United States v. George Calvin Lewis, Jr.

DONALD RUSSELL, Circuit Judge:

This appeal presents for decision whether a defendant, charged as a convicted felon with the possession of a firearm in violation of § 1202(a)(1), 18 U.S.C. App., may defend by claiming for the first time that his felony conviction was constitutionally invalid. The facts giving rise to this question in this case are not in dispute. The defendant does not deny on this appeal the receipt and possession of a firearm. Neither does he dispute his earlier conviction in Florida or that such conviction is facially valid. It is further conceded that prior to his receipt and possession of the firearm and prior to his trial in this case, he had not collaterally attacked in any post-conviction proceeding this extant conviction. He does claim as his sole defense, though, that his felony conviction was invalid because he was denied the assistance of counsel, and he sought to offer evidence in support of such claim. The district court refused to admit any such evidence and held that, in a prosecution under § 1202(a)(1), the defendant may not defend by seeking at trial to impeach on constitutional grounds his earlier felony conviction. After conviction, he appealed, contending that this ruling, denying him the right to attack collaterally his earlier felony conviction in his § 1202(a)(1) prosecution was in error. We perceive no error in the ruling and affirm the conviction.

The Gun Control Act, an integral part of the Omnibus Crime Control and Safe Streets Act of 1968,¹ was intended to bar certain classes of persons from possessing or receiving firearms and to limit possession of firearms to “persons who are responsible and law-abiding.”² The right of Congress, in the interest of public safety, to enact such legislation and to establish the classifications of persons who might not possess firearms has never been questioned. United States v. Samson (1st Cir. 1976) 533 F.2d 721, 722, cert. denied 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed.2d 116. Congress has identified in that Act as a class not permitted to possess or receive firearms “[a]ny person who — (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony.” § 1202(a)(1). What Congress intended by this section, as the legislative history as well as the statutory language itself makes clear, is that any person within this status class of a convicted felon, whose conviction was not facially invalid and whose conviction had “not been invalidated as of the time the firearm is possessed”, is subject to the statutory prohibition stated in § 1202(a)(1), and this is true though his “status as a convicted felon changed after the date of possession, Regardless of how that change of status occurred.” (Italics added) This was the construction given the statute by Judge Hufstedler in the earliest case to consider the application of § 1202(a)(1). United States v. Liles (9th Cir. 1970) 432 F.2d 18, 20.³

In Liles, the defendant’s conviction under § 1202(a)(1) was affirmed “notwithstanding the fact that the prior conviction, which was an essential element of the firearms conviction, was reversed one day before he was convicted of the firearms offense. It was there held that Liles’ possession of the revolver was unlawful for one of his status at the time he possessed it. It was not made lawful by the subsequent reversal of his prior felony conviction.”⁴ The rule in Liles would seem to be applicable, whatever the basis on which the felony conviction may subsequently have been reversed or invalidated. This would include subsequent invalidation for constitutional error in the conviction.

We apprehend no legal difference between a subsequent reversal for a denial of a constitutional right and one based on some other error; both are equally invalid. It must be conceded, however, that the equities are more in favor of the defendant whose felony conviction is subsequently reversed on appeal for insufficiency of evidence than one whose conviction is reversed for failure to afford counsel to the defendant.⁵ In the former case, the defendant is acquitted and found never to have been guilty; in the latter, the conviction is merely reversed and the defendant is subject to retrial and possible conviction anew. Unquestionably, the defendant in the latter case, who has not been found guilty, should have no greater right than the defendant in the former case, who was adjudged not guilty. That is, though precisely the position of the appellant.

This position of the appellant is contrary to the manifest legislative purpose of § 1202(a)(1) and related legislation, as we declared it in United States v. Allen (4th Cir. 1977) 556 F.2d 720. In that case, we said that by its firearms legislation “Congress intended to restrict the disposition of firearms to those with standing felony convictions even though the convictions may later be found constitutionally invalid.”⁶ This construction of the legislation as stated in Allen was also expressed by the Court in United States v. Graves (3d Cir. 1977) 554 F.2d 65, 69, a case cited with approval in Allen. In that case, the Court said:

“These materials (i. e., ‘(a) the language of the statutes, (b) the legislative history, and (c) the opinions of other courts which have endeavored to interpret the statutes’) suggest that the legislative draftsmen desired persons with extant, though arguably unconstitutional, convictions to forbear from the purchase and possession of firearms until their convictions are voided by the courts or until they are freed from such disability by executive action. Failure to so refrain was intended to subject such persons to the penalties specified in the Act.”

Assuredly Congress never intended that prosecutions under this legislation should be encumbered with collateral issues attacking the validity of a facially valid conviction, either because, as in Williams, the conviction had subsequently been reversed on account of insufficiency of evidence, or, as here, because of a constitutional claim of denial of counsel. So much we declared in Allen, where we said that “[t]he scheme [of prosecution under the legislation] adopted by Congress avoids the time-consuming collateral issues.”⁷ This view as set forth in Allen was recently upheld in United States v. Maggard (6th Cir. 1978) 573 F.2d 926. In that case, the Court said that “the legislative history of § 1202 indicates that Congress intended to make the proof of the fact of a prior felony conviction the sole predicate for the prohibition against possession of a weapon” and neither “Congress [nor] the Supreme Court has required or suggested that a court to which a § 1202 indictment is assigned for trial must routinely retry the constitutional validity of the predicate offense.” ⁸

The appellant argues that, irrespective of legislative, purpose, a conviction under § 1202(a)(1), which includes as an essential element a felony conviction, cannot stand if it can be shown in the 1202 prosecution that the defendant’s constitutional right to counsel was denied at his felony conviction. This, he asserts, is the command of Burgett v. Texas (1967) 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, which, in his view, makes the felony conviction “void from the outset” and not usable “for any purpose.” This argument, if sustained, would mean that the Government, at any time a defendant chooses to raise the issue, would be obligated to prove in a firearms prosecution that the underlying felony conviction was free of constitutional error. Allen refused to read Burgett “so broadly” or to find, as the defendant would argue, “that a conviction in violation of Gideon is absolutely meaningless” in this context.⁹ We declared there that Congress had a right to prohibit a person subject to an extant felony conviction, “even though * * * obtained in violation of Gideon,” from possessing a firearm. We said:

“Although Burgett, Tucker and Loper establish that a conviction in violation of the right to counsel is too unreliable to show guilt or enhance punishment under a recidivist statute, to form the basis for a increased sentence, or to be used to impeach general credibility, they do not say that a conviction in violation of Gideon is absolutely meaningless. The reliability of an indictment as an indication of probable cause to believe that a certain person has committed a crime does not depend on the presence of defense counsel for those under investigation. * * (Citing cases) Nor does the absence of defense counsel or the lack of a waiver of the assistance of counsel render a prior felony conviction invalid or unreliable as an indication that the public interest requires that the convicted person’s access to firearms be restricted when the conviction has not been reversed or vacated and the defendant remains unpardoned. We think that Congress is entitled to rely on a prior standing conviction as proof that there is probable cause to believe the convicted person has been involved in criminal activity and should not be able to buy a gun without first showing that he is no threat to public safety, even though the conviction may have been obtained in violation of Gideon.”

Graves sounded the same warning and reached the same conclusion (554 F.2d at 83):

“As a final point, we recognize that to extend Burgett to prosecutions under the Gun Control Act might well create a new method of collateral attack, i. e., a reevaluation of the constitutionality of prior criminal proceedings within a trial of a weapons offense. To obtain a firearms conviction, under the approach pressed by Graves, the government would have to demonstrate the constitutional validity of outstanding convictions — at whenever a defendant so insists. Yet, there is no evidence that Congress intended this type of procedure — a ‘trial-within-a-trial’— when it enacted the firearms legislation. Nor is there anything in Burgett or its descendants to indicate that the Supreme Court commanded such an arrangement. Consequently, this Court should not sanction a program which appears to be at variance with the intent of Congress and goes a substantial step beyond the teachings of Burgett.”

We recognize that there are cases which take a contrary view to that expressed by us.¹⁰ We do not find them persuasive nor do they answer the thoughtful opinion of Chief Judge Haynsworth in Allen, and the substantial number of cases which have taken a like view with him.¹¹ We accordingly conclude that Congress had the constitutional power, in the promotion of public safety to prohibit under criminal penalties any person subject to an outstanding facially valid felony conviction, which, though arguably constitutionally invalid, had not been earlier invalidated, from possessing and receiving firearms and that it did so by § 1202(a)(1).

The conviction of the defendant is accordingly

AFFIRMED.

1 . The Omnibus Crime Control and Safe Streets Act of 1968 consists of two Titles relating to the possession of firearms. § 922 is a part of Title IV and § 1202 is a part of Title VII. Title IV was the original firearm section but Title VII was added during Senate consideration of the Act and was intended, according to its author, to complement Title IV. There is of course considerable overlap of the two Titles but each was seeking to deal with the same evil under similar prohibitory procedures. For a discussion of the legislative history of the two Titles, see United States v. Bass (1971) 404 U.S. 336, 341-346, 92 S.Ct. 515, 30 L.Ed.2d 488 and Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977, 979, note 3.

2 . Barker v. United States (10th Cir. 1978) 579 F.2d 1219, 1226.

3 . In McHenry v. People of State of California (9th Cir. 1971) 447 F.2d 470 at 471-472, an entirely different panel of this Circuit sought, over a strong dissent to restrict Liles to the situation where “the prior felony conviction was reversed because of insufficient evidence” and not where it was reversed for some constitutional defect. 447 F.2d at 471. For reasons later stated herein, it appears to us that one whose conviction is invalidated for want of evidence stands in a stronger position than one whose conviction is reversed and remanded for another trial because of a constitutional defect. We agree with the comment of the dissenting judge in McHenry, who wrote (447 F.2d at 472):

“After oral argument, we invited supplemental briefs and a discussion of Liles. The parties have been unable to distinguish it from the case before us, nor can I.”

4 . (Italics in opinion) This summarization of the ruling in Liles is taken from Barker, supra (579 F.2d at 1226).

Liles was followed in United States v. Williams (8th Cir. 1973) 484 F.2d 428, 430, even though the conviction in that case had been dismissed.

5 . See, United States v. Williams, supra, 484 F.2d at 430.

6 . (Italics added.) 556 F.2d at 722.

7 . 556 F.2d at 723.

Allen, it is true, involved a false statement prosecution under § 922(a)(6) and not a status prosecution such as here but the quoted reasoning is equally applicable to either type of prosecution and has been generally so construed. See, United States v. Bryant (D.S.C.1978) 448 F.Supp. 139, 144.

8 . 573 F.2d at 928 and 929.

9 . 556 F.2d at 723.

10 . United States v. Pricepaul (9th Cir. 1976) 540 F.2d 417, 424, Dameron v. United States (5th Cir. 1974) 488 F.2d 724, 727, United States v. Lufman (7th Cir. 1972) 457 F.2d 165, 167, United States v. DuShane (2d Cir. 1970) 435 F.2d 187, 190, and United States v. Mason (D.Md.1975) 68 F.R.D. 619, 625.

11 . Barker v. United States (10th Cir. 1978) 579 F.2d 1219, 1226, United States v. Maggard (6th Cir. 1978) 573 F.2d 926, 928-929, United States v. Graves (3d Cir. 1977) 554 F.2d 65, 80-81, and United States v. Bryant (D.S.C.1978) 448 F.Supp. 139, 141.

The Eighth Circuit has reserved judgment on status type cases. United States v. Edwards (8th Cir. 1977) 568 F.2d 68, 72.