UNITED STATES OF AMERICA v. MICHAEL BRAMER, JR.
No. 18-3782
United States Court of Appeals for the Second Circuit
April 16, 2020
August Term, 2019
Argued: January 15, 2020
In thе United States Court of Appeals for the Second Circuit
August Term, 2019
Argued: January 15, 2020
Decided: April 16, 2020
Docket No. 18-3782
UNITED STATES OF AMERICA, Appellee, v. MICHAEL BRAMER, JR., Defendant-Appellant.
Appeal from the United States District Court for the Northern District of New York (Sharpe, J.) No. 1:17-cr-00371
Before: KATZMANN, Chief Judge, HALL, LYNCH, Circuit Judges.
Defendant-Appellant Michael Bramer, Jr. appeals the December 12, 2018 judgment of the United States District Court for the Northern District of New York (Sharpe, J.) and its December 6, 2018 decision denying his
REVERSED.
JAMES P. EGAN, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender, Syracuse, NY for Defendant-Appellant.
RAJIT S. DOSANJH, Assistant United States Attorney (Thomas R. Sutcliffe, Assistant United States Attorney on the brief), for Grant C. Jaquith, United States Attorney for the Northern Distriсt of New York, for Appellee.
On October 13, 2016, Defendant-Appellant Michael Bramer, Jr. received a protective order issued by the Town of Malta Justice Court (the “Justice Court“). On October 24, 2016, Bramer visited a licensed firearms dealer and attempted to purchase a firearm. He completed the required Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF“) Form 4473 that potential firearm buyers must submit. Question 11.h on the form asked whether Bramer was “subject to a court order restraining [him] from harassing, stalking, or threatening [his] child or an intimate partner or child of such partner[.]” Bramer responded by checking the “No” box. Question 11.h refers the applicant to instructions which define a court order in language that is virtually identical to the statutory language defining a relevant order found in
Because Bramer‘s response to Question 11.h on the Form 4473 was false only if the court order to which he was subject was the type of order specified in the instructions and
BACKGROUND
I. Factual Background
On October 12, 2016, New York State Trooper Christopher Esposito contacted
The Town of Malta typically has an audio recording mechanism to keep records of daily court proceedings, and Trooper Esposito testified that it would be out of the ordinary if there was no recording for a case thаt took place there. Though the record is unclear as to why, the government did not introduce a recording of Bramer‘s arraignment into evidence.
Trooper Esposito could not recall “the specific conversation” between the court and Bramer at the arraignment. App‘x 80. He testified that Judge Fauci “explained to [Bramer] the charges against him, [and] explained to him his rights,” and that Judge Fauci released Bramer on his own recognizance, setting a date for the next appeаrance. App‘x 55. Trooper Esposito also testified that Judge Fauci issued an order of protection and set a second appearance date for approximately thirty days later. According to Trooper Esposito, the judge “explained to Mr. Bramer what an order of protection is” and provided him a copy of the order. App‘x 55.
The protective order, issued under
Nine days later, on October 24, 2016, Bramer entered Frank‘s Gun Shop, a federally licensed dealership in Amsterdam, New York. The general manager of the store, Frank J. Havlick, testified that he was working that day but did not recall interacting with Bramer. Havlick did, however, recognize his own handwriting on the Form 4473 and acknowledged that he completed portions of the form with Bramer.
Questions 11.a through 11.l of Form 4473 are a series of yes or no questions to which the potential purchaser must respond by entering check marks. Bramer indicated in response to question 11.a that he was “the actual transferee/buyer of the firearm” at issue on the form. App‘x 235. As previously noted, in response to Question 11.h, Bramer checked the “No” box, affirming that he was not “subject to a court order restraining [him] from harassing, stalking, or threatening [his] child оr an intimate partner or child of such partner[.]” Id.
Question 11.h directs the buyer to the “instructions” on Page 4 of the Form 4473 for more information regarding the question. App‘x 235. To help buyers determine whether they are subject to a qualifying restraining order, such that they should answer “yes” to Question 11.h, the “instructions” define the type of orders that qualify as a restraining order for purposes of the Form 4473. The instructions, which track the language of
Under
18 U.S.C. § 922 , firearms may not be sold to or received by persons subject to a court order that: (A) was issued after a hearing which the person received actual notice of and had an opportunity to participate in; (B) restrains such person from harassing, stalking, or threatening an intimate partner or child or 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.4
App‘x 238.
Bramer completed the Form 4473 and submitted it to the dealer, who entered it into the National Instant Background Criminal Check System (“NICS“), which is managed by the Federal Bureau of Investigation. The response to the submission to NICS “was a deny,” App‘x 93, thereby blocking Bramer‘s attempt to purchase a firearm.
Based on Bramer‘s effort to purchase a firearm and his response to Question 11.h on the Form 4473, a federal grand jury returned a single-count indictment charging Bramer with providing false information to a licensed dealer in connection with his attempted acquisition of a firearm, in violation of
II. Statutory Framework
Two subsections of
[F]or any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement . . . intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . [.]
The “false or fictitious oral or written statement” with which Bramer was charged is his response to Question 11.h. Question 11.h is apparently intended to identify would-be purchasers who are prohibited from possessing firearms by
(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 hаrassing, 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 оr child that would reasonably be expected to cause bodily injury[.]
We are not called upon to decide whether Bramer‘s negative answer to the question asking whether he was “subject to a court order restraining [him] from harassing, stalking, or threatening [his] child or an intimate partner or child of such partner” could be found to be a “false or fictitious . . . statement . . . intended or likely to deceive” a dealer within the meaning of
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under
DISCUSSION
Bramer argues that the government failed to prove that the protective order to which he was subject—the basis for the charged false statement on the Form 4473—meets the requirements of an order defined in
Given the paucity of evidence about what occurred in the Justice Court proceedings, we agree; we do not see sufficiеnt evidence in the record on which any rational trier of fact could have found, without speculating, that Bramer had an “opportunity to participate” in the events leading to the issuance of the order. Because the government acknowledges Bramer preserved this argument for appeal, see also Blaszczak, 947 F.3d at 31, and because we find this issue to be determinative, we need not address Bramer‘s alternative arguments that he was not provided with a “hearing” and that he did not receive adequаte “notice” to satisfy
In response to Bramer‘s argument regarding insufficient evidence of his “opportunity to participate” in the Justice Court proceeding, the government, citing United States v. Young, 458 F.3d 998 (9th Cir. 2006), counters that this requirement is “a minimal one” that is fulfilled by the fact that there was a hearing and that Bramer was present. By the government‘s proposed standard, so long
as nothing “physically prevent[ed] . . . Bramer from speaking that day,” as Trooper Esposito testified was the case, App‘x 55, Bramer could have objected to the order.
We begin our analysis of what constitutes an opportunity to participate by considering factors weighed by courts that have confronted this issue. We look first to Young, which the government relies on. Young holds that an opportunity to participate means only that “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.” Young, 458 F.3d at 1009. The Ninth Circuit articulated this formulation in light of the facts before it, and those facts are far more compelling than in Bramer‘s case. The record in Young contained a transcript of the initial procеedings before the issuing court. See id. at 1001-02. At the arraignment at which the qualifying order was issued, the judge “engaged in a lengthy dialogue” with the defendant, who “at least once . . . questioned [the issuing judge] when he had a concern or required clarification.” Id. at 1009. Additionally, the defendant and the judge “had engaged in a lengthy colloquy” at the preliminary hearing two days earlier, further demonstrating that the defendant “was capable of participating . . . to whatever extent he felt was necessary.” Id. Although the defendant appeаred pro se at the arraignment, counsel had been appointed to represent him at the preliminary hearing. Id. None of those facts is present in this case.
Unlike Young, here there was only one proceeding before a judge prior to the entry of the order. Although the Town of Malta regularly records its court proceedings, no transcript or recording of the hearing was produced. The government chose to prove what happened in the Justice Court (1) through the testimony of Trooper Esposito (who was present for those prоceedings), and (2) by whatever the contents of the order might reasonably imply.
Trooper Esposito explained that the Justice Court could be “a fairly busy court” that can get “pretty full” when in session. App‘x 70. The Trooper recalled that the judge “explained to [Bramer] what an order of protection is.” App‘x 55. He could not remember, however, any specific interactions between the court and Bramer, and he provided no testimony that the court made any particular findings before issuing the оrder. There was also no testimony that the judge made any particular determination regarding Bramer‘s alleged conduct,6 nor any evidence detailing what Bramer was allowed to do or say in court before the Justice Court issued the order.
Turning to the order itself, there is no indication that Bramer agreed to or objected to its entry, only that Bramer was advised in Court of its issuance and contents
Another factor courts have considered is whether a defendant is represented by counsel at the underlying proceeding. One court in this Circuit has ruled that a court issuing a qualifying order does not need “to inquire of a defendant or his lawyer if they have any objections tо make[.]” United States v. Falzone, 1998 WL 351471, at *2 (D. Conn. June 2, 1998). Further, multiple courts have held that
Although representation by counsel is not required to meet this standard, representation (or lack thereof) is, nevertheless, a factor that may be considered in our inquiry. Where counsel is present on behalf of the defendant, absent a direct order from the court prohibiting him or her from speaking, counsel would understand that attorneys do not need an explicit invitation to object or speak on behalf of their clients. But where, as here, defendant is not represented by counsel, and there is no evidence in the record indicating that the court invited any comment from the defendant or offered him any opportunity to address the protective order, a reasonable jury could not conclude that the defendant would have understood that he could speak to the court about the order and, therefore, that he had an “opportunity to participate.” The evidence of what transpired in the Justice Court does not include any statements made by the unrepresented defendant or any indication to Bramer that he was permitted to object to the entry of the order.
We agree with our sister circuits that an “opportunity to participate” for purposes of the statute does not require representation or participation by counsel, and that the requirement may be “a minimal one.” Young, 458 F.3d at 1009; cf. Brody v. Vill. of Port Chester, 434 F.3d 121, 131 (2d Cir. 2005) (noting that one need not tаke advantage of an opportunity to participate to satisfy due process). The problem here, however, is that the evidence in the record about the proceeding only allows us to conclude that Bramer attended it, that Bramer was not physically prevented from speaking, and that the judge explained to Bramer the charges against him and what an order of protection was. That is insufficient. In order to prove that Bramer had an “opportunity to participate” undеr
CONCLUSION
The district court‘s denial of Bramer‘s