered an instruction that would have included as an element of the offense that "the defendant knew he was subject to a valid court order." Defendant's Proposed Final Jury Instruction No. 5 (Doc. No. 30). The Court did not instruct the jury that they must find that Lippman knew he was subject to a valid court order rather, the Court instructed that "at the time the Defendant possessed the firearm, he was subject to a valid court order." Final Jury Instructions (Doc. No. 39).
Lippman relies on a brief parenthetical expression of the Seventh Circuit in United States v. Wilson, 159 F.3d 280 (7th Cir. 1998) for the proposition that a defendant's knowledge that he was subject to a court order is an essential element of Section 922(g)(8). In Wilson, the defendant alleged Section 922(g)(8) violated his Due Process rights. The Seventh Circuit noted that "whether a person knows that a law has been passed regulating certain conduct is a question separate and distinct from the question of whether that law, as written, adequately describes that conduct it seeks to criminalize." Id.
Id. First, the Seventh Circuit held that Section 922(g)(8) clearly informs those who are subject to it what conduct it prohibits. Id. Second, the Seventh Circuit held that ignorance of the law is no defense to a criminal prosecution. Id. The Seventh Circuit went on to state that the defendant did not argue that he did not have knowledge of the actions constituting the offense and then in parentheses notes "i.e., that he was possessing a gun in his car and was subject to an order of protection." Id. at 289. The Seventh Circuit engaged in a thorough discussion of the essential elements of 18 U.S.C. § 922(g)(8). This Court does not interpret the Wilson decision as an explicit pronouncement that 18 U.S.C. § 922(g)(1) requires a jury to find that the defendant had knowledge that he was subject to a court order before a conviction may be valid. Thus, Wilson provides little support for Lippman's argument that the Court erred in instructing the jury on the essential elements of Section 922(g)(2).
Lippman also cites to United States v. Forbes, 64 F.3d 928 (4th Cir. 1995) wherein the Fourth Circuit held that a defendant must have knowledge that he was under indictment to be convicted of a violation of 18 U.S.C. § 922(n). Lippman contends that a defendant's knowledge of an indictment is an essential element of Section 922(n). However, the Fourth Circuit specifically distinguished the essential elements of Section 922(n) from Section 922(g). There are significant difference between Langley [a case involving a conviction under 18 U.S.C. § 922(g)(1)] and this case in both statutory text and in everyday practicalities. To begin with, the penalty section applicable to § 922(n) offenses, § 924(a)(1)(D), prescribes imprisonment and a fine for "whoever willfully violation" that provision the section applicable to § 922(g)(1) cases, § 924(a)(2), applies to "whoever knowlingly violates" it. In Langley, we interpreted "knowingly" as a Congressional endorsement of prior law, which had required only that the ex-felon know that he has received, possess, or transported the firearm. 62 F.3d at 605-06 see United States v. Williams, 588 F.2d 92 (4th Cir. 1978). On the other hand, "willfully," especially in a statute in which Congress simultaneously uses "knowingly," connotes a more deliberate criminal purpose, sometimes to the point of requiring a specific intent to violate the law. Ratzlaf v. United States, 510 U.S. 135 (1994). It is a "word of many meanings" id. and generally means at least "`consciousness of the act but not . . . consciousness that the act is unlawful.'" Id. (Blackmum, J. dissenting) (quoting Cheek v. United States, 498 U.S. 192 (1991) (Scalia, J., concurring)). Here, we are asked to interpret it modestly, by requiring bare knowledge of the single fact that separates [the defendant's] gun purchases from the hundreds of otherwise-identical lawful purchases that happen every day. In sum, then, Congress' inclusion of "willful" in § 924(a)(1)(D) supports our conclusion. United States v. Forbes, 64 F.3d 928, 933 (4th Cir. 1995) (footnotes omitted). Further, the Court stated that [a]n ex-felon who possesses a gun may well not understand the word "felony" or many other legal aspects of the process that led to his conviction, but he cannot credibly assert ignorance of the historical fact of his conviction. Requiring proof of anything more than this historical fact risks enshrining ignorance of the law as a defense. Id. at 933. From this discussion it is clear that the Fourth Circuit did not view Section 922(g) as requiring the defendant to have knowledge of the specific historical fact, i.e., whether the individual was a felon, a fugitive from justice, an unlawful user of controlled substance or subject to a court order, which make the possession of a firearm prohibited.
Upon closer review of the authority cited by Lippman and in the absence of any authority which has clearly held that a defendant must know he is subject to a court order to be convicted under 18 U.S.C. § 922(g)(8), the Court find that this appeal issue is not a "close question or one that could go either way." Powell, 761 F.2d 1227, 1233.
C. HEARING INSTRUCTION
Finally, Lippman contends that the Court erred by instructing the jury on the definition of "hearing" as it related to the court order in question. Lippman set forth a definition for "hearing" in his proposed final jury instructions, which stated:
The term "hearing" means a proceeding of relative formality, generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented. Defendant's Proposed Final Jury Instruction No. 5 (Doc. No. 30). The Court included Lippman's requested instruction word-for-word in its Final Jury Instructions. (Doc. No. 39).
Apparently, Lippman is contending that the definition of hearing should have included language that a hearing requires that facts be found and witnesses be presented. He cites to United States v. Spruill, 292 F.3d 207 (5th Cir. 2002). Lippman asserts that the Court in Spruill determined that a hearing requires the finding of facts and the presentation of testimony. However, the Fifth Circuit found that Section 922(g)(8)(A) requires that the order must be one "issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate." The ordinary, natural meaning of this is that there must have been an actual hearing-as we said in Emerson, 270 F.3d at 261, and as the district court stated here"[d]efendant never appeared before a judge, nor was a hearing (at least as this court would define one) apparently ever held," 61 F. Supp.2d at 588. See also Willimantic Car Wash, Inc., 724 A.2d at 1110, as to the "common, generally understood meaning" of "hearing" (quoted in note 11 supra). Moreover, the wording of section 922(g)(8)(A) likewise expressly requires that the defendant have "received actual notice" of the hearing, which necessarily means that the hearing must have been set for a particular time and place and the defendant must have received notice of that and thereafter the hearing must have been held at that time and place. None of these things occurred here. Id. at 220. The text of 18 U.S.C. § 922(g)(8) states that the court order in question must have been issued "after a hearing of which such person received actual notice, and at which such person had an opportunity to participate." It does not require that facts be found and witnesses presented.
Further, when ruling on Lippman's Motion to Dismiss, the Court made the following observation regarding the hearing Lippman received prior to the issuance of the restraining order. The record reveals that Lippman is an attorney and he was afforded a hearing with prior notice and an opportunity be heard before the California state court which first issued the domestic violence restraining order against him in February 2000. Lippman stipulated to the entry of a restraining order against him. Lippman was made aware of the ramifications that the restraining order would have on his right to possess and bear arms and he ultimately agreed to its imposition. California law requires that the court issuing the restraining order inform all parties of the terms of the order, "including notice that the respondent is prohibited from owning, possessing, purchasing or receiving or attempting to own, possess, purchase or receive a firearm, and including notice of the penalty for violation." Cal.Fam. Code § 6304. Morever, the restraining order itself warns that "any person subject to a restraining order is prohibited from purchasing or attempting to purchase, receiving, or attempting to receive, or otherwise obtaining a firearm. The order further warns that "under federal law, the issuance of a restraining order after hearing will generally prohibit the restrained person from owning, accepting, transporting, or possessing firearms or ammunition. A." (emphasis added) There is no question that Lippman was aware of the restraining order which prohibited him from possessing firearms. Order Denying Motion to Dismiss (Doc. No. 22).
The definition of hearing given by the Court in the Final Jury Instructions, tracks the language of Section 922(g)(8). This was the precise instruction proposed by Lippman. Lippman has not offered any authority finding that such a definition is not sufficient. Again, the Court finds that this appeal issue is not a "close question or one that could go either way." Powell, 761 F.2d 1227, 1233.
None of the issues presented by Lippman meet the requirement of 18 U.S.C. § 3142(b)(1)(B). The Court finds that the appeal issues of (1) whether 18 U.S.C. § 922(g)(8) is constitutional, (2) whether under 18 U.S.C. § 922(g)(8) the government must prove and the Court must instruct as an essential element that Lippman knew he was subject to the court order in question, and (3) whether the Court erred in instructing the jury on the definition of "hearing" as it relates to the court order in question, are not substantial, in the sense that they are close questions or ones that could go either way. Powell 761 F.2d 1227, 1233.
III. CONCLUSION
The Court DENIES Lippman's Motion for Release and Stay of Sentence Pending Appeal. (Doc. No. 49).
IT IS SO ORDERED.