U.S. v. Allen, No. 75-1965

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER; HAYNSWORTH; WINTER
• Citation: 43 A.L.R.Fed. 329,556 F.2d 720
• Docket Number: No. 75-1965
• Decision Date: 06 June 1977
• Parties: UNITED STATES of America, Appellee, v. Floyd Orion ALLEN, Appellant.

Page 720

556 F.2d 720 43 A.L.R.Fed. 329 UNITED STATES of America, Appellee,
v.
Floyd Orion ALLEN, Appellant. No. 75-1965. United States Court of Appeals,
Fourth Circuit. Argued Sept. 17, 1976.
Decided June 6, 1977.

O. W. Bannister, Jr. Greenville, S. C., for appellant.

Donald A. Harper, Asst. U. S. Atty. (Mark W. Buyck, Jr., U. S. Atty., Columbia, S. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.

HAYNSWORTH, Chief Judge.

Floyd Orion Allen appeals his conviction under § 922(a)(6) of the 1968 Gun Control Act, 18 U.S.C. 922(a)(6). That section

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makes it illegal: "for any person in connection with the acquisition . . . of any firearm . . . knowingly to make any false or fictitious oral or written statement . . . intended or likely to deceive . . . (a licensed firearm) dealer, . . ., with respect to any fact material to the lawfulness of the sale or other disposition of such firearm". The issue here is whether § 922(a)(6) permits one who has been convicted of a felony in violation of his right to counsel to deny being convicted in order to obtain a gun when he has never received a pardon or successfully attacked the conviction in court. And, if not, whether § 922(a)(6) is constitutional in view of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and its progeny.

The government prosecuted Allen for making false statements in connection with the pawning and retrieval of a gun at Johnny's Pawn Shop in Greenville, S.C. Allen signed Treasury Form 4473 when he pawned his gun and again when he retrieved it. Each time he answered "No" to question 8(b) which is as follows:

Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter a yes answer is necessary if the judge could have given a sentence of more than one year).

Prior to signing the forms at the pawn shop, Allen had pled guilty to housebreaking in 1964 and to larceny in 1966. Both crimes are felonies. According to the government, Allen's prior convictions are material to the lawfulness of the disposition of the gun to him under § 922(d)(1) which says that

it shall be unlawful for any . . . licensed dealer . . . to sell or otherwise dispose of any firearm . . . to any person knowing or having reasonable cause to believe that such person is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.

Upon his arrest for violating § 922(a)(6), Allen made a written confession with full knowledge of his rights. He admitted pawning and retrieving the gun and further stated "I know I am a convicted felon. Back in 1964 I pleaded guilty to housebreaking."

In the trial before the district court, the government introduced court records showing Allen's prior felony convictions. The defense objected to the introduction of the prior convictions, claiming that they had been obtained in violation of Allen's right to counsel. The district court denied the motion without deciding whether Allen had been unconstitutionally denied his right to counsel when he pled guilty in 1964 and 1966. It held that the possible invalidity of the earlier convictions due to lack of counsel was irrelevant to the issue before it, that is whether Allen had knowingly made a false statement about a material fact in order to get a hand gun from the pawnbroker. The court found Allen guilty and imposed a four year suspended sentence in addition to five years of probation.

In this appeal Allen argues that his prior felony convictions were obtained in violation of his right to counsel and cannot be used to convict him under § 922(a)(6). He relies on Supreme Court decisions holding that convictions obtained in violation of the right to counsel cannot be used to support a conviction or enhance punishment under a recidivist statute, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), or to impeach a defendant's general credibility, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), and that a sentence imposed on the basis of a conviction later found to have been in violation of the right to counsel must be reconsidered, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Allen quotes from Burgett, supra, 389 U.S. at 115, 88 S.Ct. at 262 where the Court said:

To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.

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We must reject Allen's argument, for neither the Act nor the Constitution permits him to deny that he has been convicted in order to obtain a gun, when he has not received a full pardon or successfully attacked his prior convictions.

There would be no need to reach the constitutional issue if the Act permitted the unrestricted disposition of firearms to those whose felony convictions are constitutionally invalid even though they have not received a pardon or successfully challenged their convictions. The Fifth Circuit avoided the constitutional issue in a similar challenge to a conviction under § 922(g)(1), which forbids the transportation of firearms by one who is under indictment for or has been convicted of a felony, by interpreting that section to apply only to constitutionally convicted felons. See Dameron v. United States, 488 F.2d 724, 727 (5th Cir. 1974). But we cannot adopt a similar interpretation of §§ 922(d)(1) and 922(a)(6) in view of the purpose of the statute. ¹

When Congress enacted the Gun Control Act of 1968, "It was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest." Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 1268, 39 L.Ed.2d 782 (1974). The Act is designed to keep firearms out of the hands of those whose age, criminal background or incompetency indicates that they are likely to misuse them. S.Rep. No. 1501, 90th Cong. 2d Sess., 22 (1968). The prohibition on the disposition of firearms to any one who a dealer has reasonable cause to believe is under indictment for or has been convicted of a felony is a vital part of the legislative scheme. It applies unless the convicted person obtains relief from the restriction pursuant to § 925(c) by convincing the Secretary of the Treasury that he is not likely to act in a manner dangerous to the public safety. Thus, under the Act, a felony conviction forces the convicted person to prove that he is not a threat to public safety before he can obtain a gun. To make the restrictions on dealers effective, Congress has also declared it a crime to make a false statement intended to or likely to deceive a dealer regarding a fact material to the legality of the disposition of a firearm.

The language of the Act shows that Congress intended to restrain the disposition of firearms to those reasonably believed to have been involved in felonious activity. It is clear that Congress believed an indictment alone to be a sufficient reason to limit a person's access to firearms, at least until the charges are dropped or the person is acquitted. In view of the...