Since Judge Cummings of the lower court has already dismissed the indictment, what latitude/option is left to the govt?
The 5th Circuit just reversed Judge Cummings' dismissal of the indictment and remanded the case to the District Court. The indictment is back in effect, essentially.
The indictment is now reinstated and the case goes back to trial. Based on the Couer of Appeals' language, Emerson is probably toast, because it looks like the only issues for the jury are (1)was he subject to a court order of protection, and (2)did he buy a gun after that date? The answers to both of those are clearly yes, so he's going to be found guilty unless the jury decides to nullify.
Emerson was under a temporary restraining order (issued Sept. 14, 1998) as part of an apparently messy divorce proceeding.
This is no more a violation of due process than is being temporarily held without bail if you're a suspect in a crime, or temporarily barred from leaving the state during a criminal investigation.
The problem was that instead of just riding out the restraining order, according to Texas Monthly magazine's article:
A few months later, Sacha went to Timothy's office with their four-year-old daughter to pick up an insurance payment. The couple argued, and Timothy pulled a pistol from his drawer, laid it on the desk, and asked his wife to leave. When she hesitated, he cocked the gun. Eight days later, a federal grand jury indicted Timothy Emerson for unlawfully possessing a pistol while under the restraining order, and the case of United States v. Timothy Joe Emerson moved to federal court.The feds became involved because federal law prohibits possession of a firearm by anyone under a restraining order. Emerson had just broken federal firearms law. It is *that* act that now prohibits him from owning firearms for the rest of his life, assuming he ultimately loses his appeal after all due process.
The restraining order itself would have just been a temporary thing. Only his conviction on the federal firearms violation will be able to give him a lifelong prohibition of firearm ownership.