18-3782
USA v. Bramer

                                        In the
                 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 Rule 29 motion for judgment of
acquittal. We hold that because there was insufficient evidence that Bramer had
been issued a protective order “after a hearing” in which he had “an opportunity
to participate,” as required by 18 U.S.C. § 922(g)(8)(A), no rational trier of fact
could find that when Bramer submitted an application to purchase a firearm he
violated § 922(a)(6) by knowingly lying about whether he was subject to such an
order.

      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 District of New York, for Appellee.



HALL, Circuit Judge:

      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,


                                        2
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 18 U.S.C. § 922(g)(8), which prohibits possession of a

firearm by a person subject to certain kinds of protective orders.      Based on

Bramer’s answer of “No” to Question 11.h, a federal grand jury in the Northern

District of New York returned a single-count indictment charging him with

providing false information to a licensed dealer in connection with the attempted

acquisition of a firearm—a violation of 18 U.S.C. § 922(a)(6).   After a two-day

trial, Bramer was found guilty, and following denial of his posttrial motions

Bramer was sentenced to a term of imprisonment of 43 days (time served) and a

three-year term of supervised release. This appeal followed.

      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 18 U.S.C. § 922(g)(8), the government was required to prove that

                                        3
the Justice Court order was “issued after a hearing of which [Bramer] received

actual notice, and at which [Bramer] had an opportunity to participate,” 18 U.S.C.

§ 922(g)(8)(A). 1 Because the government’s proof at trial was insufficient to show

that Bramer “had an opportunity to participate” in the Justice Court, we hold that

there was insufficient evidence to find that Bramer’s response to Question 11.h

was knowingly false and therefore REVERSE the judgment of conviction.

                                       BACKGROUND

       I.      Factual Background

       On October 12, 2016, New York State Trooper Christopher Esposito

contacted Bramer via telephone and informed him that an individual with whom

Bramer had previously resided and had a child was pressing charges against him

for domestic violence. 2 At that time, Trooper Esposito informed Bramer of the

general nature of the charges, “[m]ost likely” explained to him “what happens

during an arraignment,” and told Bramer that “if he [came] to [Esposito], then he




1 The statutory language of 18 U.S.C. § 922(g)(8)(A) is relevant because the parties agreed that the
government bore the burden of proving the order complied with its language. Bramer does not
dispute that the evidence at trial was sufficient to establish that the order complied with the
requirements of § 922(g)(B) and (C).
2 The nature of the charges were not revealed at trial, nor is the individual’s name important for

our purposes.

                                                 4
could sort of start th[e court] process” to deal with the allegation cooperatively.

App’x 67–69. Bramer turned himself in to Trooper Esposito the following day.

Trooper Esposito then escorted Bramer to the Justice Court for arraignment.

According to Trooper Esposito’s initial testimony at Bramer’s federal trial, the

court was in session; Town Justice James Fauci was presiding. The Justice Court

is “a fairly busy court,” and “on court days during court hours, [the] courtroom

can be pretty full[.]” App’x 70. Trooper Esposito could not “recall specifically

if there were members of the public” present when he and Bramer arrived for

Bramer’s arraignment, nor could he recall which or how many members of the

court staff were present. App’x 71–72. Bramer did not have a lawyer present at

the arraignment.

      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 that 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

                                        5
“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 appearance. 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 New York Criminal Procedure Law

§ 530.12(1)(a) and signed by both Bramer and Judge Fauci, indicates that Bramer

was “advised in Court of issuance and contents of [the] Order[,]” and that the

“Order [was] personally served on [Bramer] in Court.” App’x 242. The order

also states that “it is a federal crime to . . . buy, possess or transfer a handgun, rifle,

shotgun or other firearm or ammunition while this Order remains in effect.”

App’x 242. Although there are different types of orders of protection that may

be issued under New York law, see N.Y. C.P.L. §§ 530.12, 530.13, the order issued

to Bramer was “a stay-away order of protection[,]” App’x 58, requiring that he stay

away from the individual who had made the allegation against him, that he refrain

from communicating with her, and that he refrain from engaging in an extensive

                                            6
list of criminal conduct directed at the protected person. 3                 Trooper Esposito’s

testimony and the Justice Court’s order countersigned by Bramer are the only

evidence of what happened in court that day.

       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




3 Specifically, the order required Bramer to “[s]tay away from” the protected person, as well as
her home, school, business, and place of employment; “[r]efrain from communication or any
other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with”
the protected person; and “[r]efrain from assault, stalking, harassment, aggravated harassment,
menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation,
disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching,
intimidation, threats, identity theft, grand larceny, coercion or any other criminal offense against”
the protected person. App’x 241.

                                                 7
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 or 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 18 U.S.C. § 922, provide as follows:

       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

4
 The only difference between the language on the Form 4473 and § 922(g)(8) is that the Form says
“was issued after a hearing which the person received actual notice of and had an opportunity to
participate in” while the statutory language says “was issued after a hearing of which such person
received actual notice, and at which such person had an opportunity to participate[.]” The


                                                8
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.

       Under questioning from an ATF Special Agent prior to his arrest, Bramer

indicated that “he answered no to question 11.h because he did not read the fine

print on the order of protection, that he had attempted to purchase the firearm for

hunting, and that he had not bought the firearm to cause harm to the protected

person.”     App’x 110.

       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 18 U.S.C.


instructions also provide a definition of “intimate partner” which tracks the term’s definition in
18 U.S.C. § 922(g)(8). See App’x 238 (“An ‘intimate partner’ of a person is: the spouse or former
spouse of the person, the parent of a child of the person, or an individual who cohabitates or
cohabitating [sic] with the person.”).

                                                9
§ 922(a)(6). After a two-day jury trial, Bramer was found guilty. At the close of

evidence, Bramer moved under Federal Rule of Criminal Procedure 29 for a

judgment of acquittal, which the district court denied.       Bramer renewed this

motion after the jury verdict and also moved for a new trial under Federal Rule of

Criminal Procedure 33.     The district court denied both motions and judgment

was entered on December 12, 2018. Bramer timely appealed.

      II.    Statutory Framework

      Two subsections of 18 U.S.C. § 922 are relevant to the issues in this case.

Bramer was convicted of violating 18 U.S.C. § 922(a)(6), which provides that it

shall be unlawful:

      [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 18 U.S.C.

§ 922(g)(8). 18 U.S.C. § 922(g)(8) provides in full that it is unlawful for any person

                                         10
to receive any firearm or ammunition if the person 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 partner of such person or child of such intimate partner
          or person, or engaging in other conduct that would place an
          intimate partner in reasonable fear of bodily injury to the partner
          or child; and
      (C) (i) includes a finding that such person represents a credible threat
          to the physical safety of such intimate partner or child; or (ii) by
          its terms explicitly prohibits the use, attempted use, or threatened
          use of physical force against such intimate partner or child that
          would reasonably be expected to cause bodily injury[.]

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 § 922(a)(6) if that question

stood alone or undefined. Rather, the parties agree that the meaning of the term

“court order” in Question 11.h was limited by the instructions on the form to court

orders of the type defined in § 922(g)(8). In order to prove Bramer answered the

question falsely, the government was therefore required to prove he was, in fact,

subject to a court order as defined in that statute. We are thus required to decide

                                          11
whether Bramer’s order was issued after a “hearing” of which he received “actual

notice” and in which he had an “opportunity to participate.”

               JURISDICTION AND STANDARD OF REVIEW

      We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the

sufficiency of evidence and the district court’s denial of a Rule 29 motion for

judgment of acquittal. United States v. Blaszczak, 947 F.3d 19, 30 (2d Cir. 2019);

United States v. Florez, 447 F.3d 145, 154 (2d Cir. 2006). A defendant challenging

the sufficiency of the evidence “bears a heavy burden because a reviewing court

must consider the evidence in the light most favorable to the prosecution and

uphold the conviction if any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”        Blaszczak, 947 F.3d at 30

(internal quotation marks, citations, and emphasis omitted).

                                 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 18 U.S.C. § 922(g)(8).

Specifically, he argues the government failed to present evidence that the order

issued after a “hearing of which [he] received actual notice, and at which [he] had

                                        12
an opportunity to participate.”         18 U.S.C. § 922(g)(8)(A). 5        Given the paucity

of evidence about what occurred in the Justice Court proceedings, we agree; we

do not see sufficient 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 adequate “notice” to satisfy § 922(g)(8)(A).

       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




5Our only case discussing the requirements of § 922(g)(8)(A) is Panzella v. Sposato, 863 F.3d 210
(2d Cir. 2017). There we made the straightforward observation that a protective order issued ex
parte in New York State would not satisfy these requirements. Panzella, 863 F.3d at 214. We did
not, however, undertake to define the minimum circumstances that would satisfy them. The case
thus provides little insight into whether a hearing at which a defendant was present gave the
defendant adequate “notice” and “opportunity to participate” to satisfy the statute.

                                               13
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.

      Our job is not to speculate about what is possible, however.          We must

uphold the jury’s verdict if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979) (emphasis deleted). We “may enter a judgment of acquittal only

if the evidence that the defendant committed the crime alleged is nonexistent or

so meager that no reasonable jury could find guilt beyond a reasonable doubt.”

United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999) (internal quotation marks

omitted).

      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

                                          14
proceedings 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 appeared 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 proceedings), 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

                                        15
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 order. 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 and that the “[o]rder [was] personally served on [Bramer] in Court.”

App’x 242. No evidence suggests that the court engaged in any type of exchange

with Bramer, asked Bramer if he understood what the court was saying to him, or

asked if Bramer would agree to the terms set forth in the order. The ATF Special

Agent on the case even testified that Bramer “could not understand the correlation

between the order of protection and the attempted purchase and denial.” App’x


6
   Under New York law, in fact, the order did not require the judge to make any sort of
determination, legal or factual, before issuing it. N.Y. C.P.L. § 530.12(1)(a) (“[F]ailure to make
. . . a determination shall not affect the validity of such temporary order of protection.”). And
the order issued to Bramer does not contain an indication that the judge made any determination,
a fact that tips against finding that there was an “opportunity to participate.”

                                               16
110.   The order contains an unchecked box which, if checked, would have

indicated Judge Fauci had determined that there was “good cause . . . for issuance

of an order of protection.” App’x 241. That the box was unchecked before the

order was issued is yet another sign of the apparently perfunctory nature of

whatever occurred at the Justice Court that day.

       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 to make[.]” United States v. Falzone, 1998 WL

351471, at *2 (D. Conn. June 2, 1998).    Further, multiple courts have held that

§ 922(g)(8)(A) does not require representation or participation by counsel for the

order in question to meet the statutory requirements. See United States v. Edge,

238 F. App’x 366, 369 (10th Cir. 2007); Young, 458 F.3d at 1001, 1009; United States

v. Bena, 2010 WL 1418389, at *2 (N.D. Iowa Apr. 6, 2010), aff’d 664 F.3d 1180 (8th

Cir. 2011).

       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

                                         17
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 take 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

                                         18
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” under § 922(g)(8)(A), we

hold that the government must present sufficient evidence for a jury to be able to

conclude that a reasonable person in Bramer’s position would have understood

that he was permitted to interpose objections or make an argument as to why an

order of protection should not be imposed.

      On the record before us we cannot conclude that Bramer was afforded that

opportunity. In the absence of any additional evidence relevant to this issue, the

record demonstrates no more than the judge simply issued the protection order as

a matter of course on arraignment day in a “fairly busy” court—a far cry from the

set of exchanges found sufficient in Young, 458 F. 3d 998, to indicate an opportunity

to participate in the proceedings.     The court scheduled a second appearance

within the next month—one that would presumably be more extensive and would

involve considering the merits of continuing the temporary injunction. Where,

as here, the government has presented no evidence of anything more than a state

proceeding at which Bramer was present and where an order of protection was

issued, no rational jury could conclude that Bramer had an “opportunity to

                                         19
participate” in that proceeding.    The Justice Court order, therefore, was not

proven to be issued after a hearing that comported with the requirements of 18

U.S.C. § 922(g)(8)(A) and proof that Bramer made a false statement in connection

with his attempted firearms purchase fails of necessity.

                                 CONCLUSION

      The district court’s denial of Bramer’s Rule 29 motion for judgment of

acquittal is VACATED, and the judgment of conviction is REVERSED.




                                        20
