Petition for Writ of Certiorari — Burke v. United States

f\ oe Supreme Court, U.Sa,

88 1262, FIiLea

JAN 26 SOB

No. JOSEPH F. SPANIOL, JR,

CLERK

In The

Supreme Court of the United States

October Term, 1988

e

BUTCH BURKE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

+

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

>

Law Offices OF:

GIMA & HARRISON

WILLIAM A. HArRISON

707 Richards Street, Suite 300

Honolulu, Hawaii 96813

(808) 523-7041

Attorney for Petitioner

Butch Burke

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether evidence of Appellant’s reliance upon an

official interpretation of the law issued by an appropriate

government official, offered to support Appellant’s mis-

take of law defense was properly excluded.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .........ccesccesccscceces i

OPINION BRLIIW,. 6.05 2 ccccvedcawenewan bantsancane 1

JURIGOICTION 00 cc cc ccccescctsdencseneaenanecawena 2

STATUTORY PROVISIONS INVOLVED ............ 2

STATEMENT OF THE CASE.............-eeseeeees 2

REASONS FOR GRANTING THE PETITION....... 4

CORSCLEMBIOIN nc cc cccctecccuutastaaueneesereneess 9

APPENDIX A

iii

TABLE OF AUTHORITIES

Page

CAsEs:

Raley v. Ohio, 360 U.S. 423, 437 (1959)............. 7, 8

United States v. Barker, 546 F.2d 940, 949 (DC Cir.

SG EE SE Mee A A Oe ee a 7,8

United States v. Houston, 547 F.2d 104, 108 (9th Cir.

EE OES Die 8 A a a a 5

United States v. Locke, 542 F.2d 800, 801 (9th Cir.

End Ly gn Gh eg RCE Pn ls i aD 5, 6

United States v. Tallmadge, 829 F.2d 767, 776 (9th

ee sl ewsee tee uenweaue 5, 6,9

CONSTITUTION AND STATUTES:

ee 2, 3, 6

et eros cae wk aback <useneaseaa 3

ar ae vec ecueinsescddsaeds 5, 6

TS WR ADPOMRix SIZ02a) .... 2... wesc cccccscnse 2,3

Sa aaa en ee 2

Hawaii Revised Statutes §275-9(2).................... 3

MISCELLANEOUS:

Federal Rules of Evidence 402 ....................... 5

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7

In The

Supreme Court of the United States

October Term, 1988

y

_

BUTCH BURKE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

,%

4

PETITION FOR A WRIT OF CERTiORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

,%

4

William A. Harrison, on behalf of Petitioner Butch

Burke, respectfully prays that a writ of certiorari issue to

review the judgment and memorandum opinion of the -

United States Court of Appeals for the Ninth Circuit in

this case.

y%

—

OPINION BELOW

The Court of Appeals issued a memorandum opinion

No. 87-1331, which appears in the Appendix attached

hereto.

oe

JURISDICTION

The judgment of the Court of Appeals was entered

on December 5, 1988. The time in which to file a petition

for writ of certiorari expires on February 4, 1989. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

a

vy

STATUTORY PROVISIONS INVOLVED

18 U.S.C. §922(h)(1) provides:

(h) It shall be unlawful for any individual, who to

that individual’s knowledge and while being

employed for any person described in any paragraph

of subsection (g) of this section, in the course of such

employment.

(1) to receive, possess, or transport any firearm

or ammunition in affecting interstate or foreign

commerce.

18 U.S.C. Appendix §1202(a)(1) provides:

(a) Persons liable; penalties for violations. Any per-

son who:

(1) has been convicted by a court of the United

States or of a State or any political subdivision

thereof of a felony . . . and who receives, pos-

sesses, or transports in commerce or affecting

commerce, after the date of enactment of this Act

[enacted June 19, 1968], any firearm shall be

fined not more than $10,000 or imprisoned for

not more than two years, or both.

a

vv

STATEMENT OF THE CASE

On May 30, 1985, in Hawaii State Court, Appellant

Butch Burke (“Appellant”) pled no contest to selling

cable television descrambler boxes in violation of Hawaii

Revised Statutes §275-9(2). Circuit Court Judge Leland

Spencer then sentenced Appellant to probation. This is

the underlying conviction that gave rise to Appellant's

status as a felon.

In a letter dated September 19, 1985, Appellant’s

then-counsel William Patrick O’Connor asked Judge

Spencer whether the Appellant could possess firearms at

his place of business. In Judge Spencer’s reply dated

September 28, 1985, he stated:

I did not impose as a condition of probation a prohi-

bition concerning possession of firearms. You have

requested that I issue an order permitting Mr. Burke

to keep weapons at the pawn shop. I will not issue an

order permitting the defendant to possess a firearm.

This issue is not properly before my court and I do

not have jurisdiction to issue the order which you

request.

The foregoing letters were, inter alia, the subject of a

motion in limine brought by the United States at Appel-

lant’s trial in United States District Court of the District

of Hawaii for violations of 18 U.S.C. §§922(h)(1) and

924(a) which prohibit possession of a firearm by a felon

and 18 U.S.C. Appendix §1202(a) which prohibits receipt

and possession of a firearm by a felon.

At the hearing on the prosecution’s motion in limine,

Appellant’s counsel argued that the letters were offered

to show that Appellant was unsure of his status as a

felon, unsure about his ability to possess firearms, that he

sought advice and reasonably relied upon Judge

Spencer’s reply in believing that a bar to possession of

firearms was not a term of his probation.

In the court order excluding the aforementioned let-

ters, the United States District Court stated that igno-

rance of the law is no defense, and that Appellant’s lack

of knowledge of the illegality of his conduct is no

defense, therefore, the letters were irrelevant.

The court, however, did not address the relevancy of

the letters to a mistake of law defense. Indeed, both the

court and the prosecution misinterpreted Appellant’s

defense to be one of lack of intent or scienter.

The order granting the motion in limine precluded all

evidence of mistake of law based upon an official inter-

pretation of the law. Having been foreclosed from this

defense, at trial Appellant relied solely on a defense or

reasonable doubt that he actually received and possessed

a firearm.

At the conclusion of trial, Appellant was found guilty

on both counts.

,

4

REASONS FOR GRANTING THE PETITION

1. THE ISSUE AT BENCH IS OF IMPORTANCE

TO THE PUBLIC AS THE DECISION BELOW

CASTS INTO DOUBT THE VALIDITY OF THE

MISTAKE OF LAW DEFENSE.

The Court of Appeals’ decision misses the point. By

seeking to introduce evidence letters exchanged between

his trial counsel and the state court judge that heard the

case that gave rise to his status as a felon, Appellant

sought to establish a mistake of law defense. Based upon

his interpretation of a letter authored by Judge Spencer in

response to an inquiry regarding his ability to possess

firearms, Appellant believed that he could legally possess

firearms.

However, in a brief, one-page discussion, the Court

of Appeals treats Appellant’s argument as being one of

lack of specific intent. Moreover, the Court of Appeals

further states that evidence of an entrapment by estoppel

defense was properly excluded as Judge Spencer was

unauthorized to interpret federal law, Appellant was not

affirmatively misled and that his reliance on Judge

Spencer’s letter was not reasonable. Finally, as if an after

thought, the Court of Appeals noted that the issues

raised by Appellant there bear little relationship to his

trial testimony.

In support of the proposition that the Appellant’s

knowledge is irrelevant to a violation of 18 U.S.C.

§1202(a), the Court of Appeals cites Fed.R.Evid. 402;

United States v. Houston, 547 F.2d 104, 108 (9th Cir. 1976)

and United States v. Locke, 542 F.2d 800, 801 (9th Cir. 1976).

However, Appellant submits that mere recitation of the

foregoing authorities is inconclusive and does not dis-

pose of the proffered evidence as irrelevant. First, recita-

tion Of Fed.R.Evid. 402 merely begs the question of

relevancy. Furthermore, reliance on Houston, supra, is

inappropriate, as the instant case is not one of specific

intent, but of a mistaken belief born of reliance upon an

official pronouncement of the law. Indeed, while the

Memorandum Opinion implies that a violation of

§1202(a) is a strict liability offense, the court in its earlier

decision United States v. Tallmadge, 829 F.2d 767, 776 (9th

Cir. 1987) states that a person’s knowledge will vitiate his

liability under §§922(h) and 1202(a). Id. at 774. Finally,

citing to Locke, supra, is equally inappropriate as Locke is

factually distinguishable. Although Locke also involved a

violation of §1202(a), the similarity ends there as the

pivotal issue therein was whether the defendant was a

felon, and there was no mistake of law issue raised.

Moreover, although the Court of Appeals in Locke noted

that the defendant “may have been advised by a public

defender that he was not a convicted felon,” (Locke at 801)

Appellant submits that the opinion of a public defender

is qualitatively different from that of the judge that sat at

Appellant’s trial (the opinion does not indicate whether

said public defender was even Locke’s counsel).

Citing Tallmadge, supra, the Court of Appeals then

reasons that because: a) a state court judge is not author-

ized to interpret a federal statute; b) Appellant was not a

ffirmatively misled; and c) Appellant’s reliance was not

justified; it was not error to exclude evidence of an

entrapment by estoppel defense. However, the cited por-

tion of Tallmadge, Id. that the Court of Appeals relies on is

dicta! Indeed, review of the opinion in Tallmadge presents

a factual situation that is not as compelling as that of the

instant case. The Court of Appeals held that Tallmadge

was entitled to rely on a gun dealer’s interpretation of his

legal status and acquitted him because it construed

licensed gun dealers to be federal agents qualified to

ascertain a firearm purchaser’s legal status. Hence, it is

the Appellant’s position that to deem a gun dealer’s

assessment of a firearm purchaser’s legal status to be

more authoritative then a state court judge’s strains all

logic. Indeed, a gun dealer has a pecuniary interest in the

7

very transaction he is asked to approve or disallow.

Moreover, the Court of Appeals acquitted Tallmadge

despite the fact that he was instructed at trial that he was

a felon and could not later deny that he was a felon, then

subsequently lied when completing the U.S. Department

of the Treasury’s Firearms Transaction Record, stating

that he had not been convicted of an offense carrying a

potential imprisonment of more than a year. Id. 768, See

also, Raley v. Ohio, 360 U.S. 423, 437 (1959) (it was suffi-

cent that the person who rendered the misleading

instructions that caused defendants to violate the law

merely “appeared to be the agent of the State”).

In the instant case, the person appellant relied on

was the state court judge that convicted him. The Court

of Appeals deemed that judge to be unauthorized to

interpret federal statutes, therefore the proffered evi-

dence was properly excluded. However, when Judge

Spencer addressed Appellant’s inquiry about possessing

firearms, he did not “interpret a federal statute” as the

Court of Appeals states in its memorandum opinion.

Judge Spencer’s instructions were in regard to Appel-

lant’s state court proceedings. Moreover, the Court of

Appeals’ pronouncement flies in the face of United States

v. Barker, 546 F.2d 940, 949 (DC Cir. 1976), wherein the

defendant “White House Plumbers” were allowed to rely

on the apparent authority of a CIA agent in breaking into a

psychiatrist’s office to steal the medical. records of a

patient. The present case presents a stronger argument in

favor of admitting the evidence in question, as it was

reasonable for the Appellant to rely on the statements of

the judge that convicted him. This is especially so when

the offense in question mala prohibita (violation of a regu-

latory scheme), where the inquiring party has no innate

sense of the propriety of his contemplated act and is

reliant upon those charged with interpreting the law, as

opposed to the offense in Barker, Id. which was mala in se

(breaking and entering an office), where one’s life experi-

ence tells him that what he is doing is wrong.

As for satisfaction of the Court of Appeals’ require-

ment that the official pronouncement of the law affir-

matively mislead the defendant, Appellant refers to this

Court’s seminal mistake of law based upon an official

pronouncement decision of Raley v. Ohio, supra, where the

defendant therein was permitted to advance a mistake of

law defense despite what this Court deemed to be “vague

and undefined” instruction rendered by the government

authority in Raley was allowed to assert a mistake of law

defense based on the statements made to the other co-

defendants but overheard by him. Id., at 439. Therefore, it

is not essential that the language attributed to a public

official be affirmatively misleading or even directed at

the one who claims the defense, as words that inadver-

tently mislead can just as easily ensnare the unwitting

citizen.

As to the Court of Appeals’ third element, that of

reasonableness, Appellant has reviewed Raley, supra, and

its progeny and is unable to find an authority that deems

the reasonableness of a defendant’s reliance to be control-

ling. Indeed, it appears that the Court of Appeals is

equally unable to cite case law or other controlling

authority for any of the three foregoing elements, as it

merely cites as its authority the dissenting opinion from

Tallmadge, supra, which in turn cites only the Model Penal

Code.

Finally, almost as an afterthought, the Court of

Appeals adds that the evidence sought to be adduced by

the excluded letters does not comport with Appellant’s

trial court testimony. This ignores Appellant’s argument

that at trial, the motion in limine precluded him from

asserting a mistake of law argument, his most salient

defense. Therefore his testimony was constrained to the

point of incredulity. Thus, the Court of Appeals’ rationale

begs the questions whether Appellant’s trial testimony

would have been more believable had he been able to

argue his mistake of law defense.

a

vv

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and memorandum of opinion of the

Ninth Circuit.

WILLIAM A. Harrison

Attorney for Petitioner

Butch Burke

January 1989

App. 1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF )

AMERICA, ) No. 87-1331

Plaintiff-Appellee, } D.C. No. CR 87-0607-ACK

V. ) MEMORANDUM* ss!

BUTCH BURKE, aka ‘ (Filed December 5, 1988)

ABBITT OWENS, JR., )

Defendant-Appellant. )

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Submitted October 28, 1988**

Before: NELSON, NOONAN, and LEAVY, Circuit Judges.

Butch Burke appeals his conviction for being a felon

who knowingly received a firearm which had been

shipped and transported in interstate and foreign com-

merce, in violation of 18 U.S.C. §§ 922(h)(1) and 924(a),

and for being a felon who knowingly received and pos-

sessed in commerce and affecting commerce a firearm, in

*This deposition is not appropriate for publication and may

not be cited to or by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3.

**The panel unanimously finds this case suitable for submis-

sion on the record and briefs and without oral argument. Fed.

R. App. p. 34(a), Ninth Circuit Rule 34-4. Accordingly, Burke’s

request for oral argument is denied.

App. 2

violation of 18 U.S.C. Appendix § 1202(a). Burke con-

tends the district court erred by granting a motion in

limine excluding evidence regarding his knowledge of his

felon status and the lawfulness of receiving and possess-

ing a firearm. He also contends the district court likewise

erred in excluding evidence in support of his entrapment

by estoppel defense.

The district court did not err in excluding Burke’s

proffered evidence regarding his knowledge because

such evidence is irrelevant in a conviction under section

1202(a). Fed. R. Evid. 402; United States v. Houston, 547

F.2d 104, 108 (9th Cir. 1978); United States v. Locke, 542

F.2d 800, 801 (9th Cir. 1976). The district court did not err

in denying Burke’s proffered evidence in support of an

entrapment by estoppel defense because the state court

judge was not authorized to interpret a federal statute,

the state court judge did not affirmatively mislead Burke,

and Burke’s reliance on the state judge’s statement was

not reasonable. See United States v. Tallmadge, 829 F.2d 767,

776 (9th Cir. 1987) (Kozinski, J. dissenting).

We hold that the issues presented to the district judge

on the motion in limine were correctly decided. We fur-

ther note that the issues presented by the motion bear

little relationship to the defendant’s testimony at trial

when he said:

A. Somewhere along the line it’s very difficult for

me to remember exactly what happened...

Q. Okay

A. ... during that time of the gun. But I had just

been convicted of a felony, and I had just surren-

dered my other shotguns and rifles that I had,

App. 3

and I wasn’t about to purchase another one to

get myself in trouble again.

I know that I wasn’t supposed to buy or sell a

gun.

The judgment is AFFIRMED.