United States v. Timothy Patrick Hoctor

ELY, Circuit Judge:

The Govern3nent appeals fro3n the District Court’s order dismissing part of an indictment against Hoctor.¹ Finding no error in the District Court’s ruling, we affirm.

Hoctor was indicted, in the count relevant to this appeal, for an alleged violation of 18 U.S.C. § 842(i) (transporting or receiving explosives in interstate or foreign commerce after having been convicted of a felony.) Before trial, Hoctor filed a motion to dismiss. The basis of the motion was Hoctor’s contention that he had not been convicted of a felony within the meaning of § 842(i). He admitted having pleaded guilty to a felony, but he argued that the subsequent ex-pungement of his conviction, pursuant to Washington law, Wash.Rev.Code § 9.95.-240 (1957), removed him from the class of persons subject to § 842(i). His conviction was expunged in April, 1969, more than two years prior to the alleged violation of § 842(i).

The District Court held that Hoctor could not be classed as a felon at the time of his alleged offense and was not, therefore, amenable to prosecution under § 842(i). We agree with the District Court that the expungement procedure, as interpreted in Washington, effectively insulated Hoctor from prosecution.

The expungement statute provides:

“Every defendant who has fulfilled the conditions of his probation . may ... be permitted in the discretion of the court to withdraw his plea of guilty and enter a plea of not guilty . . . the court may in its discretion set aside the verdict of guilty; . . . the court may thereupon dismiss the information or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.”

According to the Washington Supreme Court, .

“This statute is a legislative expression of public policy in the field of criminal law and rehabilitation. It undertakes in unambiguous terms, to restore a deserving offender to his preconviction status as a full-fledged citizen.” (Emphasis supplied.)

Matsen v. Kaiser, 74 Wash.2d 231, 237, 443 P.2d 843, 846-847 (1968) (concurring opinion). See also Tembruell v. Seattle, 64 Wash.2d 503, 392 P.2d 453 (1964). Further, the Attorney General of Washington, in a published opinion, has also written that the provisions of Wash.Rev.Code § 9.41.040, prohibiting certain convicted felons from owning or carrying pistols, do not apply to a person who has obtained a dismissal of criminal proceedings under Washington’s 'expungement statute. 1969 Op. Att’y Gen. 5. Thus, Hoctor’s conviction was absolutely erased from his record. He was entitled to the same rights, and held the same status, as any citizen.

The Government contends that this state determination could not affect the scope of § 842(i), that the expungement was ineffective in eliminating Hoctor’s liability under federal statutes.² In making that argument, however, it overlooks 18 U.S.C. § 848. That section provides :

“No provision of this chapter [including § 842(i)] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be, reconciled or consistently stand together.”

Both the Washington law and § 842(i) deal with the same subject matter. The only difference between them is that the federal law focuses specifically on the control of explosive materials while the state statute deals in the most general terms with the rights and disabilities of persons having criminal records. Nothing in either § 842 or its companion sections sets forth the standards under which it is to be determined when an individual has been convicted of a crime for the purposes of this chapter. Section 9.95.240, Wash.Rev.Code, provides at least a portion of the necessary definition by removing a class of people from the restrictions seemingly imposed by the federal law. The state law predated § 842(i); if Congress had intended to override the effect of that state law in this area, it could have done so. The language it employed in § 842 does not, however, indicate such an intent. In light of § 848, we will not imply that it so intended.

Affirmed.

On Petition For Rehearing

A majority of the panel as originally constituted in the subject case has voted to deny the Petition for Rehearing and to reject the suggestion for a rehearing en banc, Judge Carter dissenting.

The full court having been advised of the suggestion for en banc rehearing and of the panel vote, and a judge in active service having requested that a vote be taken on the appellant’s suggestion for en banc rehearing, such a vote has been taken. Rule 35(b) Fed.R.App.P. The thirteen judges in active service have voted, by a majority of nine to four, that the suggestion be rejected.

Accordingly, the Petition for Rehearing is denied, and the appellant’s suggestion for en banc rehearing is rejected.

1 . There was a three-count indictment. The District Court dismissed counts One and Three on the same grounds and the Government appealed. Thereafter, the Supreme Court decided United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed. 2d 488 (1971). On the Government’s motion, count One, which dealt with Hoctor’s alleged possession of a firearm in violation of 18 U.S.C. App. § 1202(a) was dismissed by this court, under the Bass decision. i

2 . In support of its position, the Government cited several cases previously decided by this court dealing with the effect of expungement statutes on deportation orders. E. g., Kelly v. I. N. S., 349 F.2d 473 (9th Cir. 1965), cert, denied 382 U.S. 932, 86 S.Ct. 326, 15 L.Ed.2d 344 (1965) ; Garcia-Gonzalez v. I. N. S., 344 F.2d 804 (9th Cir. 1965), cert, denied, 382 U.S. 840, 86 S.Ct. 88, 15 L.Ed.2d 81 (1965). Those ^decisions are not here applicable. Congress has plenary power over the treatment of aliens and, from the specific language of the peculiar statute involved in those cases, our court held that Congress intended the sanction [i. e., deportation] to follow the mere fact of conviction, without regard to whether the alien subsequently fulfilled his probation terms without further incident. We cannot assume here that the Congress intended such a broad application of § 842 (i). Moreover, we are here dealing with a criminal prosecution, and once Hoctor had been told by Washington that he had suffered no conviction, he could not have had the necessary advance notice that his act constituted a federal offense.