U.S. v. Etheridge

• Decision Date: 30 April 1991
• Docket Number: No. 90-5835,90-5835
• Citation: 932 F.2d 318
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Clinton ETHERIDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 318

932 F.2d 318

UNITED STATES of America, Plaintiff-Appellee, v. George Clinton ETHERIDGE, Defendant-Appellant.

No. 90-5835.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 8, 1991.

Decided April 30, 1991.

Paul Henderson Ray, Virginia Beach, Va., for defendant-appellant.

Laura Marie Everhart, Asst. U.S. Atty., argued (Henry E. Hudson, U.S. Atty., on brief), Norfolk, Va., for plaintiff-appellee.

Before HALL and CHAPMAN, Circuit Judges, and MULLEN, District Judge for the Western District of North Carolina, sitting by designation.

CHAPMAN, Circuit Judge:

Following a jury trial, appellant was convicted of one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Appellant's sentence was enhanced under 18 U.S.C. Sec. 924(e)(1) because he had previously been convicted of at least four violent felonies. ¹ Appellant appeals his conviction and enhancement of sentence and claims that the trial judge erred (1) in excluding evidence that he had relied upon judicial advice given to him by a state court judge that he could continue to possess shotguns for hunting purposes, (2) that the predicate offenses relied upon to enhance his sentence were more than 20 years old at the date of sentence and violated the ex post facto clause, and (3) that since his civil rights had been restored by the Commonwealth of Virginia it was not unlawful for him to possess a firearm. We find no merit in these exceptions, and we affirm.

I

On March 27, 1990, agents of the Bureau of Alcohol, Tobacco and Firearms obtained and executed a search warrant for the home of appellant, George Clinton Etheridge, located in Chesapeake, Virginia. The validity of the search warrant is not challenged. Appellant was present at the time the search was conducted, and after receiving proper Miranda warnings, he advised the agents that he owned two shotguns and the guns were located in the back room of the residence. The shotguns were found at the place indicated by appellant and they were seized. The agents also seized 197 rounds of ammunition. It is undisputed that the firearms were manufactured outside the Commonwealth of Virginia and had traveled in interstate commerce.

A written stipulation was entered into between the United States and the defendant in which the defendant admitted that he had four prior violent felony convictions: November 16, 1956 in the Circuit Court for the City of Chesapeake, Virginia of voluntary manslaughter; July 29, 1964 in the Circuit Court for the City of Chesapeake, Virginia of unlawful shooting; July 28, 1967 in the Circuit Court for the City of Chesapeake, Virginia of second degree murder; and September 13, 1983 in the Circuit Court for the City of Virginia Beach, Virginia, of unlawful wounding, and use of a firearm in the commission of a felony. All of these convictions were for violent felonies and punishable by imprisonment for terms exceeding one year.

Prior to trial, the United States filed a motion in limine to prevent the appellant from introducing evidence including his Virginia hunting license, photographs of his hunting dogs, defense witnesses attesting to the fact that the two shotguns were only used for hunting, and the defendant's claim that he had relied upon advice by a state court judge that he could continue to possess the two shotguns for hunting despite his prior felony convictions. On the issue of the judicial advice given to him, Etheridge presented only a certified copy of a warrant for his arrest on a charge of carrying a concealed weapon on his person after having been convicted of a felony involving the use of a firearm. This warrant had been dismissed April 3, 1985 with the words "Nolle Prosequi" written on the back of the warrant. The district court granted the government's motion and excluded the evidence. The court found that this proffered evidence was irrelevant and did not present a valid defense to the charges contained in the indictment, because the evidence related only to his use of the firearms while the statute only required proof of possession.

II

Appellant claims that he was entitled to rely upon the affirmative advice of a state trial judge that he could use the firearms for hunting purposes only, and that his conduct had conformed to the state judge's statement of the law. He claims that he could have proved conformance by four witnesses, who had been subpoenaed and who would have testified that he used the firearms only for hunting, but the court excluded this evidence in response to the motion in limine. Etheridge asserts that the due process clause allows such a defense, and he relies upon United States v. Brady, 710 F.Supp. 290 (D.Colo.1989), and United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987). We do not find these decisions persuasive. In Tallmadge, the defendant had been told by a federally licensed firearms dealer that he could purchase firearms, despite his prior conviction of a felony possession of a machine gun, after that charge had been reduced under California law to a misdemeanor. The court found that Tallmadge had been misled by the representations of the federally licensed firearms dealer and the court adopted a theory of entrapment by estoppel over a very persuasive dissenting opinion. In Brady, a state judge had advised the defendant that he could "utilize a firearm specifically for hunting and trapping within the confines of his occupation." Brady's federal charge was for possession of a firearm known as a "Coyote Getter," which is not fired by an individual, but fired by a baited coyote trap. The weapon is buried under the bait and when the animal bites the bait, this trips a firing mechanism which propels a cyanide capsule into the animal's mouth. The court found that it would be a violation of due process to convict Brady in light of the fact that his conduct conformed to the state judge's advice as to the law. Brady relied heavily upon 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). These two cases involved the reliance of a defendant charged with the violation of state law upon a prior interpretation of state law by a state official.

We find the reasoning of United States v. Bruscantini, 761 F.2d 640 (11th Cir.), cert. denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 233 (1985), more persuasive. Bruscantini had entered a nolo contendere plea to a Florida burglary charge. The state judge had withheld adjudication of guilt and placed him on probation, and he contended that the state judge and the state prosecutor told him that his case did not constitute a conviction. Eight years later he obtained two firearms and was subsequently charged with violating 18 U.S.C. Sec. 922(b) as a convicted felon receiving the firearms. He argued that Cox and Raley allowed him to reasonably rely upon the interpretation of the law given to him by authoritative state officials, and that the government was estopped from prosecuting him.

The Eleventh Circuit held:

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 analysis of the federal law, Sec. 922, does not depend on state practice, see Dickerson v. New Banner Institute, Inc., supra [460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983) ], and where knowledge of one's status as a convicted felon is not an element of the offense of receiving firearms. See U.S. v. Goodie, 524 F.2d 515 (5th Cir.1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976).

The rule of Cox and Raley is a narrow exception to the general principle that ignorance of the law is no defense. It was prompted by the Court's observation that permitting the government to prosecute individuals who reasonably rely upon that government's interpretation of the law would constitute a kind of entrapment. Where, however, the government that advises and the government that prosecutes are not the same, the entrapment problem is different. Moreover, if one benefit of the estoppel defense is that it encourages government officials to better know and articulate the law, that benefit is not present where application of the defense would penalize the wrong government--the government that prosecuted appellant rather than the government that mistakenly and misleadingly interpreted the law. Appellant, therefore, is not insulated from prosecution.

761 F.2d at 641-42.

III

Etheridge argues that Virginia state law, as it is interpreted by a state judicial official, exempts him from prosecution in the United States District Court. This exception was raised at oral argument when a member of the panel asked the attorneys if the appellant could be prosecuted in the federal court under Sec. 922(g) if, under the circumstances of the case, state law exempted him from prosecution.

Title 18 U.S.C. Sec. 922(g) states:

(g) It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

....

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Section 921(a)(20) provides:

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...