United States v. Gerald Ray Bergeman

592 F.2d 533

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 1979
• Docket: 78-2219
• Status: Published

Opinions

J. BLAINE ANDERSON, Circuit Judge:

The defendant was charged with possession of firearms by a convicted felon in violation of 18 U.S.C.A. § 922(h)(1).¹ The district court dismissed the indictment, finding that the prior conviction was invalid for purposes of 18 U.S.C.A. § 922(h)(1), since it had been dismissed under an Idaho statute which allows the expunction of state criminal convictions.² We reverse.

Jurisdiction of the district court was based on 18 U.S.C.A. § 3231. Jurisdiction of this court is proper under 28 U.S.C.A. § 1291.

FACTUAL BACKGROUND

The defendant was found guilty of receiving stolen property. On November 13, 1973, the state court ordered the defendant imprisoned in the Idaho State Penitentiary for five years. (C.R. 35) However, the state court ordered that the defendant’s sentence be withheld on condition that he serve four months in the county jail, pay a $1,000.00 fine, pay court costs, and serve the balance of the term on parole. (C.R. 35-36)

On March 30, 1977, after the defendant’s probation officer petitioned the court, the state, court entered an order discharging the defendant from further probation supervision and dismissing the charges against the defendant. (C.R. 25)

Based upon this dismissal by the state court, the defendant moved to dismiss the federal indictment claiming that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year, as required by 18 U.S.C.A. § 922(h)(1). (C.R. 22) The district court agreed with defendant’s contention and dismissed the charges against him. (C.R. 86)

QUESTION PRESENTED

The sole question presented on appeal is whether a person who has had a state criminal conviction dismissed pursuant to the Idaho expunction statute may still be considered a person who has been convicted of a crime punishable for a term exceeding one year within the meaning of 18 U.S.C.A. § 922(h)(1). This involves the construction and interpretation of federal law, and the extent to which, if at all, a federal statute incorporates or refers to a state’s law. United States v. Pricepaul, 540 F.2d 417, 424 (9th Cir. 1976), and see Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 208, 66 S.Ct. 992, 90 L.Ed. 1172 (1946). In view of the recent decisions of this court, some of which were decided after the district court’s decision in the present case,³ we conclude that despite the state expunction, the defendant is still a convicted felon within the terms of 18 U.S.C.A. § 922(h)(1), and therefore reverse.

DISCUSSION

Our analysis of the question presented for review must begin with United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc). Potts was charged with possession of a firearm by a convicted felon.⁴ However, the prior felony conviction had been expunged under a Washington state statute. All twelve members of this court agreed that despite the expunction of the conviction under state law, it still could be used as an element of the federal crime.

Four other judges joined in the opinion by Judge Koelsch. Judge Wright concurred, recommending that the court adopt a fair warning system to advise all of the other people who were affected by the decision. And Judge Sneed, joined by five other judges, concurred in the result, but disagreed with the analysis used by Judge Koelsch.

The Koelsch opinion analyzed the Washington statute, Washington court interpretations of it and concluded that, even in state courts, despite the expunction, the conviction would still be used as an “essential element of a subsequent crime.” 528 F.2d at 885. Observing no conflict between state and federal law, the Koelsch opinion declined to “consider the extent to which the federal statute may preempt arguably conflicting state law.” 528 F.2d at 886 n. 5. On the other hand, the Sneed opinion criticized the analysis of state law as immaterial. According to the concurring opinion’s view, under the federal criminal statute, it was only necessary to look to the original conviction under state law, since Congress had chosen to consider state expunction statutes irrelevant. 528 F.2d at 887—888.⁵

As a district judge, this author observed that there was a conflict between the Koelsch and the Sneed opinions on the question of whether federal law or state law determines a person’s status as a convicted felon. United States v. Locke, 409 F.Supp. 600, 604 n. 4 (D.Idaho 1976), aff’d, 542 F.2d 800 (9th Cir. 1976). However, after further reflection, and in view of the subsequent decisions of this court, the difference appears to have been resolved in favor of both viewpoints.⁶

This court placed any doubts about a possible conflict between the Koelsch and Sneed opinions in Potts to rest in Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978). The question of whether state or federal law would control a convicted felon’s right to carry a firearm was resolved in favor of federal law, relying upon the Sneed opinion in Potts. We said in part:

“This argument is without merit. In United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc) we held that a state felony conviction which had been expunged pursuant to a statute which ‘released [the felon] from all penalties and disabilities resulting from the offense or crime of which he has been convicted’ was not erased for purposes of the prior felony element of section 1202. We stated that there was no preemption issue because there was simply ‘no conflict’ between section 1202 and the state expunction statute. Id. at 886 n. 5. Although the expunction statute could determine the status of the conviction for purposes of state law, it could not ‘rewrite history’ for the purposes of ‘the administration of the federal criminal law or the interpretation of federal criminal statutes.’ Id. at 887 (Sneed, J., concurring in result). We believe this principle is controlling here.” (emphasis added)

580 F.2d at 980 — 981. This principle also controls our result in the present case.

Our conclusion is supported by the legislative history of 18 U.S.C. § 922(h)(1). This provision was originally adopted as part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968. One of the principal purposes of Title IV was to keep firearms out of the hands of those who had a criminal background. Sen.R. No. 1097, 90th Cong., 2nd Sess., reprinted in [1968] U.S.Code Cong. & Admin.News, p. 2112. Consistent with this purpose, Congress made it a crime for a convicted felon to possess a firearm. 18 U.S.C. § 922(h)(1). Congress specifically explained the term “convicted felon” as used in Title IV.⁷ Congress also specifically provided a method by which a person who has been convicted of a felony may lawfully possess firearms.⁸ Nowhere in the statute or in the legislative history did Congress make an exception from the operation of Title IV’s sanctions for felons who have had their convictions expunged under state law. United States v. Potts, 528 F.2d 883, 887 (9th Cir. 1975) (en banc) (Judge Sneed concurring); and see United States v. Mostad, 485 F.2d 199, 200 (8th Cir. 1973), cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563. Following the familiar precept of statutory construction, expressio unius est exclusio alterius, we decline to supply such an exception. To do so would be inconsistent with the broad purpose of Title IV which was to prevent those with criminal backgrounds from obtaining firearms. See Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974).⁹

Additional support for our decision is found in the rather anomalous situation which would otherwise result. If a conviction were to be determined by application of the different expunction statutes of each state, then the application of federal criminal sanctions would depend solely upon where the defendant’s previous conviction had occurred. If the person had his conviction expunged under either the Washington or Arizona statutes, then he could not possess a firearm. United States v. Herrell, 588 F.2d 711 (9th Cir. 1978) (Arizona); United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc) (Washington). Whereas, if the person had his conviction expunged under the Idaho statute, then he could possess a firearm. Congress certainly could not have intended a federal criminal law to be applied in such a patchwork fashion. In the absence of an expression to the contrary, Congress generally intends federal criminal law to receive a uniform application. See Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed. 640 (1943); United States v. Patz, 584 F.2d 927, 930 (9th Cir. 1978).

Our conclusion is consistent with prior holdings of this court in the context of deportation proceedings. Despite state ex-punction of convictions, we have held that the convictions are still valid and may be used as a basis for deportation under 8 U.S.C.A. § 1251. See Ocon-Perez v. Immigration and Naturalization Service, 550 F.2d 1153, 1154 (9th Cir. 1977); Tsimbidy-Rochu v. Immigration and Naturalization Service, 414 F.2d 797, 798 (9th Cir. 1969); de la Cruz-Martinez v. Immigration and Naturalization Service, 404 F.2d 1198, 1200 (9th Cir. 1968), cert. denied, 394 U.S. 955, 89 S.Ct. 1291, 22 L.Ed.2d 491.¹⁰

We hold that the expunction of a conviction under Idaho law does not change the status of a person as a convicted felon for purposes of 18 U.S.C.A. § 922(h)(1).¹¹ The judgment of dismissal by the district court is REVERSED.

1 . The statute speaks in terms of “receipt” of firearms; for purposes of our decisions we refer to it as “possession.” 18 U.S.C.A. § 922(h)(1) provides:

“It shall be unlawful for any person—

(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

* * * * * *

to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

2 . Idaho Code § 19-2604(1) provides:

“If sentence has been imposed but suspended, or if sentence has been withheld, upon application of the defendant and upon satisfactory showing that the defendant has at all times complied with the terms and conditions upon which he was placed on probation, the court may, if convinced by the showing made that there is no longer cause for continuing the period of probation, and if it be compatible with the public interest, terminate the sentence or set aside the plea of guilty or conviction of the defendant, and finally dismiss the case and discharge the defendant; and this shall apply to the cases in which defendants have been convicted and granted probation by the court before this law goes into effect, as well as to cases which arise thereafter. The final dismissal of the case as herein provided shall have the effect of restoring the defendant to his civil rights.”

3 . United States v. Herrell, 588 F.2d 711 (9th Cir. 1978); United States v. Patz, 584 F.2d 927 (9th Cir. 1978); Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978).

4 . Potts was charged under 18 U.S.C.A. App. § 1202(a)(1) which prohibits essentially the same offense as 18 U.S.C. § 922(h)(1).

5 . Potts was similarly construed in United States v. Houston, 547 F.2d 104, 106-107 n. 5 (9th Cir. 1976).

6 . See United States v. Locke, 542 F.2d 800, 801 (9th Cir. 1976) (Court relied upon both the Koelsch and Sneed opinions in Potts); United States v. Herrell, 588 F.2d 711 (1978) (Court followed Koelsch opinion since the Arizona expunction statute involved there was almost identical to the Washington expunction statute involved in Potts); Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978) (Court followed Sneed opinion in Potts).

7 . The statute speaks in terms of persons who have been convicted of a “crime punishable by imprisonment for a term exceeding one year,” which we have simplified to “convicted felon” for purposes of our discussion. 18 U.S.C.A. § 921(a)(20) provides:

“The term ‘crime punishable by imprisonment for a term exceeding one year’ shall not include (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices as the Secretary may by regulation designate, or (B) any State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.”

8 . 18 U.S.C.A. § 925(c) provides:

“A person who has been convicted of a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, or possession of firearms and incurred by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. . . . ”

9 . See also Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978), where we cited Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), and Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976), and observed that “the Supreme Court has clearly indicated that the Federal gun laws at issue here are intended to have, and should be given the broadest permissible application.” 580 F.2d at 980.

10 . In de la Cruz-Martinez, this court reasoned as follows:

“Deportation is a function of federal and not of state law. In the context of a narcotics conviction, deportation is a punishment independent from any that may or may not be imposed by the states. While it is true that the same event, the state conviction, triggers both sets of consequences, it would be anomalous for a federal action based on a state conviction to be controlled by how the state chooses to subsequently treat the event. It is the fact of state conviction, not the manner of state punishment, that is crucial. As we stated in Reyes v. United States, 258 F.2d 774 (9th Cir. 1958) and repeated with approval in Garcia-Gonzales, supra,

‘It would defeat the purpose * * * (of federal law) if provisions of local law, dealing with rehabilitation of convicted persons, could remove them from the ambit of (federal penal enactments). * * * We do not think Congress intended such a result.’ ”

404 F.2d at 1200. This rationale under the immigration laws is equally applicable to the present situation under Title IV of the Omnibus Crime Control and Safe Streets Act of 1968.

11 . Other decisions have arrived at the same conclusion about the effect state expunction statutes have on a person’s status as a “convicted” felon under the Omnibus Crime Control and Safe Streets Act of 1968. United States v. Hayes, 535 F.2d 479 (8th Cir. 1976); United States v. Kelly, 519 F.2d 794 (8th Cir. 1975), cert. denied, 423 U.S. 926, 96 S.Ct. 272, 46 L.Ed.2d 254; United States v. Mostad, 485 F.2d 199 (8th Cir. 1973), cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563. Cf. Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974) (involving the effect of a state pardon to person’s status as a convicted felon under Title IV). But see United States v. Matassini, 565 F.2d 1297, 1309-1310 n. 26 (5th Cir. 1978).

Matassini does not support Judge Takasugi’s views in our opinion. In Matassini the Fifth Circuit was dealing with the effect of a 1955 Florida “full and complete pardon of a [prior] offense, thereby restoring to him full and complete civil rights.” The Fifth Circuit was not dealing with a state expunction statute. The bracketed word [expunction] in the quotation from Matassini on page 6 of Judge Takasugi’s dissent (from 565 F.2d at 1310, no. 26) is “pardon” in the original and to insert “expunction” may be somewhat misleading. In any event, 18 U.S.C.App. § 1203(2) contains an express exemption for “any person who has been pardoned by the chief executive of a State No express exemption appears with respect to state expunction statutes. To follow Matassini in this circuit would be, in our opinion, a clear departure from our prior cases on this precise issue.