U.S. v. Tallmadge
| Decision Date | 01 October 1987 |
| Docket Number | No. 86-5116,86-5116 |
| Citation | 829 F.2d 767 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Walter David TALLMADGE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Janet Hudson, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Leonard R. Dubin, Los Angeles, Cal., for defendant-appellant.
Appeal from the United States District Court for the Central District of California.
Before TANG, ALARCON and KOZINSKI, Circuit Judges.
Walter David Tallmadge (Tallmadge) was indicted on January 10, 1986 for knowingly receiving six rifles after being convicted in the State of California of a crime punishable by a term of imprisonment exceeding one year in violation of 18 U.S.C. Sec. 922(h)(1) (1982), and for knowingly receiving and possessing a rifle after having been convicted of a felony in the State of California in violation of 18 U.S.C.App. Sec. 1202(a)(1) (1982). Tallmadge was also accused, in separate counts, of making false statements likely to deceive a federally licensed gun dealer in the acquisition of each rifle in violation of 18 U.S.C. Sec. 922(a)(6) (1982).
The facts are not in dispute. The government's entire case was submitted to the district court on stipulated facts. Tallmadge stipulated he purchased and received the rifles described in the indictment on four separate dates in 1982. Tallmade also stipulated that prior to purchasing each rifle he answered "no" to question 8.b. on the U.S. Department of the Treasury's Firearms Transaction Record, which provides as follows:
Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?
The stipulation also provides that Tallmadge signed the Firearms Transaction Record and certified that his answer to question 8.b. was true and correct.
In addition, Tallmadge stipulated that on October 10, 1978 he was convicted in the Superior Court for the County of Los Angeles in the State of California of the crime of illegal possession of a machinegun in violation of Sec. 12220 of the California Penal Code, a crime punishable by a term of imprisonment exceeding one year. Cal. Penal Code Sec. 12220 (West Supp. 1987). The stipulation further alleges that Tallmadge was told by the state trial judge on the date of sentencing, February 6, 1979, that he had been convicted of a felony. The stipulation also provides that on January 26, 1982, the state court "expunged and reduced to a misdemeanor" the 1978 conviction. The parties further stipulated that in the same state court proceeding Tallmadge was informed by the court "that the expunction order did not release him of the obligation to disclose the prior conviction in response to a direct question or application for public office or licensure by any state or local agency."
Tallmadge and his trial attorney testified in support of the defendant's contention that as a matter of due process he could not be convicted of these federal charges because he was told by a federally licensed gun dealer that he could purchase a rifle because his state charges were reduced to a misdemeanor for all purposes. The district court found that their testimony was credible. Thus, in light of the stipulated facts, and the evidence offered by the defendant, the only issue before the trial court was the legal effect of the reduction of Tallmadge's state conviction to a misdemeanor in light of the federally licensed gun dealer's statement that he could lawfully purchase a long gun because the state trial judge had reduced the felony conviction to a misdemeanor. In order to review this narrow question, we must examine fully the facts surrounding the state court expunction proceedings and the representations made by the federally licensed gun dealer.
Tallmadge appeared for sentencing on February 6, 1979 following his conviction for possession of a machine gun. The state trial judge stayed the imposition of sentence and placed the defendant on probation for three years. At this hearing, the prosecutor made the following statement to the court in Tallmadge's presence in discussing the terms of probation:
I would like it explicitly made known to the defendant at this time as to the firearms that it refers to any kind of firearms, whether they be rifles, shotguns, handguns, ammunition, incendiary devices and explosives.
The state trial judge acquiesced. Later in the proceedings the state trial judge told Tallmadge that as a condition of his probation he could "not own, use or possess any dangerous or deadly weapons." (Emphasis added).
On January 4, 1982, Tallmadge requested that the Probation Officer of Los Angeles County recommend to the state trial court that it should dismiss the pending criminal proceedings against him pursuant to Cal. Penal Code section 1203.4 (West Supp.1987) because he had complied with all the conditions of probation. The Probation Office advised the state trial court that Tallmadge had complied with all conditions of probation and was "deserving of having his offense fixed as a misdemeanor." A probation termination hearing was held on January 26, 1982 before the same state trial judge who had originally suspended proceedings in the matter three years earlier.
The prosecutor argued that probation should be terminated but objected to the reduction of the offense to a misdemeanor. The trial judge observed that because Tallmadge's conduct while on probation was "exemplary" the court would "apply the maxim 'to err is human and to forgive is divine' " and reduce the offense to a misdemeanor under Cal. Penal Code Sec. 17 (West Supp.1987).
The state prosecutor then made the following comments:
One other thing, your Honor. May I address the Court? There is one other thing. According to the regulation in 1203.4, it says that the order of reduction shall state and the probationer shall be informed that the order does not relieve him of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office or for licensure by any state or local agency.
"Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his custody or control any firearm capable of being concealed upon the person or prevent his conviction under Section 12021."
The trial judge then asked Tallmadge if he understood. Tallmadge replied, "Yes, sir." Thereafter, the state trial judge signed an order reducing the offense to a misdemeanor pursuant to Cal. Penal Code Sec. 17 and terminating probation pursuant to Cal. Penal Code Sec. 1203.4. In addition, the state trial court ordered that Tallmadge's conviction be set aside, that a plea of not guilty be entered, and that case was dismissed pursuant to Cal. Penal Code Sec. 1203.4.
It is clear from the reporter's transcript of these state court proceedings that Tallmadge was ordered by the court not to carry any firearm while on probation. The record also discloses that three years later Tallmadge was told by the court, at the suggestion of the prosecutor, that he could not carry a concealable firearm under California law, notwithstanding the termination of his probation and the dismissal of the state charges. No statement was made to the defendant concerning his right to carry a nonconcealable weapon under federal law. It is also noteworthy that the state trial judge did not explain to Tallmadge the legal effect of the reduction of the charge of possession of a machine gun to a misdemeanor "for all purposes" under Cal. Penal Code Sec. 17(b)(3).
After his probation was terminated, Tallmadge's attorney told him there was no problem owning a nonconcealable gun.
At the commencement of the bench trial before the district court, the trial judge advised counsel that he read the stipulated facts and the attached exhibits containing the relevant proceedings before the state trial judge regarding Tallmadge's conviction for illegal possession of a machine gun under California law. The district court then inquired of defense counsel, Charles Weedman, "What is your defense?" Mr. Weedman advised the court that his client would testify
that he believed that when the felony--the underlying felony was reduced to a misdemeanor that thereafter the judge could no longer impose a sentence greater than one year, and, therefore, for him to purchase at least a long gun would be permissible under federal law.
The trial judge then inquired, "You are satisfied that his state of mind as you described it would be a defense, is that what you are saying."
Mr. Weedman replied as follows:
Well, I am seeking to offer that evidence for whatever constitutional attack may be appropriate in this case.
I think that the form [Firearms Transaction Record] is misleading. I think it is constitutionally defective in that respect. Ignorance of the law is no excuse, and such testimony offered for that purpose, I imagine your Honor would not permit. But I think his reading of it in that fashion at least lays the foundation for a constitutional due process attack.
The district court then requested the government to state its position. The prosecutor replied that Tallmadge's state of mind was not a defense.
After the foregoing colloquy concerning Mr. Weedman's offer of proof, the government...
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