United States v. Calor

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 15, 2003
• Docket: 02-5099
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Calor No. 02-5099 ELECTRONIC CITATION: 2003 FED App. 0291P (6th Cir.) File Name: 03a0291p.06 UNITED STATES ATTORNEY, Lexington, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X KENNEDY, Circuit Judge. Alexander Calor appeals the district court’s denial of his motion to dismiss his prosecution Plaintiff-Appellee, - under 18 U.S.C. § 922(g)(8) for possession of five firearms - - No. 02-5099 while subject to a court order, and its denial of his motion to v. - suppress evidence connected to his prosecution under 26 > U.S.C. § 5861(d) for possession of an unregistered , Bushmaster .223 caliber rifle with an eleven and one-half inch ALEXANDER CALOR, - Defendant-Appellant. - barrel. We AFFIRM the district court’s disposition of both motions. N Appeal from the United States District Court I. for the Eastern District of Kentucky at Lexington. No. 01-00063—Karl S. Forester, Chief District Judge. On Friday, February 9, 2001, Mary Beth Calor, Alexander Calor’s wife, sought and obtained an ex parte Emergency Argued: July 31, 2003 Protective Order (EPO). The EPO was served on Mr. Calor at the Calors’ residence on the evening of February 9 by two Decided and Filed: August 15, 2003 Harrison County deputy sheriffs. The EPO restrained Mr. Calor from contacting Mrs. Calor, ordered Mr. Calor to Before: KENNEDY, GILMAN, and GIBBONS, Circuit vacate the marital residence, ordered Mr. Calor “not to Judges. possess any firearms, turn all firearms into [Harrison County] Sheriff’s Office,” and summoned Mr. Calor to appear at a _________________ hearing on Monday, February 12, 2001 at 11:00 a.m. to respond to domestic violence allegations. The EPO was COUNSEL effective through February 12, 2001. Calor allowed the deputy sheriffs who served the EPO to retrieve a quantity of ARGUED: Fred E. Peters, Lexington, Kentucky, for guns, including a Bushmaster .223 caliber rifle with an eleven Appellant. Kenneth R. Taylor, ASSISTANT UNITED and one-half inch barrel. STATES ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Fred E. Peters, Lexington, Kentucky, Elizabeth On February 12, 2001, Mr. Calor retained temporary S. Hughes, GESS, MATTINGLY & ATCHISON, Lexington, counsel to request an adjournment of the scheduled hearing. Kentucky, for Appellant. Kenneth R. Taylor, ASSISTANT The court granted the request and adjourned the hearing until

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February 21, 2001. The court did not take any testimony facts were not disputed, the district court did not hold an from sworn witnesses and no other evidence was presented, evidentiary hearing prior to ruling on Calor’s motions. The but it did address some collateral matters raised by Mrs. district court’s denial of the motion to dismiss and intertwined Calor’s counsel and issued a second EPO that was effective statutory construction present questions of law that are through February 21, 2001.1 reviewed de novo. United States v. Stewart, 306 F.3d 295, 331 (6th Cir. 2002). Likewise, the district court’s denial of On February 14, 2001, Mr. Calor violated the EPO by the motion to suppress evidence is reviewed de novo. United returning to the marital residence. Mrs. Calor reported Mr. States v Pelayo-Landero, 285 F.3d 491, 494 (6th Cir. 2002). Calor’s violation to the Harrison County Sheriff’s Office. The deputy sheriffs who responded to Mrs. Calor’s complaint A. observed Mr. Calor leaving the residence and arrested him. A search of his vehicle revealed four handguns. Mr. Calor’s Calor argues that the district court erred when it denied his counsel later reported the presence of a fifth handgun in the motion to dismiss because the court order upon which his impounded vehicle. prosecution under § 922(g)(8) is based was not issued after a hearing that is within the scope of § 922(g)(8). That statutory On July 12, 2001, a federal grand jury indicted Defendant section makes it unlawful for any person: on one count of possessing a firearm in violation of title 18 of the United States Code, § 922(g)(8) (Count I), and one count (8) who is subject to a court order that– of possessing a firearm in violation of title 26 of the United (A) was issued after a hearing of which such person States Code, § 5861(d) (Count II). Calor was convicted on received actual notice, and at which such person had an both counts by a jury. opportunity to participate; (B) restrains such person from harassing, stalking, or II. threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other Calor’s appeal presents two distinct issues. The first issue conduct that would place an intimate partner in is whether the February 12 court proceeding before the state reasonable fear of bodily injury to the partner or child; trial judge provided the predicate hearing necessary to render and the February 12 EPO a court order within the meaning of (C)(i) includes a finding that such person represents a § 922(g)(8). The second issue is whether the deputy sheriffs credible threat to the physical safety of such intimate lawfully seized the Bushmaster .223 caliber rifle for the partner or child; or purposes of a criminal prosecution. Because the relevant (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 1 expected to cause bodily injury; In addition to the terms of the first EPO, the second EPO restrained Mr. Calo r from com ing into the city of Cynthia na exc ept to see his ... attorney and for court appearances, required him to stay away from his to ship or transport in interstate or foreign commerce, or wife’s place of employm ent and his daughter’s daycare, and provided that possess in or affecting commerce, any firearm or a list o f Mr. Calor’s clothing and personal belongings be given to M rs. ammunition; or to receive any firearm or ammunition Calo r’s attorney and that Mr. Calor could retrieve these items from the Harrison County Sheriff’s Office. No. 02-5099 United States v. Calor 5 6 United States v. Calor No. 02-5099

which has been shipped in interstate or foreign participate does not does not alter his status under commerce. § 922(g)(8). The second EPO, which was issued at the conclusion of the February 12 court appearance, provided the This Circuit has upheld the constitutionality of § 922(g)(8). predicate court order for Calor’s prosecution for possessing United States v. Napier, 233 F.3d 394 (6th Cir. 2000) the five firearms in violation of §922(g)(8). (holding that § 922(g)(8) does not violate Due Process and Commerce clauses, or Second Amendment), United States v. Our reading of §922(g)(8) is consistent with that of the Baker, 197 F.3d 211 (6th Cir. 1999) (holding that § 922(g)(8) Seventh Circuit. United States v. Wilson, 159 F.3d 280 (7th does not violate Due Process or Commerce clauses). The Cir. 1998), considered a due process challenge to defendant’s construction of what is necessary to meet the hearing conviction under §922(g)(8). The court concluded that the requirement, however, presents a question of first impression. state court proceeding afforded to Wilson prior to entry of the plenary protection order against him provided “‘an “In all cases of statutory construction, the starting point is opportunity to be heard at a meaningful time and in a the language employed by Congress. Where the statute’s meaningful manner.’” Id. at 289-90 (quoting Mathews v. language is plain, the sole function of the courts is enforce it Eldridge, 424 U.S. 319, 333 (1976). Defendant had an according to its terms.” Vergos v. Gregg’s Enters., Inc., 159. opportunity to be heard in a meaningful manner because, even F.3d 989, 990 (6th Cir. 1998) (internal quotation marks and though no proof was presented, he had “‘the opportunity to citations omitted). “The court must look beyond the language present reasons, either in person or in writing, why proposed of the statute, however, when the text is ambiguous or when, action should not be taken.’” Id. at 290 (quoting Cleveland although the statute is facially clear, a literal interpretation Bd. of Educ. v. Loudermill, 470 U.S. 52, 546 (1985)). Given would lead to internal inconsistencies, an absurd result, or an that the minimum requirements of the statute comport with interpretation inconsistent with the intent of Congress.” Id. the requirements of due process, we follow the Seventh Circuit in declining to embellish the hearing requirements The parties contend that the term “hearing” is ambiguous. explicitly set forth in § 922(g)(8). Consequently, we affirm While we agree that the term has not been given a consistent the district court denial of Calor’s motion to dismiss his meaning in federal law and its construction has been context prosecution under 18 U.S.C. § 922(g)(8) for possession of dependent, the term is not ambiguous in this context. In order five firearms while subject to a court order.2 for a court proceeding to be the predicate hearing for a court order that triggers the § 922(g)(8) firearm disability, the B. statute straightforwardly requires that the subject of the court order be given actual notice of the proceeding and an Calor next argues that the district court erred when it denied opportunity to participate. In this case, the actual notice his motion to suppress the evidence of his possession of an requirement is satisfied by the summons written into the EPO unregistered firearm because the February 9 EPO cannot that was served on Calor on the evening of February 9. The opportunity to participate requirement is satisfied because 2 Calor could have presented reasons why the court should not Calor’s reliance on Un ited States v. S pruill, 292 F.3d 207 (5 th Cir. enter an order finding that he posed a credible threat to the 2002), is misplaced. The dom estic violence order at issue in Spruill did safety of his wife or child at the February 12 court not fall within the scope of § 922(g)(8) because it was entered by agreement of the parties, but without the parties appearing before a judge proceeding. That Calor elected to waive his opportunity to at a noticed hearing. Id. at 219-20. No. 02-5099 United States v. Calor 7 8 United States v. Calor No. 02-5099

constitute a valid search warrant under the Fourth district court’s balancing of the relative interests appropriately Amendment and the pre-hearing seizure of the firearms assigns greater weight to the government’s interest in violates constitutional due process requirements. protecting an alleged domestic violence victim from gun violence and possible death after an alleged abuser has been With respect to Calor’s Fourth Amendment challenge to the served an EPO than to a gun owner’s brief loss of possession. validity of the EPO as a search warrant, the district court Consequently, we affirm the district court’s denial of Calor’s found that an EPO necessarily includes the authority for the motion to suppress the evidence of his possession of an illegal sheriff’s department to enter a residence to enforce the rifle. seizure-of-weapons provision. As such, the district court found that “the deputy sheriffs were acting pursuant to a valid III. search warrant, issued by the terms of a constitutional statute, when the Bushmaster weapon was seized.” This claim, For the foregoing reasons, we affirm the district court’s however, fails on narrower grounds because Calor does not denial of Calor’s motion to dismiss his prosecution under 18 argue that the deputy sheriffs’ entry into his residence and U.S.C. § 922(g)(8) for possession of five firearms while retrieval of his guns for transportation to the Harrison County subject to a court order. We also affirm the district court’s Sheriff’s Office was done without his permission. United denial of Calor’s motion to suppress evidence connected to States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“‘A his prosecution under 26 U.S.C. § 5861(d) for possession of search may be conducted without a warrant if a person with an unregistered Bushmaster .223 caliber rifle with an eleven a privacy interest in the [place] to be searched gives free and and one-half inch barrel. Calor’s conviction is affirmed. voluntary consent.’” (quoting United States v. Riascos- Suarez, 73 F.3d 616, 625 (6th Cir. 1996)). In fact, at trial, Calor testified that he complied with the order, albeit reluctantly, and that he helped the deputies pack up his firearms. Had Calor denied the deputy sheriffs permission to enter and the deputies relied on the EPO to search for and seize Calor’s guns, we then would have a basis for considering whether an EPO, which requires the removal of an alleged domestic abuser and his firearms from the home, is a valid search warrant under the Fourth Amendment. With respect to Calor’s due process challenge to the seizure of his firearms, the district court found that Calor’s argument failed because, under the balancing test articulated in Mathews v. Eldridge, 408 U.S. 471, 481 (1972), Kentucky’s interest in protecting the victims of domestic violence from further violence, and possibly death, outweighed Calor’s interest in maintaining possession of his firearms during the brief period between seizure and a hearing, and that the risk of an erroneous deprivation of property rights was small. The