CINCINNATI — A federal appeals court heard oral arguments Wednesday in the machine gun case against former Greene County Sheriff’s deputy Eric Spicer. A three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati will consider the arguments, as well as briefs previously filed in the case, and rule on the appeal in coming months.
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 on as authority to keep the weapon until its transfer.
Assistant US Attorney Mary Beth Young argued Wednesday that Spicer should have returned the weapon after he was told to return his equipment.
“Eric Spicer, while acknowledging this was government property, was miffed at the sheriff’s office and did not want to take this weapon back to them,” she said. “Instead he holds onto it. Majors from the sheriff’s office, come, they claim his service pistol, his TASER, other property. At no point does he say, ‘Oh, hey, I’ve got this machine gun in the basement.’ There were plenty of opportunities for him to avoid coming anywhere near violating this and that was what he chose to do.”
Defense attorney John Smith addressed the issue by saying, “Hindsight is 20/20.”
“I wish he’d taken it in and set it down in the Greene County Sheriff’s Office until it got transferred,” he said. “…We’re talking about whether someone is going to be indicted for a crime, not whether who’s right, who’s wrong and whether this is a negligent act on someone or whether they were careless.”
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.
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 …”
Reach Nathan Pilling at 937-502-4498 or on Twitter @XDGNatePilling.