United States v. Kozerski, Crim. No. 81-00023-01-D.

• Decision Date: 20 July 1981
• Docket Number: Crim. No. 81-00023-01-D.
• Parties: UNITED STATES of America v. Cazmis KOZERSKI.
• Court: U.S. District Court — District of New Hampshire

518 F. Supp. 1082

UNITED STATES of America v. Cazmis KOZERSKI.

Crim. No. 81-00023-01-D.

United States District Court, D. New Hampshire.

July 20, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Helen J. Forsyth, Esq., Asst. U.S. Atty., Concord, N. H., for plaintiff.

Cazmis Kozerski, pro se.

OPINION AND ORDERS

DEVINE, Chief Judge.

Pursuant to the Court's previous Order of June 24, 1981, a hearing on various pretrial motions filed by defendant was held on July 14, 1981.¹ The Court has reviewed the evidence, exhibits, legal memos, pleadings, and other documents on file, and now proceeds to resolution of the issues raised by said motions. For the purposes only of such decision, the factual background of the litigation appears to be as follows.

In May of 1969, defendant Kozerski was convicted in the state courts in Massachusetts for felony offenses committed in violation of the laws of that jurisdiction.² Following a period of confinement and parole, defendant was discharged, and in the summer of 1976 he was removed to Swanzey, New Hampshire, where, inter alia, he met Ralph Rines, the Chief of Police. Rines made inquiry of defendant as to whether he had a police record, and, upon receiving a negative answer, persuaded defendant to become a member of the Swanzey police force. Rines neither made nor caused to be made an independent record check of defendant's possible criminal record. Kozerski entered service as a Swanzey police officer in August of 1976, and on the 28th day of that month, he purchased from Bowers Remodeling Co., Inc., of Troy, New Hampshire, a federally-licensed firearms dealer, a certain caliber 38 Colt revolver. Subsequently, at a date unclear, defendant won in the course of a law enforcement officers' raffle a 38 caliber Smith & Wesson revolver.

On or about August 1, 1980, the Cheshire County Sheriff's Department received a complaint to the effect that defendant had been involved in actions which if proven would constitute a felony under New Hampshire laws.³ In the course thereof a record check run with the assistance of the New Hampshire State Police revealed defendant's previous felony record in Massachusetts. Accordingly, on August 6, 1980, Sheriff Lysitt telephoned Chief Rines at the latter's place of employment and requested that he contact defendant and that both of them attend a meeting that evening in the Sheriff's office. When defendant arrived at the Sheriff's office at approximately 7:30 p. m. on August 6, 1980, Lysitt made inquiry as to his identity, and then read to him his Miranda warnings. Defendant acknowledged his understanding of these rights, claiming he was familiar with them from his duties as a police officer. Defendant executed a "Consent To Search", and was advised by the Sheriff that he was to be arrested for violation of the state law (N.H. RSA 159:3) prohibiting the possession of a firearm by a convicted felon. Chief Rines advised defendant that he was to be suspended from police duty until further notice, and Sheriff Lysitt advised him to remove the blue flashing lights and police radio from his vehicle. Lysitt also advised defendant that his firearms were to be confiscated and that $5,000 cash bail would be required for his court appearance.

Upon announcement of the amount of cash bail, defendant for the first time requested the opportunity to contact counsel, and then telephoned his attorney. The attorney shortly arrived, conferred privately with defendant for ten to fifteen minutes, and then conferred with Sheriff Lysitt and persuaded the latter to reduce the bail requirement to $5,000 personal recognizance.

Although advised of his client's execution of the Consent To Search, neither the attorney nor defendant gave any indication nor made any request of those present to withdraw such. The attorney having left, Lysitt, his deputy, and defendant proceeded to the latter's residence where defendant opened the door and admitted the two sheriffs to what appeared to be the living room. Defendant then went to another part of the residence and returned with the two firearms hereinabove described and gave them to the sheriffs.

Within two weeks of the August 1980 incidents above described, the Cheshire County Sheriff's Department made contact with the Alcohol, Tobacco & Firearms (ATF) Division of the federal government, which conducted a subsequent investigation.⁴ The state offenses with which defendant was charged resulted in dismissal by the Keene District Court in September 1980.

1. The Motion to Suppress

Defendant's initial argument is that his Massachusetts convictions were constitutionally invalid, primarily because he received ineffective assistance of counsel. This argument has previously been rejected following hearing (on January 23, 1970, and November 23, 1971, before the Massachusetts Superior Court, and appeal to the Massachusetts Appeals Court, Commonwealth v. Kozerski, 1 Mass.App. 106, 294 N.E.2d 460 1973, and the Massachusetts Supreme Judicial Court, Commonwealth v. Kozerski, 364 Mass. 833, 305 N.E.2d 830 1974). Under such circumstances, the defendant's current reliance on the selected portions of the trial record and appellate counsel's characterization of trial counsel as set forth in the brief filed in his behalf with the Supreme Judicial Court of Massachusetts (Defendant's Exhibit H) is misplaced.

More importantly, this constitutional avenue which defendant seeks to traverse is barricaded to him. In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the defendant was charged with the knowing receipt and possession of a firearm in violation of 18 U.S.C. App. § 1202(a)(1).⁵ Defendant urged that he had been without counsel when he entered his plea of guilty to the predicate conviction in state court, and this claim was rejected, the Supreme Court holding flatly

that § 1202(a)(1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds.

Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 921, 63 L.Ed.2d 198 (1980).

Additionally, the weight of, and what the Court considers to be the better-reasoned, authority is to the effect that 18 U.S.C. § 922(a)(6)⁶ is violated by a denial of conviction of a felony, even though the conviction is later claimed or shown to have been unconstitutional. United States v. Johnson, 612 F.2d 305, 306 (7th Cir.1980); United States v. Graves, 554 F.2d 65, 70-72, 75-76, 79-80 (3d Cir.1977) (en banc); United States v. Allen, 556 F.2d 720 (4th Cir. 1977); United States v. Ransom, 545 F.2d 481 (5th Cir.), cert. denied, 434 U.S. 908, 98 S.Ct. 310, 54 L.Ed.2d 196 (1977); Cassity v. United States, 521 F.2d 1320 (6th Cir.1975); United States v. Edwards, 568 F.2d 68 (8th Cir.1977).

Defendant's second contention is that his arrest on August 6, 1980, was illegal, and that accordingly all evidence procured as a result thereof, including the firearms, the form he executed in the course of purchase of one of such firearms, and all statements given to any law enforcement officers and identification obtained in the course of the initial investigation must be suppressed. This contention is similarly without legal merit. Here, as the Court finds and rules, the Sheriffs had discovered in the course of their investigation of the initial complaint that defendant was possessed of a Massachusetts felony record and, having been given his proper warnings, defendant discussed, although denying its validity, the fact of the conviction, and did admit that he had served time in a Massachusetts prison. More importantly, the defendant was possessed of considerable knowledge of the criminal process (see Defendant's Exhibit I).⁷

The original state criminal complaint filed against defendant concerned an incident on July 4, 1980, when he was observed to be wearing a firearm while engaged in the course of a criminal investigation with a State Police officer and with the complainant, Deputy Sheriff Simmons. Thus, on the evening of August 6, 1980, the Cheshire County Sheriff's Department before commencing any interrogation of defendant was aware that he had a felony conviction record and that he had been wearing a firearm in public despite such record. Plaintiff seeks to urge that, taken out of context, certain language in the recent New Hampshire Supreme Court decision of Kozerski v. Steere (No. 80-454, decided June 10, 1981), demonstrates that his arrest on August 6, 1980, was illegal, and therefore any evidence procured thereafter must be suppressed. At the outset, we point out that Kozerski v. Steere was a civil action wherein defendant, subsequent to dismissal of the State's criminal charges, sought renewal of his license to carry a firearm pursuant to the State statute, RSA 159. Fairly read, the language upon which defendant relies (contained on page 3 of the slip opinion, and hereinafter emphasized) does not serve the purpose which he urges. As relevant, the language is as follows:

We reject the plaintiff's argument that his prior felony conviction cannot be considered by the selectmen or the district court because it occurred outside of this State. The fact that the conviction was in another state does not prevent its use for otherwise proper purposes.

We also reject the plaintiff's attempt to invoke the exclusionary rule. The plaintiff was arrested and charged with being a convicted felon in possession of a firearm in violation of RSA 159:3 even though he was exempt as a police officer under RSA 159:5. The charges were dismissed in September 1980 by the district court. The plaintiff alleges that the information regarding his felony conviction came to the selectmen after his arrest under RSA 159:3. We fail to see how this brings into play the exclusionary rule, however, even assuming it applies to an administrative decision. The sheriff's department, obviously, obtained the information in question prior to the

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