U.S. v. Ross

Decision Date05 November 1993
Docket NumberNo. 92-3774,92-3774
Citation9 F.3d 1182
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ralph R. ROSS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Sheila Finnegan, Asst. U.S. Atty., Crim. Div., Chicago, IL (argued), for plaintiff-appellee.

Chris Averkiou, Chicago, IL (argued), for defendant-appellant.

Before POSNER, Chief Judge, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Ralph Ross was convicted of illegal possession of an unregistered firearm and illegal possession of explosives. After Mr. Ross served a three-year prison term he was released on supervised release and on probation. Subsequently, the government filed a motion alleging that Mr. Ross had violated several conditions of his release and requesting that he be required to show cause why his supervised release and probation should not be revoked. After a revocation hearing was held on the matter, the district court revoked his supervised release and his probation. Mr. Ross now challenges the revocation of his supervised release and his probation and also contests his initial conviction. We reverse the revocation of probation. In all other regards, the judgment of the district court is affirmed.

I BACKGROUND

In January 1989, Mr. Ross was charged in a two-count indictment. Count I charged the possession of an unregistered machinegun on November 4, 1987, in violation of 26 U.S.C. Sec. 5861(d), which prohibits the possession of certain unregistered firearms. The firearm in question was a 1915 World War I antique. According to Mr. Ross, the weapon was technically a "Deactivated War Trophy" (DEWAT) because the barrel on the weapon was plugged and the receiver tube was fused to the firing pin, thus preventing the automatic firing of more than one round of ammunition with a single pull of the trigger. Prior to May 1986, when the Firearms Owners' Protection Act ("1986 Act") was enacted, the weapon apparently was not considered a machinegun at all and thus was not subject to the registration requirements of Sec. 5861(d). See United States v. Ross, 917 F.2d 997, 998 (7th Cir.1990) (per curiam), cert. denied, 498 U.S. 1122, 111 S.Ct. 1078, 112 L.Ed.2d 1183 (1991). However, the 1986 Act made illegal possession of all machineguns not owned and properly registered before the Act took effect, and broadened the statutory definition of machinegun to include particular parts as well as the entire weapon. See 18 U.S.C. Sec. 922(o) (1988); United States v. Jones, 976 F.2d 176, 183 (4th Cir.1992) ("amendment to the Gun Control Act effectively rendered possession of certain guns automatic violations of both the Gun Control Act and the National Firearms Act"), cert. denied, --- U.S. ----, 113 S.Ct. 2351, 124 L.Ed.2d 260 (1993). Accordingly, upon the effective date of the 1986 Act, Mr. Ross' weapon became subject to the registration strictures of Sec. 5861(d). It is undisputed that Mr. Ross has never registered the weapon in accordance with the provisions of Sec. 5861(d). Count II charged the storage of explosives in violation of 18 U.S.C. Sec. 842(j). On August 7, 1989, Mr. Ross pled guilty to Count II and on August 9 a jury convicted him on the charges alleged in Count I.

Mr. Ross was sentenced by the court on December 29, 1989. On Count I, the district court sentenced Mr. Ross to thirty-six months' incarceration, to be followed by three years of supervised release. 1 On Count II, the court suspended sentence and imposed a five-year term of probation. The court did not specify whether this probationary period under Count II was to run concurrently or consecutively to the sentence imposed under Count I. Special conditions of Mr. Ross' supervised release and probation required that: (1) he was not to have any contact with firearms; (2) he was to participate in a psychiatric counselling program; and (3) he was to report to the probation officer as directed and answer truthfully all inquiries by the probation officer, including financial inquiries. In 1990, on direct appeal, this court affirmed Mr. Ross' conviction.

On March 19, 1992, after serving the full three-year prison term for Count I, Mr. Ross was released from custody. On April 13, 1992, the district court issued a minute order stating that the period of probation under Count II was to run consecutively to the period of incarceration, and concurrently with the period of supervised release, imposed under Count I. 2

On June 22, 1992, Mr. Ross' probation officer issued a report alleging that Mr. Ross had violated his probation because: (1) he was unemployed; (2) he was not receiving psychiatric treatment; (3) he had not made any payments toward his fine and various court assessments; (4) he refused to fill out a financial questionnaire; and (5) he failed to sign his monthly probation reports attesting that the information was complete and truthful. Consequently, the government filed a motion for an order to show cause why Mr. Ross' probation should not be revoked.

On August 18, 1992, a hearing was held on the motion. Prior to his conviction, Mr. Ross legally had possessed a private collection of over fifty guns. However, because one of the conditions of his probation was that he not have any contact with firearms, the court inquired, during the August 18 hearing, what he had done with his gun collection. Mr. Ross responded that he had sold the guns. However, asserting his Fifth Amendment right not to incriminate himself, he refused to reveal, absent a grant of immunity, to whom he had sold the collection. The court refused to grant official immunity; however, it made very clear to Mr. Ross and his attorney that, if Mr. Ross did not satisfy the court that the guns were no longer in his possession, his probation would be revoked. 3 Mr. Ross stated that he understood the gravity of the situation, and the court instructed him to file a written response to the government's motion and the probation report.

On Oct. 8, 1992, in his written response to the government's motion, Mr. Ross submitted that the district court could not revoke his probation and supervised release for refusing to answer questions asked by the probation officer or by the court because he expressly had based his refusal on an invocation of his Fifth Amendment rights. Additionally, Mr. Ross argued, for the first time, that the court had no jurisdiction to modify his sentence on April 13, 1992, when it issued the minute order stating that his probation on Count II was to run consecutively to his prison sentence for Count I. Specifically, he argued that Criminal Rule of Procedure 35(c) provides that a sentencing court has only seven days to amend sentencing orders.

On October 20, the district court held a second probation revocation hearing and rejected Mr. Ross' arguments. The court stated that it had not amended the sentence, but merely specified when the period of probation was to start. The court again explicitly told Mr. Ross that, if he did not reveal to the court the location of his gun collection, his probation would be revoked. Mr. Ross again refused to answer absent an express grant of immunity from the court. 4 The court told Mr. Ross that, under the law, the effect of the court compelling an answer was to give him immunity. 5 Nevertheless, Mr. Ross refused to answer without a formal grant of immunity.

During this same October 20 hearing, the court also found that Mr. Ross had lied to his probation officer and had missed two or three scheduled appointments and that there was therefore a reason to revoke his probation separate and independent from failure to reveal the whereabouts of his gun collection. Specifically, after an exchange with Mr. Ross about missed appointments with his probation officer and whether he had access to a car and car insurance, the court concluded that his lack of candor with both his probation officer and the court was "a separate and independent basis for revoking his probation." Tr. of Oct. 20, 1992 at 12.

We cannot supervise people who obviously, it seems to me, lie to the probation officer and do not keep appointments that are scheduled. I mean, that is the fundamental basis for the probation supervision; that the defendant keep in contact with his probation officer when reasonably requested to do so. And all I get is a lot of malarkey here about car/no car/it's in the driveway/it's not mine, it's somebody else's/he's driving it.

There is ever[y] reason to think that he does have a car at his disposal. I credit [the probation officer's testimony]--he has done some homework here. He found out the circumstance about the car and he has it on a good authority that Mr. Ross does have a car at his disposal; and, in fact, does drive a car and was seen in it and, I guess, ... stopped.

Id.

At the conclusion of the hearing, the court revoked Mr. Ross' probation under Count II, imposed a one-year sentence and ordered him taken into immediate custody. Additionally, the court revoked Mr. Ross' supervised release under Count I; however, the court deferred sentencing on that count until November 12 in order to allow the parties to brief the issue.

In response, Mr. Ross filed a Motion to Vacate Sentence, attacking the underlying conviction and asking the court to vacate his original 1989 sentence. In this motion to vacate, Mr. Ross claimed, for the first time, that the statute under which he was convicted, Sec. 5861(d) (possession of unregistered machine gun), was effectively repealed before his conviction, thus rendering his conviction unconstitutional. Specifically, Mr. Ross contended that Sec. 5861(d) was repealed on May 19, 1986, eighteen months prior to the date he was charged, by Sec. 102(9) of the Firearms Owners' Protection Act. 18 U.S.C. Sec. 922(o) (1988). Mr. Ross also argued, for the first time, that under Sec. 3561 the court could not impose both a period of incarceration under Count I and a period of...

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