IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 99-10331
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
TIMOTHY JOE EMERSON,

http://www.saf.org/EmersonMainBrief.html

[...Granting Dr. Emerson's motions to dismiss the indictment on Second
and
Fifth Amendment grounds...]

STATEMENT OF THE CASE (1)

A. Proceedings Below

On December 8, 1998, in the Northern District of Texas, the
appellee, Timothy Joe Emerson, M.D. (“Dr. Emerson”), was charged by
indictment with five counts of possession of a firearm while
under
restraining order, in violation of Title 18, United States Code,
Section 922(g)(8). (R 1: 4-14) On February 12, 1999, Dr. Emerson
filed motions to dismiss based on the Fifth Amendment’s Due
Process Clause (R 1: 51-56), the Second and Tenth Amendments (R
1:
57-64), and the Commerce Clause (R 1: 65-72). The
government filed its Response to Motions to Dismiss on February
24,
1999 (R 1: 168-204), along with a Motion to Dismiss Counts
2-5 of the Original Indictment. (2) (R 1: 166-167)

On February 25, 1999, the district court issued an order granting
the government’s motion to dismiss Counts 2-5. (R 1: 215) On
February 26, 1999, Dr. Emerson’s motions to dismiss came on for
evidentiary hearing. (R 1: 253; see also R 2)

By order dated February 26, 1999 and filed on March 1, 1999, the
district court granted Dr. Emerson’s motions to dismiss the
indictment, explaining that a Memorandum Opinion making findings
and
conclusions would issue at a later date. (R 1: 258) On March
30, 1999, the district court issued its Memorandum Opinion,
explaining that it was granting Dr. Emerson’s motions to dismiss the
indictment on Second and Fifth Amendment grounds, but denying the
motions to dismiss on Commerce Clause and Tenth Amendment
grounds. (R 1: 262-294). On the same date, the district court
issued
its judgment dismissing the indictment. (R 1: 295)

On March 29, 1999, the government filed a Notice of Appeal. (R 1:
259-261) On April 6, 1999, Dr. Emerson filed a timely Notice of
Cross-Appeal. (3) (R 1: 297-298)

On April 7, 1999, the district court issued an Amended Memorandum
Opinion which was essentially identical to the Memorandum
Opinion previously entered. (R 1: 299-331, reported at United
States
v. Emerson, 46 F.Supp.2d 598 (N.D. Tex. 1999)) On April 28,
1999, the government filed an Amended Notice of Appeal (R 1:
332-336), and this appeal followed.

B. Statement of the Facts

The following facts were found by the district court:

On August 28, 1998, [Dr.] Emerson’s wife, Sacha, filed a petition
for divorce and application for a temporary restraining order in the
119th District Court of Tom Green County, Texas. The petition
stated
no factual basis for relief other than the necessary recitals
required under the Texas Family Code regarding domicile, service
of
process, dates of marriage and separation, and the
“insupportability” of the marriage. The application for a
temporary
restraining order – essentially a form order frequently used in Texas
divorce procedure – sought to enjoin Emerson from engaging in
various financial transactions to maintain the financial status quo and
from making threatening communications or actual attacks on his
wife
during the pendency of the divorce proceedings.

On September 4, 1998, the Honorable John E. Sutton held a hearing
on
Mrs. Emerson’s application for a temporary restraining order.[
(4)] Mrs. Emerson was represented by an attorney at that hearing,
and [Dr.] Emerson appeared pro se. Mrs. Emerson testified about
her economic situation, her needs in the way of temporary spousal
support and child support, and her desires regarding temporary
conservatorship of their minor child.

During the hearing, Mrs. Emerson alleged that her husband
threatened
over the telephone to kill the man with whom Mrs. Emerson had
been having an adulterous affair. However, no evidence was
adduced
concerning any acts of violence or threatened violence by [Dr.]
Emerson against any member of his family, and the district court
made no findings to that effect. Furthermore, the court did not
admonish [Dr.] Emerson that if he granted the temporary
restraining
order, [Dr.] Emerson would be subject to federal criminal
prosecution merely for possessing a firearm while being subject
to
the order.

Emerson, 46 F.Supp.2d at 598-99. (R 1: 299-300)