US v. Bagley
| Decision Date | 11 May 1987 |
| Docket Number | No. C84 882M (CR79 108M).,C84 882M (CR79 108M). |
| Citation | 659 F. Supp. 223 |
| Parties | UNITED STATES of America, Plaintiff, v. Hughes Anderson BAGLEY, Defendant. |
| Court | U.S. District Court — Western District of Washington |
Mark Bartlett, Asst. U.S. Atty., Seattle, Wash., for plaintiff.
Thomas Hillier, Public Defender, Seattle, Wash., for defendant.
ORDER REJECTING IN PART REPORT AND RECOMMENDATION AND DENYING MOTION TO VACATE SENTENCE
INTRODUCTION
Hughes Anderson Bagley's motion to vacate sentence, filed pursuant to 28 U.S.C. § 2255, is before the Court on a report and recommendation from the Magistrate. The issue presented is whether Bagley's constitutionally flawed narcotics conviction, reversed on appeal, may constitute the predicate for firearms convictions under 18 U.S. C.Appx. § 1202(a) and 18 U.S.C. § 922(h) under the law at the time of the firearms convictions. While the Court adopts those portions of the Magistrate's Report and Recommendation concerning the factual and procedural background and Bagley's challenges to convictions, as well as the recommendation concerning the conviction under 18 U.S.C. § 922(a)(1), the Court rejects those portions of the Report setting forth the effect of reversal of the predicate conviction and the Magistrate's recommendation that Bagley's firearms convictions under 18 U.S.C.Appx. § 1202(a) and 18 U.S.C. § 922(h) be vacated. Accordingly, the Court also rejects the Magistrate's recommendation that Bagley be released if he had already served a five-year maximum term under the Section 922(a)(1) conviction and to resentence him if not.
In a 1977 bench trial, Bagley was convicted of narcotics violations under cause number CR77-330V. On May 12, 1982, after a hearing, Judge Voorhees denied Bagley's Section 2255 motion challenging his narcotics conviction for failure of the Government to reveal witnesses' receipt of money pursuant to forms entitled "Contract for Purchase of Information and Payment of Lump Sum Therefor." The District Judge concluded that even if he had known of those contracts, he nonetheless would not have changed his decision, it being probable that the witnesses received compensation for their assistance "though perhaps not for their testimony."
On November 10, 1983, the Ninth Circuit reversed Judge Voorhees' decision stating that the Government's failure to provide requested information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), restricted Bagley's right to cross-examine and required automatic reversal. Bagley v. Lumpkin, 719 F.2d 1462 (9th Cir.1983).
On July 2, 1985, the United States Supreme Court reversed and remanded the case to the Ninth Circuit "for a determination whether there is a reasonable probability that, had the inducement offered by the Government to O'Connor and Mitchell been disclosed to the defense, the result of the trial would have been different." United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3385, 87 L.Ed.2d 481 (1985).
On September 2, 1986, the Ninth Circuit, 798 F.2d 1297, announced that it must make the determination ordered on remand pursuant to an objective standard rather than a subjective one — as Judge Voorhees, the trier of fact himself did — and concluded that the Government interfered with Bagley's right to a fair trial and that its Brady error undermined confidence in the outcome of the trial and required reversal of his conviction.
The current Section 2255 challenge to Bagley's conviction of firearms violations was filed July 5, 1984 but action on those claims was deferred until this time pending resolution in the appellate courts of his challenge to the narcotics conviction outlined above.
The Magistrate's Report and Recommendation concluded that Bagley's 1979 firearms conviction must be vacated because the 1977 narcotics conviction was reversed on constitutional grounds. The Report reasoned that while a 1980 U.S. Supreme Court opinion held that a firearms conviction will stand although the predicate felony may be subject to collateral attack on constitutional grounds, Bagley's firearms conviction must be vacated because the 1980 opinion constituted a reversal of the law in the Ninth Circuit at the time of the firearms transactions (between August 1978 to March 1979).
The following chronological analysis of the applicable Ninth Circuit law demonstrates that Ninth Circuit law in 1979 was harmonious with the 1980 Supreme Court decision, and that the perceived distinction between the two was based on a conclusion of law in a 1971 Ninth Circuit case in conflict with then extant Ninth Circuit and Supreme Court jurisprudence. Bagley's firearms convictions must not, therefore, be vacated.
Bagley's conviction in 1977 on 11 counts of narcotics violations constituted the predicate felony on which certain of the firearms charges were based. Firearms violations requiring a predicate felony are felon in possession of firearms (18 U.S.C.Appx. § 1202(a)) and felon in receipt of firearms (18 U.S.C. § 922(h)). Two counts of the former and three counts of the latter were charged in Cause No. CR79-108M.
Title 18 U.S.C.Appx. § 1202(a) provides:
Title 18 U.S.C. § 922(h) provides:
Id. at 20. The Court then refers to 18 U.S.C.Appx. § 1202(a)(1) and states:
Both the broad language of the statute and its legislative history impel us to the conclusion that Congress intended to subject to Section 1202(a)(1) all persons, not within the classes expressly exempted: (1) who have been convicted of a felony, and (2) whose convictions have not been invalidated as of the time the firearm is possessed. Congress did not intend to exempt from section 1202(a)(1) one whose status as a convicted felon changed after the date of possession, regardless of how that change of status occurred. (Cf. DePugh v. United States (8th Cir.1968) 393 F.2d 367.)
Id. The Court then recites the rationale underlying the Section 1202 firearms provision:
The Court then points to the similarity between the concern of Section 1202 and the Federal Firearms Act, 52 Stat. 1250, section 2(a) which prohibits anyone under indictment for a felony to transport a firearm across a state line. Concerning the Federal Firearms Act, the Court referred to a question similar to that in Liles that arose in DePugh where it was held that the status of being under indictment at the time of the transporting made the prohibitions of the Act applicable in spite of the fact that the indictment was later quashed. The Court noted that Section 1202 was no less sweeping than the Federal Firearms Act and speaks only of conviction of a felony; "it contains no requirement that the conviction be finally upheld on appeal." Liles, 432 F.2d at 20.
Finally the Court observes that Congress is clear in spelling out exemptions (18 U.S. C.Appx. § 1203), and that "subjecting a person to a penalty based on a status short of final conviction for a crime is not rare," id. at 21, citing, for example, bail forfeitures and actions for fleeing prosecution.
The predicate felony conviction of Liles was reversed in United States v. Duke, 423 F.2d 387 (5th Cir.1970) (Liles was Duke's co-defendant). It was this case that gave rise to the Liles case just discussed. It is important to review the basis for reversal in Duke because subsequent Ninth Circuit opinions concerning the validity of firearms convictions distinguished between constitutional and nonconstitutional reversals of the predicate felony conviction, and the basis for reversal in Duke was mischaracterized in one of those opinions.
At issue in Duke, was the question of the sufficiency of the evidence. The Court of Appeals was reviewing the motion for judgment of acquittal made at the close of all of the evidence. The Court stated the standard of review:
Upon such consideration, we must decide whether a reasonable-minded jury might fairly conclude guilt beyond a reasonable doubt, or, as otherwise stated in circumstantial evidence cases, whether the jury might reasonably deduce from the evidence inferences which exclude every reasonable hypothesis but that of guilt.
Id. at 389. The Court concluded:
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