U.S. v. Marks, No. 03-30464.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Betty B. Fletcher
• Citation: 379 F.3d 1114
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Thomas Stanko MARKS, Defendant-Appellee.
• Docket Number: No. 03-30464.
• Decision Date: 23 August 2004

379 F.3d 1114 UNITED STATES of America, Plaintiff-Appellant,
v.
Thomas Stanko MARKS, Defendant-Appellee. No. 03-30464. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 13, 2004. Filed August 23, 2004.

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Joseph H. Harrington, Assistant United States Attorney, Spokane, WA, for the appellant.

Stephen R. Hormel, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for the appellee.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. No. CR-02-00138-WFN.

Before: B. FLETCHER, HAMILTON,^* and BERZON, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

The government appeals the dismissal with prejudice of an indictment charging

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Thomas Stanko Marks with possession of firearms and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1). The district court held that Marks' predicate state conviction was unconstitutional, because he received ineffective assistance of counsel due to his attorney's actual conflict of interest in jointly representing both defendants. Since Washington law forbids the use of an unconstitutional conviction as a predicate for subsequent criminal prosecutions, the court dismissed the indictment, citing 18 U.S.C. § 921(a)(20), which provides that state law determines what constitutes a conviction for the purposes of § 922(g)(1). This court has jurisdiction under 28 U.S.C. § 1291. We conclude that, regardless of any alleged constitutional defect in Marks' Washington conviction, his felony conviction qualifies as a predicate conviction for the purposes of § 922(g)(1). We therefore reverse the decision of the district court.

We review de novo a district court's decision to dismiss an indictment based on an interpretation of a federal statute. United States v. Boren, 278 F.3d 911, 913 (9th Cir.2002). We also review de novo a district court's interpretation of state law. Feldman v. Allstate Ins. Co., 322 F.3d 660, 665(9th Cir.), cert. denied, ___ U.S. ___, 124 S.Ct. 222, 157 L.Ed.2d 137 (2003).

BACKGROUND

A. State Court Proceedings

In 1999, Thomas Marks was convicted of second-degree assault, a felony under Washington state law, and sentenced to six months in jail and a fine of just over three thousand dollars.¹ See WASH. REV. CODE §§ 9A.36.021(2), 9A.20.021(1)(b) (providing that second-degree assault is a Class B felony punishable by imprisonment for not more than ten years, or by a fine of not more than twenty thousand dollars, or both). His conviction was confirmed on appeal, State v. Marks, 114 Wash.App. 1001, 2002 WL 31320631 (2002), and the Washington State Supreme Court denied review. 149 Wash.2d 1020, 72 P.3d 761 (2003). The government claims, and Marks concedes, that this conviction has never been expunged, vacated, or set aside, nor have Marks' civil rights been restored.

B. Federal Court Proceedings

In 2002, Thomas Marks was indicted by a grand jury in the Eastern District of Washington on three firearms-related charges under 18 U.S.C. §§ 922(g)(1) and 924. All three counts alleged that he was a prior convicted felon in possession of firearms or ammunition. After new counsel was appointed, Marks moved to dismiss the indictment, arguing that his state felony conviction was constitutionally invalid and therefore could not be considered a predicate conviction under §§ 921(a)(20) and 922(g)(1). The district court determined that the issue for decision was whether Marks' second degree assault conviction in Washington was a qualifying conviction under Washington law. It then concluded that Marks' second-degree assault conviction was unconstitutional because his counsel had an actual conflict of interest, in that his joint representation of both co-defendants prejudiced Marks' defense.

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Therefore, the conviction did not qualify as a predicate conviction under state law. The district court dismissed the indictment with prejudice. The United States filed a timely notice of appeal.

DISCUSSION

The federal firearms statute provides, in relevant part:

It 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 ... 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.

18 U.S.C. § 922(g)(1). Under the Firearm Owners' Protection Act of 1986 (FOPA), the determination of whether someone has in fact been convicted of a crime punishable by more than a year in prison is governed by the law of the jurisdiction in which the criminal proceeding took place (the "choice-of-law clause"). 18 U.S.C. § 921(a)(20). In addition, § 921(a)(20) provides:

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 [the "exemption clause"].²

It is well-established that the federal firearms statute "prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds." Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (construing 18 U.S.C. § 1202(a)(1), a predecessor to the current § 922(g)(1)).³ See also United States v. Dorsch, 363 F.3d 784, 787 (8th Cir.2004) (affirming applicability of Lewis to current § 922(g)(1)); accord United States v. Snyder, 235 F.3d 42, 52-53 (1st Cir.2000), cert. denied, 532 U.S. 1057, 121 S.Ct. 2205, 149 L.Ed.2d 1034 (2001); United States v. Emerson, 270 F.3d 203, 213 (5th Cir.2001), cert. denied, 536 U.S. 907, 122 S.Ct. 2362, 153 L.Ed.2d 184 (2002). The Lewis majority rejected the petitioner's challenge to the use of his uncounseled state felony conviction as the basis for the federal prosecution, concluding that "[t]he statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability [enforceable by a criminal sanction] until the conviction is vacated or the felon is relieved of his disability by some affirmative action." 445 U.S. at 60-61, 100 S.Ct. 915 (emphasis added). Under § 921(a)(20), it is state law that determines whether there is a qualifying predicate felony conviction.

Although there is no universally-applicable definition of "conviction" in Washington law, it appears that the core element is either a jury's or judge's finding of guilt, or a court's acceptance of a guilty plea. See WASH. REV. CODE

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