U.S. v. Tankersley
| Decision Date | 05 June 2003 |
| Docket Number | No. 4:03CR3000.,4:03CR3000. |
| Citation | 269 F.Supp.2d 1178 |
| Parties | UNITED STATES of America, Plaintiff, v. Amanda K. TANKERSLEY, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Alan L. Everett, Assistant United States Attorney, Lincoln, NE, for Plaintiff.
John C. Vanderslice, Federal Public Defender's Office-Lincoln, Lincoln, NE, for Defendant.
This matter is before the court on the Magistrate Judge's report and recommendation (filing 24), and on Defendant's objections thereto (filing 30).
Pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, I have conducted a de novo review of the report and recommendation, and I find that it should be adopted. Inasmuch as Magistrate Judge Piester has fully, carefully and correctly found the facts and applied the law, I need only state that Defendant's motion to dismiss (filing 14) should be denied. Accordingly,
IT IS ORDERED that:
1) The Magistrate Judge's report and recommendation (filing 24) is adopted;
2) Defendant's objections to the report and recommendation(filing 30) are denied; and
3) Defendant's motion to dismiss (filing 14) is denied in all respects.
The defendant has filed a Motion to Dismiss the indictment against her for felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and 924(a)(2). See filing 14. Defendant claims her criminal record does not include any prior conviction, and the indictment against her must therefore be dismissed. The offense of felon in possession of a firearm requires the government to prove: 1) the defendant was previously convicted of a crime punishable by imprisonment exceeding one year; 2) she knowingly possessed a firearm; and 3) the firearm must have been in or affected interstate commerce. United States v. Sianis, 275 F.3d 731, 733 (8th Cir.2002); United States v. Lapsley, 263 F.3d 839 (8th Cir.2001).
Defendant's motion to dismiss the indictment is limited to challenging the first element of the government's case: the existence of a prior conviction. Defendant argues that although she pleaded guilty to a California felony burglary charge in 1998, her sentencing was suspended and she was placed on formal probation for three years. She argues that under United States v. Stallings, 301 F.3d 919 (8th Cir.2002), and absent any imposition of sentence by the California court, no judgment of conviction was entered for that crime. She claims the 1998 California criminal record does not evidence a prior conviction sufficient to support the charge of felon in possession of a firearm.
By stipulation of the parties, defendant's motion to dismiss is submitted solely on California court records related to the 1998 California burglary charges against the defendant. Filing 19, and attached exhibit 101. On April 11, 2003, after this stipulated evidence was filed, the parties were given five days to inform the court of any additional evidence they wanted to offer on the motion to dismiss. Filing 21. On April 18, 2003, defendant advised the court that she has no further evidence to offer, and the government filed a reply brief but did not request an evidentiary hearing or offer additional evidence in opposition to defendant's motion. Filing 22. The motion to dismiss is fully submitted.
On May 1, 1998, the defendant was charged with committing the crime of First Degree Residential Burglary in violation of California Penal Code § 462(a). Filing 19, exhibit 101 at p. 1-3. This crime is considered a serious felony under California Penal Code § 1192.7(c). On June 25, 1998, defendant waived her constitutional right to a trial and pleaded guilty as part of a plea bargain. Filing 19, exhibit 101 at p. 4-5. After assuring that defendant was aware of and chose to waive her right to a jury trial, this guilty plea was accepted by the court. Filing 19, exhibit 101, plea transcript at 3:4-5:11.
Under the terms of the plea bargain, the defendant was placed on three years of formal probation with the court to determine, following further pre-sentence investigation, whether the defendant should also be imprisoned for up to one year. Filing 19, exhibit 101, plea transcript at 2:17-28. The probation and sentencing hearing was set for July 23, 1998, and defendant was warned that a failure to appear could result in a six-year jail sentence. Filing 19, exhibit 101, plea transcript at 5:16-6:1.
On July 23, 1998 the court suspended imposing a sentence, placed defendant on three years of formal probation, and ordered her to complete 500 hours of community service, pay restitution, and pay a fine. She was ordered to re-appear before the court on July 30,1999. Filing 19, exhibit 101, at p. 28; sentencing transcript at 4:21-6:26.
Defendant's counsel was present, but the defendant failed to appear before the court on July 30, 1999. Her probation was continued under the same terms and conditions, and defendant was ordered to appear on August 11, 1999. Filing 19, exhibit 101, at p. 31.1
On August 22, 2000 defendant's probation was preliminarily revoked and a bench warrant was issued for defendant to appear before the court on September 15, 2000 for a hearing to determine whether defendant had violated her probation. Filing 19, exhibit 101, at p. 32. Neither the defendant nor her counsel appeared at the September 15, 2000 hearing. At that hearing the court considered the evidence submitted by the probation office and entered an order revoking defendant's probation. Filing 19, exhibit 101, at p. 33.
On October 2, 2000 defendant appeared before the California court, admitted she had violated the terms of her probation, and requested a reinstatement of her probation and for leave to transfer her probation to Nebraska. The court found defendant had violated the terms of her probation, but reinstated probation under the previous terms and conditions. Filing 19, exhibit 101, at p. 34; transcript of probation reinstatement hearing at 5:9-28.
On May 9, 2001 a hearing was held to determine if defendant had violated her probation. The defendant did not appear, but the California court found she had not violated her probation. Filing 19, exhibit 101, at p. 36. On June 13, 2001 a hearing was held on defendant's possible probation violation and the probation department's request for early termination of defendant's probation. This request was denied and the defendant continued on probation. Filing 19, exhibit 101, at p. 37.
No further California court records have been submitted for consideration of defendant's motion to dismiss. Accordingly, defendant claims there is no evidence a judgment of conviction was ever entered against her under California law.
The parties have each argued that controlling Eighth Circuit supports their respective positions, the government claiming the Eighth Circuit opinions are in conflict and the defendant arguing that the opinions, and their outcomes, differ only with respect to which state's law was applied. However, the Eighth Circuit has never specifically discussed the issue presented in this case.
The determining factor on defendant's motion to dismiss, and the issue that must be addressed herein, is whether the California court's acceptance of defendant's guilty plea and its determination to place her on probation with a suspended sentence, is a conviction under California law for the purposes of prosecuting the crime of felon in possession of a firearm. For the reasons discussed herein, I find that defendant's guilty plea alone, without any judgment of conviction, is a conviction under California law for the purpose of a subsequent criminal prosecution where the existence of a prior felony conviction is an element of the case.
The framework for assessing the meaning of "prior felony conviction" for the purposes of enforcing a federal criminal statute requires initially determining whether state or federal law governs that definition in the context of the case presented and, after making that determination, analyzing the applicable law under the specific facts presented. United States v. Franklin, 250 F.3d 653, 665 (8th Cir.2001). In the context of criminal charges brought against the defendant pursuant to 18 U.S.C. § 922(g), both the federal and California statutory law, and thus application of them evidenced in appellate opinions, has been amended from time to time. Analyzing the law applicable to this case requires:
1. Recognizing that Supreme Court and Eighth Circuit choice-of-law jurisprudence for 18 U.S.C. § 922(g) charges brought prior to November 15, 19862 was effectively overruled by the 1986 congressional enactments set forth in 18 U.S.C. § 921(a)(20).3 Under § 921(a)(20), and as applied to this case, the definition of a conviction for the purposes of 18 U.S.C. § 922(g) is dependent on California law;
2. The 1986 choice-of-law amendment to 18 U.S.C. § 922(g) did not, however, overrule the general proposition that "when Congress enacts a statute [,] ... it does not intend to make its application dependent on state law," Taylor v. United States, 495 U.S. 575, 591[, 110 S.Ct. 2143, 109 L.Ed.2d 607] (1990) (quoting Dickerson v. New Banner Institute, Inc., 460 U.S. 103[, 119, 103 S.Ct. 986, 74 L.Ed.2d 845] (1983)). Accordingly, cases based on federal statutes other than 18 U.S.C. § 922(g) may not be applicable to this case; and,
3. When applying California law as specifically required by Congress' choice-of-law provision in 18 U.S.C. § 921(a)(20), the context of the case must be considered. Under California law a guilty plea alone may be a "conviction" for the purpose of pursuing criminal charges while a guilty plea and judgment are necessary for imposing civil penalties and disabilities based on a prior conviction. (See discussion at Boyll v. State Personnel Board 146 Cal.App.3d 1070, 1073,194 Cal.Rptr. 717 (1983)).
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