United States Court of Appeals

Fifth Circuit

FILED

July 15, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-41428

 

UNITED STATES OF AMERICA

Plaintiff - Appellant

v.

ERIC BANKS

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

Before KING, Chief Judge, and DAVIS and BENAVIDES, Circuit

Judges. 

KING, Chief Judge:

Defendant-Appellee Eric Banks was charged with five counts

of possession of a firearm while subject to a restraining order

in violation of 18 U.S.C. § 922(g)(8) (2000). The district court

dismissed these counts because it found that the restraining

order to which Banks was subject was not issued after a

“hearing,” as § 922(g)(8)(A) requires. The United States now

appeals the dismissal of the counts, arguing that Banks did

receive a “hearing” within the meaning of § 922(g)(8)(A). We

agree, and thus we reverse. 

I. FACTUAL AND PROCEDURAL HISTORY

A. Facts

The facts are, for the most part, undisputed. The
1 Due to a previous fire at the home (for which Banks was

also under investigation), Barrington no longer lived there, but

her cat did. 

2

prosecution in this case arose out of the investigation of an

explosion at a trailer home owned by Alisha Barrington in

Atlanta, Texas, in January 2002. When Barrington opened the door

to enter her trailer home, an explosive device detonated,

destroying much of the trailer, knocking Barrington to the

ground, and killing her cat.1 The local police, joined by agents

from the Bureau of Alcohol, Tobacco, and Firearms (collectively

“the police”), concluded that the explosive device was

constructed from a metal pipe. 

The police investigation soon focused on Defendant-Appellee

Eric Banks, Barrington’s ex-boyfriend who had previously lived

with her. The police visited Banks at his home and asked for

consent to search his home and his truck. Banks gave consent,

and the police found material implicating Banks in the explosion,

including electrical connections for splicing wires and a receipt

for electrical supplies and a pipe. The police also found two

firearms. The police then obtained a warrant to search Banks’s

home and his truck. During the warrant search and the search

accompanying Banks’s subsequent arrest, the police found two

other firearms, as well as other evidence implicating Banks in

the explosion.

At the time of the explosion, Banks was subject to a

temporary protective order obtained by Barrington. On August 1,

2001, after her relationship with Banks ended and Banks
2 Banks and Barrington lived together from the fall of

1998 to January 2001. After they broke up, there is evidence

that Banks pulled a gun on Barrington’s stepfather, tried to run

Barrington off the road, shot at Barrington’s car, shot at a car

that resembled Barrington’s, defaced Barrington’s car, and

started the fire at Barrington’s trailer home. 

3 The temporary ex parte order was signed by Judge Jack

Carter.

3

threatened her personal safety in numerous ways,2 Barrington

filed an application for a temporary protective order through the

Cass County, Texas, District Attorney’s Office. Barrington

verified the application under oath. The application contained a

statement of abuse, which detailed Banks’s threats and physical

and emotional abuse. A deputy sheriff served Banks with notice,

advising him of a hearing scheduled for August 13. Banks,

through his attorney, postponed the hearing at least once. 

The Assistant District Attorney on the case then became

worried for Barrington’s safety and obtained a temporary ex parte

protective order on October 10.3 The temporary ex parte order,

which lasted for fourteen days, explicitly prohibited Banks from

possessing a firearm. Banks was served with a copy of the

temporary ex parte order on October 15, when he was in court on

charges of making terroristic threats. The presiding district

judge, Judge Leon Pesek, gave Banks the ex parte order and

advised him that a hearing on the application for the temporary

protective order was set for October 22.

On October 22, Banks appeared in court and consented to an

agreed temporary protective order. Judge Jack Carter was the

presiding judge that day. There is conflicting evidence about

who was in court that day. Barrington testified at the hearing
4 Banks was charged with one count for each of the four

firearms found during the consent, warrant, and arrest searches

and one count for the explosive device. 

5 This indictment superseded the first indictment, which

charged only four counts of possession of a firearm while subject

to a restraining order in violation of 18 U.S.C. § 922(g)(8). 

4

on Banks’s motion to dismiss the federal indictment that she and

the Assistant District Attorney were present, while defense

counsel stated that only he, Banks, and the Assistant District

Attorney were present. The parties simply informed the court

that they had reached a settlement. No witnesses were called and

no evidence was presented other than the protective order itself. 

Banks later signed the agreed order in his attorney’s office. 

Banks’s attorney forwarded the signed order to the Assistant

District Attorney, who signed the order and forwarded it to Judge

Pesek. Judge Pesek then signed the order in his chambers outside

the presence of either of the parties and returned it to the

District Attorney’s office for filing. The agreed order

specifically stated that Banks could not possess a firearm while

subject to the order. 

B. Procedural History

Banks was charged with five counts of possession of a

firearm4 while subject to a restraining order in violation of 18

U.S.C. § 922(g)(8) (2000) and one count of possession of an 

unregistered firearm in violation of 26 U.S.C. § 5861(d) (2000).5

Banks filed a motion to dismiss the first five counts of the

indictment, arguing that he was not subject to a court order

issued after a “hearing,” as 18 U.S.C. § 922(g)(8)(A) requires. 

The United States initially opposed the motion, arguing that the
6 The district court did not resolve the factual dispute

about who was present in court on October 22, 2002, because it

determined that “the record was otherwise clear that no hearing

was conducted.” No party argues to this court that resolution of

that factual dispute is required to decide this appeal.

5

matter could not be determined pretrial. The district court

agreed and advised the parties it would deny the motion. But,

the United States then agreed to waive its opposition to the

pretrial determination. The district court held an evidentiary

hearing on the motion. 

The district court entered an opinion and order dismissing

the first five counts of the indictment based on

18 U.S.C. § 922(g)(8). The district court held that the agreed

order was not issued after a “hearing” within the meaning of

§ 922(g)(8)(A). The district court read United States v.

Spruill, 292 F.3d 207 (5th Cir. 2002), to require a hearing where

evidence is presented and witnesses are called, so that an

uncontested order could not be the basis of a § 922(g)(8)

prosecution.6

The United States now appeals, arguing that Banks received a

hearing within the meaning of 18 U.S.C. § 922(g)(8)(A). 

II. STANDARD OF REVIEW

A challenge to an indictment based on the legal sufficiency

of uncontested facts is an issue of law reviewed de novo. See

United States v. Moore, 73 F.3d 666, 668 (6th Cir. 1996) (using

the de novo standard to review a motion to dismiss an indictment

based on undisputed facts). 

III. DISCUSSION

The counts of the indictment at issue were based on 18
7 The order that forms the basis for the indictment in

this case is the temporary protective order, not the ex parte

order, because the ex parte order expired and only the temporary

order was in effect when Banks was found with firearms.

6

U.S.C. § 922(g)(8), which states:

(g) It shall be unlawful for any person --

(8) who is subject to a court order that --

(A) was issued after a hearing of which such

person received actual notice, and at which person

had an opportunity to participate;

(B) restrains such person from harassing,

stalking, or threatening an intimate partner 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 . . . possess in or affecting commerce[] any firearm or

ammunition . . . 

18 U.S.C. § 922(g)(8) (2000) (emphasis added). The only portion

of § 922(g)(8) at issue in this appeal is the requirement in

subsection (A) that the court order be “issued after a hearing of

which such person received actual notice, and at which person had

an opportunity to participate.” Id.

The question before us is thus whether the process leading

up to the agreed temporary protective order7 in this case

qualifies as a “hearing.” The statute itself does not define the

term “hearing.” Our key case addressing the “hearing”

requirement is United States v. Spruill. See 292 F.3d 207 (5th

Cir. 2002). In that case, Spruill argued that he did not receive

a hearing as § 922(g)(8)(A) requires. Id. at 214. The order at
7

issue was an agreed protective order that was issued even though

Spruill never appeared before a judge and no evidentiary hearing

was held. See id. at 210-11. Further, Spruill was not

represented by counsel and was illiterate. See id. Spruill went

to see the Assistant District Attorney on the case, who explained

the purpose of the protective order to Spruill and told him where

to sign if he agreed to the order. See id. Spruill signed the

agreed order and it was forwarded to a judge. See id. 

The Spruill court determined that this process did not meet

the requirements of § 922(g)(8)(A). See id. at 215-21. The

court noted that “no hearing was ever set and Spruill received no

notice of any hearing.” Id. at 217. The court also noted that

Spruill never appeared before a judge, stating that “the court’s

approval of the order agreed to out of court . . . clearly does

not carry with it the same degree of assurance that the issuing

court itself determined that such an order was necessary to

prevent family violence as would an order issued after an actual

hearing.” Id. at 217. The court cited, with approval, the

Pennsylvania Supreme Court’s definition of a “hearing”:

[A] hearing intends a judgment bench attended by judges

or officials sitting in a judicial capacity, prepared

to listen to both sides of the dispute and to consider

deeply, reflect broadly, and decide impartially, and

the mere consideration of a report moving across one’s

desk[] is not a hearing.

Id. at 218 (quoting Commonwealth v. Davis, 612 A.2d 426, 429 (Pa.

1992)) (emphasis added in Fifth Circuit opinion). The court thus

interpreted § 922(g)(8)(A) to mean 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
8

been held at that time and place.” Id. at 220. 

The hearing requirement contained in § 922(g)(8)(A) was met

in this case. Banks had “actual notice” and “an opportunity to

participate,” as 18 U.S.C. § 922(g)(8)(A) requires, and the only

reason that evidence (in addition to Barrington’s verified

statement of abuse) was not introduced is because Banks consented

to the agreed protective order. On October 15, Banks was advised

in open court that a hearing was set for October 22 on the

temporary protective order. Banks, his attorney, the Assistant

District Attorney, and perhaps Barrington appeared in court on

the scheduled date for the hearing. The presiding judge, Judge

Carter, sat on the bench, ready for the hearing; the evidence

indicates that he was “prepared to listen to both sides of the

dispute and to consider deeply, reflect broadly, and decide

impartially.” Id. (quoting Commonwealth v. Davis, 612 A.2d 426,

429 (Pa. 1992)). Banks had an opportunity to put on evidence,

but he did not avail himself of that opportunity. Though neither

the Assistant District Attorney nor defense counsel put on live

testimony, there was evidence before the court supporting

issuance of the protective order, in the form of Barrington’s

statement of abuse. This statement was verified under oath and

attached to the application for the temporary protective order. 

As Spruill requires, the hearing in this case was “set for a

particular time and place and the defendant . . . received notice

of that and thereafter the hearing [was] held at that time and

place.” Id. Banks thus received a “hearing.” 

Banks argues that his case is factually indistinguishable
9

from Spruill because both cases involved agreed orders and, thus,

there was no “hearing” in this case. But the facts of Spruill

are distinguishable in many respects. In Spruill, no application

for a protective order was ever filed, see Spruill, 292 F.3d at

213 n.7, while in this case, such an application was filed and it

contained a detailed statement of abuse. In Spruill, the date

for a hearing was never officially set, see id. at 210-11, 216,

while in this case, the hearing date was set and the hearing was

postponed by Banks at least once. Spruill was not represented by

counsel and was illiterate, see id. at 210-11, while Banks was

represented by counsel and is literate. The protective order in

Spruill did not specify that Spruill could not possess a firearm,

see id. at 209 n.1, but the protective order in this case did

clearly state that Banks may not possess a firearm. Spruill

never appeared before a judge, see id. at 210-11, 216, but Banks

did appear before a judge and had an opportunity to contest the

protective order. Spruill had no chance to present his side of

the case, see id., while here Banks clearly did. 

Banks effectively asks us to hold that an agreed order can

never be the basis for an 18 U.S.C. § 922(g)(8) prosecution. 

That we will not do. First, the Spruill court did not hold that

an agreed order cannot be the basis for a § 922(g)(8)

prosecution, though the court certainly could have done so. In

fact, the Spruill court cited, with approval, United States v.

Wilson, where the Seventh Circuit found that a defendant

consenting to an agreed order received a “hearing” sufficient to
8 Wilson did not raise the exact same issue as Spruill

because Wilson argued that the hearing violated his procedural

due process rights, see Wilson, 159 F.3d at 289-90, while Spruill

argued that the government failed to prove the “hearing” element

of a § 922(g)(8) offense, see Spruill, 292 F.3d at 214. The

Spruill court’s citation of Wilson is nonetheless helpful because

it indicates that the Spruill court recognized that an agreed

order could be the basis for a § 922(g)(8) prosecution. 

10

satisfy procedural due process.8 See Spruill, 292 F.3d at 219

n15 (citing Wilson, 159 F.3d 280, 289-90 (7th Cir. 1998)). In

that case, Wilson, his wife, and her attorney appeared in court. 

See Wilson, 159 F.3d at 284. Wilson and his wife’s attorney then

retired to the judge’s chambers for a hearing. See id. The

judge explained the order’s purpose and terms and Wilson, acting

pro se, indicated that he understood the order and consented to

its terms. See id. The Spruill court distinguished Wilson on

its facts, noting “the contrasts to Spruill’s case, in which no

hearing was set, given notice of, or held, there was no

appearance before the judge, and the order was explained to the

illiterate Spruill by the protected party’s attorney.” Spruill,

292 F.3d at 220 n.15.

Indeed, this court has previously anticipated that agreed

orders may be the basis for a § 922(g)(8) prosecution. In United

States v. Emerson, we indicated that uncontested orders may form

the basis for a § 922(g)(8) prosecution in the context of the

defendant’s Second Amendment challenge to the statute. See 270

F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002). In

Emerson, we recognized that “the Second Amendment does protect

individual rights” but that those rights may be “subject to . . .

limited, narrowly tailored specific exceptions or restrictions
11

for particular cases that are reasonable and not inconsistent

with the right of Americans generally to individually keep and

bear their private arms.” Id. at 261. Emerson argued that

prosecution under § 922(g)(8)(C)(ii) violated his Second

Amendment right because the protective order at issue did not

contain an express judicial finding that he represented a future

danger. See id. at 260-61. We rejected Emerson’s argument,

finding that 

Congress in enacting section 922(g)(8)(C)(ii) proceeded

on the assumption that the laws of the several states

were such that court orders, issued after notice and

hearing, should not embrace the prohibitions of

paragraph (C)(ii) unless such either were not contested

or evidence credited by the court reflected a real

threat or danger of injury to the protected party by

the party enjoined.

Id. at 262 (emphasis added). We explained further:

With respect to temporary injunctions and similar

orders to be issued only after notice and hearing, the

Texas rule of law, as we have noted, is that such an

order, at least to the extent contested and explicitly

prohibiting acts such as are covered by section

922(g)(8)(C)(ii), may not properly issue unless the

issuing court concludes, based on adequate evidence at

the hearing, that the party restrained would otherwise

pose a realistic threat of imminent physical injury to

the protected party, and this is so regardless of

whether or not Texas law requires the issuing court to

make on the record express or explicit findings to that

effect. 

Id. at 264 (emphasis added). In Emerson, then, we contemplated

that an agreed protective order could be the basis for a

§ 922(g)(8) prosecution. Further, in United States v. Henry, we

affirmed the defendant’s § 922(g)(8) conviction that was based on

an agreed protective order, though we did not explicitly consider

whether the “hearing” requirement had been met. See Henry, 288

F.3d 657, 660-64 (5th Cir.), cert. denied, 123 S. Ct. 224 (2002). 
12

Reading Spruill, Emerson, and Henry in harmony, we find that an

agreed order can form the basis for a § 922(g)(8) prosecution at

least where a hearing on a domestic violence order was set for a

particular time and place, the defendant received notice of it,

the defendant appeared in court with an attorney, the judge was

present and ready to hear his case, the court had evidence before

it that domestic violence had occurred, and the court gave the

defendant an opportunity to be heard. 

Were we to hold that an agreed order could never be the

basis for a § 922(g)(8) prosecution, a defendant with all the

protections that the statute contemplates could simply consent to

an agreed order to escape a later federal prosecution. In this

case, Banks’s hearing was set for a particular date, he received

notice of it in open court, and he appeared with his attorney on

the date of his hearing. Judge Carter sat on the bench, prepared

to listen to both sides of the dispute and render an impartial

decision. Before the court was Barrington’s verified statement

of abuse. Banks had an opportunity to present evidence on his

own behalf, but he chose not to do so, instead consenting to an

agreed protective order. On these facts, the “hearing”

requirement contained in 18 U.S.C. § 922(g)(8)(A) was met. 

IV. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s

order dismissing the counts of the indictment based on 18 U.S.C.

§ 922(g)(8) and REMAND for further proceedings.