United States of America, Plaintiff-appellee, v. Brian Scott Spruill, Defendant-appellant, 292 F.3d 207 (5th Cir. 2002)

Defendant-appellant Brian Scott Spruill (Spruill) appeals his guilty plea conviction for violating 18 U.S.C. § 922(g) (8). Notwithstanding his plea agreement's waiver of appellate rights to challenge the conviction on grounds other than the Fifth and Second Amendments, we vacate and remand because the record clearly reflects and the district court found that the predicate court order was not "issued after a hearing of which such person received actual notice" as required by section 922(g) (8).

Facts and Proceedings Below

Spruill was charged in a two count indictment with violations of 18 U.S.C. § 922(g). Each count charged that Spruill on July 20, 1998 "did knowingly possess in and affecting commerce firearms [sic], to wit: a Largo, 9mm semi-automatic pistol, manufactured by Star, which had been shipped and transported in interstate commerce." Count one alleged that this possession violated section 922(g) (8) in that at the time Spruill was subject to a February 11, 1998 order of the County Court at Law of Midland County, Texas, issued after a hearing of which Spruill had notice and an opportunity to participate, which restrained him from harassing, stalking and threatening his intimate partner and her child and by its terms explicitly prohibits the use, attempted use, and threatened use of physical force against his intimate partner and her child. Count two alleged that this possession violated section 922(g) (3) in that Spruill "is an unlawful user of or addicted to a controlled substance."

Spruill filed a motion, and a second motion, to dismiss each count of the indictment on various grounds. The second motion was predicated on the district court's opinion in USA v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999) (which this court subsequently reversed, USA v. Emerson, 270 F.3d 203 (5th Cir. 2001)), and urged that sections 922(g) (8) and 922(g) (3) violated the Second and Fifth Amendments. The supporting memorandum filed with the second motion to dismiss attached a copy of the February 11, 1998 order and alleged, inter alia:

"Although the boilerplate order issued under these circumstances was signed by Judge Royal Hart, there was no evidentiary hearing about the circumstances leading to the issuance of said order and Defendant never appeared before said judge. Defendant was not represented by counsel and could not read the Protective Order presented to him. Mr. Spruill appeared before Assistant District Attorney David Watson, who represented the interest of the Petitioner in that matter, but, who nevertheless, explained the purpose of the Protective Order and at least some of its requirements to the Defendant. No mention about Defendant's ability to own, possess or lawfully use a weapon was made at that time and said Protective Order, while admonishing the Defendant about other prohibitions required by state law, does not mention any prohibition of weapon possession of any kind. The issuance of the Protective Order was a precursor to the filing of a Petition for Divorce in the state court."

. . .

"... the party potentially subject to the order may agree to be bound by said order without a hearing of record before a Judge, and without representation by an attorney. In the present case, there is no question that there was not a hearing before Judge Hart, that the defendant was not admonished with regard to his ability to possess a gun. Mr. Spruill appeared Pro Se, and was presented with a form order provided by the Midland County District Attorneys office where he was told `where to sign,' if he did not oppose the motion by the State. (see Protective Order attached as exhibit `B')."¹ 

The district court held a hearing on the motions to dismiss on May 7, 1999, and overruled them "without prejudice," stating "I'm going to give full consideration to the motion, but I'm going to do it only after a trial."

The case was subsequently set for a bench trial June 10, 1999. On that date the parties appeared before the court and defense counsel announced "subject to your approval, we have entered into this conditional plea and we would like to perfect the record by adducing evidence ... we would like then to reurge the last Motion to Dismiss that we previously presented to the Court after we present that evidence."

Evidence was then presented. Assistant District Attorney Watson testified that his office handled protective orders for indigents (see Tex. Family Code § 82.002(d) (1)), and he had been the person assigned to do so for the previous two years. He brought with him the file in the Spruill protective order and "somewhat" remembered it. He stated that "Spruill came to the District Attorney's office, but I don't believe we ever entered a courtroom." He said he "believe [d]" Spruill "mentioned to me that he couldn't read," and indicated "he was going to agree to the protective order." The practice of the District Attorney's Office was that the form order was prepared by the "staff;" " [i]f they're going to agree to it, discuss it with their attorney or with them, then we'll strike out certain things in the canned protective orders in the computer and add whether or not its agreed or contested or if there was pro se or whether or not an attorney was present." Spruill "agreed with this." As far as Watson knew, Spruill did so without "the benefit of a lawyer." Watson "read parts of it to him and explained what it meant and what the implications of the order would be." Watson "believe [d]" he "emphasized the fact that the only person that could allow him to go within 200 yards of the residence, its in the protective order, or go against any of the orders or protective order was the judge ... that Ms. Spruill couldn't give him authority to come to the home or whatever", and stated "I believe I emphasized that. I recall sitting and talking with Mr. Spruill." Watson did not mention any other part of the order read or explained to Spruill. He further stated "I do recall Mr. Spruill, speaking with him, and the fact that he couldn't read was one thing that reminded me of it and I do attempt whenever there's an agreed protective order with a pro se individual to explain the protective order fairly thoroughly." Watson agreed that if one in Spruill's position had said he didn't want to sign or agree to the order, or wanted to see a lawyer or go see the judge about it "they would have been provided an opportunity for that hearing." He also stated that "whenever I deal with a pro se respondent, I list the options they have available, representing themselves, hiring an attorney, agreeing to an order or default." Watson also testified:

"I have a handwritten note in the file stating that we had contacted him and he was going to agree to the order, some of the conditions, to prepare the agreed order, and Mr. Spruill would come in and speak to me. When he came in exactly I don't recall the time or the exact date, but in routine practice whenever an agreed order is gone over, it's presented right then to the judge."

Spruill then testified. He responded "no, sir" when asked "can you read the English language well", and "yes, sir" when asked "you just can't read. Is that correct." He testified that before his wife filed for divorce he was called by the District Attorney's office and they "told me that they had a paper for me to come down... it was going to be a filing of a protective order on me," and "I told them I would come down and take care of that." He went to the District Attorney's office, talked with Watson there and "told him I would just like to go ahead and sign the order and get it over with." When asked if Watson told him that his signing the protective order would give up certain of his rights, Spruill responded "yes, sir. He told me that-well, basically what he told me was that I wasn't supposed to be in so close of her or the school or her mother's house where she would be staying." He testified that he did not ever appear before a judge and that he did not then have an attorney. Spruill further testified that Watson never told him, and he was unaware, that by virtue of the protective order he could not possess a handgun or weapon or that he needed to check federal statutes in that respect.² 

The court was presented with the written plea agreement and attached written "Factual Basis" for it. The plea agreement provides Spruill would plead guilty to the section 922(g) (8) count (count one) and the remaining count (count two, section 922(g) (3)) would be dismissed, that the Government would not oppose maximum points for acceptance of responsibility or move for upward departure, and that Spruill waived the right to appeal his conviction and sentence:

"except for the following two matters that were raised via pre-trial motion and overruled by the Court. [³ ] First, the Defendant may appeal the issue of whether 18 U.S.C. § 922(g) (8), taking into account the Protective Order at issue in this case (a true copy of which is part of the attached Factual Basis as Exhibit A thereto), violates the Second Amendment and other provisions of the United States Constitution as set forth in United States v. Emerson, 1999 WL 181663, No. 6:98-CR-103-C (N.D. Tex. March 30, 1998). Second, the Defendant may appeal the issue of whether 18 U.S.C. § 922(g) (8), given the Government's stipulation (set forth in the Factual Basis) that it cannot prove beyond a reasonable doubt that Defendant was aware that he could not legally possess a weapon, violates the Fifth Amendment to the United States Constitution."⁴ 

The Factual Basis states that the February 11, 1998 order was entered that date and was still in effect on July 20, 1998, it attaches and incorporates a true copy of the entire order, and also summarizes some of its provisions. It goes on to recite that on July 20, 1998 Spruill, in the parking lot of a restaurant in Midland, Texas, got out of his car and carried the 9mm Largo semi-automatic pistol, which was unloaded, from his car to the car of a "reporting individual," and was then arrested.⁵  It is stated that this pistol "was manufactured in Spain, and so necessarily would have had to have been shipped or transported in interstate and foreign commerce to have arrived in Texas," and that "DPS tests indicate that this weapon was operational."

With respect to how the protective order came about, the Factual Basis recites

"Defendant appeared before the Court when this Protective Order was issued, and had the opportunity to be heard on the matter. Indeed, Defendant signed the Protective Order acknowledging his receipt of it, and agreed to its terms."

Based on the earlier testimony at the hearing, the Government and defense counsel agreed, and stated in open court, that the first sentence in the above quoted passage would be changed to read (after "Defendant") "came to the District Attorney's office and agreed to the order and he had the opportunity to be heard on this matter had he chosen to." Later in the hearing the district court ascertained from Spruill that he agreed to this change, the court explaining it to him as follows: "There's a little bit of a change in the factual basis and the change is that you didn't go to court before a judge, that you just signed the protective order in Mr. Watson's presence and then left." After going over the plea agreement and factual basis and questioning and advising Spruill and counsel pursuant to Rule 11, Fed. R.Crim. Pro., the district court accepted the plea and found Spruill guilty of the offense "subject to my final decision on the issue of constitutionality."⁶ 

On August 13, 1999, the district court issued its opinion and order overruling Spruill's motion to dismiss the indictment. U.S. v. Spruill, 61 F. Supp. 2d 587 (W.D. Tex. 1999). Concerning the protective order, the opinion states in relevant part:

"The Defendant informed the ADA that he would agree to the entry of the order. Based on that representation, the ADA printed a standard restraining order and invited the Defendant to come sign that order. The Defendant came in to the ADA's office for that purpose. The Defendant informed the ADA that he could not read. The ADA explained the restraining order to the Defendant. In particular, the ADA informed the Defendant that he could not go within a set distance of his spouse, children or mother-in-law's home. The ADA did not inform the Defendant that, upon entry of the order, the Defendant would not be able to possess a firearm. The ADA was not aware of this federal law and has never heard a party admonished to that effect in over one hundred protective orders he has handled.

The ADA also explained to the Defendant that he could choose to hire counsel, object to the entry of the order, and appear before a state court judge. The Defendant stated that he would agree to the order, signed the order, and left. Although the language in this protective order states that the Defendant appeared in person, the Defendant never appeared before a judge, nor was a hearing (at least as this Court would define one) apparently ever held. Despite this, the order purported to find that family violence had occurred. This language, however, was contained in the proposed order which the Defendant signed without protest and the Defendant did have the opportunity to participate in a hearing, thus satisfying any procedural due process concerns." Id. at 588 (emphasis added).⁷ 

The district court subsequently sentenced Spruill to twenty-one months' confinement and three years' supervised release.

Spruill timely brought this appeal.⁸  In his initial brief as appellant Spruill urged that the application to him of section 922(g) (8) violated his rights under the Fifth and Second Amendments, relying on the district court opinion in United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex. 1999). The Government in appellee's brief urged that section 922(g) (8) was constitutional facially and as applied. We held Spruill's appeal in abeyance pending our resolution of the Government's appeal in Emerson. After issuance of our decision in that appeal, United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), we requested the parties to each file a supplemental brief addressing the following questions, viz:

"(1) Does the evidence at the Rule 11 hearing, as well as the facts found by the district court in its order dated August 13, 1999, reflect that the predicate state court order alleged in count one of the indictment was not `issued after a hearing' as provided in 18 U.S.C. § 922(g) (8) (A):

(2) If so, did the district court err in accepting the plea of guilty to count one, and should this court vacate the conviction?"

In his supplemental brief, Spruill contends that each such question should be answered in the affirmative, and that his conviction should accordingly be vacated. The Government argues that as Spruill had, but waived, an opportunity to appear before the state judge and present evidence, any "hearing" requirement of section 922(g) (8) was satisfied, and that in any event that issue is not within any exception to the waiver of appeal in Spruill's plea agreement.

Discussion

We turn to the issues addressed in the supplemental briefing, namely: (1) whether the evidence at the Rule 11 hearing and the facts found by the district court reflect that the predicate February 11, 1998 order was without the scope of section 922(g) (8) because it was not "issued after a hearing of which such person received actual notice" as required by section 922(g) (8) (A);⁹  and (2) if so, whether the trial court erred by accepting Spruill's guilty plea and whether this court should accordingly vacate his conviction.

1. Initially addressing the second issue, it is undisputed that if the February 11, 1998 order is not within the class of orders embraced in paragraph (A) of section 922(g) (8) that Spruill's possession of the firearm did not constitute a violation of section 922(g) (8). Accordingly, if the facts as shown at the Rule 11 hearing, and as found by the district court, do not reflect that the order was within the scope of paragraph (A) of section 922(g) (8), then it is clear the district court should not have accepted the guilty plea. As we said in United States v. Johnson, 194 F.3d 657, 659 (5th Cir. 1999), vacated and remanded, 530 U.S. 1201, 120 S. Ct. 2193, 147 L. Ed. 2d 230 (2000), prior opinion reinstated with modification, 246 F.3d 749 (5th Cir. 2001):

"A trial court cannot enter judgment on a plea of guilty unless it is satisfied that there is a factual basis for the plea. See Fed. R. Crim. P. 11(f). `The purpose underlying this rule is to protect a defendant who may plead with an understanding of the nature of the charge, but "without realizing that his conduct does not actually fall within the definition of the crime charged.'" United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984) (quoting United States v. Johnson, 546 F.2d 1225, 1226-27 (5th Cir. 1977)). This factual basis must appear in the record and must be sufficiently specific to allow the court to determine that the defendant's conduct was `within the ambit of that defined as criminal.' Id."

The fact that Spruill's guilty plea reserved only the constitutional issues, and not whether the defendant's conduct constituted an offense under the statute, neither lessens the foregoing Rule 11(f) requirement nor precludes reversal on appeal for failure to meet it. Thus, in Johnson, although we opined that the defendant, charged with arson under 18 U.S.C. § 844(i), had, by unconditionally pleading guilty, "waived his as-applied constitutional challenge to § 844(i)", id. at 659, we nevertheless vacated the conviction " [b]ecause the factual basis presented to the district court fails to establish the interstate commerce element of 18 U.S.C. § 844(i)." Id. at 662-63. We reaffirmed our opinion and holding in this respect on remand from the Supreme Court and also held that vacation was additionally required because "the factual basis for the plea as shown by the record likewise does not suffice" to establish that the burned "building was being actively employed for commercial purposes so as to be within the terms of section 844(i)." Johnson, 246 F.3d at 752. See also United States v. White, 258 F.3d 374, 380 (5th Cir. 2001) ("notwithstanding an unconditional plea of guilty, we will reverse on direct appeal where the factual basis for the plea as shown of record fails to establish an element of the offense of conviction").¹⁰ 

Nor do we conclude that review at this stage is barred by the waiver of appeal provisions in Spruill's plea agreement. In White we noted that a similar appeal waiver-as here, of issues not raised in this motion to dismiss the indictment-was "insufficient to accomplish an intelligent waiver of the right not to prosecuted (and imprisoned) for conduct that does not violate the law" and " [w]e reject [ed] the government's waiver argument, especially since failure to do so risks depriving a person of his liberty for conduct that does not constitute an offense." Id. at 380. We are cited to no opinion of this court which has enforced such an appeal waiver in analogous circumstances.

2. Accordingly, it is appropriate for us to rule on the first issue presented in the supplemental briefing, essentially whether the predicate February 11, 1998 order was not "issued after a hearing of which such person received actual notice", and was hence not within the scope of section 922(g) (8) (A).

As the government recognizes, " [t]he term `hearing' in its legal context undoubtedly has a host of meanings." United States v. Florida East Coast Railway Company, 410 U.S. 224, 93 S. Ct. 810, 818, 35 L. Ed. 2d 223 (1973). The same general thought is reflected in United States v. Tannehill, 49 F.3d 1049, 1053 (5th Cir. 1995), where, addressing the meaning of the term "hearing" in the Speedy Trial Act, we stated:

"The Act does not define what constitutes a `hearing', ... In other contexts, `hearing' has been defined in various ways. See, e.g., Buxton v. Lynaugh, 879 F.2d 140, 144-45 (5th Cir. 1989) (`hearing', as used in habeas corpus statute, 28 U.S.C. § 2254(d), `does not necessarily require an evidentiary hearing and ... factfinding based on a record can in some circumstances be adequate'), cert. denied, 497 U.S. 1032, 110 S. Ct. 3295, 111 L. Ed. 2d 803 (1990); State v. Orris, 26 Ohio App.2d 87, 269 N.E.2d 623, 624 (1971) (the term `hearing' suggests `to "give audience to'"); Black's Law Dictionary 721 (6th ed.1990) (defining `hearing' as ` [a] proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or law to be tried, in which witnesses are heard and evidence presented')."¹¹ 

Similarly, "hearing" is not defined in 18 U.S.C. § 921(a) (defining terms for purposes of chapter 44) or in chapter 1 of Title 18.

It is evident from the record, the district court's findings and the "Agreed Order" recitals in the protective order (see note 1 supra), that order was issued as an "Agreed Order" pursuant to section 85.005 of the Texas Family Code,¹²  without process having been issued or served, without any time or place for hearing having previously been set, and, thus necessarily, without any notice of hearing having been issued or been received by Spruill, without Spruill ever appearing before the judge, without any presentation of evidence to the judge and without any hearing. The special procedure contemplated by section 85.005 is in contrast to those required in the Texas Family Code provisions for other protective orders, which require issuance and service of notice of the application, sections 82.042, 82.043, that the court set a date and time for hearing, section 84.001, that the notice of application show the date, time and place of the hearing, section 82.041, that " [a]t the close of a hearing" the court "shall" make findings as to whether family violence had occurred and is likely to occur in the future and, if so, "shall render a protective order," section 85.001, and that a protective order may be issued "on a respondent who does not attend a hearing if the respondent received service of the application and notice of the hearing." Section 85.006.¹³  Here no hearing was ever set and Spruill received no notice of any hearing.

Significantly, the court's approval of the order agreed to out of court by Spruill under section 85.005 "to facilitate settlement" 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. In Emerson we noted Second Amendment concerns respecting section 922(g) (8), but concluded that where the state law and procedures were such that the order should not issue unless the issuing court actually concluded that absent the order there was a realistic threat of imminent physical injury to the protected party, such concerns were not controlling, for " [i]n such a case, we conclude that the nexus between firearm possession by the party so enjoined and the threat of lawless violence, is sufficient, though likely barely so, to support the deprivation, while the order remains in effect, of the enjoined party's Second Amendment right to keep and bear arms." Id. at 264. Where the court, without any setting or hearing and without the parties being before it, merely approves and issues an order because the parties have agreed to it "to facilitate settlement" and it "is in the best interest of the applicant, the family or household, or a member of the family or household" (section 85.005), there would be a real question as to whether the requisite nexus has been established. As the court explained in Janus Films Inc. v. Miller, 801 F.2d 578, 583 (2d Cir. 1986):

"... With a true `consent judgment' all of the relief to be provided by the judgment and all of the wording to effectuate that relief is agreed to by the parties. The court makes no determination of the merits of the controversy or of the relief to be awarded. With a `settlement judgment' the parties have agreed on the components of a judgment, including the basis aspects of relief, but have not agreed on all the details or the wording of the judgment. The components of the agreement are usually reported to the court on the record. As with a consent judgment, the judge makes no determination of the merits of the controversy. With respect to relief, however, the judge's role in a settlement judgment is slightly broader. Since the parties have agreed only upon the basic aspect of relief, the judge is obliged to determine the detailed terms of the relief and the wording of the judgment. In determining the details of relief, the judge may not award whatever relief would have been appropriate after an adjudication on the merits, but only those precise forms of relief that are either agreed to by the parties ... or fairly implied by their agreement.

. . .

In deciding whether to approve agreements calling for entry of either a consent judgment or a settlement judgment, a court normally has only a limited role so long as the dispute affects only private interests. See United States v. City of Miami, 614 F.2d 1322, 1330 (5th Cir. 1980). Though the judge does not `merely sign on the line,' United States v. City of Miami, 664 F.2d 435, 440 (5th Cir. 1981), he or she normally makes only the minimal determination of whether the agreement is appropriate to be accorded the status of a judicially enforceable decree." (Emphasis added)

Similarly, in Commonwealth v. Davis, 531 Pa. 272, 612 A.2d 426, 429 (1992), the court stated:

"We have held in the past, and we do so again, that 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."

See also, e.g., Willimantic Car Wash, Inc. supra, 724 A.2d at 1113-14 (announcement of zoning appeal settlement at pretrial conferences before court, with court ascertaining that all agreed, and subsequent enforcement evidentiary hearing, did not meet requirement of a statute requiring that court action on zoning appeal be "after a hearing").

The district court held that the entry of the February 11, 1998 order did not deny Spruill procedural due process because he did not have to sign and consent to it and had he not done so a hearing would have been set and he would have had notice thereof and an opportunity to participate and present evidence. 61 F. Supp. at 588.¹⁴  But the issue we address is not whether the state court order was itself valid or its terms enforceable against Spruill — that order does not address firearm possession by Spruill and his possession of the firearm did not violate the order. Rather, the relevant issue is whether the protective order here — issued under section 85.005 without any prior setting or hearing and without the parties being before it — is within the scope of section 922(g) (8) (A)'s requirement that the order have been "issued after a hearing of which such person received actual notice." Obviously, the mere fact that the protective order may itself be enforced without violating the respondent's procedural due process rights does not mean that it is within the scope of section 922(g) (8) (A). For example, once a respondent receives proper notice of a temporary protective order against him that has been issued without prior notice to him, that order can, consistent with due process, thereafter be enforced against him even though he had no notice prior to its entry. Yet such an order is plainly outside the scope of section 922(g) (8) (A). We believe that section 922(g) (8) (A) is best understood as not directed only to procedural due process concerns but as well to the concept that federal legislation should not affix to state court domestic relation protective orders the collateral effect of imposing serious federal felony penalties for conduct not violative of the order itself or otherwise illegal, unless a judge has conscientiously indeed concluded, after an actual hearing, that such was reasonably necessary to prevent otherwise likely conduct as described in section 922(g) (8) (B) and (C), as opposed to the judge merely approving without an actual hearing an order agreed to by parties out of court "to facilitate settlement," a process in which, as stated in Janus Films, supra, the judge "normally has only a limited role," generally "makes no determination of the merits," and "normally makes only the minimal determination of whether the agreement is appropriate to be accorded the status of a judicially enforceable decree."

The government urges that "hearing" as used in section 922(g) (8) (A) means "an opportunity to be heard, to present one's side of the case, or to be generally known or appreciated," one of the definitions given in Webster's Collegiate Dictionary 535 (10th ed.1996).¹⁵  We decline to adopt this definition. For the reasons stated, and particularly as applied in this case, it would not address the hearing concerns which we believe are implicit in section 922(g) (8) (A), and might well raise serious Second Amendment issues. Moreover, the government's proffered definition is obviously not directed primarily at judicial (or even quasi-judicial) proceedings but extends as much to purely social or other non-governmental situations (e.g., "to be generally known or appreciated"). In Florida East Coast Railway the Supreme Court gave "a broad definition of the term `hearing'", which did not include the right to present evidence orally, cross-examine witnesses or present oral argument, because "the term was used in granting authority to the Commission to make rules and regulations of a prospective nature" (id. 93 S. Ct. at 818-19) which were of a general character applicable to numerous parties (id. at 820). The Court there specifically distinguished other of its decisions as to what constituted a "hearing" on the basis that they involved "`quasi-judicial' proceedings." Id. at 819, 820. Here, section 922(g) (8) (A) is plainly directed to judicial proceedings, pointing to a narrower, rather than a broader, meaning of "hearing." Further, the government's suggested definition of hearing would in essence have section 922(g) (8) (A) say that an opportunity for a noticed hearing must have been afforded, or that the order be one that was issued after the person had been afforded the opportunity to be heard on actual notice with right to participate. But, that is not what section 922(g) (8) (A) says. What section 922(g) (8) (A) actually says is 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.

In construing section 922(g) (8) (A) we are likewise influenced by two other considerations to give it a narrower rather than a broader scope. First, the scope of a criminal statute, unless it is clear and unambiguous (an attribute the government does not claim for section 922(g) (8) (A)), is to be strictly, and not expansively, construed. See Jones v. United States, 529 U.S. 848, 120 S. Ct. 1904, 1912, 146 L. Ed. 2d 902 (2000).¹⁶  A narrower, rather than a broader, construction of section 922(g) (8) (A) is likewise indicated because that enactment affixes to state court domestic relations orders the collateral effect of imposing serious federal felony penalties for conduct not violative of the order itself or otherwise illegal (indeed even for conduct which the order might expressly authorize), and hence intrudes into the regulation of domestic relations and court orders related thereto that are paradigmatic areas of state concern and control, all with only the most remote and attenuated relation to interstate commerce. To avoid expanding that intrusion the class of orders covered by section 922(g) (8) (A) should be narrowly, not broadly, construed under the principle that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance." United States v. Bass, 404 U.S. 336, 92 S. Ct. 515, 523, 30 L. Ed. 2d 488 (1971). See also Jones at 1912 (quoting Bass in this respect).

For the foregoing reasons, we conclude that the February 11, 1998 order was not one entered "after a hearing of which" Spruill "received actual notice" and accordingly was not within the scope of section 922(g) (8).

The judgment of conviction is therefore vacated and the cause is remanded for proceedings consistent herewith.

VACATED and REMANDED.