CINCINNATI — The appeal in the machine gun case against former Greene County Sheriff’s deputy Eric Spicer has been scheduled for oral arguments before a federal appeals court.
According to court documents filed Jan. 28, Spicer’s appeal has been set to appear before a three-panel judge of the Sixth Circuit Court of Appeals in Cincinnati on March 16. Both federal prosecutors and Spicer’s attorneys will be allotted 15 minutes to present their cases at that hearing.
The panel of judges could decide the case and issue a written decision prior to the hearing on the basis of previous records and briefs already filed by both sides.
Spicer was sentenced to five years of probation in 2015 for two convictions related to his possession of a machine gun last year, avoiding possible prison time.
During his trial in Dayton’s US District Court in 2014, a jury found Spicer guilty on two charges relating to the possession of a HK416 machine gun first acquired for use when Spicer was employed at the Greene County Sheriff’s Office. Spicer was found guilty of possessing the machine gun after being terminated from the sheriff’s office and of possessing a firearm not registered to him.
After Spicer was terminated from the sheriff’s office in 2014, he was told to return all property of the Greene County Sheriff’s Office, which would have included the HK416 machine gun – which Spicer purchased with his own funds but was registered to the sheriff’s office – that he had at his home.
Testimony during Spicer’s trial indicated that after he was terminated, he had been looking into a ceremonial position with the Jackson Township Police Department in order to keep his police commission active in the state. Spicer’s attorneys have argued that a conversation between Greene County Sheriff Gene Fischer and Jackson Township Police Chief Jon Schade about transferring a firearm to Schade’s office was what Spicer “relied upon … as authority to keep the weapon until its transfer.”
Among other arguments, Spicer’s attorneys contend that federal firearm laws are, “unconstitutionally vague because there is no clear moment as to when he would know he was not permitted to possess the weapon,” they wrote in an appeal brief. “To prosecute and convict him under these circumstances is to retroactively re-write the statute and tell Spicer he should have known the sheriff was not allowed to tell him it was agreeable to do a lawful transfer.”
Spicer’s attorneys also argue that it would have been impossible for him to have complied with the registration statute as an individual.
In court documents filed in November 2015, prosecutors argued that Spicer was “trying to cobble together his past employment with Greene County and his hoped-for association with Jackson Township as an excuse and cover for his continued possession of the machine gun for his own amusement.”
Prosecutors conceded that one of Spicer’s convictions should be vacated because the two convictions resulted in multiple punishments for the same offense, but concluded, “The evidence was more than sufficient to demonstrate that Spicer’s possession of a machine gun was not ‘under the authority’ of the Greene County Sheriff’s Office…. The charged possession was three weeks after Spicer’s termination from the sheriff’s office, and 15 days past the deadline provided in his termination letter for returning sheriff’s office property.”
Reach Nathan Pilling at 937-502-4498 or on Twitter @XDGNatePilling.