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
SNEED, Circuit Judge
(concurring in the result).
I concur in the result reached by Judge Koelsch in his opinion. I wish to disassociate myself from its analysis, however, except insofar as that analysis pertains to the retroactivity issue. As I view it, state law must be examined to determine whether the defendant has been convicted of a felony. The relevant state law to be examined in this determination does not include expunction statutes. Such statutes do not rewrite history; they merely provide that previous history is immaterial for certain purposes under state law. It is not within the power of a state to make such history immaterial to the administration of the federal criminal law or the interpretation of federal criminal statutes. Only Congress can do that.
It follows, it seems to me, that 18 U.S. C.App. §§ 1201-3 must be examined to determine the extent to which state ex-punction statutes are to be considered as relevant either to the finding of a “conviction” by a court of a state or the presence of an “exemption” within the scope of 18 U.S.C.App. § 1203. A search of these provisions yields no express or implied reference to such statutes. I conclude from this that Congress chose to consider state expunction statutes irrelevant for both purposes. This conclusion is strengthened by the presence of an exemption for those pardoned by the chief executive of a state and who are expressly authorized to receive, possess, or transport a firearm in commerce. 18 U.S.C.App. § 1202(a).
We are not permitted to rewrite 18 U.S.C.App. §§ 1201-3 to suit our convenience. That this is what we are doing is illustrated by the careful analysis given by Judge Koelsch of Wash.Rev.Code Ann. § 9.95.240 to determine whether it provides an absolute erasure of the conviction for all purposes. This amounts to creation of a federal standard by which state expunction statutes must be measured to determine whether a conviction which did exist has now ceased to be. There is simply no authority for engrafting this “exemption” on 18 U.S.C.App. §§ 1201-3. Nothing in our previous decisions is contrary to this conclusion. For example, in Arellano-Flores v. Hoy, 262 F.2d 667 (9th Cir. 1958) in construing the term “convicted” in 8 U.S.C. § 1251 (a)(ll) as applied to a California suspended sentence, we said:
. we are inclined to the belief that perhaps here Congress intended to do its own defining rather than leave the matter to the variable state statutes, (page 668).
*888 A similar view in other settings may be gleaned from Garcia-Gonzales v. I. & N. S. , 344 F.2d 804, 808 (9th Cir. 1965); Adams v. United States, 299 F.2d 327, 331 (9th Cir. 1962); Hernandez-Valensuela v. Rosenberg, 304 F.2d 639, 640 (9th Cir. 1962); Wood v. Hoy, 266 F.2d 825, 828 (9th Cir. 1959).
Judge Koelsch characterizes the analysis here outlined, which was employed by the Eighth Circuit in the cases he cites in footnote 5, as preemption. This strikes me as an improper characterization. Preemption relates to situations in which both the federal and state governments have authority to legislate and the federal legislation indicates that it is intended to replace state legislation pro tanto. Here the issue is simply the extent to which a federal criminal statute requires reference to state law in its interpretation and application. Judge Koelsch’s characterization suggests an “ouster” of state law under the Eighth Circuit’s interpretation when in fact such law is merely deemed irrelevant to the proper interpretation of a federal criminal statute.
DUNIWAY, TRASK, CHOY, ALFRED T. GOODWIN and WALLACE, Circuit Judges, join in this opinion.