FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30313 Plaintiff-Appellant,

D.C. No.

v.  CR-05-02007-FVS

BRAD WAYNE YOUNG,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Washington

Fred L. Van Sickle, Chief Judge, Presiding

Argued and Submitted

March 8, 2006—Seattle, Washington

Filed August 17, 2006

Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge O’Scannlain

9785
COUNSEL

K. Jill Bolton, Assistant United States Attorney, Spokane,

Washington, argued the cause for the appellant. James A.

McDevitt, United States Attorney, was on the briefs. 

Rebecca L. Pennell, Federal Defender, Yakima, Washington,

argued the cause and was on the brief for the appellee. 

9788 UNITED STATES v. YOUNG
OPINION

O’SCANNLAIN, Circuit Judge: 

We consider the conditions under which federal criminal

law prohibits an individual from possessing a firearm if he is

the subject of a state domestic violence restraining order. 

I

City of Union Gap, Washington, police arrested Brad

Young, the defendant-appellee, on December 29, 2004, based

on his violation of a Washington state Domestic Violence No

Contact (“DVNC”) order. Police searched Young and located

a .22 caliber pistol in his pocket. After having been read his

Miranda rights, Young admitted that the gun was his.1

It is a federal offense for those against whom a domestic

violence restraining order has been issued “after a hearing of

which such person received actual notice, and at which such

person had an opportunity to participate,” to possess a firearm. 18 U.S.C. § 922(g)(8)(A). Young was indicted by an

Eastern District of Washington federal grand jury two weeks

after his Union Gap arrest and was later tried for possessing

a firearm in violation of § 922(g)(8).2

A

Because § 922(g)(8) only applies to certain restraining

orders and significant interplay between state and federal

court proceedings is involved, we review the facts relating to

the issuance in state court of the predicate DVNC order,

1Young also admitted that he received the DVNC order by personal service, and that the DVNC order prohibited him from contacting the victim

and from possessing firearms. 

2The record indicates neither when nor why Young was transferred

from state to federal custody. 

UNITED STATES v. YOUNG 9789
which stems from an arrest earlier in December 2004 for

Young’s violation of a protective order and for felony harassment under Washington state law.3

 As a result of the earlier

arrest, a Washington state court issued two separate DVNC

orders against Young. 

1

The first DVNC order was issued at Young’s December 6,

2004, preliminary hearing. Yakima County Superior Court

Judge Michael Schwab concluded that there was “probable

cause to believe that [Young] may have been involved in the

offense of felony violation of a no contact order.” Judge

Schwab explained to Young, “This does not mean that you’re

guilty of anything. On Wednesday morning [December 8,

2004] you’ll be advised officially of any charges.” Judge

Schwab appointed Young counsel and issued a DVNC order

(“the December 6 DVNC order”): “I’m going to issue a

domestic violence no contact order which requires you to stay

away from Lena [sic4] Emily Perez, whether she wants you to

have contact with her or not. We’ll give you a copy of this

and you need to read it carefully.” At the close of the hearing,

Judge Schwab stated that he might reconsider the bail amount

at the December 8 arraignment, but he did not indicate

whether he would reconsider the DVNC order. 

At the conclusion of the preliminary hearing, the prosecuting attorney handed Young a copy of the December 6 DVNC

order and a copy of the court order containing the contact

information for Young’s court-appointed attorney. The

DVNC order further stated: “This order is entered together

with the order setting conditions of release in this case. ([Rev.

3This portion of the opinion sets forth the evidence given at trial. In Part

II, when evaluating the judgment of acquittal, we will draw all conclusions

in favor of the government, as is required. See Glasser v. United States,

315 U.S. 60, 80 (1942). 

4The court was referring to Laina Perez. 

9790 UNITED STATES v. YOUNG
Code Wash.] 10.99.040; 10.99.045.) It shall remain in effect

until further order by this Court.”

5

2

The second DVNC order—identical to the first, and the

predicate order for the federal offense—was issued on

December 8, two days after Young’s preliminary hearing,

when Judge Schwab began the formal arraignment under the

state felony harassment charge by again advising Young of

his rights, including his right to counsel.6

Susan Arb—a Senior Deputy Prosecuting Attorney with the

Yakima County Prosecuting Attorney’s Office recognized as

an expert in preliminary hearings and arraignments in Yakima

County Superior Court—later related in Young’s federal trial

that “during the arraignment the Court will consider conditions of release. . . . One of the conditions of release is often

a No Contact Order. And that’s always considered in domestic violence cases, even if other conditions of release are not.”

7

Arb also explained that “Any time [the state prosecutors] file

a domestic violence charge, . . . the prosecutors also request

a No Contact Order, ask the judge to issue that No Contact

Order.” 

Young’s counsel was not present at the December 8 state

court hearing, but an attorney from the county prosecutor’s

office gave Young a copy of the criminal information and

Judge Schwab explained the charges to him. After reducing

5The Revised Code of Washington 10.99.040(3) states: “At the time of

arraignment the court shall determine whether a no-contact order shall be

issued or extended. . . .” (emphasis added). However, during the district

court trial, the prosecution did not present the jury with the content of Rev.

Code Wash. 10.99.040(3). 

6The record does not disclose whether Young and his attorney had any

contact between the December 6 and December 8 hearings. 

7

Indeed, as noted above, Rev. Code Wash. 10.99.040(3) requires the

court to reconsider the DVNC order at the arraignment. 

UNITED STATES v. YOUNG 9791
the bail amount to $5,000, Judge Schwab issued a new DVNC

order (“the December 8 DVNC order”): 

Court: I’m also issuing a new domestic violence no

contact order which requires you to stay

away from Lena [sic] Perez whether she

wants to have contact with you or not; do

you understand that? 

Young: No problem. 

Court: This is a very serious matter. We expect

people to obey these orders. We hope you’ll

read this carefully. It contains very specific

warnings.8

Young then expressed some confusion as to the nature of

the charges against him. Judge Schwab explained:

Count one is a charge of assault in violation of a protection order. The allegation is that you assaulted

Lena [sic] Perez. That doesn’t mean that you’re

guilty of it. That’s what they’re saying happened. It

remains to be seen whether or not you did it. So the

purpose of this is just to advise you about what

they’re claiming. The mere fact that they say it

doesn’t make it so. 

The prosecuting attorney then explained the terms of the

new DVNC order to Young and gave him a copy. Like the

prior order, the December 8 order indicated that it would

remain in effect until lifted by the court and specifically noted

8Among the warnings, the DVNC stated: “Effective immediately, and

continuing as long as this protection order is in effect, you may not possess a firearm or ammunition. 18 U.S.C. section 922(g)(8). A violation of

this federal firearms law carries a maximum possible penalty of 10 years

in prison and a $250,000 fine.” 

9792 UNITED STATES v. YOUNG
that federal law prohibited Young from possessing a firearm.

The DVNC order stated that “[t]he court finds probable cause

to believe that this case involves a threat of domestic violence, the defendant is a credible threat to the physical safety

of the victim, and that the following order is necessary to protect the victim.” 

At the conclusion of the December 8 hearing, Judge

Schwab set a date for trial, as well as a date for a pre-trial

omnibus hearing. 

B

In relevant part, 18 U.S.C. § 922(g)(8)9 makes it a federal

crime for any person:

who is subject to a court order that— 

(A) was issued after a hearing of which such person received actual notice, and at which such person

had an opportunity to participate; 

(B) restrains such person from harassing, stalking,

or threatening an intimate partner10 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) 

9We have previously upheld § 922(g)(8) against a variety of challenges.

See United States v. Kafka, 222 F.3d 1129 (9th Cir. 2000) (holding that

§ 922(g)(8) does not violate due process despite the lack of mens rea

requirement); United States v. Jones, 231 F.3d 508 (9th Cir. 2000) (holding that § 922(g)(8) is within Congress’s Commerce Clause authority). 

10The parties stipulated that Laina Perez was an “intimate partner” of

Young’s. 

UNITED STATES v. YOUNG 9793
(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 ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported

in interstate or foreign commerce.11

1

At Young’s trial in federal district court, Judge Van Sickle

instructed the jury on the elements of “actual notice” and “opportunity to participate.” The jury instructions, tracking the

statutory text, stated that the statute required the jury to find

beyond a reasonable doubt that, “at the time the defendant

possessed the firearm, the defendant was subject to a court

order dated December 8, 2004, that: (A) was issued after a

hearing of which such person received actual notice, and at

which such person had an opportunity to participate.” The district court further instructed the jury:

It can be legal for a court to issue a no-contact order

against an individual in emergency circumstances,

before allowing the individual notice and an opportunity to participate. However, the federal criminal

law at issue in this case only applies to those nocontact orders that have been issued after the indi11Young also stipulated that he knowingly possessed a firearm which

had been shipped in interstate commerce. 

9794 UNITED STATES v. YOUNG
vidual who is subject to the order has been provided

notice and an opportunity to participate. 

2

The jury found Young guilty of violating § 922(g)(8), but

the district court overturned the jury verdict based on Young’s

Federal Rule of Criminal Procedure 29 motion, concluding

that the prosecution had presented insufficient evidence that

Young’s December 8 DVNC order met the terms of

§ 922(g)(8)(A). The district court explained that “advance

notice is an important component of due process.” (Citing

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

(1985)). The district court reasoned that “[w]ithout advance

notice, a party is unable to consult an attorney, evaluate allegations or marshal evidence. In view of these considerations,

it is reasonable to conclude that § 922(g)(8) requires advance

notice of a judge’s intention to extend a no-contact order.”

Because the government presented no evidence that Young

was actually aware that the December 6 DVNC order would

be extended at the December 8 arraignment, the district court

concluded that Young lacked sufficient notice of the proceedings. 

Similarly, the district court reasoned that an “opportunity to

respond” requires “ ‘the opportunity to present reasons, either

in person or in writing, why proposed action should not be

taken.’ ” (Quoting United States v. Wilson, 159 F.3d 280, 290

(7th Cir. 1998)). The district court explained that:

The judge who presided over Mr. Young’s arraignment did not allow him to consult with his attorney

before issuing the no-contact order. The judge did

not ask Mr. Young whether he wanted to review the

report upon which the judge relied to find probable

cause. The judge did not advise Mr. Young he was

entitled to challenge the contents of the report. The

judge did not ask Mr. Young whether he objected to

UNITED STATES v. YOUNG 9795
the entry of a no-contact order. . . . [H]aving examined the record as a whole, the Court concludes that

the judge who presided over Mr. Young’s arraignment did not provide him with a meaningful opportunity to participate in the decision-making process.

(internal notes and citations omitted). The district court concluded that “the jury lacked evidence from which it could

have found beyond a reasonable doubt that Mr. Young

received either actual notice of, or an opportunity to participate in, the hearing that led to the issuance of the no-contact

order,” and it entered a judgment of acquittal. 

Ruling in the alternative, the district court granted Young’s

motion for a new trial under Federal Rule of Criminal Procedure 33(a). The court concluded that “the jury should have

been instructed that actual notice means advance notice.” Further, “the jury should have been instructed more clearly concerning the factors it needed to consider in determining

whether Mr. Young received a meaningful opportunity to participate.” 

The United States timely appeals from both the grant of the

Rule 29 judgment of acquittal and the alternative grant of the

Rule 33 motion for a new trial.12

II

The government contends that the district court wrongly

expanded the requirements of § 922(g)(8) beyond the statutory text. Young, however, argues that the statute requires a

state court hearing meeting the traditional requirements of due

process. This case requires us only to construe § 922(g)(8);

12Double jeopardy is not a concern because the jury initially convicted

Young. See United States v. Foumai, 910 F.2d 617, 619 (9th Cir. 1990).

9796 UNITED STATES v. YOUNG
we do not consider whether the procedural protections in the

underlying Washington DVNC statute satisfy due process.13

A

First, we address Young’s argument that “Congress only

attached a firearms disability to those individuals who . . .

have already had a due process hearing.”

14

In Lewis v. United States, 445 U.S. 55 (1980), the Supreme

Court construed the felon-in-possession predecessor to

13We review de novo the grant of a judgment of acquittal. United States

v. Johnson, 357 F.3d 980, 983 (9th Cir. 2004). A motion for acquittal

should be denied if “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’ ” United

States v. Tisor, 96 F.3d 370, 379 (9th Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We review statutory interpretation, construction, and application de novo. United States v. Ventre, 338 F.3d 1047,

1052 (9th Cir. 2003). 

14We note at the outset that there is a Circuit split as to whether

§ 922(g)(8) requires proof of a valid restraining order. The Fifth Circuit

has squarely rejected the contention that a federal court should probe into

state proceedings, noting that “ ‘nothing in section 922(g)(8) suggests that

the validity of the particular predicate court order may be inquired into in

the section 922(g)(8) criminal prosecution.’ ” United States v. Hicks, 389

F.3d 514, 534 (5th Cir. 2005), cert. denied 126 S.Ct. 1022 (2006) (quoting

United States v. Emerson, 270 F.3d 203, 213 (5th Cir. 2001)). However,

the Seventh Circuit’s decision in Wilson, 159 F.3d at 289-90, by entertaining a defendant’s challenge to the underlying restraining order proceedings, has implicitly concluded that a due process hearing is required. To

the extent that the Seventh Circuit intended to adopt this view, we decline

to follow it, as explained below, because it appears to be in tension with

the Supreme Court’s decision in Lewis. 

Young argues that the Sixth Circuit has also followed Wilson in United

States v. Calor, 340 F.3d 428, 431 (6th Cir. 2003). We disagree. Calor did

not endorse the Seventh Circuit’s view that the defendant could challenge

the constitutionality of the state court proceedings in federal court. Rather,

it interpreted the statute itself and then noted that its result was “consistent

with that of the Seventh Circuit.” Id.

UNITED STATES v. YOUNG 9797
§ 922(g), and held that an unconstitutional prior conviction

could still qualify as a predicate conviction. Id. at 67. The

Court explained that “federal gun laws . . . focus not on reliability, but on the mere fact of conviction . . . in order to keep

firearms away from potentially dangerous persons.” Id. Lewis

contrasted that provision “with other federal statutes that

explicitly permit a defendant to challenge, by way of defense,

the validity or constitutionality of the predicate felony.”

15 Id.

at 62 (citing 18 U.S.C. § 3575(e) (repealed) and 21 U.S.C.

§ 851(c)(2)). Thus, Lewis concluded that “to limit the scope

of [the predecessor to § 922(g)] to a validly convicted felon

would be at odds with the statutory scheme as a whole.” Id.

at 64. 

[1] Unlike the statutes identified in Lewis as allowing a

challenge to a predicate offense, § 922(g)(8)—like the statute

in Lewis—makes no such allowance. Rather, § 922(g)(8)’s

only explicit requirement is that the defendant have received

a hearing of which he had actual notice and an opportunity to

participate. Thus, “a criminal proceeding may go forward,

even if the predicate was in some way unconstitutional, so

long as a sufficient opportunity for judicial review of the

predicate [restraining order proceeding] exists,” United States

v. Afshari, 426 F.3d 1150, 1157 (9th Cir. 2005), and it is no

defense to a prosecution under this statute that the state

restraining order proceedings were unconstitutional. Other1521 U.S.C. § 851(c)(2), for example, reads: 

A person claiming that a conviction alleged in the information

was obtained in violation of the Constitution of the United States

shall set forth his claim, and the factual basis therefor, with particularity in his response to the information. The person shall

have the burden of proof by a preponderance of the evidence on

any issue of fact raised by the response. Any challenge to a prior

conviction, not raised by response to the information before an

increased sentence is imposed in reliance thereon, shall be

waived unless good cause be shown for failure to make a timely

challenge. 

(Emphasis added). 

9798 UNITED STATES v. YOUNG
wise, “to limit the scope of [§ 922(g)(8)] to a valid[ ]

[restraining order] would be at odds with the statutory scheme

as a whole.” Lewis, 445 U.S. at 64 (emphasis added). 

[2] Simply, absent Congressional authorization, we will not

entertain a collateral inquiry into the constitutionality of the

state court restraining order proceedings which is immaterial

except to the extent that the federal statute explicitly requires

certain procedural protections. Accord United States v. Hicks,

389 F.3d 514, 535 (5th Cir. 2004) (relying on Lewis and concluding that “nothing . . . indicates that [§ 922(g)(8)] applies

only to persons subject to a valid, as opposed to an invalid,

protective order”). 

B

Turning to the language of § 922(g)(8)(A), Young argues

that the statute “provides no specific definition” for “hearing,”

“actual notice,” and “opportunity to participate,” and that as

a result, we must assume that Congress intended to require a

full due process hearing. The government disagrees and contends that the language of the provision is “plain and clear,”

and should be interpreted narrowly. We consider the statutory

requirements in turn. 

1

[3] The government contends that the statute defines “hearing,” and thus the statutory definition should control. Young,

in contrast, argues that “hearing” must be interpreted in the

context of the larger universe of due process jurisprudence.

Section 922(g)(8), however, explicitly defines the qualities a

predicate hearing must have: for the purposes of this provision, a hearing simply is a proceeding of which the defendant

has “actual notice” and an “opportunity to participate.” Congress’s chosen definition of “hearing” apparently excludes

certain types of restraining orders—such as those issued ex

parte and without notice—however, we do not find any basis

UNITED STATES v. YOUNG 9799
in the statute for requiring that the restraining order issue after

a proceeding with all the due process protections of a criminal

trial. 

The Sixth and Eighth Circuits have similarly resisted

attempts to impose greater substantive content on the term

“hearing.” The Sixth Circuit explained that while “hearing”

has a variety of meanings in federal law, “the term is not

ambiguous in this context.” United States v. Calor, 340 F.3d

428, 431 (6th Cir. 2003). Rather, § 922(g)(8) “straightforwardly requires that the subject of the court order be given

actual notice of the proceeding and an opportunity to participate.” Id. Thus, the Sixth Circuit “declin[ed] to embellish the

hearing requirements explicitly set forth.” Id. (citing Wilson,

159 F.3d at 280). The Eighth Circuit reached the same conclusion. United States v. Lippman, 369 F.3d 1039, 1042 (8th Cir.

2004), cert. denied 543 U.S. 1080 (2005) (“The statute states

what is required for a hearing under § 922(g)(8). A hearing

requires actual notice and an opportunity to be heard, but the

statute does not require that evidence actually have been

offered or witnesses called.”). 

[4] We agree with the Eighth and Sixth Circuits that, in

accordance with the plain meaning of the statute, the term

“hearing” refers to a proceeding of which the defendant has

actual notice and an opportunity to participate.16

2

But Young argues that he did not have “actual notice” of

the hearing because his notice was not “meaningful,” as due

process requires. The district court concluded that “actual

notice” requires notice sufficient to satisfy due process, and

therefore requires “advance notice.” The government con16Because the statute’s plain meaning controls, we may not consider the

principle of lenity, whose “touchstone . . . is statutory ambiguity.” Lewis,

445 U.S. at 65. 

9800 UNITED STATES v. YOUNG
tends that “actual notice” should be interpreted in light of its

plain meaning. 

[5] Young argues that “actual notice” requires notice of the

content of the hearing, rather than simply notice of the hearing itself.17 In essence, Young reads the statute as requiring

“actual notice that a restraining order might issue.” But that

is emphatically not what the statute says. It expressly applies

to any person “who is subject to a court order that . . . was

issued after a hearing of which such person received actual

notice.” The statute does not require notice of the fact that a

restraining order would issue, nor does it require any other

form of “advance” notice. Indeed, Congress chose to modify

“notice” with “actual” rather than “advance,” implying that it

did not intend to require “advance” notice. 

[6] Further, this definition of notice tracks the everyday,

common meaning of the term, see, e.g., Webster’s Third New

International Dictionary 1544 (3d ed. 1986) (defining “notice” as “formal or informal warning or intimation of something: announcement”), and the accepted legal definition of

the term, see, e.g., Black’s Law Dictionary 1090 (8th ed.

2004) (stating that “[a] person has notice of a fact or condition

if that person (1) has actual knowledge of it . . . .”). Here, the

restraining order issued after “a hearing of which [Young]

received actual notice.” Nothing more is required.18

17We reject Young’s argument, relying on Dusenbery v. United States,

534 U.S. 161, 170 n.5 (2002), that the word “actual” in the statutory term

“actual notice” requires some heightened form of notice. Dusenbery noted

that the term “actual notice” may be ambiguous—sometimes referring to

notice by publication and sometimes referring to actual receipt of notice.

Because Young was personally informed of the December 8 hearing, the

distinction drawn in Dusenbery is irrelevant in this context. Id. Rather, it

is clear that “actual notice” is meant to contrast with “implied notice,”

which would presumably be insufficient. See Black’s Law Dictionary

1090 (8th ed. 2004) (defining “actual notice” as “[n]otice given directly

to, or received personally by, a party”). 

18Young argues that without “advance notice,” he could not effectively

challenge the DVNC order. In some situations, of course, notice may be

UNITED STATES v. YOUNG 9801
Moreover, while Young argues that “actual notice” requires

advance notice satisfying due process, Congress knows how

to define terms when it wants to give them specific definitions

at odds with everyday understanding. For example, 18 U.S.C.

§ 921, defines “person,” “indictment,” “school,” and “intimate partner,” each of which has a plain meaning which Congress rejected. See §§ 921(a)(1), (14), (26) & (32). We apply

the presumption that terms not defined should be given their

common, everyday meaning. See, e.g., Chapman v. United

States, 500 U.S. 453, 462 (1991) (concluding that terms “must

be given their ordinary meaning” where “[n]either the statute

nor the Sentencing Guidelines define the terms ‘mixture’ and

‘substance,’ ” and where they do not “have any established

commonlaw meaning”).19

so deficient that it would deprive a defendant of any ability to challenge

the restraining order. In such a case, however, the hearing would not qualify as a predicate under the statute because the defendant would lack an

“opportunity to participate” in the hearing. 

19Along similar lines, Young argues that “notice” must be “meaningful”

in order to comport with due process. See In re Gault, 387 U.S. 1, 33

(1967) (“Notice, to comply with due process requirements, must be given

sufficiently in advance of scheduled court proceedings so that reasonable

opportunity to prepare will be afforded, and it must set forth the alleged

misconduct with particularity.” (internal quotation omitted)). While this is

correct, for the reasons given above it is also immaterial. Even if Young

is correct that notice must be meaningful to comply with due process, that

does not resolve what the statute requires for a predicate restraining order.

The two issues are not coextensive. See Lewis, 445 U.S. at 65; Hicks, 389

F.3d at 535 (“[N]othing in the language of 18 U.S.C. § 922(g)(8) indicates

that it applies only to persons subject to a valid, as opposed to an invalid,

protective order.”). 

Further, only terms with “established commonlaw meaning[s]” should

be interpreted in the light of those meanings. Chapman, 500 U.S. at 462;

see also, e.g., Moskal, 498 U.S. 103, 121—22 (1990). Due process notice

“is not a technical conception with a fixed content unrelated to time, place

and circumstance.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895

(1961) (quotation omitted). Rather, “[t]he very nature of due process

negates any concept of inflexible procedures universally applicable to

every imaginable situation.” Id. (citing FCC v. WJR, Goodwill Station,

Inc., 337 U.S. 265, 275—76 (1949)). Because “notice” lacks a fixed

meaning in due process literature, the statutory term should be given its

plain meaning. 

9802 UNITED STATES v. YOUNG
The district court relied on the Seventh Circuit’s decision

in Wilson, 159 F.3d at 289, to conclude that “actual notice”

requires “advance notice” sufficient to comport with due process. Wilson, however, discussed due process because the

defendant there challenged the state court hearing itself as

violating due process. Id. (“Wilson asserts that . . . the hearing

he was given . . . did not meet the requirements of the Due

Process Clause.”). In contrast, our narrow focus is to divine

Congressional intent by considering whether Young’s predicate DVNC falls within the federal statutory text; Young,

unlike Wilson, does not contend that the state court hearing

violated due process. In short, Wilson did not address whether

“actual notice”—as the term exists in § 922(g)(8)(A)—

requires a due process hearing.20

We agree with Young that some other Circuits have applied

this provision to defendants who were both informed of the

hearing and knew that the hearing would involve the restraining order. See, e.g., Wilson, 159 F.3d at 284 (noting that the

emergency protective order set a date for a second hearing);

United States v. Banks, 339 F.3d 267, 268 (5th Cir. 2003)

(judge advised defendant that second hearing would discuss

protective order).21 But again, Young conflates two issues:

Washington law required Judge Schwab to reissue the DVNC

order at the December 8 arraignment, see Rev. Code Wash.

10.99.040(3), so it is very likely that Young did have notice

20As noted above, by entertaining a due process challenge to the state

court proceedings, Wilson may be in tension with Lewis. See supra n.14.

21One sentence in a Ninth Circuit opinion gives some support to

Young’s view. In Kafka, the court stated that § 922(g)(8) required only

that “[a]n individual charged under this statute must have received actual

notice of the restraining order hearing and must have had an opportunity

to participate in the hearing.” 222 F.3d at 1130 (citing § 922(g)(8))

(emphasis added). However, this is simply a passing statement not “supported by reasoned analysis” and therefore has no precedential value.

United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)

(Kozinski, J., concurring); see also Miller v. Gammie, 335 F.3d 889 (9th

Cir. 2003) (en banc). 

UNITED STATES v. YOUNG 9803
that the DVNC order would reissue at the December 8 hearing, just like the defendants did in Wilson and Banks. But that

inquiry is irrelevant; the proper question is whether the evidence presented in federal court shows that Young’s DVNC

met § 922(g)(8)’s requirement that Young had notice of the

fact of the hearing. 

[7] A judgment of acquittal is improper if “ ‘any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’ ” Tisor, 96 F.3d at 379

(quoting Jackson, 443 U.S. at 319). On December 6, the court

appointed an attorney and told Young that he would be

arraigned on December 8. Thus, Young had actual notice of

the December 8 hearing at which the predicate DVNC was

issued, and the judgment of acquittal on this ground was improper.22

3

Finally, Young argues that the term “opportunity to participate” requires actual participation sufficient to meet the

requirements of due process. The government contends that

the statute’s plain meaning controls, and the defendant must

have only an opportunity to participate. 

The district court concluded that Young did not have an

“opportunity to participate” in the December 8 hearing, noting

that Young did not have an opportunity to consult with his

attorney during the December 8 hearing; that Young was not

22Moreover, even if the statute did require advance notice of the content

of the hearing, we still doubt that a judgment of acquittal would be proper.

The jury heard evidence that Yakima County Superior Court judges

always reconsider DVNC orders at an arraignment. The jury here could

reasonably have inferred that Young and his attorney—who was surely

aware that Judge Schwab would be required to reissue the DVNC order—

discussed these matters between December 6 and December 8, thereby

providing notice that a new restraining order would issue during the

arraignment. 

9804 UNITED STATES v. YOUNG
asked whether he wished to dispute the contents of the police

report; that Young was not asked if he had evidence to present; and that Young was not asked if he objected to the issuance of the December 8 DVNC order. While the district court

noted that none of these facts is dispositive, it concluded that

“the judge’s principal concern was whether Mr. Young understood he was bound by the order. While significant, the

inquiry prompted by this concern did not satisfy

§ 922(g)(8)(A).” 

[8] We disagree. From the plain text of the statute “actual

participation” is not necessary; the statute requires only the

mere “opportunity to participate.” Other circuits—following

the plain language of the statute—have reasoned that very little is required to satisfy the “opportunity to participate” prong.

For example, in Wilson the Seventh Circuit found that the

defendant—who represented himself pro se—had an opportunity to participate in the hearing. 159 F.3d at 284 (“Wilson

was competent to lodge an objection to the protective order,

and he was given the ability to do so.”); id. at 290 (“An

opportunity to respond is afforded when a party has ‘the

opportunity to present reasons, either in person or in writing,

why proposed action should not be taken.’ ” (quoting Loudermill, 470 U.S. at 546) (emphasis added)). Similarly, in Banks,

the defendant appeared in court and consented to an agreed

temporary protective order.23 339 F.3d at 267, 268. The parties then informed the court that they had reached a settlement, so neither side presented witnesses or evidence and the

presiding judge signed the temporary protective order outside

the presence of the parties. Id. Yet the Fifth Circuit concluded

that Banks had an opportunity to participate: “Banks had an

opportunity to put on evidence, but he did not avail himself

of that opportunity.” Id. at 271. 

23Banks also distinguished and limited the earlier case of United States

v. Spruill, 292 F.3d 207 (5th Cir. 2002). In Spruill, the court decided that

the § 922(g)(8) requirements were not met because Spruill “never

appeared before a judge and no evidentiary hearing was held.” Banks, 339

F.3d 270 (citing Spruill, 292 F.3d at 210-11). 

UNITED STATES v. YOUNG 9805
[9] Joining the Fifth and Seventh Circuits, we agree that the

plain text of the statute indicates that the “opportunity to participate” requirement is a minimal one. The prosecution must

only show an opportunity to participate; that is, a proceeding

during which the defendant could have objected to the entry

of the order or otherwise engaged with the court as to the merits of the restraining order. 

[10] Again, a judgment of acquittal is improper if “ ‘any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’ ” Tisor, 96 F.3d at

379 (quoting Jackson, 443 U.S. at 319). Here, the jury was

presented evidence sufficient to conclude that Young had an

“opportunity to participate”: Young was present when Judge

Schwab issued the DVNC order and presented no evidence

showing that he could not have further participated in the

hearing; indeed, Young and Judge Schwab engaged in a

lengthy dialogue, and at least once Young questioned Judge

Schwab when he had a concern or required clarification.

Indeed, by the end of the December 6 hearing, Young had

counsel appointed who could have accompanied him on

December 8th. Finally, Young and Judge Schwab had

engaged in a lengthy colloquy during the December 6 hearing,

again indicating that Young was capable of participating in

the December 8 hearing to whatever extent he felt was necessary. That Young chose not to participate more fully is not

relevant to understanding whether he had an “opportunity to

participate.” Thus, the judgment of acquittal on this ground

was also improper. 

III

The government contends that the jury instructions were

sufficient and that the district court’s alternative holding

granting the motion for a new trial on such grounds was erroneous.24 Young argues that the district court properly concluded

24“In reviewing jury instructions, the relevant inquiry is whether the

instructions as a whole are misleading or inadequate to guide the jury’s

9806 UNITED STATES v. YOUNG
that the jury should have been instructed on the due process

meanings of “hearing,” “actual notice,” and “opportunity to

participate.” 

[11] Jury instructions need not define common terms that

are readily understandable by the jury. See United States v.

Dixon, 201 F.3d 1223, 1231 (9th Cir. 2000) (holding that “the

court did not err by failing to define ‘commercial advantage’

and ‘private financial gain’ because these are common terms,

whose meanings are within the comprehension of the average

juror”); United States v. Moore, 921 F.2d 207, 210 (9th Cir.

1990) (holding that, “since ‘violence’ is a concept within the

jury’s ordinary experience, there is no prejudice in failing to

define it”). Here, the jury instructions explained that a conviction under § 922(g)(8) requires finding beyond a reasonable

doubt that, “at the time the defendant possessed the firearm,

the defendant was subject to a court order dated December 8,

2004, that: (A) was issued after a hearing of which such person received actual notice, and at which such person had an

opportunity to participate” (emphasis added). 

[12] As discussed above, the terms “hearing,” “actual

notice,” and “opportunity to participate,” should be given

their ordinary meaning, and therefore did not require further

elaboration. The meaning of “hearing” is provided by the statute and was given a parallel definition in the jury instructions.

Similarly, unless “actual notice” means something other than

“actual notice”—such as “advance notice” or “meaningful

notice”—then this term would also be apparent to a jury.

Finally, the statutory term “opportunity to participate”

requires only an opportunity to participate; the term has no

deliberation.” United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir.

1999) (citing United States v. Moore, 109 F.3d 1456, 1465 (9th Cir. 1997)

(en banc)). Whether a jury instruction properly states the elements of a

statutory crime is a question of law reviewed de novo. United States v.

Phillips, 367 F.3d 846, 854 (9th Cir.), cert. denied, 543 U.S. 980 (2004).

UNITED STATES v. YOUNG 9807
greater import than its plain meaning. We conclude that a jury

instruction defining an “opportunity to participate” more specifically is unnecessary. See Wilson, 159 F.3d at 291; id. at

292 (“The terms ‘hearing’ and ‘opportunity to participate’ are

not arcane legal terms that the general public does not understand, and we do not believe that any special attention had to

be given to them in the jury instructions.”). Thus, the jury

instructions as to these terms were not “inadequate to guide

the jury’s deliberation.” Frega, 179 F.3d at 806 n.16. Because

the statutory requirements were properly presented to the jury,

no new trial is necessary. 

IV

The judgment of the district court is REVERSED and this

case is REMANDED for proceedings consistent with this

opinion. 

9808 UNITED STATES v. YOUNG