United States v. Charles Michael Potts

528 F.2d 883, 1975 U.S. App. LEXIS 11860

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 19, 1975
• Docket: 74--1817
• Status: Published

Opinions

OPINION

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

KOELSCH, Circuit Judge:

We took this case in banc in order to re-examine the principal question presented in United States v. Hoctor, 487 F.2d 270 (9th Cir. 1973).

Appellee Potts, like Hoctor, was charged with a federal crime requiring as an element the defendant’s prior conviction of a felony.¹ Both Potts and Hoctor had been convicted of a felony under the laws of the State of Washington, but before the commission of their alleged federal crimes each had caused his state conviction to be duly expunged pursuant to Wash.Rev.Code Ann. § 9.95.240 (the statute), which reads in part as follows:

“Every defendant who has fulfilled the conditions of his probation may ... be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted . . . ”

In Hoctor, we concluded that the defendant was no longer a person who had been convicted of a felony, the reason being that his former “conviction was absolutely erased from his record [and that he] was entitled to the same rights, and held the same status, as any citizen.” 487 F.2d at 271. Accordingly, we affirmed the judgment dismissing the indictment. If that conclusion was valid with respect to Hoctor, it would necessarily be the same with respect to Potts, for, as in Hoctor, the erasure or setting aside of the conviction and the restoration of Potts’ prejudgment status likewise should have effectively removed him from the class of persons within the purview of the federal criminal statute under which he was charged.

However, we are now convinced that Hoctor was wrongly decided and therefore overrule that decision.² ■ ■

Contrary to the view expressed in Hoctor, the statute does not operate absolutely to erase a conviction for all purposes. True, the enacting clause does speak of the release of a defendant “from all penalties and disabilities resulting from the offense or crime of which he has been convicted.” But the breadth of this remission is limited by a proviso in the statute which reads:

“Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.”

The Washington appellate courts, on several occasions when called upon to construe the statute, have noted the effect of the proviso upon a conviction and its use. Thus in Matsen v. Kaiser, 74 Wash.2d 231, 443 P.2d 843 (1968), a majority of the justices of the Supreme Court of Washington, speaking of the benevolent public policy underlying the statute, were careful to qualify their broad statement by noting that “[tjhe only exception to the statutory release of all penalties and disabilities attendant upon a conviction is found in the proviso, which is not applicable in the instant case.” 74 Wash.2d at 237, 443 P.2d at 847 (emphasis in original). And the dissenter added his comment that expunction effected only a “ ‘partial erasure’ because, as the majority points out, the guilty plea will count as a conviction in any subsequent prosecution.” 74 Wash. 2d at 241, 443 P.2d at 849.

Similarly, in Tembruell v. Seattle, 64 Wash.2d 503, 392 P.2d 453 (1964), the Supreme Court of Washington, in the course of an opinion construing a police pension statute, declared that the police officer’s

“plea of guilty to grand larceny, coupled with his award of probation and the subsequent dismissal of the information, do not add up to a conviction of felony within the intendments of the police pension statute (RCW 41.20.-110), even though this sequence of events might be specially considered by the court as a prior conviction in a later criminal action. RCW 9.95.240.” 64 Wash.2d at 510, 392 P.2d at 457.

And in State v. Knott, 6 Wash. App. 436, 493 P.2d 1027 (1972), a decision not called to our attention at the time Hoctor was submitted, the Court of Appeals of Washington held that the statute operated to restore a defendant’s civil rights but, because of the proviso, did not obliterate the fact of Knott’s conviction and that such conviction was properly shown to impeach his credibility in his subsequent criminal prosecution.³ A fortiori, we believe that the prior conviction may be “pleaded and proved” where, as here, it is an essential element of a subsequent crime.⁴

Our decision today, overruling Hoetor,⁵ undoubtedly expands the scope of potential criminal liability under § 1202(a)(1). While Hoetor stood as the law of this circuit, a person such as Potts, whose sole prior felony conviction had been expunged pursuant to the Washington statute, could not reasonably have suspected that his possession of a firearm, in or affecting commerce, would constitute a § 1202(a)(1) violation. As Potts lacked notice of our subsequently revised view of the statute, “due process fairness bars the retroactive judgment of his conduct using the expanded definition.” United States v. Jacobs, 513 F.2d 564, 566 (9th Cir. 1974). See United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); Bouie v. City of Columbia, 378 U.S. 347, 352-354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Accordingly, the rule we announce today must be applied prospectively only, and the dismissal below affirmed.

It is so ordered.

1 . Potts was charged under 18 U.S.C.App. § 1202(a)(1):

“(a) Any person who—

(1) has been convicted by a court . of a State ... of a felony

and who receives, possesses, or transports in commerce or affecting commerce any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

Hoctor was charged with violating 18 U.S.C. § 842(i):

“(i) It shall be unlawful for any person—

(1) who . . . has been convicted in any court of, a crime punishable, by imprisonment for a term exceeding one year .

* * * * * sfc

to ship or transport any explosive in interstate or foreign commerce or to receive any explosive which has been shipped or transported in interstate or foreign commerce.”

2 . The Hoctor panel may have been misled by an opinion of the Washington State Attorney General, 1969 AGO No. 5, which relied heavily on People v. Taylor, 178 Cal.App.2d 472, 3 Cal.Rptr. 186 (1960). In Taylor, the court held that a conviction expunged pursuant to a California statute similar to § 9.95.240 could not be used to prove a violation of a state statute prohibiting the possession of firearms by a convicted felon. However, the California state legislature, apparently disagreeing with the Taylor interpretation of the California expunction statute, “immediately nullified” the holding of Taylor by a 1961 amendment to the statute. See Ready v. Grady, 243 Cal.App.2d 113, 116, 52 Cal.Rptr. 303, 306 (1966); Epstein v. California Horse Racing Board, 222 Cal.App.2d 831, 840, 35 Cal.Rptr. 642, 648 (1963). For recent decisions bearing on the interpretation of the proviso contained in the California statute, see United States v. Andrino, 497 F.2d 1103, 1106-1107 (9th Cir. 1974); Barbosa v. Wilson, 385 F.2d 319, 322 (9th Cir. 1967); In re Foss, 10 Cal.3d 910, 933, 112 Cal.Rptr. 649, 519 P.2d 1073 (1974); People v. Wiedersperg, 44 Cal.App.3d 550, 118 Cal.Rptr. 755, 757 (1975); People v. McCuiston, 246 Cal.App.2d 799, 810, 55 Cal.Rptr. 482 (1966); and cases cited therein.

3 . We note that both features of the expunction statute — the restoration of a defendant’s civil rights and the use of the expunged conviction should such person thereafter be prosecuted for any offense — serve the rehabilitative ideal underlying the statute. The former relieves a defendant of an impediment to his speedy and effective reassimilation as a useful member of society, while the latter acts as a deterrent to recidivism.

4 . In this regard, it is important to recognize that a judicial expunction, like a pardon, is condonative in nature. It forgives a crime in order to advance a distinct social policy, but it in no way negates the correctness of the initial determination of guilt. See State v. Cullen, 14 , 127 P.2d 257 (1942). The same would not be true, of course, for the reversal of a conviction. See United States v. Liles, 432 F.2d 18, 20 (9th Cir. 1970).

5 . As we perceive no conflict between § 9.95.-240 and § 1202(a)(1), we need not, and do not, consider the extent to which the federal statute may preempt arguably conflicting state law. Cf. United States v. Andrino, 497 F.2d 1103, 1106-1107 (9th Cir. 1974). We note, however, that other circuits have dealt with the preemption question. See United States v. Kelly, 519 F.2d 794, 796, (8th Cir. 1975); United States v. Mostad, 485 F.2d 199, 200-201 (8th Cir. 1973); United States v. Glasgow, 478 F.2d 850, 852 (8th Cir. 1973); See also Thrall v. Wolfe, 503 F.2d 313, 316-318 (7th Cir. 1974). Cf. Gonzalez de Lara v. United States, 439 F.2d 1316, 1318 n.9 (5th Cir. 1971), and Ninth Circuit cases cited therein.