United States v. Fryer

• Decision Date: 31 October 1975
• Docket Number: Crim. No. 75-8.
• Citation: 402 F. Supp. 831
• Parties: UNITED STATES of America, Plaintiff, v. Glen Stewart FRYER, Defendant.
• Court: U.S. District Court — Northern District of Ohio

402 F. Supp. 831

UNITED STATES of America, Plaintiff, v. Glen Stewart FRYER, Defendant.

Crim. No. 75-8.

United States District Court, N. D. Ohio, W. D.

October 31, 1975.

James D. Jensen, Asst. U. S. Atty., N. D. Ohio W. Div., for plaintiff.

Walter L. White, Lima, Ohio, for defendant.

OPINION AND ORDER

DON J. YOUNG, District Judge:

This cause came to be heard upon the motions of the defendant to withdraw his plea of guilty pursuant to Rule 32(d), Fed.R.Cr.P. and to vacate and set aside his sentence pursuant to 28 U.S.C. § 2255. Defendant pled guilty to four counts of violating 18 U.S.C. § 922 (a)(6) and § 924(a).¹ It is evident that if the Government would have had to prove its case against the defendant, it would have had to prove as an essential element of each offense that the defendant had been previously convicted of a felony. In September of 1971, in the Eastern District of California, the defendant pled guilty to a violation of 18 U.S.C. § 545, smuggling goods into the United States, and was sentenced to three years probation. It appeared from a review of the records of that conviction that the defendant had been sentenced as an adult, and therefore, did have a prior felony conviction as required by 18 U.S.C. App. § 1202(a) and as would have been necessary for the Government's case under § 922(a)(6) and § 924(a). Since the time of the defendant's plea in this Court, however, it has come to be known by defendant's attorney that the defendant had, in fact, been adjudged a young adult offender by the trial court in California pursuant to 18 U.S.C. § 4209. Therefore, when the defendant was unconditionally discharged from his probation prior to the expiration of the maximum period of probation theretofore fixed by the court, his conviction should have been set aside automatically pursuant to 18 U.S.C. § 5021(b).² The California court, recognizing this, modified its judgment and order of probation of minute order to indicate that probation was granted under the provisions of 18 U.S.C. § 5010(a) and that an order of discharge from probation and a certificate of vacation of conviction were filed nunc pro tunc to June 22, 1973, thereby extending the full benefits of the Youth Corrections Act to the defendant. The question presented to this Court in these motions then is clear: Does the defendant's California conviction which has now been set aside as of June 23, 1973 (and thus substantially before the present charges arose) constitute a prior conviction for the purposes of the charges in this Court?

The issue presented appears to be one of first impression, the Court being unable to find a decision which has considered the exact problem. It will thus be necessary for the Court to interpret and construe the applicable statutes. The Court is aware that in dealing with problems of interpretation and application of federal statutes, it has no power to change deliberate choices of legislative policy. Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 82 S.Ct. 1328, 8 L. Ed.2d 440 (1962). Where the statutory language and the legislative history clearly indicate the purpose of Congress, that purpose must be upheld. Hudson Distributors v. Eli Lilly Co., 377 U.S. 386, 84 S.Ct. 1273, 12 L.Ed.2d 394 (1964). Of course, in giving construction to more than one statute, the Court should, as far as possible, construe them in harmony with each other so as to avoid conflict and to give full force and effect to each. R. V. McGinnis Theatre and Pay T. V. v. Video Independent Theatre Inc., 262 F.Supp. 607 (D.Okl.), aff'd, 386 F.2d 592 (10th Cir. 1967), cert. denied 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163 (1968).

The legislative history of 18 U.S.C. App. § 1202(a) was thoroughly discussed by the Sixth Circuit Court of Appeals in Stevens v. United States, 440 F.2d 144 (6th Cir. 1971). The Sixth Circuit, while concerned with problems other than those facing this Court, appended to its opinion the entire legislative history of § 1202(a) as it appeared in the Congressional Record, 114 Cong. Rec. 13,868 (1968). § 1202(a) was an amendment to the Omnibus Crime Control and Safe Streets Act of 1968. It thus received no committee study. There was, however, substantial discussion of the amendment on the floor of the Senate. It is evident from that debate, and especially from the comments of Senator Long, the amendment's sponsor, that the only situation envisioned in which a convicted felon would be permitted to possess firearms subsequent to his conviction is one where he was granted a presidential or gubernatorial pardon and such pardon expressly conferred the right to bear arms. Senator Long stated:

It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, unless — as this bill sets forth — he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them. Stevens, supra, at 147.

Later in the debate Senator Long added:

In large part, Title VII is based on the legal theory that every dog is entitled to one bite. . . . So, under Title VII every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny (him) . . . the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and has been expressly authorized by his pardon to possess a firearm. Id. at 161.

It is clear from Senator Long's comments that the bill was aimed at those who "have demonstrated that they cannot be trusted to possess a firearm — those whose prior acts — mostly voluntary — have placed them outside of our society." Id. at 162. Finally, in support of the bill, the Senator from Louisiana argued that when a man is convicted of a felony, he can be denied certain rights that he would otherwise be entitled to possess including the right to bear firearms. Id. at 163.

It is argued by the Government that if Congress had intended to exclude from the application of this section those young adults convicted of a felony and sentenced under the Youth Corrections Act, whose convictions were ultimately set aside, it would have done so expressly. The fact that only those granted a very specific presidential or gubernatorial pardon are excluded means that all other convicted felons are included. Expressio unius est exclusio alterius.

This Court is of the opinion that the Government's argument has merit if the provisions of § 5021 are in the nature of a presidential pardon. A pardon is an exceptional and specific act of grace usually granted by executive power. It "remits punishment and removes some disabilities but does not erase the legal event determinative of the offender's status qua offender, i.e., the conviction itself." A. R. Grough, "Expungement of Records," 1966 Wash.U.L.Q. 147 (1966). Case law supports this definition. See, Morera v. United States Immigration & Naturalization Service, 462 F.2d 1030 (1st Cir. 1972); Tatum v. United States, 114 U.S.App.D.C. 49, 310 F.2d 854 (1962). The Supreme Court of the United States in Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914) held that the fact that a convicted felon had been granted a presidential pardon did not preclude the State of New York from considering the prior conviction in sentencing the defendant under a New York second offense statute. By way of dicta, the Supreme Court also stated that a federal court could consider a pardoned crime in sentencing someone on a subsequent offense. Carlesi, supra at 59, 34 S.Ct. 576. It seems clear then that if the rights granted a youthful offender under § 5021 are no greater than those bestowed on one who receives a pardon, he would be considered to have a prior felony conviction for the purposes of 18 U. S.C. § 1202(a).

What, however, if § 5021 is construed as an expungement statute? Expungement is a legislative provision, as opposed to executive, for the "eradication of a record of conviction or adjudication upon the fulfillment of prescribed conditions . . . . It is not simply the lifting of disabilities attendant upon conviction and a restoration of civil rights, though this is a significant part of its effect. It is rather a redefinition of status, a process of erasing the legal event of conviction or adjudication and thereby restoring to the regenerative offender his status quo ante." A. R. Grough, "Expungement of Adjudication Records," supra at 149. If the effect of § 5021 is to eliminate the youth's status as a convicted felon and to restore to him the position he held before the commission of the crime, then it seems clear that he would not fall within the ambit of § 1202(a) since the prior conviction and all its pendent liabilities have been removed. To give such a statute full force and effect, the event expunged must be treated as if it never occurred.

The authorities which have treated the effect of § 5021 on the youthful offender's record are divided on the issue of whether it is, in fact, an expungement statute. The Morera case cited above concerned an alien whom the Government was trying to deport on the basis of a prior felony conviction which had been set aside under § 5021. The court there found that the clear purpose for the automatic setting aside of the conviction is to relieve the youthful offender not only of the usual disabilities of a criminal conviction but also to give him a second chance free of a record tainted by such convictions. Morera, supra at 1032. The Morera Court was not willing to conclude that Congress, without explicitly so stating, would intend § 5021 to provide for the setting aside of a conviction for some purposes but not for others. Id.

Section 5021 clearly contemplates more than a "technical erasure;" it expresses a Congressional concern, . . . that

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