Jennings v. Mukasey
| Decision Date | 20 December 2007 |
| Docket Number | No. 05-16869.,05-16869. |
| Citation | 511 F.3d 894 |
| Parties | Bruce L. JENNINGS; B.L. Jennings, Inc., Plaintiffs-Appellants, v. Michael MUKASEY;<SMALL><SUP>*</SUP></SMALL> U.S. Department Of Justice; Bureau of Alcohol, Tabacco and Firearms; Mary B. Lerch, Director of Industry Operations DOJ/ BATF, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James C. Sabalos, Newport Beach, California, for the appellants.
Greg Addington, Assistant United States Attorney, Reno, Nevada, for the appellees.
Appeal from the United States District Court, for the District of Nevada; Larry R. Hicks, District Judge, Presiding. D.C. No. CV-03-00284-LRH.
Before: ARTHUR L. ALARCÓN, DAVID R. THOMPSON, and RICHARD C. TALLMAN, Circuit Judges.
The Bureau of Alcohol, Tobacco, and Firearms ("ATF") denied the petitioners-appellants Bruce L. Jennings' ("Jennings") and B.L. Jennings, Inc.'s ("B.L. Jennings") application for renewal of B.L. Jennings' federal firearms license ("FFL"). The ATF denied the renewal application because Jennings had been convicted in California of a misdemeanor crime of domestic violence ("MCDV"); in addition, Jennings had failed to disclose that conviction on the license renewal questionnaire.
Jennings did not disclose his MCDV conviction because, he argues, it was "expunged" by a 1999 expungement order granted under California law. Jennings contends this "expungement" wiped out the conviction and the ATF was thereby precluded from using it, or his failure to disclose it, to deny the FFL renewal application. The district court disagreed and upheld the ATF's action.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm the district court. The "expungement" provided under California law did not eliminate the MCDV conviction, and the ATF properly relied on it to deny B.L. Jennings' FFL renewal application.
On or about April 9, 1985, Jennings was charged in San Bernardino County, California with assault by means likely to produce great bodily injury in violation of California Penal Code section 245(a). The information alleged that Jennings inflicted great bodily injury on his former wife. On October 17, 1985, as part of a plea agreement, Jennings pled nolo contendere to a misdemeanor violation of California Penal Code section 245(a), assault with force likely to produce great bodily injury.1 Jennings was sentenced to 90 days in jail and 24 months supervised probation.
In 1996, Congress amended the Gun Control Act ("GCA"), making it unlawful for any person convicted of an MCDV to "ship or transport in interstate or foreign commerce, or 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)(9). The ATF is required to deny a federal firearm license to anyone subject to the prohibitions of 18 U.S.C. § 922(g)(9), or to any company controlled by such a person. 18 U.S.C. § 923(d)(1)(B).
On or about April 1, 1998, B.L. Jennings filed a Renewal of Firearms License application as a Dealer in Firearms Other Than Destructive Devices. As part of the application, Jennings, owner and president of B.L. Jennings, executed ATF Form 8, Part II, "Renewal Questionnaire." Question 11 asked:
Have you ever been convicted in any court of a[n] [MCDV]? This includes any misdemeanor conviction involving the use or attempted use of physical force committed by a current or former spouse, parent, or guardian of the victim or by a person with a similar relationship with the victim.
Jennings checked "no" in response to this question. He signed the questionnaire, certifying that the statements contained therein were true and correct.
On June 23, 1999, ATF issued a Notice of Revocation of License, ATF Form 4500, advising B.L. Jennings that ATF was revoking its FFL because (1) Jennings, as a responsible party for B.L. Jennings, was a person prohibited from possessing firearms under 18 U.S.C. § 922(g)(9); and (2) Jennings falsely stated on an application to renew the FFL that he had never been convicted of an MCDV.
On September 23, 1999, the Superior Court of California, County of San Bernardino, issued an "Order Expunging Conviction Nunc Pro Tunc to October 18, 1987." That order granted Jennings relief under California Penal Code section 1203.4, replaced his nolo contendere plea with a "not guilty" plea and dismissed the case against him. The California court's order, however, required Jennings "to disclose the fact of this misdemeanor conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State lottery."
On June 22, 2001, B.L. Jennings filed a Renewal of Firearms License application, listing Bruce L. Jennings as sole shareholder and manager of litigation for B.L. Jennings. An administrative hearing was held, and on March 25, 2003, the ATF issued a Final Notice of Denial of Application or Revocation, revoking B.L. Jennings' FFL. The ATF found that Jennings, who was the responsible person for B.L. Jennings, (1) was prohibited under 18 U.S.C. § 922(9)(g) from transporting, shipping, receiving or possessing firearms, and (2) violated 18 U.S.C. § 924(a)(1)(A) by responding falsely to question 11 on the application to renew B.L. Jennings' FFL.
Jennings then filed a petition with the district court for the District of Nevada seeking to overturn the ATF's decision. On July 25, 2005, after de novo review, the district court affirmed the ATF's revocation of B.L. Jennings' FFL, and this appeal followed.
Our review of a district court's interpretation of the Gun Control Act is de novo. United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991). We review de novo whether a prior conviction may be used as a predicate offense under that Act. United States v. Laskie, 258 F.3d 1047, 1049 (9th Cir.2001). An agency's interpretation or application of a statute is a question of law reviewed de novo. Schneider v. Chertoff, 450 F.3d 944, 952 (9th Cir.2006). In the context of a decision by the ATF to revoke a firearms license, we "review freely questions of law." Perri v. Dep't of Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981). Factual findings will not be disturbed unless "clearly erroneous." Id. at 1335.
In reviewing the district court's decision, we may affirm on any ground supported by the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir.1986).
The parties do not dispute that Jennings had a previous MCDV conviction. Persons who have had MCDV convictions are prohibited by 18 U.S.C. § 922(g)(9) from, among other things, transporting, shipping, possessing, or receiving firearms. Persons so prohibited and the companies they have the power to direct or control do not qualify for an FFL. 18 U.S.C. § 923(d)(1)(B).
The parties disagree as to whether Jennings' MCDV conviction has been "expunged." Jennings maintains his conviction was indeed "expunged" and, therefore, B.L. Jennings is not prohibited from having an FFL. For purposes of 18 U.S.C. § 922(g)(9), a person shall not be considered to have been convicted of an MCDV if
the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that person may not ship, transport, possess, or receive firearms.
18 U.S.C. § 921(a)(33)(B)(ii).
The government contends that Jennings did not receive an "expungement" as that term is used in 18 U.S.C. § 921(a)(33)(B)(ii), regardless of whether or not he obtained relief under California Penal Code section 1203.4 or section 1203.4a.
The September 23, 1999 State court "Order Expunging [Jennings' MCDV] Conviction Nunc Pro Tunc to October 18, 1987" states that "the petitioner is eligible for relief as provided in California Penal Code Section 1203.4." Section 1203.4, however, does not provide the extent of relief Jennings contends he received.
Although "a number of courts have used forms of the word `expunge' to describe the relief" under section 1203.4, "the statute does not in fact produce such a dramatic result." People v. Frawley, 82 Cal. App.4th 784, 790-91, 98 Cal.Rptr.2d 555 (Cal.Ct.App.2000) (citations omitted). In Frawley, the defendant sustained a felony conviction in the early 1990s. That conviction was dismissed under section 1203.4 in August 1997. In 1999, Frawley was charged with, among other things, possession of ammunition and a firearm by an exfelon. Id. at 787, 98 Cal.Rptr.2d 555. Frawley moved to dismiss on the ground that his prior conviction had been expunged under section 1203.4. The California Court of Appeals rejected that argument:
Section 1203.4 does not, properly speaking, "expunge" the prior conviction. The statute does not purport to render the conviction a legal nullity. Instead, it provides that, except as elsewhere stated, the defendant is "released from all penalties and disabilities resulting from the offense." The limitations on this relief are numerous and substantial, including other statutes declaring that an order under 1203.4 is ineffectual to avoid specified consequences of a prior conviction. Furthermore, by the statute's own terms, an order under section 1203.4 "does not relieve" the ex-offender of "the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office [or] for licensure by any state or local agency . . . ." (§ 1203.4, subd. (a).)
Indeed, section 1203.4 contains a sweeping limitation on the relief it offers, stating that "in any subsequent prosecution of the...
To continue reading
Request your trial
-
Gregory v. Chavez
...is 'the same as a plea of guilty and upon a plea of nolo contendere, the court shall find the defendant guilty.'" Jennings v. Mukasey, 511 F.3d 894, 896 (9th Cir. 2007) (citing Cal. Penal Code § 1016.). Petitioner's nolo contendere plea shall be considered for all practical purposes the sam......
-
Enos v. Holder
...cleared, the Ninth Circuit has already held that this does not qualify as expungement under 18 U.S.C. § 921(a)(33)(B)(ii). Jennings v. Mukasey, 511 F.3d 894 (2007). Likewise, Defendants contend that the passage of ten years from the date of the conviction, while restoring the right to posse......
-
Wyoming ex rel. Crank v. U.S.
...or a set aside. iii. Persuasive authority A recent decision from the Ninth Circuit also supports our conclusion. See Jennings v. Mukasey, 511 F.3d 894 (9th Cir. 2007). In Jennings, the petitioner had previously pleaded nolo contendere to misdemeanor domestic assault in violation of Californ......
-
Shirey v. L. A. Cnty. Civil Serv. Comm'n
...conviction for purposes of the federal firearm prohibition. (See United States v. Andrino (9th Cir.1974) 497 F.2d 1103; Jennings v. Mukasey (9th Cir.2007) 511 F.3d 894.) With regard to a convicted individual's right to possess firearms, “the Federal Government has an interest in a single, n......