State v. Swartz, 98-252.

• Decision Date: 09 September 1999
• Docket Number: No. 98-252.,98-252.
• Citation: 601 N.W.2d 348
• Parties: STATE of Iowa, Appellee, v. Ronald Dean SWARTZ, Appellant.
• Court: Iowa Supreme Court

601 N.W.2d 348

STATE of Iowa, Appellee, v. Ronald Dean SWARTZ, Appellant.

No. 98-252.

Supreme Court of Iowa.

September 9, 1999.

Jane E. Rosien, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Shawn Wehde, Assistant County Attorney, for appellee.

Considered by LARSON, P.J., and CARTER, TERNUS, CADY, and HARRIS,¹ JJ.

CARTER, Justice.

Defendant, Ronald Dean Swartz, appeals from his conviction of possession of a firearm by a felon in violation of Iowa Code section 724.26 (1995). He contends that the statute creating that crime may not be applied to felons whose convictions preceded the law's effective date. He bases this contention on several legal theories. In considering those contentions and other arguments that defendant advances, we conclude that all claims of error are without merit. We affirm the judgment of the district court.

Defendant's arguments for reversal are that: (1) because his felony conviction occurred before the effective date of the law banning possession of a firearm, the present conviction violates the Ex Post Facto Clause contained in Article I, Section 9 of the United States Constitution, and article I, section 21 of the Iowa Constitution; (2) as applied to him, the statute banning possession of a firearm is a bill of attainder; (3) the trial court erred by not instructing on a mistake-of-law defense; (4) defendant was prejudiced by an improper closing argument by State's counsel; and (5) the sentencing hearing and sentencing order were irregular and contrary to law. We consider each of these contentions in our opinion. Facts that are pertinent to the appeal will be stated in our discussion of the legal issues presented.

I. The Ex Post Facto Argument.

The act of possessing a firearm on which defendant's conviction is based occurred on February 21, 1997. Defendant does not challenge the jury's finding that he did possess a firearm on that date. He seeks reversal based on the claim that, because his convicted-felon status preceded the effective date of the law banning possession of firearms by a felon, application of the statute to him violates the prohibition against ex post facto laws.²

This court rejected a similar argument involving section 724.26 based on both statutory interpretation and ex post facto theories in State v. Hall, 301 N.W.2d 729, 732-33 (Iowa 1981). Defendant urges consideration of this ex post facto issue anew in light of the decision of the Eighth Circuit Court of Appeals in United States v. Davis, 936 F.2d 352 (8th Cir.1991).

The Davis case considers the application of a Minnesota statute lengthening the time during which convicted felons may not possess firearms. Although the case discusses the application of the Minnesota statute to felons whose convictions antedated its enactment, it does not involve a conviction for possession of a firearm by a felon. Indeed, no state court conviction for possession of a firearm by a felon had occurred as part of the factual setting before the federal court in that case. The court was considering the application of the change in Minnesota law within the context of whether that statutory change rendered defendant's restoration of citizenship with respect to a felony burglary conviction less than complete for purposes of enhancing a sentence for a federal crime.

The Davis decision is discussed at length in the Eighth Circuit opinion in United States v. Baca-Valenzuela, 118 F.3d 1223, 1231 (8th Cir.1997). In the latter case, the court declares the applicable ex post facto principle to be "[s]o long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation." Baca-Valenzuela, 118 F.3d at 1231 (quoting United States v. Farmer, 73 F.3d 836, 841 (8th Cir.1996)). That characterization of the ex post facto prohibition is consistent with this court's statement in State v. Pickens, 558 N.W.2d 396, 397 (Iowa 1997), that an ex post facto law is one "that impose[s] punishment for an act that was not punishable when committed or that increase[s] the quantum of punishment provided for the crime when it was committed." In further analyzing the ex post facto prohibition in Pickens, we stated that

[t]he mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation.

Pickens, 558 N.W.2d at 398. In applying the test articulated in Pickens, we conclude that section 724.26 is intended to regulate a present situation that includes defendant's continuing status as a convicted felon.

Support for our conclusions is found in United States v. Brady, 26 F.3d 282 (2d Cir.1994). There, the defendant argued that to allow his 1951 felony conviction to serve as a basis for establishing violation of a subsequently enacted federal statute banning possession of firearms by felons violated the ex post facto clause. In rejecting this argument, the court stated that,

[r]egardless of the date of [defendant's] prior conviction, the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute under which he was convicted.

Brady, 26 F.3d at 291. Similar conclusions were reached in United States v. Etheridge, 932 F.2d 318, 323 (4th Cir. 1991), and United States v. Patterson, 820 F.2d 1524, 1527 (9th Cir.1987). We are satisfied that these principles govern the disposition of defendant's claims under federal law. To the extent that he also relies on the Iowa Constitution, we hold that a similar rule should prevail. See State v. Garcia, 600 N.W.2d 320, 321 (Iowa 1999)

(Iowa Constitution's ex post facto clause is typically interpreted in a manner consistent with the federal constitution).

Based on the foregoing discussion and the authorities identified therein, we conclude that defendant's conviction in the present case does not offend against the ex post facto clause of either the federal or Iowa constitutions.

II. The Bill of Attainder Argument.

Next, defendant contends that application of the statute prohibiting possession of a firearm by a felon, as applied to him, constitutes a bill of attainder prohibited by Article I, Section 10 of the United States Constitution and article I, section 21 of the Iowa Constitution. He asserts that it is the aim of section 724.26 to punish a designated group of persons, i.e., convicted felons, by denying them the right to possess a firearm.

A bill of attainder is a legislative determination that metes out punishment to a particular individual or a designated group of persons without a judicial trial. United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252, 1259 (1946). The danger of such a law is that it deprives the accused of the protection afforded by judicial process. United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir.1986). The defendant's conviction in the present case was not punishment imposed without judicial process. He was given a jury trial. Moreover, he is not being punished for his membership in a particular group, but rather for his violation of a regulation validly imposed upon that group through the legislative process.

The issue as it relates to statutes barring possession of firearms by felons was determined adversely to defendant's contention in United States v. Donofrio, 450 F.2d 1054 (5th Cir.1971). There, the court declared:

Appellant misconceives the [thrust of the bill of attainder prohibition]. Laws regulating the conduct of convicted felons have long been upheld as valid exercises of the legislative function. The prohibitions of [the bill of attainder clause] relate only to penal laws which are described as those laws which inflict a disability for the purpose of punishment. If the disability is designed to accomplish some other legitimate governmental purpose it should stand.... Such an activity is presented in the instant case, the regulation of guns in the hands of those previously convicted of felonies.

Donofrio, 450 F.2d at 1055-56. We agree with the conclusions of the federal court that statutory prohibitions of the type at issue here do not constitute a prohibited bill of attainder.

III. Whether the Trial Court Erred in Not Instructing on a Mistake-of-Law Defense.

Next, defendant urges that the trial court erred in refusing his request to instruct the jury with respect to a mistake-of-law defense. He bases this contention on the likelihood of confusion as to his right to possess a firearm based upon the restoration of citizenship granted to him by the governor in October of 1981.

In Hall this court considered the effect of a prior restoration of citizenship on the statutory prohibition contained in section 724.26 and observed

[f]or all practical purposes, the restoration to citizenship rights is immaterial. With or without such restoration, a former felon could have possessed firearms prior to January 1, 1978. Now no felon may do so unless permitted by executive order as directed in section 724.27.

Hall, 301 N.W.2d at 732. Section 724.27 provides:

The provisions of sections 724.8, subsection 2, 724.15, subsection 1, paragraphs "b" and "e", and 724.26 shall not apply to a person who is eligible to have the person's civil rights regarding firearms restored under section 914.7 and who is pardoned or has had the person's civil rights restored by the President of the United States or the chief executive of a state and who is expressly authorized by the President of the United States or such chief executive to receive, transport, or possess firearms or destructive

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