U.S. v. Potts

• Decision Date: 19 November 1975
• Docket Number: No. 74--1817,74--1817
• Citation: 528 F.2d 883
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles Michael POTTS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 883

528 F.2d 883

UNITED STATES of America, Plaintiff-Appellant, v. Charles Michael POTTS, Defendant-Appellee.

No. 74--1817.

United States Court of Appeals, Ninth Circuit.

Nov. 19, 1975.

Robert S. Linnell (argued), U.S. Atty., Yakima, Wash., for plaintiff-appellant.

John A. Moore, Jr. (argued), Yakima, Wash., for defendant-appellee.

OPINION

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

KOELSCH, Circuit Judge:

We took this case in banc in order to re-examine the principal question presented in United States v. Hoctor, 487 F.2d 270 (9th Cir. 1973).

Appellee Potts, like Hoctor, was charged with a federal crime requiring as an element the defendant's prior conviction of a felony. ¹ Both Potts and Hoctor had been convicted of a felony under the laws of the State of Washington, but before the commission of their alleged federal crimes each had caused his state conviction to be duly expunged pursuant to Wash.Rev.Code Ann. § 9.95.240 (the statute), which reads in part as follows:

'Every defendant who has fulfilled the conditions of his probation . . . may . . . be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty, or if he has been convicted after a plea of not guilty, the court may in its discretion set aside the verdict of guilty; and in either case, the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted . . .'

In Hoctor, we concluded that the defendant was no longer a person who had been convicted of a felony, the reason being that his former 'conviction was absolutely erased from his record (and that he) was entitled to the same rights, and held the same status, as any citizen.' 487 F.2d at 271. Accordingly, we affirmed the judgment dismissing the indictment. If that conclusion was valid with respect to Hoctor, it would necessarily be the same with respect to Potts, for, as in Hoctor, the erasure or setting aside of the conviction and the restoration of Potts' prejudgment status likewise should have effectively removed him from the class of persons within the purview of the federal criminal statute under which he was charged.

However, we are now convinced that Hoctor was wrongly decided and therefore overrule that decision. ² Contrary to the view expressed in Hoctor, the statute does not operate absolutely to erase a conviction for all purposes. True, the enacting clause does speak of the release of a defendant 'from all penalties and disabilities resulting from the offense or crime of which he has been convicted.' But the breadth of this remission is limited by a proviso in the statute which reads:

'Provided, That in any subsequent prosecution, for any other offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had not been granted, or the information or indictment dismissed.'

The Washington appellate courts, on several occasions when called upon to construe the statute, have noted the effect of the proviso upon a conviction and its use. Thus in Matsen v. Kaiser, 74 Wash.2d 231, 443 P.2d 843 (1968), a majority of the justices of the Supreme Court of Washington, speaking of the benevolent public policy underlying the statute, were careful to qualify their broad statement by noting that '(t)he only exception to the statutory release of all penalties and disabilities attendant upon a conviction is found in the proviso, which is not applicable in the instant case.' 74 Wash.2d at 237, 443 P.2d at 847 (emphasis in original). And the dissenter added his comment that expunction effected only a "partial erasure' because, as the majority points out, the guilty plea will count as a conviction in any subsequent prosecution.' 74 Wash.2d at 241, 443 P.2d at 849.

Similarly, in Tembruell v. Seattle, 64 Wash.2d 503, 392 P.2d 453 (1964), the Supreme Court of Washington, in the course of an opinion construing a police pension statute, declared that the police officer's

'plea of guilty to grand larceny, coupled with his award of probation and the subsequent dismissal of the information, do not add up to a conviction of felony within the intendments of the police pension statute (RCW 41.20.110), even though this sequence of events might be specially considered by the court as a prior conviction in a later criminal action. RCW 9.95.240.' 64 Wash.2d at 510, 392 P.2d at 457.

And in State v. Knott, 6 Wash.App. 436, 493 P.2d 1027 (1972), a decision not called to our attention at the time Hoctor was submitted, the Court of Appeals of Washington held that the statute operated to restore a defendant's civil rights but, because of the proviso, did not obliterate the fact of Knott's conviction and that such conviction was properly shown to impeach his credibility in his subsequent criminal prosecution. ³ A fortiori, we believe that the prior conviction may be 'pleaded and proved' where, as here, it is an essential element of a subsequent crime. ⁴

Our decision today, overruling Hoctor, ⁵ undoubtedly expands the scope of potential criminal liability under § 1202(a)(1). While Hoctor stood as the law of this circuit, a person such as Potts, whose sole prior felony conviction had been expunged pursuant to the Washington statute, could not reasonably have suspected that his possession of a firearm, in or affecting commerce, would constitute a § 1202(a)(1) violation. As Potts lacked notice of our subsequently revised view of the statute, 'due process fairness bars the retroactive judgment of his conduct using the expanded definition.' United States v. Jacobs, 513 F.2d 564, 566 (9th Cir. 1974). See United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931); Bouie v. City of Columbia, 378 U.S. 347, 352-354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Accordingly, the rule we announce today must be applied prospectively only, and the dismissal below affirmed.

It is so ordered.

EUGENE A. WRIGHT, Circuit Judge (concurring):

I concur in the opinion of Judge Koelsch.

The majority notes that today's decision 'overruling Hoctor, undoubtedly expands the scope of potential criminal liability under § 1202(a)(1).' As a consequence, it calls only for prospective application and refuses to apply the rule retroactively to Potts because he did not have notice of this court's 'revised view' of the statute. He is fortunate in two respects. Not only is the dismissal of the indictment affirmed, but he also receives adequate notice of this court's 'revised view.' Today's opinion makes no provision for notice to numerous other similarly situated individuals for whom this decision expands the scope of potential liability.

Wash.Rev.Code Ann. § 9.95.240 has been in existence in similar form since 1939. ¹ Thousands of persons have had felony convictions expunged under its terms. Until today, they 'could not reasonably have suspected that (their) possession of a firearm, in or affecting commerce, would constitute a § 1202(a) (1) violation.' Those who may have relied on the prior opinion of this court, an opinion of the Supreme Court of the State of Washington, or the opinions of the Washington Attorney General ² will not have the second chance which we have given to Potts.

My concern is for those whose Washington state convictions have been expunged, those presently on probation under deferred or suspended sentences and those who are about to bargain for deferment under Washington law. The Eighth Circuit in United States v. Kelly, 519 F.2d 794 (8th Cir. 1975), recognized this problem when confronted with a similar statute. The court stated that it was important for the state 'to take steps to insure that ex-offenders rehabilitated under Minn.Stat.Ann. § 609.165 would be affirmatively warned that their federal disabilities concerning firearms had not been removed.' 519 F.2d at 796.

Although no statistics are available, I believe that the Washington State deferred sentence system is more commonly applied to those who have pleaded guilty than to those convicted by a court or jury. A guilty plea is followed by the entry of an order which defers sentence to a date certain and imposes conditions of probation. At the end of the term, or even before its expiration, the defendant petitions to be allowed to change his plea from guilty to not guilty. The Superior Court judge, in granting the motion, dismisses the case and says in effect to Hoctor, Potts and others: 'Your record is now clear. The slate has been wiped clean and you have no conviction.'

When we overrule precedent less than three years old, we should be mindful of the consequences. It would be appropriate for this court to set in motion a fair warning system. I am mindful of the administrative burden which might be created as there are thousands of persons to be notified, living not just within Washington State but scattered throughout the country. Their probation files have long since been closed, their whereabouts unknown to state officials, and now they have become subject to criminal prosecution for events long since forgotten.

SNEED, Circuit Judge (concurring in the result).

I concur in the result reached by Judge Koelsch in his opinion. I wish to disassociate myself from its analysis, however, except insofar as that analysis pertains to the retroactivity issue. As I view it, state law must be examined to determine whether the defendant has been convicted of a felony. The relevant state law to be examined in this determination does not include expunction statutes. Such statutes do not rewrite history; they merely provide that previous history is immaterial for certain purposes under state law. It is not within the power of a state to make such...