United States v. Emerson

46 F.Supp. 2d 598 (N.D.Texas 1999)

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Nature of the Case

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Facts

Emerson’s (D) wife filed a petition for divorce and a temporary restraining order restraining D from making threatening communications or actual physical attacks on his wife during the divorce proceedings was granted. 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 the temporary restraining order was a form order that was used in Texas divorce proceedings. During the first hearing on the case, Mrs. Emerson alleged that her husband threatened over the telephone to kill the man with whom Mrs. Emerson had been having an adulterous affair. No evidence was produced concerning any acts of violence or threatened violence by D against any member of his family, and the district court made no findings to that effect. The court did not admonish D that if he granted the temporary restraining order, Mr. Emerson would be subject to federal criminal prosecution merely for possessing a firearm while being subject to the order. D was indicted for possession of a firearm while being under a restraining order. D moved to dismiss the indictment.