U.S. v. Woods, 82-1683

• Decision Date: 27 December 1982
• Docket Number: No. 82-1683,82-1683
• Citation: 696 F.2d 566
• Parties: UNITED STATES of America, Appellee, v. George Edward WOODS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 566

696 F.2d 566

UNITED STATES of America, Appellee, v. George Edward WOODS, Appellant.

No. 82-1683.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 15, 1982.

Decided Dec. 27, 1982.

Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., Henry J. Fredericks, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Milton W. Schaeffer, Richmond Heights, Mo., for appellant.

Before BRIGHT and ARNOLD, Circuit Judges, and HUNTER, ^* Senior District Judge.

ELMO B. HUNTER, Senior District Judge.

George Edward Woods appeals his conviction under section 1202(a)(1), Title 18 (Appendix), United States Code, for knowingly possessing, in commerce or affecting commerce, a firearm, having been convicted previously of a felony. Appellant was found guilty by a jury in the District Court for the Eastern District of Missouri. ¹

On appeal, Woods argues (1) that he was not a "convicted" felon within the meaning of the statute, (2) that the trial court erred in the exercise of its judicial functions by showing undue emphasis against the defendant and his presentation of his defense, (3) that the court erred in permitting undue emphasis by the conduct of the United States Attorney during closing argument, and (4) that there was insufficient proof that the firearm was not in the state of Missouri prior to the effective date of the gun control act. ² For the reasons discussed below, we affirm the district court.

Background

On December 2, 1982, two St. Louis metropolitan policemen pulled behind an occupied parked vehicle. The officers exited the patrol car and approached the parked vehicle. As they approached, George Woods, sitting in the driver's seat, got out of the car. According to the officers' testimony, Woods reached into his jacket and stooped as he exited the car. The officers heard a metallic sound under the car and a revolver slid from underneath the car to within two inches of one of the officer's feet. Woods was charged with possession of the revolver.

On October 2, 1980, in the Circuit Court for the City of St. Louis, Woods had pled guilty to a charge of shooting into a dwelling, a felony in Missouri. At the time scheduled for sentencing, allocution was granted and the judge ordered imposition of sentence suspended, placing Woods on probation for five years. At the time of the federal trial for possession of the firearm, Woods had not been released from probation.

"Convicted" under the Statute

Section 1202(a)(1) of Title 18 (Appendix), United States Code, provides

Any person who ... has been convicted by a court of the United States or of any state or any political subdivision thereof of a felony, ... and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

Woods argues that because imposition of sentence was suspended in his earlier case, he had not been "convicted" of a felony and is not, therefore, subject to the statute.

In federal firearms cases, the Circuits have differed over whether the federal court must apply the state law to determine whether the state proceedings constitute a conviction when the predicate conviction was in state court. In United States v. Stober, 604 F.2d 1274, 1276 (10th Cir.1979), and United States v. Parker, 604 F.2d 1327, 1329 (10th Cir.1979), the Tenth Circuit Court of Appeals held that the state determination on whether the proceedings in its court constitute a conviction was to be followed by the federal courts. The First Circuit, however, has indicated that it did not believe "Congress intended the meaning of convicted to depend upon the local law's singularities, if any." United States v. Samson, 533 F.2d 721, 723 (1st Cir.), cert. denied, 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed.2d 116 (1976), The Ninth Circuit has stated that whether a person was convicted for the purposes of section 922(h), title 18, (a related statute to section 1202) is a question of federal, and not state, law. United States v. Benson, 605 F.2d 1093, 1094 (9th Cir.1979). In United States v. Padia, 584 F.2d 85 (5th Cir.1978), the Fifth Circuit held that state action of setting aside a guilty verdict and expunging a conviction following successful completion of a probation term, did not alter the defendant's status as a convicted felon under federal laws.

We agree with those circuits which have held that federal law determines whether a person is a convicted felon for the purposes of federal firearms statutes and the state law interpretation is not binding on the federal courts.

Under either Missouri or federal law, however, the proceedings before the circuit court of St. Louis constituted a conviction for the purposes of section 1202.

Missouri courts have consistently held that a guilty plea constitutes a conviction of the highest order and authorizes immediate sentencing. State v. Hamilton, 337 Mo. 460, 85 S.W.2d 35, 37 (1935), Dusenberg v. Rudolph, 325 Mo. 881, 30 S.W.2d 94, 96 (1930); State v. Begley, 534 S.W.2d 632, 635 (Mo.App.1967); Miller v. State, 498 S.W.2d 79, 82 (Mo.App.1973). See also, United States v. Rosenstengel, 323 F.Supp. 499, 502 (E.D.Mo.1971).

Woods cites several cases which he asserts demonstrate that the Missouri courts do not consider a proceeding a "conviction" until sentence is imposed. ³ The cases Woods cites are not applicable, however, to the situation before us. In State v. Gordon, 344 S.W.2d 69 (Mo.1961), and State v. Crate, 493 S.W.2d 1 (Mo.App., St.L.Dist.1973), the courts were dealing with the Second Offender Act, then Sec. 556.280, Revised Statutes of Missouri. That statute provided, "if any person convicted of any offense punishable by imprisonment in the penitentiary ... shall be sentenced ... he shall be tried and if convicted" the sentencing was to proceed under the provisions of the Act. (Emphasis added) Both Gordon and Crate state that there had to be a prior conviction and sentence. State v. Gordon, 344 S.W.2d at 70-71; State v. Crate, 493 S.W.2d 1, 2-3. ⁴ The Missouri courts have also indicated that for the purposes of impeaching a witness under Sec. 491.050, Revised Statutes of Missouri, a prior conviction could not be used unless the witness had been sentenced in connection with the prior conviction. State v. Frey, 459 S.W.2d 359, 362 (Mo.1970); State v. Crate, 493 S.W.2d 1, 3 (Mo.App., St.L.Dist.1973).

Because the general rule in Missouri is that a plea of guilty is a conviction and the exceptions to this rule outlined above are not applicable, we conclude that Missouri courts would find Woods was "convicted" within the meaning of the federal statute.

More importantly, the federal case law demonstrates that defendant was "convicted" within the meaning of Sec. 1202. The federal courts have clearly established that a voluntary plea of guilty is a conviction. ⁵ Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927); Ford v. United States, 418 F.2d 855, 859 (8th Cir.1969), Hall v. United States, 259 F.2d 430, 431 (8th Cir.1958).

Under federal cases, a conviction need not be final to subject a person to the restrictions of Sec. 1202 and a person can be prosecuted under the section even while appeal on his predicate conviction is pending. United States v. McGregor, 617 F.2d 348 (3rd Cir.1980) (upholding a conviction for possession of a firearm by a convicted felon despite fact that the predicate conviction was reversed after the firearms conviction); United States v. Locke, 542 F.2d 800 (9th Cir.1976), affirming 409 F.Supp. 600 (D.Idaho 1976) (Defendant plead guilty in the state court. Judgment was withheld and defendant was placed on probation. The district court stated,

A withheld judgment does not erase a conviction unless defendant satisfactorily completes the conditions of sentence imposed upon him .... The effect of continuing supervision over the defendant mitigates in favor of the conclusion that possession of a firearm during the probationary period, like possession during the pendency of appeal, possession under a suspended sentence, or possession while under indictment, is activity prior to dismissal of the guilty plea or prior to dismissal of the charges and is activity under the proscription of conviction. (409 F.Supp. at 604-05.)

United States v. Samson, 533 F.2d 721, 722 (1st Cir.), cert. denied 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed.2d 116 (1976); United States v. Wooten, 503 F.2d 65, 67 (4th Cir.1974); United States v. Liles, 432 F.2d 18, 20 (9th Cir.1970) (Section 1202 contains no requirement that the conviction be finally upheld on appeal). ⁶

The outcome has been the same under similar statutes requiring a conviction. For example, in United States v. Williams, 484 F.2d 428 (8th Cir.1973), defendant appealed from a conviction of making a false statement on an application to purchase a firearm. On the application, defendant had responded "no" when asked if he had ever been convicted of a crime punishable by imprisonment for a term exceeding one year. At the time of trial, but after the application, defendant's conviction was reversed on appeal. We said the statute did not require the conviction to be finally upheld on appeal and that the important factor was his status at the time of the application. In DePugh v. United States, 393 F.2d 367 (8th Cir.) cert. denied, 383 U.S. 832, 89 S.Ct. 101, 21 L.Ed.2d 102 (1968), this court was confronted with the question whether a defendant charged with unlawfully transporting a revolver in interstate commerce while under an indictment for a crime punishable by imprisonment for a term exceeding a year, could be convicted if the predicate indictment was invalid. We stated, "Common sense, however, dictates that federal law enforcement should not hinge on the outcome of the state charge, whether by acquittal, nolle prosequi or...