U.S. v. Stanko

• Citation: 491 F.3d 408
• Decision Date: 20 June 2007
• Docket Number: No. 06-3157.,06-3157.
• Parties: UNITED STATES of America, Appellee, v. Rudolph George STANKO, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

491 F.3d 408

UNITED STATES of America, Appellee, v. Rudolph George STANKO, Appellant.

No. 06-3157.

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2007.

Filed: June 20, 2007.

Counsel who presented argument on behalf of the appellant was Roger I. Roots, of Livingston, MT.

Counsel who presented argument on behalf of the appellee was Frederick D. Franklin, AUSA, of Omaha, NE.

Before COLLOTON, BRIGHT, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Rudolph Stanko appeals his convictions for two counts of possessing firearms and ammunition by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). On appeal, Stanko's primary argument is that the district court¹ erred in concluding that Stanko qualifies as a prohibited person under § 922(g)(1) because his 1984 conviction for violating the Federal Meat Inspection Act (FMIA) does not fall within the "business practices" exclusion of 18 U.S.C. § 921(a)(20)(A). We disagree and affirm the convictions.

I. BACKGROUND

In 1984, Cattle King Packing Co., Inc. and Stanko, an officer and shareholder of the corporation, were convicted after a jury trial of multiple counts of violating the FMIA, 21 U.S.C. § 601 et seq., and of conspiracy to violate the FMIA, 18 U.S.C. § 371. United States v. Cattle King Packing Co., 793 F.2d 232 (10th Cir.1986). In its opinion affirming the conviction, the Tenth Circuit Court of Appeals described the substantive counts against the defendants as: "(1) the fraudulent distribution of adulterated meat products; (2) the intentional circumvention of federal law requiring an inspection by a federal meat inspector of all shipments returned to Cattle King by dissatisfied purchasers; and (3) the fraudulent misbranding of meat shipments by stamping on the shipment a false production date." Id. at 235.

Ten years later, Stanko sought a declaratory judgment that he was not prohibited from possessing firearms under § 922(g)(1) because his conviction fell within the § 921(a)(20)(A) exclusion. After the United States District Court for the District of Montana denied relief on the merits, the Ninth Circuit Court of Appeals reversed with instructions to dismiss the case for lack of standing. Stanko v. United States, No. 95-35289, 1995 WL 499524, *1-2 (9th Cir. August 22, 1995) (unpublished table decision).

In 2005, a federal grand jury for the District of Nebraska returned an indictment charging Stanko with one count of possession of firearms by a prohibited person and one count of possession of ammunition by a prohibited person, both in violation of 18 U.S.C. § 922(g)(1), which provides:

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 ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition . . . .

18 U.S.C. § 922(g)(1). Both counts cited Stanko's FMIA convictions to establish his prohibited person status.

After a pretrial hearing on Stanko's motion to dismiss the indictment, the district court concluded that Stanko's FMIA conviction did not fall within the § 921(a)(20)(A) exclusion, which states in relevant part:

The term "crime punishable by imprisonment for a term exceeding one year" does not include—(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices.

18 U.S.C. § 921(a)(20)(A). The district court reasoned that: (1) the exclusion was "directed towards illegal restraints of trade, monopolies, and anti-competitive forces in the marketplace," not towards fraud-related convictions such as Stanko's; (2) for the "similar offenses" language to apply, the offense must be similar in nature to antitrust, restraint of trade, or unfair trade practices, and must also relate to regulation of business practices; and (3) the FMIA conviction did not depend on its effect on consumers or on competition. The district court summarized by saying, "Although in some respect the allegations . . . could be considered unfair trade practices, the gravamen of these charges are issues of food and drug safety and fraud, not unfair trade practices." At trial and over Stanko's objections, the district court declined Stanko's request to instruct the jury on the exclusion and denied his motion for judgment of acquittal. The jury found Stanko guilty on both counts, and the district court sentenced him to 72 months in prison.

In addition to his substantive § 921(a)(20)(A) argument, Stanko contends on appeal that the indictment was fatally defective because it did not include the § 921(a)(20)(A) exclusion as an element of the charged offense and because the district court erred in treating his § 921(a)(20)(A) argument as a question of law for the court rather than one of fact for the jury.²

II. DISCUSSION

Stanko raised his challenges to the indictment and to the district court's refusal to submit the § 921(a)(20)(A) exclusion issue to the jury in his motions to dismiss the indictment and for judgment of acquittal. We review de novo the district court's denial of a motion to dismiss the indictment, United States v. Postley, 449 F.3d 831, 832 (8th Cir.2006), and we also apply de novo review to the denial of a motion for judgment of acquittal, United States v. Cannon, 475 F.3d 1013, 1020 (8th Cir.2007).

An indictment "is legally sufficient on its face if it contains all of the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution." United States v. Hernandez, 299 F.3d 984, 992 (8th Cir. 2002). The Government must prove three essential elements for a § 922(g)(1) conviction: (1) the defendant previously was convicted of a crime punishable by a term of imprisonment exceeding one year; (2) he knowingly possessed a firearm; and (3) the firearm traveled in or affected interstate commerce. United States v. Maxwell, 363 F.3d 815, 818 (8th Cir.2004). We have not included the § 921(a)(20)(A) exclusion as an element of a § 922(g)(1) offense. In addition, several circuits have held that the exclusions of § 920(a)(20) are legal definitions rather than elements of a § 922(g)(1) violation. E.g., United States v. Bartelho, 71 F.3d 436, 439-40 (1st Cir. 1995) (holding that the § 921(a)(20) exclusion is a legal definition, not an element, and noting that the holding follows the approach taken by other circuits); United States v. Jackson, 57 F.3d 1012, 1015-17 (11th Cir.1995); (rejecting the defendant's argument that § 921(a)(20) adds a new element to a § 922(g)(1) offense; holding that the government had no obligation to prove that the exclusion was inapplicable where the defendant did not proffer evidence that the prior conviction fell within the exception); United States v. Flower, 29 F.3d 530, 534 (10th Cir.1994) (holding that § 921(a)(20) is a legal definition that defines "conviction for a term exceeding one year"). We agree and hold that the indictment was not defective because the § 921(a)(20)(A) exclusion is not an element of a § 922(g)(1) offense. The indictment in this case contained each element of the offense, fairly informed Stanko of the charges, and alleged sufficient information to allow Stanko to plead a conviction or acquittal as a bar to a subsequent prosecution. Therefore, the district court did not err in refusing to dismiss the indictment.

Likewise, we conclude that whether Stanko's predicate FMIA convictions qualified under the § 921(a)(20)(A) exclusion was a question of law for the court rather than one of fact for the jury. The definitional nature of the § 921(a)(20) exclusions places the responsibility on the court to determine as a matter of law whether the prior conviction qualifies as a "crime punishable by imprisonment for a term exceeding one year" under § 922(g)(1). Bartelho, 71 F.3d at 440 (considering the § 921(a)(20) exclusion of a conviction which has been expunged or set aside, or for which a person has been pardoned or has had civil rights restored); see also United States v. Hayes, 482 F.3d 749, 750-51 (4th Cir.2007) (noting that questions regarding the definition of a predicate offense set forth in § 921(a)(33)(A) are questions of law); United States v. Bethurum, 343 F.3d 712, 716-17 (5th Cir.2003) (holding that for purposes of § 922(g)(9), the trial judge rather than the jury should determine whether "a particular conviction is admissible as relevant evidence of a misdemeanor crime of domestic violence" as defined in § 921(a)(33); noting that numerous courts have treated questions regarding the definitions in § 921(a) as purely legal questions); United States v. Akins, 276 F.3d 1141, 1146 (9th Cir.2002) ("Because § 921(a)(33)(B)(i)(I) is a legal definition, its application presents a question of law to be decided by the trial judge."); United States v. Daugherty, 264 F.3d 513, 514 (5th Cir.2001) ("The question whether a felony conviction may serve as a predicate offense for a prosecution for being a felon in possession of a firearm pursuant to § 922(g)(1) is purely a legal one.") (internal quotation omitted). We agree with these circuits and hold that whether a conviction falls within the exclusions defined in § 921(a)(20)(A) is a question of law for the court.³ Cf. United States v. Mincks, 409 F.3d 898, 901 (8th Cir.2005) (noting that whether a prior conviction is a violent felony under the Armed Career Criminal Act "is distinctly a question of law for the court, not a jury"), cert. denied, 546 U.S. 1176, 126 S.Ct. 1345, 164 L.Ed.2d 59 (2006). Therefore, the district court did not err in rejecting Stanko's argument that the issue should have been submitted to the jury.

We now turn to the substantive question of whether the district court correctly...