U.S. v. Herrell

• Decision Date: 16 November 1978
• Docket Number: No. 78-1511,78-1511
• Parties: 3 Fed. R. Evid. Serv. 1414 UNITED STATES of America, Plaintiff-Appellee, v. Phillip Clark HERRELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 711

588 F.2d 711

3 Fed. R. Evid. Serv. 1414

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Clark HERRELL, Defendant-Appellant.

No. 78-1511.

United States Court of Appeals Ninth Circuit.

Nov. 16, 1978.

Rehearing and Rehearing En Banc Denied Dec. 8 and 26, 1978.

Michael Tryon (argued), Phoenix, Ariz., for defendant-appellant.

Joel D. Sacks, Asst. U. S. Atty. (argued), Phoenix, Ariz., for plaintiff-appellee.

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

Before CHOY and SNEED, Circuit Judges, and WILLIAMS ^*, District Judge.

CHOY, Circuit Judge:

Appellant Phillip Herrell appeals his conviction by a jury for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(h). We affirm.

I

In 1973, Herrell pleaded guilty in an Arizona court to a charge of grand theft. He was placed on probation for three years. On March 4, 1977, the judgment against Herrell was vacated, the grand theft charge dismissed, and Herrell's civil rights were restored. This expunction was made under Ariz.Rev.Stat. § 13-1744. ¹

On June 6, 1977, Herrell was found in possession of a pistol which is the subject of Count I of his federal indictment. On September 14, 1977, he was found in possession of another pistol which is the subject of Count II of his federal indictment. Herrell testified at trial that the pistol in Count I was his, but that the pistol in Count II was not. Herrell was convicted on Count I and was found innocent on Count II.

II

Herrell first claims that his Arizona conviction for grand theft is invalid as a matter of both state and federal law. Therefore, he argues, that conviction is an inadequate basis for criminal liability under 18 U.S.C. § 922(h). The grand theft conviction is attacked on the ground that there was no factual basis for his plea of guilty.

Arizona Rule of Criminal Procedure 17.3 provides that a factual basis for a plea of guilty must be established before the plea can be accepted. ² Federal Rule of Criminal Procedure 11(f) contains a similar requirement ³ and was the source of the Arizona rule. State v. Carr, 112 Ariz. 453, 454, 543 P.2d 441, 442. Herrell claims that both of these rules were violated in the Arizona proceedings.

Before accepting Herrell's plea of guilty to the grand theft charge, the Arizona court explained that his plea of guilty would be a waiver of his right to a jury trial, his privilege against self-incrimination and his right to compel the attendance of witnesses. The court also informed him that his guilty plea would be an admission that he stole two rifles, two scopes and a shotgun. Herrell, represented by counsel, stated that he understood his rights and that he was waiving them and also said that the charge that he had taken the weapons and scopes was true. However, it does not appear on the record that any evidence was heard regarding the value of the goods taken, nor did the court make any express findings regarding the value of the goods.

Herrell contends that although this explanation and questioning established a factual basis for a theft, no factual basis was established as to the value of the goods taken, which under the Arizona law applicable at the time must have been worth $100.00 or more to sustain a grand theft conviction. Ariz.Rev.Stat. § 13-663 (Supp.1973). He argues that this failure invalidates his conviction because it violates Ariz.R.Crim.P. 17.3 and Fed.R.Crim.P. 11(f). Thus, he continues, the conviction cannot be a proper basis for a violation of 18 U.S.C. § 922(h).

In United States v. Liles, 432 F.2d 18 (9th Cir. 1970), this court held that, even though a prior conviction had been reversed by the Fifth Circuit because of insufficient evidence it could still serve as the basis for a conviction for possession of a firearm by a felon. Liles held that Congress did not intend to exempt from the statute making such possession a crime "one whose status as a convicted felon changed after the date of possession, regardless of how that change of status occurred." Id. at 20. This court has further indicated that "(t)he only limitation . . . placed upon this broad construction is one required by the federal Constitution; 'convicted' felon does not include one whose prior conviction is later reversed because of certain federal constitutional defects." United States v. Pricepaul, 540 F.2d 417, 424 (9th Cir. 1976), Citing McHenry v. California, 447 F.2d 470, 471 (9th Cir. 1971).

Herrell's grand theft conviction was not challenged prior to his being found in possession of the two pistols. And his claim that the Arizona conviction is invalid is based on statutory rather than constitutional grounds. ⁴ A defense to his 18 U.S.C. § 992(h) prosecution based on a challenge to the underlying conviction on non-constitutional grounds is controlled by Liles and is thus unavailing.

III

Appellant next contends that his conviction under 18 U.S.C. § 922(h) cannot be based on his prior grand theft conviction as that conviction has been expunged and his civil rights restored.

Arizona's expunction statute provides for the vacating of conviction, dismissal of charges, and restoration of civil rights. See note 1 Supra. However, a proviso to Ariz.Rev.Stat. § 13-1744 states that after a conviction is expunged "the conviction may be pleaded and proved in any subsequent prosecution of such person for any offense as if the judgment of guilt had not been set aside."

In United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc), this court was faced with a claim similar to that of Herrell. In addition, the Washington expunction statute involved in that case had a proviso almost identical to that found in Ariz.Rev.Stat. § 13-1744. ⁵ We decided in Potts that expunction under the Washington statute did not eliminate a prior state conviction as a basis for a federal conviction for possession of a firearm by a convicted felon. We find that Potts controls Herrell's claim and thus reject this asserted error.

IV

Finally, Herrell urges that the district court committed reversible error in admitting evidence of a prior similar act in that a neighbor was allowed to testify, as part of the Government's case-in-chief, that the pistol which is the subject of Count I was in Herrell's possession in July of 1975. The Government contends that this testimony was necessary to show receipt and was not evidence of a prior similar act. Herrell points out, however, that possession is sufficient to establish receipt. See, e. g., United States v. Mitchell, 557 F.2d 1290, 1292 (9th Cir. 1977).

Assuming that this evidence was evidence of a prior similar act, the rule in this Circuit is clear. In interpreting Fed.R.Evid. 404(b), this court has held:

Evidence of prior acts is admissible to demonstrate a defendant's criminal intent if (1) the prior act is similar and close enough in time to be relevant, (2) the evidence of the prior act is clear and convincing and (3) the trial court determines that the probative value of the evidence outweighs any potential prejudice.

United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976), Cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977). This court has also stated that Rule 404(b) is a rule "of inclusion which admits evidence of other crimes or acts relevant to an issue in the trial, except where it tends to prove Only criminal disposition." United States v. Sigal, 572 F.2d 1320, 1323 (9th Cir. 1978), Quoting United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977).

The relevant standard of review is "whether the district court abused its discretion when it decided that the tendency of the evidence in question to prove the essential elements of knowledge and intent outweighed its potential prejudice." United States v. Rocha, 553 F.2d at 616. There is no...