Jennings v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE L. JENNINGS; B.L. JENNINGS, 
INC.,
Plaintiffs-Appellants,
v. No. 05-16869
MICHAEL MUKASEY;* U.S.  D.C. No.
CV-03-00284-LRH
DEPARTMENT OF JUSTICE; BUREAU OF
ALCOHOL, TABACCO AND FIREARMS; OPINION
MARY B. LERCH, Director of
Industry Operations DOJ/BATF,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
October 16, 2007—San Francisco, California
Filed December 20, 2007
Before: Arthur L. Alarcón, David R. Thompson, and
Richard C. Tallman, Circuit Judges.
Opinion by Senior Judge Thompson
*Michael Mukasey is substituted for his predecessor, Alberto R. Gon-
zales, as Attorney General of the United States, pursuant to Fed. R. App.
P. 43(c)(2).
16567
JENNINGS v. MUKASEY 16569
COUNSEL
James C. Sabalos, Newport Beach, California, for the appel-
lants.
16570 JENNINGS v. MUKASEY
Greg Addington, Assistant United States Attorney, Reno,
Nevada, for the appellees.
OPINION
THOMPSON, Senior Circuit Judge:
The Bureau of Alcohol, Tobacco, and Firearms (“ATF”)
denied the petitioners-appellants Bruce L. Jennings’
(“Jennings”) and B.L. Jennings, Inc.’s (“B.L. Jennings”)
application for renewal of B.L. Jennings’ federal firearms
license (“FFL”). The ATF denied the renewal application
because Jennings had been convicted in California of a misde-
meanor crime of domestic violence (“MCDV”); in addition,
Jennings had failed to disclose that conviction on the license
renewal questionnaire.
Jennings did not disclose his MCDV conviction because,
he argues, it was “expunged” by a 1999 expungement order
granted under California law. Jennings contends this “ex-
pungement” wiped out the conviction and the ATF was
thereby precluded from using it, or his failure to disclose it,
to deny the FFL renewal application. The district court dis-
agreed and upheld the ATF’s action.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm
the district court. The “expungement” provided under Califor-
nia law did not eliminate the MCDV conviction, and the ATF
properly relied on it to deny B.L. Jennings’ FFL renewal
application.
I. BACKGROUND
On or about April 9, 1985, Jennings was charged in San
Bernardino County, California with assault by means likely to
produce great bodily injury in violation of California Penal
JENNINGS v. MUKASEY 16571
Code section 245(a). The information alleged that Jennings
inflicted great bodily injury on his former wife. On October
17, 1985, as part of a plea agreement, Jennings pled nolo con-
tendere to a misdemeanor violation of California Penal Code
section 245(a), assault with force likely to produce great bod-
ily injury.1 Jennings was sentenced to 90 days in jail and 24
months supervised probation.
In 1996, Congress amended the Gun Control Act (“GCA”),
making it unlawful for any person convicted of an MCDV to
“ship or transport in interstate or foreign commerce, or pos-
sess in or affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.” 18 U.S.C.
§ 922(g)(9). The ATF is required to deny a federal firearm
license to anyone subject to the prohibitions of 18 U.S.C.
§ 922(g)(9), or to any company controlled by such a person.
18 U.S.C. § 923(d)(1)(B).
On or about April 1, 1998, B.L. Jennings filed a Renewal
of Firearms License application as a Dealer in Firearms Other
Than Destructive Devices. As part of the application, Jen-
nings, owner and president of B.L. Jennings, executed ATF
Form 8, Part II, “Renewal Questionnaire.” Question 11 asked:
Have you ever been convicted in any court of a[n]
[MCDV]? This includes any misdemeanor convic-
tion involving the use or attempted use of physical
force committed by a current or former spouse, par-
ent, or guardian of the victim or by a person with a
similar relationship with the victim.
Jennings checked “no” in response to this question. He signed
the questionnaire, certifying that the statements contained
therein were true and correct.
1
Under California law, a plea of nolo contendere is “the same as a plea
of guilty and upon a plea of nolo contendere, the court shall find the
defendant guilty.” Cal. Penal Code § 1016.
16572 JENNINGS v. MUKASEY
On June 23, 1999, ATF issued a Notice of Revocation of
License, ATF Form 4500, advising B.L. Jennings that ATF
was revoking its FFL because (1) Jennings, as a responsible
party for B.L. Jennings, was a person prohibited from pos-
sessing firearms under 18 U.S.C. § 922(g)(9); and (2) Jen-
nings falsely stated on an application to renew the FFL that
he had never been convicted of an MCDV.
On September 23, 1999, the Superior Court of California,
County of San Bernardino, issued an “Order Expunging Con-
viction Nunc Pro Tunc to October 18, 1987.” That order
granted Jennings relief under California Penal Code section
1203.4, replaced his nolo contendere plea with a “not guilty”
plea and dismissed the case against him. The California
court’s order, however, required Jennings “to disclose the fact
of this misdemeanor conviction in response to any direct
question contained in any questionnaire or application for
public office, for licensure by any state or local agency, or for
contracting with the California State lottery.”
On June 22, 2001, B.L. Jennings filed a Renewal of Fire-
arms License application, listing Bruce L. Jennings as sole
shareholder and manager of litigation for B.L. Jennings. An
administrative hearing was held, and on March 25, 2003, the
ATF issued a Final Notice of Denial of Application or Revo-
cation, revoking B.L. Jennings’ FFL. The ATF found that
Jennings, who was the responsible person for B.L. Jennings,
(1) was prohibited under 18 U.S.C. § 922(9)(g) from trans-
porting, shipping, receiving or possessing firearms, and (2)
violated 18 U.S.C. § 924(a)(1)(A) by responding falsely to
question 11 on the application to renew B.L. Jennings’ FFL.
Jennings then filed a petition with the district court for the
District of Nevada seeking to overturn the ATF’s decision. On
July 25, 2005, after de novo review, the district court affirmed
the ATF’s revocation of B.L. Jennings’ FFL, and this appeal
followed.
JENNINGS v. MUKASEY 16573
II. STANDARD OF REVIEW
Our review of a district court’s interpretation of the Gun
Control Act is de novo. United States v. Dahms, 938 F.2d
131, 133 (9th Cir. 1991). We review de novo whether a prior
conviction may be used as a predicate offense under that Act.
United States v. Laskie, 258 F.3d 1047, 1049 (9th Cir. 2001).
An agency’s interpretation or application of a statute is a
question of law reviewed de novo. Schneider v. Chertoff, 450
F.3d 944, 952 (9th Cir. 2006). In the context of a decision by
the ATF to revoke a firearms license, we “review freely ques-
tions of law.” Perri v. Dep’t of Treasury, 637 F.2d 1332, 1336
(9th Cir. 1981). Factual findings will not be disturbed unless
“clearly erroneous.” Id. at 1335.
In reviewing the district court’s decision, we may affirm on
any ground supported by the record. Smith v. Block, 784 F.2d
993, 996 n. 4 (9th Cir. 1986).
III. DISCUSSION
A. Expungement
[1] The parties do not dispute that Jennings had a previous
MCDV conviction. Persons who have had MCDV convictions
are prohibited by 18 U.S.C. § 922(g)(9) from, among other
things, transporting, shipping, possessing, or receiving fire-
arms. Persons so prohibited and the companies they have the
power to direct or control do not qualify for an FFL. 18
U.S.C. § 923(d)(1)(B).
[2] The parties disagree as to whether Jennings’ MCDV
conviction has been “expunged.” Jennings maintains his con-
viction was indeed “expunged” and, therefore, B.L. Jennings
is not prohibited from having an FFL. For purposes of 18
U.S.C. § 922(g)(9), a person shall not be considered to have
been convicted of an MCDV if
16574 JENNINGS v. MUKASEY
the conviction has been expunged or set aside, or is
an offense for which the person has been pardoned
or has had civil rights restored (if the law of the
applicable jurisdiction provides for the loss of civil
rights under such an offense) unless the pardon,
expungement, or restoration of civil rights expressly
provides that person may not ship, transport, possess,
or receive firearms.
18 U.S.C. § 921(a)(33)(B)(ii).
The government contends that Jennings did not receive an
“expungement” as that term is used in 18 U.S.C.
§ 921(a)(33)(B)(ii), regardless of whether or not he obtained
relief under California Penal Code section 1203.4 or section
1203.4a.
1. Section 1203.4
The September 23, 1999 State court “Order Expunging
[Jennings’ MCDV] Conviction Nunc Pro Tunc to October 18,
1987” states that “the petitioner is eligible for relief as pro-
vided in California Penal Code Section 1203.4.” Section
1203.4, however, does not provide the extent of relief Jen-
nings contends he received.
Although “a number of courts have used forms of the word
‘expunge’ to describe the relief” under section 1203.4, “the
statute does not in fact produce such a dramatic result.” Peo-
ple v. Frawley, 82 Cal. App. 4th 784, 790-91 (Cal. Ct. App.
2000) (citations omitted). In Frawley, the defendant sustained
a felony conviction in the early 1990s. That conviction was
dismissed under section 1203.4 in August 1997. In 1999,
Frawley was charged with, among other things, possession of
ammunition and a firearm by an ex-felon. Id. at 787. Frawley
moved to dismiss on the ground that his prior conviction had
been expunged under section 1203.4. The California Court of
Appeals rejected that argument:
JENNINGS v. MUKASEY 16575
Section 1203.4 does not, properly speaking, “ex-
punge” the prior conviction. The statute does not
purport to render the conviction a legal nullity.
Instead, it provides that, except as elsewhere stated,
the defendant is “released from all penalties and dis-
abilities resulting from the offense.” The limitations
on this relief are numerous and substantial, including
other statutes declaring that an order under 1203.4 is
ineffectual to avoid specified consequences of a
prior conviction. Furthermore, by the statute’s own
terms, an order under section 1203.4 “does not
relieve” the ex-offender of “the obligation to dis-
close the conviction in response to any direct ques-
tion contained in any questionnaire or application for
public office [or] for licensure by any state or local
agency . . . .” (§ 1203.4, subd. (a).)
Indeed, section 1203.4 contains a sweeping limita-
tion on the relief it offers, stating that “in any subse-
quent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and
proved and shall have the same effect as if probation
had not been granted or the accusation or informa-
tion dismissed.” This provision alone precludes any
notion that the term “expungement” accurately
describes the relief allowed by the statute.
Id. at 791-92 (citations omitted; alterations in original); see
also United States v. Hayden, 255 F.3d 768, 771 (9th Cir.
2001) (defining expunge as “ ‘to erase or [to] destroy,’ and an
‘expungement of record’ [as] ‘[t]he removal of a conviction
. . . from a person’s criminal record’ ” and holding California
Penal Code section 1203.4 does not meet definition of
expungement for purposes of Federal Sentencing Guidelines)
(first and third alterations in original) (quoting BLACK’S LAW
DICTIONARY 603 (7th ed. 1999)).
We analyzed the effect of section 1203.4 relief in the GCA
context in United States v. Andrino, 497 F.2d 1103 (9th Cir.
16576 JENNINGS v. MUKASEY
1974). There, Andrino had received section 1203.4 relief for
a felony conviction in California. Id. at 1106. After his section
1203.4 relief, Andrino bought firearms in Arizona and certi-
fied on Firearms Transaction Records that he had not been
convicted of any crime punishable by a term of imprisonment
exceeding one year. Thereafter, Andrino was charged with
making a false statement in connection with the purchase of
firearms. Id. at 1105.
[3] Andrino argued that he had been relieved from his prior
conviction under section 1203.4. Id. at 1106. After examining
California law and noting that California’s legislature had
amended section 1203.4 to provide that a dismissal under that
section did not permit a person to possess a firearm, we
rejected Andrino’s argument. Id. at 1107. We stated, “the Cal-
ifornia legislature, by specific enactment, has negated the very
theory under California law by which Andrino seeks to dem-
onstrate the absence” of his underlying conviction. Id.Accordingly, we held that Andrino remained convicted for
GCA purposes even though he had received relief under sec-
tion 1203.4. Id.; accord United States v. Tankersley, 269 F.
Supp. 2d 1178, 1188 (D. Neb. 2003) (stating that “even had
defendant sought and obtained a withdrawal of guilty plea and
a section 1203.4 dismissal of her 1998 burglary conviction,
the 1998 burglary remains a prior felony which may be
pleaded and proved” for purposes of 18 U.S.C. § 922(g)(1)).
[4] In the present case, as in Andrino, although Jennings
obtained relief under section 1203.4 by the 1999 State court
order, that relief did not expunge his conviction for purposes
of 18 U.S.C. § 922(g)(9).
2. Section 1203.4a
Despite the fact that the 1999 court order provides that sec-
tion 1203.4 was the basis for Jennings’ relief, Jennings con-
tends he actually received relief under section 1203.4a. As the
district court stated, however, “they have failed to present any
JENNINGS v. MUKASEY 16577
evidence that Petitioners sought relief under § 1203.4a as
opposed to § 1203.4(a).” Indeed, in the 1999 order, the Supe-
rior Court in San Bernardino county granted relief to Jennings
under subsection (a) of section 1203.4. For simplicity pur-
poses, we refer to section 1203.4 instead of its subsection
1203.4(a). Relief was not granted under section 1203.4a.
Nevertheless, during the pendency of this appeal, on
December 8, 2005, Jennings filed in the Superior Court of
California, County of San Bernardino, a “[Proposed] Notice
of Motion and Motion to Correct Typographical Error in
Order Expunging Conviction Nunc Pro Tunc to October 18,
1987.” Jennings also filed a supporting Memorandum of
Points and Authorities, his declaration, and a “[Proposed]
Corrected Order Expunging Conviction Nunc Pro Tunc to
October 18, 1987.” Jennings’ December 8, 2005 motion and
supporting documents claimed that the September 23, 1999
order granting Jennings’ request for relief under California
Penal Code section 1203.4 contained a “typographical error”
and that the 1999 order should have granted relief under sec-
tion 1203.4a. The San Bernardino County Superior Court
granted this request and issued an order in December 2005
that replaces references to section 1203.4 in the 1999 order
with references to section 1203.4a.
Jennings then moved this court, on or about December 29,
2005, to supplement the record in this appeal with the Decem-
ber 2005 State court order, take judicial notice of that order,
amend the briefing schedule, and allow him to file an
amended opening brief and supplemental excerpt of record.
The appellees filed their response on January 11, 2006,
opposing the motion.
[5] We deny Jennings’ motion. The December 2005 State
court order is not relevant to this judicial proceeding, which
is a review of the district court’s affirmance of the ATF’s
March 2003 final decision to revoke Jennings’ firearm
license. The general rule is “that agency actions are to be
16578 JENNINGS v. MUKASEY
judged on the agency record alone, without discovery.” Public
Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982).
Although certain circumstances warrant supplementation,
none is applicable here. Id. at 793-94 (stating that a court is
justified in expanding the record of an agency when it is nec-
essary to explain administrative action, when the agency has
relied upon documents or materials not in the record, when
supplementation is necessary to explain technical terms, or
when a claim of agency bad faith is made). Although Jennings
may wish to file a new application for an FFL and argue the
significance of the December 2005 order, he may not use in
this appeal the December 2005 order to challenge the validity
of the agency’s March 2003 decision.2
3. Laskie’s “anti-mousetrapping” rule
[6] Jennings also argues he is not a convicted person under
18 U.S.C. § 921(a)(33)(B)(ii) because the 1999 State court
expungement order does not specifically limit his ability to
possess firearms. In this way, Jennings attempts to align him-
self with the defendant in United States v. Laskie, 258 F.3d
1047 (9th Cir. 2001). In Laskie, however, the defendant was
subject to a broader “Discharge Order” and a different statu-
tory scheme. Id. at 1049-50. Laskie’s “Discharge Order”
expressly purported to restore all of his civil rights. Id. at
1049. Because of this, the Laskie Court applied “an anti-
mousetrapping rule. If the state sends the felon a piece of
paper implying that he is no longer ‘convicted’ and that all
2
Moreover, it appears that by the December 2005 order Jennings may
have obtained relief to which he is not entitled. For example, Jennings rep-
resented to the Superior Court, “There is no explanation other than a typo-
graphical error which would explain the entry of relief under Section
1203.4(a) rather than 1203.4a.” This is not the case. In fact, section 1203.4
is precisely the relief Jennings requested and appears to be the only relief
for which Jennings was eligible. Section 1203.4a applies to a “nonproba-
tioned misdemeanant.” (emphasis added). Jennings was on probation for
two years. As a result, it seems likely Jennings could not have received
relief under section 1203.4a.
JENNINGS v. MUKASEY 16579
civil rights have been restored, a reservation in a corner of the
state’s penal code can not be the basis of a federal prosecu-
tion.” Id. at 1049-50. By contrast, Jennings’ 1999 expunge-
ment order is much narrower and does not purport to restore
his civil rights. In fact, it is qualified and notes that he must
disclose his conviction in certain circumstances. Accordingly,
unlike Laskie, he has not been “released from all penalties
and disabilities resulting from the offense or crime of which
he has been convicted.” Id. at 1050.
In addition, the Nevada statute under which Laskie was
granted relief served to “set aside” Laskie’s judgment of con-
viction, which the Nevada Supreme Court analogized to the
“pardon power.” Id. (quoting Creps v. State, 581 P.2d 842,
846 n. 5 (Nev. 1978)). California Penal Code sections 1203.4
and 1203.4a, on the other hand, do not provide such broad
relief. Indeed, they specifically provide that a conviction such
as Jennings received may be used in any subsequent prosecu-
tion and that persons may still be prosecuted under State fire-
arms laws. Because of this, Jennings was not “mousetrapped”
as was Laskie, and he cannot take advantage of Laskie’s anti-
mousetrapping rule.
B. 18 U.S.C. § 924(a)
[7] Jennings’ final argument is that the district court erred
when it refused to determine whether he violated 18 U.S.C.
§ 924(a) by failing to disclose his conviction in the 1998 FFL
renewal application. We disagree. Because the district court
had already determined that Jennings was prohibited from
possessing firearms by 18 U.S.C. § 922(g)(9), there was no
reason to determine whether Jennings made a false statement
regarding his conviction.
AFFIRMED.