U.S. v. Place, 76-1620

• Decision Date: 06 September 1977
• Docket Number: No. 76-1620,76-1620
• Citation: 561 F.2d 213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Steven PLACE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 213

561 F.2d 213

UNITED STATES of America, Plaintiff-Appellee, v. Mark Steven PLACE, Defendant-Appellant.

No. 76-1620.

United States Court of Appeals Tenth Circuit.

Argued and Submitted July 19, 1977.

Decided Sept. 6, 1977.

Robert S. Berger, Denver, Colo. (Leonard E. Davies, Denver, Colo., on the brief), for defendant-appellant.

Frederic C. Reed, Dept. of Justice, Cheyenne, Wyo. (James P. Castberg, U. S. Atty., Tosh Suyematsu, Jerome F. Statkus, Asst. U. S. Attys., Dept. of Justice, Cheyenne, Wyo., on the brief), for plaintiff-appellee.

Before McWILLIAMS and DOYLE, Circuit Judges, and MARKEY, ^* Chief Judge.

MARKEY, Chief Judge.

Appeal by defendant Mark Steven Place (Place) from a conviction of knowingly making a false written statement in connection with acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6) and § 924(a). We affirm.

Facts

Place pled guilty to grand theft, under Sec. 489, California Penal Code, on January 12, 1971, in the Superior Court of California, County of Los Angeles. On February 18, 1971, he was granted probation for five years on the condition that he first spend one year in county jail.

On June 25, 1975, in connection with his purchase of a Ruger automatic .22 pistol, Place completed and signed Treasury Form 4473 (Firearms Transaction Record), answering "no" to question 8.b. thereon:

"Have you been convicted in any court of any crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter a yes answer is necessary if the judge could have given a sentence of more than one year.)" (Emphasis in original.)

Issues

Place argues (1) that his answer on Form 4473 was not false, and (2) that the evidence was insufficient to sustain the government's burden of proving his answer to have been "knowingly" false. ^**

Opinion

Although grand theft is punishable under California law by imprisonment in the county jail for not more than one year or in the state prison for not more than ten years, Place founds his first argument on Sec. 17(b), California Penal Code:

When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison.

Thus, Place argues that he had been convicted of a misdemeanor, not a "crime;" hence his "no," answer was in fact truthful. In further support Place quotes this from MacFarlane v. Department of Alcoholic Beverage Control, 51 Cal.2d 84, 330 P.2d 769, 772 (1958): "the crime of which he was convicted is to be deemed a misdemeanor for all purposes and he is not thereafter to be subjected to the statutory disabilities or deprivations which accompany or ensue from a felony conviction." Place also points to 18 U.S.C. § 921(20), which provides that the phrase "crime punishable by imprisonment for a term exceeding one year" in question 8.b. shall not include a state offense "classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less."

But Place places the cart before the horse. At the time of his conviction (January 12, 1971) grand theft was a crime punishable "in the state prison for not more than ten years." If the intent of Congress to limit the acquisition of firearms, as reflected in 18 U.S.C. § 922(a)(6), is to be effected, the term "convicted" must be given a nonrestrictive interpretation. Once guilt has been established, by plea or verdict, and naught but sentencing remains, a defendant has been "convicted" within the meaning of that word in question 8.b. United States v. Beebe, 467 F.2d 222 (10th Cir. 1972), cert. den., 416 U.S. 904, 94 S.Ct. 1607, 40 L.Ed.2d 108 (1974); United States v. Willis, 505 F.2d 748 (9th Cir. 1974), cert. den., 420 U.S. 963, 95 S.Ct. 1355, 43 L.Ed.2d 441 (1975); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). That Place was sentenced on February 18, 1971, to one year in the county jail is simply irrelevant to the question of whether he had been convicted of a crime for which a judge, in the emphasized words of question 8.b., "could have" imposed a longer, sentence. Place's "no" answer was, therefore, unquestionably false.

Moreover, the after-the-fact effect given by state law, to the exercise of discretion by a sentencing judge, cannot control our interpretation and application of the federal statute. On the contrary, we are in accord with the statement of the District Court in McMullen v. United States, 349 F.Supp. 1348 (C.D.Cal.1972), aff'd, 504 F.2d 1108 (9th Cir. 1974), that "the only purpose in looking to state law * * * is to determine the maximum penalty which could have been imposed * * *." (349 F.Supp. at 1351.) Having here determined that the maximum penalty which could have been imposed on Place exceeded one year, the investigation into state law is exhausted, and Place's argument, based on the effect within the state of his actual sentence, must fail. Thus, no warrant or basis existed for removing from the jury the question of the truth or falsity of Place's answer to question 8.b.

Place, in his argument (2), attacks the sufficiency of the evidence to support the verdict of the jury, citing selected portions of his testimony: that he was 19 when arrested and charged with grand theft; that he pled guilty on his attorney's recommendation; that he never understood the charges or whether he had been convicted of a felony or misdemeanor; that he did not recall the sentencing judge's statement regarding a sentence to state prison. In attempting to establish failure of the government to sustain its burden of proving knowledge, Place raises a legal issue, i. e., that "knowledge" of the falsity of an answer cannot be established when the answer requires special or expert knowledge, citing a statement in United States v. Weiler, 385 F.2d 63, 65 (3rd Cir. 1967), that "(t)here may be situations where such a rule would be applicable."

In considering the sufficiency of the evidence, we view it, with the reasonable inferences to be drawn from it, in the light most favorable to the prosecution, and the verdict must be upheld if there be substantial evidence from which a jury might have found, beyond a reasonable doubt, that Place knowingly made a false statement. United States v. Ramsdell, 450 F.2d 130 (10th...