U.S. v. Arrington

• Decision Date: 12 June 1980
• Docket Number: No. 79-5327,79-5327
• Citation: 618 F.2d 1119
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Bolton ARRINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1119

618 F.2d 1119

UNITED STATES of America, Plaintiff-Appellee, v. John Bolton ARRINGTON, Defendant-Appellant.

No. 79-5327.

United States Court of Appeals Fifth Circuit.

June 12, 1980.

Allen F. Cazier, San Antonio, Tex. (Court-Appointed), for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Asst. U. S. Atty., Wayne F. Speck, Daniel Maeso, Trial Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, FAY and TATE, Circuit Judges.

FAY, Circuit Judge:

On March 21, 1979, a federal jury in the Western District of Texas convicted appellant John Arrington of eight counts of unlawful possession of firearms. Comprising six counts of his conviction were violations of 18 U.S.C. App. § 1202(a)(1) (1976), ¹ which proscribes possession of firearms by a convicted felon. Notwithstanding the incontrovertibility of his prior felony conviction, Arrington claims that at the time of his arrest he no longer bore the onus of that conviction and consequently should not have been charged. He reasons that his prior conviction was automatically expunged upon completion of the sentence given him under the Youth Corrections Act, 18 U.S.C. §§ 5005-5026 (1976). ² We find that Arrington's rationale comports with the policy and purposes of the Youth Corrections Act, and therefore reverse his conviction of those six counts framed under 18 U.S.C. App. § 1202(a)(1) (1976).

Arrington also challenges on several grounds the remaining two counts, which involved unlawful possession of a sawed-off shotgun in violation of 26 U.S.C. § 5861(d), (i) (1976). ³ First, Arrington challenges the trial court's refusal to mandate disclosure of the identity and whereabouts of the government informant whose confidential tip established probable cause for an incriminating search of Arrington's house. Second, he suggests that charging both possession of an unregistered firearm and also possession of a firearm without a serial number was multiplicitous, since a firearm without a serial number cannot be registered. Third, Arrington claims that punishing him for possessing a firearm without a serial number was contrary to statutory purpose, when obtaining a serial number was impossible. Finally, Arrington claims that the trial court erred in admitting into evidence the utility bills found in the search of Arrington's house, which were later offered to prove Arrington's residence in the house at the time of the search. Finding no reversible error in any of these claims, we affirm Arrington's conviction on the two counts under 26 U.S.C. § 5861(d), (i) (1976).

FACTS

On April 19, 1971, Arrington pled guilty to a federal charge of failing to pay a transfer tax on marijuana, in violation of Law of August 16, 1954, ch. 736, 68A Stat. 562 (repealed 1970); Law of July 18, 1956, ch. 629, Title I, § 101, 70 Stat. 567 (repealed 1970). ⁴ Government's Exhibit 9. He received an indeterminate sentence under 18 U.S.C. § 5010(b) (1976), served some prison time at Seagoville, Texas, and gained parole early in 1975. Record, vol. III at 127. Arrington completed his sentence in April, 1977, without any interruption of his status as a youthful offender. Id.

On December 19, 1978, police procured a warrant to search Arrington's house in San Antonio, Texas, based on an informant's confidential tip that he had seen Arrington there with amphetamines on the previous day. The officers executed the warrant on December 20, 1978, arresting Arrington and seizing six registered rifles and pistols and an unregistered sawed-off shotgun bearing no serial number. Arrington subsequently admitted ownership of the registered firearms but denied any knowledge of the shotgun, which had been discovered in a bedroom of the house. Besides the firearms, the officers also collected several water and utility bills addressed to Arrington at that residence.

Federal Youth Corrections Act

Arrington now appeals his conviction of the six counts framed under 18 U.S.C. App. § 1202(a)(1) (1976). He contends that merely completing the sentence given him under the Federal Youth Corrections Act lifted all the disabilities of felony conviction, including the bar to firearm possession. The government disputes his contention, claiming that without an 18 U.S.C. § 5021(a) certificate setting aside his conviction, Arrington still labored under those disabilities. ⁵ Thus, the dispute centers around what event lifts the disadvantages of a criminal record from a youthful offender who has completed the maximum sentence of the Youth Corrections Act section under which he was sentenced. Pertinent here as a practical facet of that issue is what evidentiary burden the government must shoulder to prove that a youthful offender is subject to a convicted felon's disabilities.

Clearly, a prior unexpunged felony conviction is an integral element of the crime of which Arrington stands convicted. 18 U.S.C. App. § 1202(a)(1) (1976). See United States v. Barfield, 527 F.2d 858, 861 (5th Cir. 1976); United States v. Marzett, 526 F.2d 277, 278 (5th Cir. 1976). Accordingly, the government had to prove beyond a reasonable doubt the fact of Arrington's prior conviction. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970).

Citing Lewis v. United States, --- U.S. ----, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), government counsel contends on appeal that producing a certified copy of the judgment against Arrington carried the government's burden of proving him a convicted felon. Arrington's affirmative responsibility, counsel asserts, is to rebut that evidence with concrete proof of his sentence, treatment, and unconditional discharge under the Youth Corrections Act. Government counsel further contends that a youthful offender asserting his unconditional discharge and his conviction's expunction must show proof by a certificate issued pursuant to 18 U.S.C. § 5021(a) (1976). Conversely, Arrington argues that his unconditional discharge and his conviction's expunction were automatic upon completion of the maximum sentence of the section under which he was sentenced, 18 U.S.C. § 5010(b) (1976).

Because of the Youth Corrections Act's unique import, the government's citations are inapposite and its position erroneous. In the present case, as with other youth offender convictions, the very judgment and commitment order presented by the government to establish Arrington's initial conviction also revealed that he was sentenced under section 5010(b) of the Youth Corrections Act. Government's Exhibit 9. The only resolution of a section 5010(b) sentence provided by the Act is unconditional discharge pursuant to section 5017(c). Under that section, unconditional discharge may come early to deserving young offenders, but in any case is mandatory after six years. 18 U.S.C. § 5017(c) (1976). ⁶

Having a broad range of sentencing options available, the trial court in Arrington's case would have taken into account the mandatory discharge provision before choosing the appropriate sentence. As a matter of discretion, the judge could have sentenced Arrington to probation under 18 U.S.C. § 5010(a) (1976). Alternatively, he could have sentenced him under section 5010(c) to treatment for longer than six years, up to the maximum adult offender sentence for the offense charged. Finally, the trial court could have chosen not to sentence Arrington under the Youth Corrections Act, but rather as an adult offender. 18 U.S.C. § 5010(d) (1976). ⁷ The trial judge considered all these options and chose to sentence under section 5010(b), which has a maximum sentence of six years. Accordingly, the government cannot second-guess the trial court now, trying to lengthen Arrington's sentence because no section 5021(a) certificate had issued. Expunction of Arrington's conviction was clearly automatic upon his unconditional discharge at the end of six years. See Minshew v. United States, 410 F.2d 396, 397 (5th Cir. 1969).

Having indisputably completed the maximum term of a section 5010(b) sentence, Arrington had reached unconditional discharge before he was charged with violating 18 U.S.C. App. § 1202(a)(1) (1976). The statutory language of the Youth Corrections Act, automatically setting aside his conviction, mandates reversal of the six counts of his conviction under 18 U.S.C. App. § 1202(a)(1) (1976). Accord, United States v. Purgason, 565 F.2d 1279, 1280 (4th Cir. 1977); United States v. Fryer, 545 F.2d 11 (6th Cir. 1976). See also United States v. Vice, 562 F.2d 1004 (5th Cir. 1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1578, 55 L.Ed.2d 801 (1978) (citing Fryer with implicit approval).

Not only does the clear statutory language command this result, but so also does the policy underlying the Youth Corrections Act. Government counsel correctly cites the general rule that only by permission in accord with statutory scheme can any person who has been convicted of a felony possess a firearm. 18 U.S.C. App. § 1203 (1976); Lewis v. United States, --- U.S. ----, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). The Youth Corrections Act, however, actually operates to remove certain youthful offenders from the realm of those persons who have been convicted of a felony. The Act's import is to remove the taint of youthful indiscretions, giving a youthful offender a second chance to live free of the lifelong ignominy of a criminal record. Dorszynski v. United States, 418 U.S. 424, 432-35, 94 S.Ct. 3042, 3047-3048, 41 L.Ed.2d 855 (1974); United States v. Doe, 556 F.2d 391, 392 (6th Cir. 1977); United States v. McMains, 540 F.2d 387, 388 (8th Cir. 1976); Mestre Morera v. United States Immigration and Naturalization Service, 462 F.2d 1030, 1032 (1st Cir. 1972); H.R.Rep. No. 2979, 81st Cong., 2d Sess. (1950). If a youthful offender has been unconditionally discharged, the disabilities of a criminal conviction are completely and automatically removed; indeed,...