U.S. v. Brebner

• Decision Date: 09 December 1991
• Docket Number: No. 89-30100,89-30100
• Citation: 951 F.2d 1017
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory S. BREBNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1017

951 F.2d 1017

UNITED STATES of America, Plaintiff-Appellee, v. Gregory S. BREBNER, Defendant-Appellant.

No. 89-30100.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 1, 1990.

Decided Dec. 9, 1991.

Robert B. Henderson, Henderson & Nichols, Spokane, Wash., for defendant-appellant.

Kim Lindquist and Ronald D. Howen, Asst. U.S. Attys., Boise, Idaho, for plaintiff-appellee.

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

Before HUG, and D.W. NELSON, Circuit Judges, and WALKER, ^* District Judge.

HUG, Circuit Judge:

Gregory Brebner appeals his convictions for unlawful receipt and possession of firearms, in violation of 18 U.S.C.App. § 1202(a)(1), and 18 U.S.C. § 922(h)(1) and 2, and for making false statements in the purchase of firearms, in violation of 18 U.S.C. § 922(a)(6). Brebner raises two issues on appeal.

First, Brebner contends the district court erred by excluding evidence in support of an entrapment by estoppel defense. Second, Brebner contends, for the first time on appeal, that Congress' amendment to the firearms statutes in 1986 precludes use of his predicate Washington state felony convictions as an element of his federal offenses because those state convictions have been expunged under state law. Concluding that Brebner has failed to present sufficient evidence to support an entrapment by estoppel defense, and that the applicable 1986 statutory amendment does not apply retroactively to offenses committed prior to its effective date, we affirm Brebner's convictions.

I.

On May 12, 1988, Brebner was charged in a seven-count federal indictment alleging various federal firearms offenses. Counts I and II alleged the unlawful possession of firearm silencers, in violation of 26 U.S.C. §§ 5861(d), and (i). Count III alleged that Brebner unlawfully possessed various firearms after previously having been convicted of felony crimes under federal and Washington law, and aiding and abetting, in violation of 18 U.S.C.App. § 1202(a)(1), and 18 U.S.C. § 2. Counts V and VII alleged the unlawful receipt of firearms after having previously been convicted of felony crimes under Washington law (delivery of a controlled substance) which carry a punishment in excess of one year of imprisonment, in violation of 18 U.S.C. § 922(h)(1). Finally, Counts IV and VI all eged that Brebner unlawfully made false statements in his acquisition of firearms, in violation of 18 U.S.C. § 922(a)(6).

On the second day of jury trial, the Government brought an oral motion in limine- o preclude Brebner from introducing the following three categories of evidence: (1) evidence regarding the Government's alleged violation of the Speedy Trial Act and the length of time expended in bringing Brebner to trial; (2) evidence that Brebner's prior Washington state court convictions in 1976 and 1977 had been expunged and could not form the basis for the charges contained in Counts III, V, and VII; and (3) evidence in support of an entrapment by estoppel defense under United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987), based on allegations that Brebner was misled by government agents and officials into believing that he could lawfully purchase firearms.

After determining that he would consider the Government's motion in limine as a timely motion to dismiss brought by Brebner prior to trial, see Fed.R.Crim.P. 12(f), the district judge, after a hearing, ruled in favor of the Government. In light of the court's adverse ruling, Brebner entered a conditional plea of guilty under Fed.R.Crim.P. 11(a)(2) to Counts III through VII of the indictment, expressly preserving for review the issues ruled upon by the district court. ¹ In exchange for the plea, Counts I and II were dismissed.

The district court suspended sentences of imprisonment on each of the five remaining counts of the indictment, placed Brebner on probation for a period of five years on each count to be served concurrently, imposed a $1,000 fine as to Count IV, and a $250 special assessment fee. This appeal followed.

II.

Brebner contends that his firearms convictions on Counts III, V, and VII should be reversed because his prior state felony convictions, which serve as the predicate offenses for these counts, have been expunged under state law. According to the indictment, these possession offenses occurred prior to November of 1986.

In Count III, Brebner was charged with violating 18 U.S.C.App. § 1202(a)(1), which was in effect at the time of the alleged offenses, and which proscribed the receipt, possession, or transportation in commerce of any firearm by "[a]ny person who ... has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony...." 18 U.S.C.App. § 1202(a)(1) (1982). In Counts V and VII, Brebner was charged with violations of 18 U.S.C. § 922(h)(1), which was in effect at the time of the alleged offenses, and which provided, in relevant part, that "[i]t shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to receive any firearm ... which has been shipped or transported in interstate ... commerce." 18 U.S.C. § 922(h)(1) (1982).

These two statutes were affected by Congress' restructuring of the federal firearms statutes through its enactment of the Firearms Owners Protection Act (the "Act") on May 19, 1986. In repealing section 1202(a) and amending section 922(h), ² the Act incorporated the firearms possession offenses previously set forth in sections 1202(a) and 922(h) into an amended section 922(g). P.L. 99-308 §§ 102(6)(D), 102(7), 100 Stat. 452; P.L. 99-308 § 104(b), 100 Stat. 459 (1986). The effective date of the Act repealing and amending these two statutes was set forth as 180 days after May 19, 1986, the date of enactment of the Act. P.L. 99-308 § 110(a), 100 Stat. 460 (1986). Thus, the now repealed section 1202(a) and the pre-amended version of section 922(h) were applicable to Brebner. The facts upon which the charges were based were alleged to have occurred prior to the effective date of the Act. ³

Brebner maintains that a separate provision of the Act, which amended section 921(a)(20), applies to remove his state felony convictions as predicate offenses under sections 1202(a) and 922(h) because the state felony convictions have been expunged under Washington law. The Act amended section 921(a)(20) to read as follows:

What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

P.L. 99-308 § 101(5), 100 Stat. 450 (1986).

As we recognized in United States v. Gomez, 911 F.2d 219 (9th Cir.1990), amended section 921(a)(20)'s definition of what constitutes a "conviction" as that term is used in the federal firearms statutes is now required to be determined in accordance with the jurisdiction in which the predicate conviction arose, in this case the State of Washington. Gomez, 911 F.2d at 220. Thus, if the jurisdiction has expunged or set aside a defendant's conviction, issued a pardon, or restored the defendant's civil rights without otherwise expressly restricting a defendant's right to possess firearms, the amendment provides that the offense will not constitute a "conviction" under federal law. 18 U.S.C. § 921(a)(20) (Supp. IV 1986). See Gomez, 911 F.2d at 220-22.

Prior to the 1986 amendment to section 921(a)(20), however, the undefined term "convicted" was interpreted by the Supreme Court as "a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State." Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983). In reaffirming its earlier rulings that a guilty plea is itself sufficient to constitute a conviction, see id. at 112-13, 103 S.Ct. at 991-92 (citing Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927)), the Court held that an expungement of a defendant's criminal record did not amount to a finding that the defendant was innocent of the crime to which he pleaded guilty. Id., 460 U.S. at 115, 103 S.Ct. at 993. As a result, the state expungement would have no effect on the defendant's conviction under the federal firearms statutes. ⁴ Id.

In amending section 921(a)(20), it has been noted that, while there is no explicit mention of the Dickerson rule, "Congress' decision to adopt expressly the states' definitions of what constitutes a conviction effectively overrules Dickerson." United States v. Pennon, 816 F.2d 527, 529 (10th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 506, 98 L.Ed.2d 504 (1987). See also United States v. Orellanes, 809 F.2d 1526, 1528 (11th Cir.1987), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988). As we explained recently, in amending section 921(a)(20) to

expressly remove[ ] a conviction as a predicate offense if the conviction were expunged or set aside, or if the felon were pardoned or granted a restoration of his civil rights ..., Congress focused on the anomaly of having a state felon's conviction nullified for purposes of state law but not for purposes of federal firearms law.

United States v. Geyler, 932 F.2d 1330, 1335 (9th Cir.1991).

In this case, the predicate Washington convictions which form Brebner's federal convictions under sections 1202(a) and 922(h) involve Brebner's guilty pleas in 1976 and 1977 to offenses involving the delivery of...