U.S. v. Bergeman

Decision Date31 January 1979
Docket NumberNo. 78-2219,78-2219
Citation592 F.2d 533
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Gerald Ray BERGEMAN, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Jeffrey G. Howe, Asst. U.S. Atty. (argued), Boise, Idaho, for plaintiff-appellant.

Franklin Smith (argued), Idaho Falls, Idaho, for defendant-appellee.

Appeal from the United States District Court for the District of Idaho.

Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, * District Judge.

J. BLAINE ANDERSON, Circuit Judge:

The defendant was charged with possession of firearms by a convicted felon in violation of 18 U.S.C.A. § 922(h)(1). 1 The district court dismissed the indictment, finding that the prior conviction was invalid for purposes of 18 U.S.C.A. § 922(h)(1), since it had been dismissed under an Idaho statute which allows the expunction of state criminal convictions. 2 We reverse.

Jurisdiction of the district court was based on 18 U.S.C.A. § 3231. Jurisdiction of this court is proper under 28 U.S.C.A. § 1291.

FACTUAL BACKGROUND

The defendant was found guilty of receiving stolen property. On November 13, 1973, the state court ordered the defendant imprisoned in the Idaho State Penitentiary for five years. (C.R. 35) However, the state court ordered that the defendant's sentence be withheld on condition that he serve four months in the county jail, pay a $1,000.00 fine, pay court costs, and serve the balance of the term on parole. (C.R. 35-36)

On March 30, 1977, after the defendant's probation officer petitioned the court, the state court entered an order discharging the defendant from further probation supervision and dismissing the charges against the defendant. (C.R. 25)

Based upon this dismissal by the state court, the defendant moved to dismiss the

federal indictment claiming that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year, as required by 18 U.S.C.A. § 922(h)(1). (C.R. 22) The district court agreed with defendant's contention and dismissed the charges against him. (C.R. 86)

QUESTION PRESENTED

The sole question presented on appeal is whether a person who has had a state criminal conviction dismissed pursuant to the Idaho expunction statute may still be considered a person who has been convicted of a crime punishable for a term exceeding one year within the meaning of 18 U.S.C.A. § 922(h)(1). This involves the construction and interpretation of federal law, and the extent to which, if at all, a federal statute incorporates or refers to a state's law. United States v. Pricepaul, 540 F.2d 417, 424 (9th Cir. 1976), and See Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 208, 66 S.Ct. 992, 90 L.Ed. 1172 (1946). In view of the recent decisions of this court, some of which were decided after the district court's decision in the present case, 3 we conclude that despite the state expunction, the defendant is still a convicted felon within the terms of 18 U.S.C.A. § 922(h)(1), and therefore reverse.

DISCUSSION

Our analysis of the question presented for review must begin with United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc). Potts was charged with possession of a firearm by a convicted felon. 4 However, the prior felony conviction had been expunged under a Washington state statute. All twelve members of this court agreed that despite the expunction of the conviction under state law, it still could be used as an element of the federal crime.

Four other judges joined in the opinion by Judge Koelsch. Judge Wright concurred, recommending that the court adopt a fair warning system to advise all of the other people who were affected by the decision. And Judge Sneed, joined by five other judges, concurred in the result, but disagreed with the analysis used by Judge Koelsch.

The Koelsch opinion analyzed the Washington statute, Washington court interpretations of it and concluded that, even in state courts, despite the expunction, the conviction would still be used as an "essential element of a subsequent crime." 528 F.2d at 885. Observing no conflict between state and federal law, the Koelsch opinion declined to "consider the extent to which the federal statute may preempt arguably conflicting state law." 528 F.2d at 886 n. 5. On the other hand, the Sneed opinion criticized the analysis of state law as immaterial. According to the concurring opinion's view, under the federal criminal statute, it was only necessary to look to the original conviction under state law, since Congress had chosen to consider state expunction statutes irrelevant. 528 F.2d at 887-888. 5

As a district judge, this author observed that there was a conflict between the Koelsch and the Sneed opinions on the question of whether federal law or state law determines a person's status as a convicted felon. United States v. Locke, 409 F.Supp. 600, 604 n. 4 (D.Idaho 1976), Aff'd, 542 F.2d 800 (9th Cir. 1976). However, after further reflection, and in view of the subsequent decisions of this court, the difference appears to have been resolved in favor of both viewpoints. 6

This court placed any doubts about a possible conflict between the Koelsch and Sneed opinions in Potts to rest in Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978). The question of whether state or federal law would control a convicted felon's right to carry a firearm was resolved in favor of federal law, relying upon the Sneed opinion in Potts. We said in part:

"This argument is without merit. In United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc) we held that a state felony conviction which had been expunged pursuant to a statute which 'released (the felon) from all penalties and disabilities resulting from the offense or crime of which he has been convicted' was not erased for purposes of the prior felony element of section 1202. We stated that there was no preemption issue because there was simply 'no conflict' between section 1202 and the state expunction statute. Id. at 886 n. 5. Although the expunction statute could determine the status of the conviction for purposes of state law, it could not 'rewrite history' for the purposes of 'the administration of the federal criminal law or the interpretation of federal criminal statutes.' Id. at 887 (Sneed, J., concurring in result). We believe this principle is controlling here." (emphasis added)

580 F.2d at 980-981. This principle also controls our result in the present case.

Our conclusion is supported by the legislative history of 18 U.S.C. § 922(h) (1). This provision was originally adopted as part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968. One of the principal purposes of Title IV was to keep firearms out of the hands of those who had a criminal background. Sen.R. No. 1097, 90th Cong., 2nd Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News, p. 2112. Consistent with this purpose, Congress made it a crime for a convicted felon to possess a firearm. 18 U.S.C. § 922(h) (1). Congress specifically explained the term "convicted felon" as used in Title IV. 7 Congress also specifically provided a method by which a person who has been convicted of a felony may lawfully possess firearms. 8 Nowhere in the statute or in the legislative history did Congress make an exception from the operation of Title IV's sanctions for felons who have had their convictions expunged under state law. United States v. Potts, 528 F.2d 883, 887 (9th Cir. 1975) (en banc) (Judge Sneed concurring); and See United States v. Mostad, 485 F.2d 199, 200 (8th Cir. 1973), Cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563. Following the familiar precept of statutory construction, Expressio unius est exclusio alterius, we decline to supply such an exception. To do so would be inconsistent with the broad purpose of Title IV which was to prevent those with criminal backgrounds from obtaining firearms. See Huddleston v. United States, 415 U.S. 814, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974). 9

Additional support for our decision is found in the rather anomalous situation which would otherwise result. If a conviction were to be determined by application of the different expunction statutes of each state, then the application of federal criminal sanctions would depend solely upon where the defendant's previous conviction had occurred. If the person had his conviction expunged under either the Washington or Arizona statutes, then he could not possess a firearm. United States v. Herrell, 588 F.2d 711 (9th Cir. 1978) (Arizona); United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc) (Washington). Whereas, if the person had his conviction expunged under the Idaho statute, then he could possess a firearm. Congress certainly could not have intended a federal criminal law to be applied in such a patchwork fashion. In the absence of an expression to the contrary, Congress generally intends federal criminal law to receive a uniform application. See Jerome v. United States, 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed. 640 (1943); United States v. Patz, 584 F.2d 927, 930 (9th Cir. 1978).

Our conclusion is consistent with prior holdings of this court in the context of deportation proceedings. Despite state expunction of convictions, we have held that the convictions are still valid and may be used as a basis for deportation under 8 U.S.C.A. § 1251. See Ocon-Perez v. Immigration and Naturalization Service, 550 F.2d 1153, 1154 (9th Cir. 1977); Tsimbidy-Rochu v. Immigration and Naturalization Service, 414 F.2d 797, 798 (9th Cir. 1969); De la Cruz-Martinez v. Immigration and Naturalization Service, 404 F.2d 1198, 1200 (9th Cir. 1968), Cert. denied, 394 U.S. 955, 89 S.Ct. 1291, 22 L.Ed.2d 491. 10

We hold that the expunction of a conviction under Idaho law does not change the status of a person as a convicted felon for purposes of 18 U.S.C.A. § 922(h)(1). 11 The judgment of dismissal by the district court is REVERSED.

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