U.S. v. Pricepaul

• Decision Date: 29 March 1976
• Docket Number: No. 74-3164,74-3164
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall Wilford PRICEPAUL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 417

540 F.2d 417

UNITED STATES of America, Plaintiff-Appellee, v. Randall Wilford PRICEPAUL, Defendant-Appellant.

No. 74-3164.

United States Court of Appeals, Ninth Circuit.

March 29, 1976.

As Amended on Denial of Rehearing Aug. 9, 1976.

Barrett S. Litt (argued), Los Angeles, Cal., for defendant-appellant.

Leonard Sharenow, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before CHAMBERS, TRASK and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Pricepaul appeals his jury convictions of three counts of making false statements in connection with the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6) and two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a). ¹ Pricepaul claims that his prior state felony conviction is unconstitutional under both federal and state standards and therefore cannot be used to prove his guilt on any of the five counts. We reverse and remand to the district court for a hearing on the validity of the prior state conviction under federal constitutional standards.

On October 30, 1969, Pricepaul pleaded guilty under the name Randy Price in a California state court to a charge of taking an automobile with intent to deprive the owner of possession, a felony, in violation of section 10851 of the California Vehicle Code. The only record of what happened at the time his plea was taken is a minute order describing the proceedings leading to Pricepaul's conviction. The record notes that Pricepaul was represented by counsel, that he was found sane at the time the offense was committed, that he pleaded guilty to one count and two others were dismissed, that he waived statutory time for judgment and sentencing and the right to apply for probation, and that he was adjudged guilty and given three years probation. ² The record does not reflect that Pricepaul was advised of or that he voluntarily waived his rights to a jury trial, to confrontation of the witnesses against him, or his privilege against compulsory self-incrimination.

The evidence introduced in the district court showed that on two occasions, in 1971 and 1972, Pricepaul purchased firearms which had been shipped in interstate commerce. On those occasions and on a third in 1972, when he attempted to purchase a firearm Pricepaul signed an Internal Revenue Service Form 4473 stating that he had never been convicted of a felony.

Pricepaul's sole contention before us is that his prior state felony conviction is absolutely void in that it was the result of a guilty plea not taken in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969). Pricepaul claims that he therefore is not a "convicted" felon within the meaning of the statutes and should not have been found guilty on any of the counts charged.

I

In Boykin v. Alabama, supra, the Supreme Court held that it was constitutional error for a state trial court to accept a guilty plea without an affirmative showing that the plea was voluntary and intelligent. A guilty plea was said to waive three federal constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against compulsory self-incrimination. Waiver of these three rights by a guilty plea cannot be presumed from a silent record.

In In re Tahl, supra, the California Supreme Court interpreted Boykin for the California trial courts. That court held the record must contain on its face direct evidence that the accused was specifically and expressly made aware of each of these three federal rights and that he voluntarily waived them.

The first question is whether a finding that Pricepaul's prior state conviction was the result of a guilty plea not taken in accordance with Boykin or Tahl would entitle him to reversal of this federal firearms conviction. This precise question appears never to have been decided by a federal court. There are two decisions in our circuit, however, involving facts close enough to those before us to give us guidance.

United States v. Liles, 432 F.2d 18 (9th Cir. 1970), involved a conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a). Liles' claim was that his prior conviction had been subsequently reversed by the Fifth Circuit on grounds of insufficient evidence, United States v. Duke, 423 F.2d 387 (5th Cir. 1970), and that Congress meant to punish only those whose convictions were upheld on appeal. We rejected this contention, however. We found that "Congress' deep concern about the easy availability of firearms" led it to prohibit possession by "those who Congress had reason to believe pose a greater threat to community peace than does the public generally." Thus we concluded that Congress did not intend to exempt from the statute "one whose status as a convicted felon changed after the date of possession, regardless of how that change of status occurred." 432 F.2d at 20 (emphasis added).

This broad construction of the statutes is supported by the legislative history and by the decisions of other courts which have construed them. In addition to possession of firearms by convicted felons, 18 U.S.C.App. § 1202(a) prohibits possession by veterans with dishonorable discharges, mental incompetents, persons who have renounced citizenship in the United States, and illegal aliens. This statute was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197. It was never studied by a congressional committee; its legislative history consists solely of discussions on the floor of Congress. In explaining the proposed statute to the House, Representative Pollock stated its purpose:

The overall thrust is to prohibit possession of firearms by criminals or other persons who have specific records or characteristics which raise serious doubt as to their probable use of firearms in a lawful manner.

114 Cong.Rec. 16298 (1968). The legislative history of Title IV, of which 18 U.S.C. § 922(a)(6) is a part, demonstrates a similar purpose. See Barrett v. United States, 423 U.S. 212, 219-21, 96 S.Ct. 498, 502-03, 46 L.Ed.2d 450, 456-57 (1976).

In Liles we concluded that this purpose could be effectuated only if the statute were read as applying to every convicted felon, even if it were later determined that there was not sufficient evidence to support the conviction. We supported this conclusion with reliance on an Eighth Circuit case interpreting the Federal Firearms Act of 1938, ch. 850, 52 Stat. 1250. That Act prohibited interstate transportation of firearms by one under indictment for a felony. The Eighth Circuit held that the congressional intent was to punish one under indictment at the time of the violation even though the indictment was subsequently quashed. DePugh v. United States, 393 F.2d 367 (8th Cir.), cert. denied, 393 U.S. 832, 89 S.Ct. 101, 21 L.Ed.2d 102 (1968). Since our decision in Liles, the only other court to consider the issue has adopted an identical construction of the statute on similar facts. United States v. Williams, 484 F.2d 428 (8th Cir. 1973).

Thus, the government argues that since Pricepaul's prior state conviction had not been reversed at the time he possessed the firearms and made the allegedly false statements involved here, under Liles any alleged constitutional infirmity of that conviction is irrelevant. However, this claim is called into serious question by our decision in McHenry v. California, 447 F.2d 470 (9th Cir. 1971), decided one year after Liles. There, a state prisoner brought a habeas corpus proceeding charging that he was being held pursuant to a conviction for possession of a concealed weapon by a convicted felon in violation of section 12021 of the California Penal Code, as amended, Cal.Pen.Code § 12021 (West Supp.1975). The district court had determined, after an evidentiary hearing, that the petitioner's prior state statutory rape conviction was invalid because certain unspecified federal constitutional rights of the petitioner had been infringed. We held in a "per curiam" opinion, with one judge dissenting, that the state could not, consistent with the federal Constitution, base McHenry's state firearms conviction on this invalid prior rape conviction. Liles was distinguished on the ground that there, "the prior conviction was held invalid, not on any federal constitutional ground but because the evidence was insufficient." 447 F.2d at 471.

We have some doubt that McHenry can be read broadly for the proposition that the invalidity of a prior conviction under any provision of the federal Constitution prevents use of the conviction to prove guilt under a firearms statute. Since the federal constitutional rights infringed in that case were unspecified, however, it is difficult to ascertain how far the holding should extend.

We need not reach that question here, however, since the result in our case is dictated by Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1969). There the Court said that a conviction in violation of Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), could not be used to "support guilt or enhance punishment for another offense . . . ." 389 U.S. at 115, 88 S.Ct. at 262. Thus the Court held that where the record of a prior proceeding is silent as to whether the defendant validly waived counsel, the resulting conviction may not be introduced in evidence in a subsequent trial to enhance punishment under a recidivist statute. We cited Burgett in McHenry, 447 F.2d at 471.

Boykin borrowed the rule that the validity of a guilty plea may not be presumed from a silent record from Carnley v. Cochran, supra, which held that waiver of the right to counsel may not be presumed from a silent record. Since some of...