concluding that Congress chose to con- sider state expungement statutes “irrelevant” to the interpretation of a federal firearms statute in agreeing with the majority opinion that an expunged con- viction could be used to obtain a subsequent conviction under federal law
How later courts described this case
- concluding that Congress chose to con- sider state expungement statutes “irrelevant” to the interpretation of a federal firearms statute in agreeing with the majority opinion that an expunged con- viction could be used to obtain a subsequent conviction under federal law
- overruling circuit precedent and expanding criminal liability under statute will hot be applied retroactively because of due process considerations
- overruling circuit precedent and expanding criminal liability under statute will not be applied retroactively because of due process considerations
- under Washington law, expungement provisions provided only for the restoration of an offender’s civil rights
Written by the judges who cited it.
The opinion
EUGENE A. WRIGHT, Circuit Judge
(concurring):
I concur in the opinion of Judge Koelsch.
The majority notes that today’s decision “overruling Hoetor, undoubtedly expands the scope of potential criminal liability under § 1202(a)(1).” As a consequence, it calls only for prospective application and refuses to apply the rule retroactively to Potts because he did not have notice of this court’s “revised view” of the statute. He is fortunate in two respects. Not only is the dismissal of the indictment affirmed, but he also receives adequate notice of this court’s “revised view.” Today’s opinion makes no provision for notice to numerous other similarly situated individuals for whom this decision expands the scope of potential liability.
Wash.Rev.Code Ann. § 9.95.240 has been in existence in similar form since 1939. 1 Thousands of persons have had felony convictions expunged under its terms. Until today, they “could not reasonably have suspected that [their] possession of a firearm, in or affecting commerce, would constitute a § 1202(a)(1) violation.” Those who may have relied on the prior opinion of this court, an opinion of the Supreme Court of the State of Washington, or the opinions of the Washington Attorney General 2 will not have the second chance which we have given to Potts.
My concern is for those whose Washington state convictions have been expunged, those presently on probation under deferred or suspended sentences and those who are about to bargain for deferment under Washington law. The Eighth Circuit in United States v. Kelly, 519 F.2d 794 (8th Cir. 1975), recognized this problem when confronted with a *887 similar statute. The court stated that it was important for the state “to take steps to insure that ex-offenders rehabilitated under Minn.Stat.Ann. § 609.165 would be affirmatively warned that their federal disabilities concerning firearms had not been removed.” 519 F.2d at 796 .
Although no statistics are available, I believe that the Washington State deferred sentence system is more commonly applied to those who have pleaded guilty than to those convicted by a court or jury. A guilty plea is followed by the entry of an order which defers sentence to a date certain and imposes conditions of probation. At the end of the term, or even before its expiration, the defendant petitions to be allowed to change his plea from guilty to not guilty. The Superior Court judge, in granting the motion, dismisses the case and says in effect to Hoctor, Potts and others: “Your record is now clear. The slate has been wiped clean and you have no conviction.”
When we overrule precedent less than three years old, we should be mindful of the consequences. It would be appropriate for this court to set in motion a fair warning system. I am mindful of the administrative burden which might be created as there are thousands of persons to be notified, living not just within Washington State but scattered throughout the country. Their probation files have long since been closed, their whereabouts unknown to state officials, and now they have become subject to criminal prosecution for events long since forgotten.
. Ch. 125, § 1 [1939] Wash.Laws 1939.
. The majority opinion cites several state cases in support of the position which it reaches. Nevertheless, the existence of Matsen v. Kaiser, 74 Wash.2d 231 , 443 P.2d 843 (1968) in which the state court concluded that a felony conviction subsequently expunged does not disqualify an individual from holding public office although a state statute provides generally that a felony conviction is disqualifying, could easily lead a lay person to conclude otherwise. So too for the opinions of the Washington Attorney General which the majority suggests may have even misled the panel in Hoetor.