U.S. v. Bruscantini, 84-5780

• Decision Date: 28 May 1985
• Docket Number: No. 84-5780,84-5780
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emilio BRUSCANTINI, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 640

761 F.2d 640

UNITED STATES of America, Plaintiff-Appellee, v. Emilio BRUSCANTINI, Defendant-Appellant.

No. 84-5780

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 28, 1985.

Paul Morris, Miami, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Linda Collins-Hertz, Roy B. Kahn, Sonia E. O'Donnel, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

GODBOLD, Chief Judge:

This is an appeal from a denial of a motion to dismiss the indictment. We affirm.

In 1974 appellant Bruscantini entered a plea of nolo contendere to a Florida burglary charge. The state judge withheld adjudication of guilt and placed him on probation. Appellant was told that the disposition of his case did not constitute a conviction. He successfully completed his probationary term.

In 1982 Bruscantini obtained two firearms. He was subsequently charged with violating 18 U.S.C. Sec. 922(b) (1982), which prohibits convicted felons from receiving firearms that have been shipped in interstate commerce. He was also charged for making false statements to the vendor of the firearms in violation of 18 U.S.C. Sec. 924(a) (1982). This second charge was dropped. Bruscantini entered a conditional plea of guilty to the first charge, reserving the right to appeal the court's denial of his motion to dismiss the indictment. He received a $1,000 fine and was sentenced to five years probation.

Appellant claims that he was not a convicted felon at the time of his arrest for receiving firearms because he had pleaded nolo contendere to the state burglary charge and because the state judge had withheld adjudication. We rejected this argument in U.S. v. Garcia, 727 F.2d 1028 (11th Cir.1984) (relying upon Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983)). Appellant's second contention, that Dickerson cannot be applied retroactively, was also rejected. See U.S. v. Garcia, supra.

Appellant's final contention is that he cannot be convicted for violating Sec. 922 because the state judge who accepted his nolo plea, as well as the state prosecutor, told him that he was not a convicted felon. Therefore, he argues, because he reasonably relied upon the interpretation of law provided by authoritative state officials, he cannot now be convicted for violating a statute that prohibits convicted felons from possessing firearms. Appellant's estoppel argument was held to establish a valid defense in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959).

The facts of this case do not warrant application of the rule of Cox and Raley. Here, while state officials provided the interpretation upon which appellant relied, federal officials indicted and convicted him for a violation of federal law. On the other hand, in both Supreme Court decisions, state officials had interpreted state law and subsequently convicted the defendants under that law. This distinction is important here, particularly where the...