379 F.3d 1114 (9th Cir. 2004), 03-30464, United States v. Marks

Docket Nº:03-30464.
Citation:379 F.3d 1114
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Thomas Stanko MARKS, Defendant-Appellee.
Case Date:August 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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379 F.3d 1114 (9th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellant,


Thomas Stanko MARKS, Defendant-Appellee.

No. 03-30464.

United States Court of Appeals, Ninth Circuit

August 23, 2004

Argued and Submitted July 13, 2004.

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Joseph H. Harrington, Assistant United States Attorney, Spokane, WA, for the appellant.

Stephen R. Hormel, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the appellee.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. No. CR-02-00138-WFN.

Before: B. FLETCHER, HAMILTON,[*] and BERZON, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

The government appeals the dismissal with prejudice of an indictment charging

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Thomas Stanko Marks with possession of firearms and ammunition by a felon in violation of 18 U.S.C. § 922(g) (1). The district court held that Marks' predicate state conviction was unconstitutional, because he received ineffective assistance of counsel due to his attorney's actual conflict of interest in jointly representing both defendants. Since Washington law forbids the use of an unconstitutional conviction as a predicate for subsequent criminal prosecutions, the court dismissed the indictment, citing 18 U.S.C. § 921(a) (20), which provides that state law determines what constitutes a conviction for the purposes of § 922(g) (1). This court has jurisdiction under 28 U.S.C. § 1291. We conclude that, regardless of any alleged constitutional defect in Marks' Washington conviction, his felony conviction qualifies as a predicate conviction for the purposes of § 922(g) (1). We therefore reverse the decision of the district court.

We review de novo a district court's decision to dismiss an indictment based on an interpretation of a federal statute. United States v. Boren, 278 F.3d 911, 913 (9th Cir. 2002). We also review de novo a district court's interpretation of state law. Feldman v. Allstate Ins. Co., 322 F.3d 660, 665(9th Cir.), cert. denied, --- U.S. ----, 124 S.Ct. 222, 157 L.Ed.2d 137 (2003).


A. State Court Proceedings

In 1999, Thomas Marks was convicted of second-degree assault, a felony under Washington state law, and sentenced to six months in jail and a fine of just over three thousand dollars.1 See WASH. REV. CODE §§ 9A.36.021(2), 9A.20.021(1) (b) (providing that second-degree assault is a Class B felony punishable by imprisonment for not more than ten years, or by a fine of not more than twenty thousand dollars, or both). His conviction was confirmed on appeal, State v. Marks, 114 Wash.App. 1001, 2002 WL 31320631 (2002), and the Washington State Supreme Court denied review. 149 Wash.2d 1020, 72 P.3d 761 (2003). The government claims, and Marks concedes, that this conviction has never been expunged, vacated, or set aside, nor have Marks' civil rights been restored.

B. Federal Court Proceedings

In 2002, Thomas Marks was indicted by a grand jury in the Eastern District of Washington on three firearms-related charges under 18 U.S.C. §§ 922(g) (1) and 924. All three counts alleged that he was a prior convicted felon in possession of firearms or ammunition. After new counsel was appointed, Marks moved to dismiss the indictment, arguing that his state felony conviction was constitutionally invalid and therefore could not be considered a predicate conviction under §§ 921(a) (20) and 922(g) (1). The district court determined that the issue for decision was whether Marks' second degree assault conviction in Washington was a qualifying conviction under Washington law. It then concluded that Marks' second-degree assault conviction was unconstitutional because his counsel had an actual conflict of interest, in that his joint representation of both co-defendants prejudiced Marks' defense.

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Therefore, the conviction did not qualify as a predicate conviction under state law. The district court dismissed the indictment with prejudice. The United States filed a timely notice of appeal.


The federal firearms statute provides, in relevant part:

It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g) (1). Under the Firearm Owners' Protection Act of 1986 (FOPA), the determination of whether someone has in fact...

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