Petition — Ratley v. United States

| 5 * 4 2 — iJ

j JUN 14 1916

Küste POOAI NM. CLERK

— ee Se —ů—

In The

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1806

ROY RATLEY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Ropert G. Duncan and Wu E. Snul

Duncan & RussxLI.

2700 Kendallwood Parkway

Kansas City, Missouri 64119

Counsel for Petitioner

E. L. Mendenhall, Inc., 926 Cherry St., Kansas City, Mo. 64106, 816-421-3030

eren... cies 0 Se Cue od 0 HOUSE 2 ONS 1

, ̃ͤ ˙ ĩVv e Ne 1

reer en een 2

Constitutional Provisions Involved ................ 2

Statutory Provisions Involved .................... 3

, 6

Reasons for Granting the Writ

1. The Decision Below Raises Important and

Significant and Recurring Problems Concerning

Receipt or Possession of Guns by Persons Pre-

viously Convicted of Felonies Which Have Not

Heretofore, but Should Be, Settled by This

nr deades «SCV OUTS con cb beads ever 9

Expungement of Felony Conviction ........... 9

Operable enen 13

t ˙ V 14

2. There Is a Conflict in the Decisions of the

Various Courts of Appeals Upon the Same Issue 16

, , ̃ ᷣͤ ͤ 17

Appendix

A. Opinion of the Court of Appeals Al

B. Order Denying the Motion for Rehearing .... A6

Table of Authorities

Cases

Holm v. Shilensky (2nd Cir. 1968), 388 F.2d 54 ... 13

People of New York ex rel. Halvey v. Halvey (1947),

330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 609 13

Smith v. Smith (D.C.Cir. 1961), 288 F.2d 151 ..... 13

Tomoya Kawakita v. United States, 343 U.S. 717,

een 15

Thompson v. City of Louisville, 362 U.S. 199, 4

r cn voc abu vades sgcudeens 13

United States v. Andrino, 497 F.2d 1103 (9th Cir.

„ ̃⅛ rer err reer. ee 16

United States v. Bass, 404 U.S. 336, 92 S.Ct. 515,

I e

United States v. Crow, 439 F.2d 1193 (9th Cir.

n RR 16

United States v. Dameron, 460 F.2d 294 (5th Cir.

1972), cert. denied 409 U.S. 882 (1972) ......... 16

United States v. DeBartolo, 482 F.2d 312 (lst Cir.

/ 14

United States v. Decker, 282 F. 2d 89 (6th Cir.

Pere eee eee 14

United States v. Hoctor, 487 F.2d 270 (9th Cir

...en ba cea: 16

United States v. Horton, 503 F.2d 810 (7th Cir

n . Cae 16

United States v. Kelly, 519 F.2d 794 (8th Cir

D 4450.cnn0es cienes 7 bees 16

United States v. Mostad, 485 F.2d 199 (8th Cir.

1973), cert. denied 415 U.S. 947 (1974) ......... 16

United States v. Thomas, 484 F.2d 909 (6th Cir.

1973), cert. denied 415 U.S. 924 (1973) ......... 16

United States v. Thompson, 202 F.Supp. 503 (N. D.

. Py ee ea re 13

ConsTITUTIONAL Provisions, Rutes, STATUTES

AND Orner AUTHORITIES

Constitution of the United States, Second Amend-

I POPS eee ee eee ee 2

Constitution of the United States, Fifth Amend-

ee ee dh eke eee 2,17

n

Federal Rules of Evidence, Rule 999 10

Kansas Statutes Annotated —

, ͤ AA ee 3

dee 10, 15

r èœ ᷑ͥTæ!;;::: 3

Section 21-4B0Q ING) hh 10, 15, 17

ED OP . 3, 11, 12

18 U.S.C. App. Section I 5, 11, 13, 14

18 U.S.C. App. Section 1202(a)(1) .......... 7,9, 10, 11

BD Gee SN: ,. . . 6

18 U.S.C. App. Section I ͤ e 11

4 Wevctivecedvedesetevess 2

rere eee. „„

In The

Supreme Court of the United States

OCTOBER TERM, 1975

No.

ROY RATLEY,

Petitioner,

vs

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Petitioner respectfully prays that a Writ of

Certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Tenth Cir-

cuit entered in this proceeding on April 1, 1976.

OPINION BELOW

The opinion of the Court of Appeals, not re-

ported, appears in the Appendix hereto. On May 27,

1976, the Court of Appeals entered an order staying

mandate until final disposition in this Court.

JURISDICTION

The judgment of the United States Court of Ap-

peals for the Tenth Circuit was entered on April 1, 1976.

A timely Petition for Rehearing’ was filed and was de-

2

nied on May 13, 1976. A copy of that Order appears

in the Appendix hereto. This Petition for Writ of Cer-

tiorari is filed within thirty (30) days of that Order.

This Court’s jurisdiction is invoked under 28 U.S.C.

Section 1254(1).

QUESTIONS PRESENTED

1. What effect does an expungement of the record

of a state felony conviction have on federal prosecutions

for receiving a firearm in or affecting interstate com-

merce?

2. Is it required that in order to sustain a con-

viction for receiving a firearm in or affecting interstate

commerce that there be proof that the “revolver” is an

operable firearm?

3. Does a conviction for receiving a firearm in or

affecting interstate commerce require a finding of spe-

cific intent?

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION:

Amendment II:

“A well regulated Militia, being necessary to the

security of a free state, the right of the people to keep

and bear arms shall not be infringed.”

Amendment V:

No person shall be deprived of life,

liberty, or property, without due process of law. . .”

3

STATUTORY PROVISIONS INVOLVED

KANSAS STATUTES ANNOTATED:

Section 21-4201:

) Unlawful use of weapons is knowingly:

(d) Carrying any pistol, revolver or other firearm

concealed on the person except when on his land or

in his abode or fixed place of business.

(3) It shall be a defense that the defendant is

within an exemption.”

Section 21-4204:

1) Unlawful possession of a firearm is:

(b) Possession of a firearm with a barrel less than

twelve (12) inches long by a person who, within five

(5) years preceeding such violation has been con-

victed of a felony under the laws of Kansas or any

other jurisdiction or has been released from im-

prisonment for a felony. . .”

Section 21-4617:

a) Every offender who was twenty-one (21) years

of age or older at the time of the commission of the

crime for which he was committed and who has

served the sentence imposed or who has fulfilled the

conditions of his probation, suspension of sentence,

conditional release or parole for the entire period

thereof, or who shall have been discharged from

probation, conditional release or parole prior to the

4

termination of the period thereof, may petition the

court five (5) years after the end of such sentence,

the fulfilling of such conditions of probation, sus-

pension of sentence, conditional release or parole or

such discharge from probation, conditional release

or parole and may request that his record be ex-

punged of such conviction if during such five (5)

year period such person has exhibited good moral

character and has not been convicted of a felony.

In considering any such request for expungement,

the court shall have access to any records or reports

relating to such offender, including records or re-

ports of a confidential nature, on file with the secre-

tary of corrections or the Kansas adult authority.

(b) Any person having his record so expunged

shall thereafter be released from all penalties and

disabilities resulting from the crime of which he has

been convicted, and he shall in all respects be

treated as not having been convicted, except that

upon conviction of any subsequent crime such con-

viction may be considered as a prior conviction in

determining the sentence to be imposed. The of-

fender shall be informed of this privilege when he is

placed on probation, suspended sentence, conditional

release or parole.

(c) In any application for employment, license or

other civil right or privilege, or any appearance as a

witness, a person whose conviction of crime has

been expunged under this statute may state that he

has never been convicted of such crime.”

5

UNITED STATES CODE:

Title 18 Appendix:

Section 1202:

a) Any person 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, possesses, or transports in com-

merce or affecting commerce. any firearm

shall be fined not more than $10,000 or imprisoned

for not more than two years, or both.

(c) As used in this title—

(3) ‘firearm’ means any weapon (including a starter

gun) which will or is designed to or may readily be

converted to expel a projectile by the action of an

explosive; the frame or receiver of any such

weapon; . ; or any destructive device. Such term

shall include any handgun, rifle or shotgun;

(5) ‘handgun’ means any pistol or revolver orig-

inally designed to be fired by the use of a single

hand and which is designed to fire or capable of

firing fixed cartridge ammunition, or any other fire-

arm originally designed to be fired by the use of a

single hand.”

Section 1203:

“This title shall not apply to—

(2) Any person who has been pardoned by the

President of the United States or the chief executive

of a state and has expressly been authorized by the

President or such chief executive, ac the case may

be, to receive, possess, or transport in commerce a

Title 28:

Section 1738:

The records and judicial proceedings of any court of

any such State, Territory or Possession, or copies

thereof, shall be proved or admitted in other courts

within the United States and its Territories and

Possessions, by the attestation of the clerk and seal

of the court annexed, if a seal exists, together with

a certificate of a judge of the court that the said

attestation is in proper form. Such acts, records

and judicial proceedings or copies thereof, so au-

thenticated, shall have the same full faith and

credit in every court, within the United States and

Territories, and Possessions as they have by law or

usage in the courts of such State . from which

they are taken.

STATEMENT OF THE CASE

Petitioner, the defendant below, was charged in the

United States District Court for the District of Kan-

sas, by an Indictment returned January 10, 1975, alleg-

7

ing that Petitioner between January 9, 1974 and August

19, 1974, knowingly received in interstate commerce and

affecting commerce a firearm, he having been convicted

on August 29, 1963, of a felony, in violation of Section

1202(a)(1), Title 18, United States Code Appendix.

The evidence before the Grand Jury and the trial of

this case was presented by a special attorney“ as-

signed to a Strike Force of the United States Depart-

ment of Justice.

Prior to trial the Petitioner filed several pretrial mo-

tions including motions for a bill of particulars, a mo-

tion to suppress statement of Defendant, a motion to

suppress evidence because of illegal search and seizure

of the gun in question, motion for discovery and inspec-

tion, motion to dismiss. These motions were all denied

by the Trial Court.

The evidence tended to establish that Petitioner was

an employee of Sam’s Loan Company in Kansas City,

Kansas. Sam's Loan Company was a pawn shop and

as such pawned and sold guns. The gun in question

belonged to the Estate of Sam Gorelick which owned

Sam's Loan. The gun was made in Massachusetts and

in December, 1970 had been shipped to Sam’s Loan

Office in Kansas City, Kansas. There was no evidence

that the Petitioner was then an employee of Sam’s, or

that he possessed the gun other than while he was at

the store.

On August 19, 1974, two agents of the Alcohol,

Tobacco and Firearms Agency entered Sam’s Loan in an

effort to locate a suspect named Bobby Jones. The

agents advised Petitioner of this and, according to their

testimony, he became nervous, his stomach muscles

under his shirt twitched. One of the agents observed

8

a bulge' in Petitioner's front pocket. This bulge was

not a gun. The agents ordered Petitioner to submit

to a search. Petitioner refused, and removed a gun

from under his shirt and gave it to his wife. The

agents forcibly took it from Mrs. Ratley.

Prior to this the agents had secured a copy of

Pet itioner's 1963 Kansas state conviction. The Stevens

County, Kansas, District Court, had on September 30,

1974, entered an Order expunging the record of Peti-

tioner’s conviction. Petitioner objected to the introduc-

tion of the record of conviction so obtained because it

was inadmissible in evidence under Kansas law and

therefore under 28 U.S.C. 1738. These objections were

denied.

Petitioner attempted to establish in evidence that

Sam's Loan had been robbed on numerous occasions,

some involving shootings including one homicide. One

of the shootings involved the wounding of the Petitioner

shortly before trial while he was unarmed. An offer

of proof was almost made to the effect that employees

were required to carry weapons for the safety of the

store and for their own protection while in the store.

The trial court refused to allow such evidence and ruled

as a matter of law that possessing a weapon for self-

protection or protection of property was not a legal

defense (Tr. 44-45).

The Petitioner also offered to introduce that under

Kansas State law, Petitioner could lawfully possess a

firearm. The trial court refused to allow such evidence,

and ruled that the expungement of the record was not

retroactive.

There was no evidence that the revolver in question

was an operable firearm. The evidence was that the re-

9

volver was loaded only with wad cutter ammunition.

The trial court refused a request by the Petitioner that

the jury be instructed that the offense charged required

a finding of specific intent.

The jury returned a verdict of guilty and Petitioner

was sentenced to one year and one day in the custody

of the Attorney General. Upon appeal the Court of Ap-

peals affirmed, also holding that the expungement oc-

curred after the receipt of the firearm and that the ex-

pungement under Kansas law did not make the record a

‘nullity’’. The Court of Appeals also held that the evi-

dence need not establish that a gun is an operable fire-

arm, and that specific intent and knowledge are not ele-

ments of the offense charged.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Raises Important and Sig-

nificant and Recurring Problems Concerning Receipt or

Possession of Guns by Persons Previously Convicted of

Felonies Which Have Not Heretofore, but Should Be,

Settled by This Court.

Expungement of Felony Conviction

There appears to be two conflicting trends in crim-

inal law. First, the trend to restrict the receipt or

possession of firearms, and, secondly, the widespread

adoption of expungement statutes.

This Court in United States v. Bass (1971), 404

U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488, distinguished

between charges under 18 U.S.C. App. 1202(a) of pos-

session and “receiving’’ a firearm because of an am-

biguity. There the Court said, loc. cit. 92 S.Ct. 518:

Because its sanctions are ¢riminal and because,

under the Government's broader reading, the stat-

10

ute would mark a major inroad into a domain tra-

ditionally left to the States, we refuse to adopt the

broad reading in the absence of a clearer direction

from Congress;

and at 92 S.Ct. 523,

“As this Court emphasized . . we will not be

quick to assume that Congress has meant to effect

a significant change in the sensitive relation be-

tween federal and state criminal jurisdiction."’

As a result of Bass the Indictment in this case

alleged ‘‘receipt’’ rather than possession. Clearly, the

Petitioner's receipt or possession of the revolver in ques-

tion was lawful under Kansas state law. His convic-

tion in 1963 was over five years old and he had the

weapon at his fixed place of business. See Kansas

Statutes Annotated, Sections 21-4201(1)(d) and 21-4204

(1)(6). 18 U.S.C. App. 1202(a)(1), however, appears

to make Petitioner's possession (i.e.: receipt) of the re-

volver a federal offense.

It is, however, a present trend in criminal juris-

prudence, to authorize the expungement of prior felony

conviction records. Obviously, this trend is in harmony

with the desire to rehabilitate persons once convicted

of crime. The new Federal Rules of Evidence, Rule 609,

is an example of this trend. In subparagraph (b) a

ten (10) year time limit is in general placed upon the

use of prior convictions for impeachment. In subpara-

graph (c) it is provided:

“Evidence of a conviction is not admissible under

this rule if (a) the conviction has been subject of

a pardon, annulment, certificate of rehabilitation,

or other equivalent procedure based on a finding

of the rehabilitation of the person convicted. . .”’

11

Kansas has adopted a statute by which Petitioner,

prior to trial, secured an expungement of his felon

record. Sec. 21-4617 KSA. That statute does require

a finding of the equivalent of rehabilitation. 18 U.S.C.

App. 1203(2) exempts from the operation of Sec. 1202

persons who have been pardoned. It should be pointed

out that the Kansas Governor’s power to pardon is

statutory, and further, that he signed Sec. 21-4617

into law.

It is obvious that the effect of an expungement

under state law will be a recurring question in Indict-

ments under 18 U.S.C. App. 1202(a)(1). If such ex-

pungements mean nothing under such federal prosecu-

tions then the States, and those holding such expunge-

ment orders, should be told now.

Three basic questions are here presented. (1) Does

an expungement order exempt a previously convicted

person from this firearm prohibition? (2) Is an ex-

pungement order retroactive where it is obtained after

the alleged receipt of the firearm but before the federal

charge is lodged?, and (3) Does an expungement order

from a state court make a record of conviction in that

court inadmissible in federal court to establish such

prior conviction?

Under the new Rules of Evidence the answer to

(3) would be yes, at least for impeachment purposes,

but how about its admissibility to establish an essential

element of a federal offense?

The Government below contended and the Court

of Appeals agreed, that the Kansas statute presented

here did not make the Petitioner's conviction inadmis-

sible, because it provides in part:

12

‘“(b) . . . except that upon conviction of any sub-

sequent crime such conviction may be considered

as a prior conviction in determining the sentence

to be imposed.”

Clearly, this provides only for the enhancement of

punishment and not as a basis of a criminal charge.

Kansas, like other states, provides as a voting qualifi-

cation that the voter not be a convicted felon and it is

a crime for a felon to illegally vote. Certainly, if a

prior felon, who has had his record expunged under

Section 21-4617, votes, that provision would not make

him subject to prosecution. If it did, then 21-4617

would be of no value or purpose.

The trial court, and the Court of Appeals below,

did not reach question (1) above. Both courts in re-

gard to question (2) ruled that such orders are not

retroactive. Both of these issues were presented by

pre-trial motion to dismiss, which was overruled, and

during trial by an offer of proof, which was refused.

The record of conviction in the Stevens County,

Kansas, District Court, which was offered in the trial

below was obtained in April, 1974, four months before

the alleged offense. Obviously, the agents had plans

before they entered Sam’s Loan Company on August

19, 1974, and ordered Petitioner to submit to a search.

The expungement order of the 1963 conviction was en-

tered shortly after the seizure of the revolver, and

several months before the return of the Indictment

herein. During the trial the Petitioner objected to the

introduction of the court record, because under Kansas

law the record had been expunged and under 28 U.S.C.

1738, which governs the admissibility of such records,

it must be given only such effect and credit as it

13

would have in the Kansas court, i.e.: none, except

for enhancement of punishment. If a judgment in one

state is a nullity then that judgment is a nullity in

other states. See People of New York ex rel. Halvey

v. Halvey (1947), 330 U.S. 610, 67 S.Ct. 903, 91

L.Ed. 609; Smith v. Smith (D.C.Cir. 1961), 288 F.2d

151; and Holm v. Shilensky (2nd Cir. 1968), 388 F.2d

54.

Operable Firearm Issue

18 U.S.C. App. 1202 prohibits a convicted felon

from receiving a firearm that is in or affects commerce.

A “firearm” is defined as a weapon which will or is

designed to or may readily be converted to expel a

projectile by the action of an explosive. Exhibit 5 was

stipulated to be a Smith and Wesson .38 caliber Model

36, five shot revolver, bearing Serial No. 17J8620’’.

There was no other evidence regarding the exhibit’s

capabilities, design or operability. It was loaded with

“wadcutier ammunition’’ and not with fixed cartridge

ammunition. There was no evidence it was ever test

fired or examined.

Few of us are not familiar with cap guns, toy re-

volvers and replica guns, none of which would be classi-

fied as weapons or as “‘firearms’’. Petitioner was

charged with a criminal violation and it was essential

that the prosecution introduce evidence to establish his

guilt beyond a reasonable doubt. Convictions which

are devoid of evidentiary support violate due process.

See Thompson v. City of Louisville (1960), 362 U.S.

199, 4 L.Ed.2d 654.

In United States v. Thompson (N.D.Cal. 1962),

202 F.Supp. 503, the District Court found that a wea-

pon without a firing pin was not a “firearm’’ since it

14

was inoperable. The usual, customary and easy way

to prove operability is to test fire the alleged firearm.

That was not done here. See for example, United

States v. Decker (6th Cir. 1961), 282 F.2d 89.

Petitioner respectfully suggests that this Court

should settle what is required to prove a revolver is a

firearm

Specific Intent Issue

Petitioner requested the trial court instruct the

jury that under the facts of this case a violation of 18

U.S.C. App. 1202 required a finding of specific intent.

This requested instruction was in the form set forth in

Federal Jury Practice and Instructions, Devitt and

Blackmar, Section 13.03. The trial court ruled as a

matter of law that no specific intent was required and

all that was needed was to show that the Defendant

knew that he received or had a gun! (Tr. 116). Indeed,

the court instructed the jury that it need not find a

specific intent (Tr. 154-155).

It is true that a majority of the decisions of the

circuits do not require specific intent. However, in

United States v. DeBartolo (Ist Cir. 1973), 482 F.2d

312, the First Circuit pointed out that the requirement

of more than a general intent created difficulties that

must be governed on a case by case basis.

Certainly, a defendant could not be convicted under

18 U.S.C. App. 1202 if he did not know that the item

was a firearm. Should a felon be prohibited by this

statute from disarming an assailant? Is a felon con-

fronted with the choice of either being killed or punished

under federal law if he protects himself or his place of

business?

15

The trial court ruled that self-defense was not

a defense to the charge (Tr. 44, 112, 116-117). Duress

and coercion may be a defense to criminal prosecutions.

In Tomoya Kawakita v. United States (1952), 343 U.S.

717, 72 S.Ct. 950, this Court even noted that employ-

ment may, under certain circumstances, produce suffi-

cient coercion or duress to justify an acquittal.

In our present case the evidence established that

the revolver was acquired by Sam’s Loan Company in

1970. There was no evidence Petitioner was even em-

ployed there when it was received, or that he knew it

had ever been in interstate commerce. Petitioner of-

fered to prove that there had been numerous robberies

and attempted robberies at Sam’s Loan, one of which

resulted in a homicide of an employee; that shortly

before trial, and while unarmed, he himself had been

shot in a holdup attempt; and that all the employees

were required to be armed while in the store for their

own protection and for the protection of the store.

Petitioner also offered to prove that under Kansas

law, K.S.A. Sections 21-4201(1)(d) and 21-4204(b) he

could lawfully possess the revolver. These offers of

proof were all refused, as was Petitioner's offer of proof

regarding the expungement of his felony conviction.

It should also be remembered that the Petitioner

was not using the gun for an unlawful purpose, did not

threaten the agents with it, and possessed it only with-

in his place of employment.

Petitioner respectfully suggests that there is in-

volved herein an important and significant question

which should be passed on by this Court.

16

2. There Is a Conflict in the Decisions of the

Various Courts of Appeals Upon the Same Issue.

As pointed out above, there is a conflict in deci-

sions in the Courts of Appeals on the issue of specific

intent. Some of those decisions holding that specific

intent is never an element are United States v. Crow

(9th Cir. 1971), 439 F.2d 1193, vacated on other

grounds (1972), 404 U.S. 1009; United States v. Thomas

(6th Cir. 1973), 484 F.2d 909, cert. denied (1973), 415

U.S. 924; United States v. Mostad (8th Cir. 1973), 485

F.2d 199, cert. denied (1974), 415 U.S. 947; and United

States v. Horton (7th Cir. 1974), 503 F.2d 810. These

decisions conflict with United States v. DeBartolo (ist

Cir. 1973), 482 F.2d 312.

In regard to the expungement issue there is like-

wise a conflict in the Circuits. The Government relied

on United States v. Dameron (5th Cir. 1972), 460 F.2d

294, cert. denied (1972), 409 U.S. 882; United States

v. Mostad, supra; and United States v. Kelly (8th Cir.

1975), 519 F.2d 794.

In United States v. Hoctor (9th Cir. 1973), 487

F.2d 270, the Court of Appeals found that the Wash-

ington expungement statute undertook to restore a de-

serving offender to his postconviction status as a full-

fledged citizen, and despite decisions in other circuits

to the contrary, such statute eliminated the defendant's

liability under the federal destructive devices statutes.

In United States v. Andrino (9th Cir. 1974), 497 F.2d

1103, the Court of Appeals held that under the Cali-

fornia expungement statute a defendant was still for-

bidden under California law from possessing a firearm

and therefore the federal statute could apply. In our

present case the Petitioner could lawfully possess the

— ees eg —

17

revolver under Kansas law, even without the expunge-

ment, K. S. A. 21-4204(b).

CONCLUSION

Petitioner respectfully submits that this cause in-

volves serious questions of importance and significance

and which will be recurring. They involve serious and

meaningful questions of due process of law under the

Fifth Amendment and should be settled by this Court.

The decision below was in error and justice requires

that this Court intervene.

Respectfully submitted,

Rosert G. Duncan and Wiiuiam E. Saute

Duncan & RussELi

2700 Kendallwood Parkway

Kansas City, Missouri 64119

Counsel for Petitioner

Al

APPENDIX

APPENDIX A

NOT FOR ROUTINE PUBLICATION

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

— —

No. 75-1403

UNITED STATES OF AMERICA.

Appellee,

v

ROY RATLEY,

Appellant.

Appeal From the United States District Court

for the District of Kansas

D.C. # 75-4-CR2)

(Filed April 1, 1976)

William E. Shull, Kansas city, Missouri (Robert G.

Duncan and Duncan & Russell, Kansas City, Mis-

souri, with him on the Brief), for Appellant.

Philip J. Adams, Jr., Special Attorney, United States

Department of Justice (E. Edward Johnson, United

States Attorney, with him on the Brief), for Ap-

, pellee.

Before SETH, BARRETT and DOYLE, Circuit Judges.

SETH, Circuit Judge.

A2

Appellant was convicted of receiving a firearm in

commerce after having been convicted of a felony in vio-

lation of 18 U.S.C.App. § 1202(a)(1), and has taken

this appeal.

As to the facts, the record shows that agents of the

Alcohol, Tobacco and Firearms Bureau went to appel-

lant’s place of employment, a pawn shop or loan com-

pany, in search of a suspect thought involved in an

unrelated crime. At the shop, the agents encountered

appellant who they testified acted nervous and had a

noticeable bulge in his jacket. The agents told ap-

pellant that they wished to search him for their own

protection. Appellant refused, but reached into his shirt

and withdrew a revolver which he handed to his wife.

The agents then took the revolver from appellant’s wife.

Appellant had been convicted of a felony in Kansas and

after the seizure of the revolver described above, he

petitioned the Kansas state district court where he had

been convicted to expunge the record of conviction pur-

suant to the Kansas expungement statute, K.S.A. 21-

4617. The state court granted appellant’s request on

September 30, 1974.

On January 10, 1975, a one-count indictment was

returned charging appellant with the violation of 18

U.S.C.App. § 1202(a)(1) here concerned. Special At-

torneys Philip J. Adams and Michael DeFeo, acting pur-

suant to letters issued under the special commission

provisions of 28 U.S.C. § 515, appeared and presented

the evidence before the grand jury and actively prose-

cuted appellant’s case.

Appellant raises several grounds for reversal of his

conviction. He argues initially that the appointment of

Attorneys Adams end DeFeo was improper under the

A3

dictates of 28 U.S.C. § 515(a), and therefore in violation

of Rule 6(d), Fed.R.Crim.P. He specifically contends

that the letters commissioning the attorneys were im-

proper because they did not specifically direct the at-

torneys’ activities and were not issued by the United

States Attorney General himself.

The requirements for proper appointment of special

attorneys under 28 U.S.C. § 515(a) have been examined

by this court in United States v. Katz, ........ F. 2d

W - (Tenth Circuit, No. 75-1318). That case is ap-

plicable to the authorizations here concerned, and we

thus find this contention to be without merit.

Appellant next contends that expungement of his

previous state conviction by the Kansas state court in

effect eliminated his liability under the federal statute in

question. The trial court held that the expungement of

appellant’s record occurred after the date of the offense

and that any such expungement does not have a retro-

active effect. We affirm for the same reason, and no

further examination of the related issues is necessary.

The Government need only prove that defendant had

been convicted of a felony at the time he received the

firearm. United States v. Smith, 520 F.2d 544 (8th

Cir.); United States v. Mancino, 474 F.2d 1240 (8th

Cir.).

Appellant also relics on the state court’s expunge-

ment of his conviction to challenge an evidentiary ruling

of the trial court. At trial, the Government introduced

over appellant’s objection a certified copy of his prior

conviction. Appellant contends that this was error.

He says that the court record was offered by the prose-

cution pursuant to 28 U.S.C. § 1738 which provides

that the records of judicial proceedings in state courts

A4

“shall have the same full faith and credit in every court

within the United States . as they have by law or

usage in the courts of such State from which they

are taken. He proposes that expungement of his con-

viction makes the state court record a nullity“ under

law and usage in the Kansas courts. He then argues

that if the record is a nullity“ in the Kansas courts,

it is also a “nullity’’ in the federal courts under the

provisions of 28 U.S.C. § 1738 and its admission in

the present case was error.

It appears that the state court record of appellant's

conviction, even though expunged, is not a nullity under

state law. The conviction may be considered as a

prior conviction in determining the sentence to be im-

posed .. . K. S. A. 21-4617. Hence, appellant's con-

tention that the expunged record is no longer a record

is without merit.

We find no error in the admission of the record of

appellant’s conviction.

Appellant next contends that the prosecution failed

to prove that the confiscated weapon was a firearm

within the meaning of the statute. This is totally with-

out merit. An agent testified it was a revolver and

the stipulation was that it was a revolver and loaded.

The term firearm' includes any “handgun.’’ 18 U.S.C.

App. § 1202(c)(3). A ‘“handgun,’’ as defined in 18

U.S.C.App. § 1202(c)(5), means:

„Ahl pistol or revolver originally de-

signed to be fired by the use of a single hand and

which is designed to fire or capable of firing fixed

cartridge ammunition, or any other firearm designed

to be fired by the use of a single hand. (Emphasis

added).

A5

The Smith and Wesson revolver confiscated from appel-

lant is clearly designed to fire or capable of firing and

is a firearm within the statutory definition. The Gov-

ernment need not prove that the firearm was operable

at the time of the offense and case law has so held.

United States v. Pleasant, 469 F.2d 1121 (8th Cir.).

In summary, the evidence is sufficient to prove that

the confiscated weapon was a firearm within the mean-

ing of the statute.

Finally, appellant objects to the trial court's in-

struction that the Government is not required to prove

specific intent on the part of the defendant to violate

the law. He contends that 18 U.S.C.App. § 1202

(a)(1) requires proof of specific intent as an essential

element of the charge. Appellant is in error. The

cases unanimously recognize that specific intent or

knowledge is not an element of the crime of possessing

firearms after having been convicted of a felony.

United States v. Thompson, 518 F.2d 534 (8th Cir.);

United States v. Powell, 513 F.2d 1249 (8th Cir.). We

find no error in the court's instructions.

AFFIRMED.

— . c

A6

APPENDIX B

MARCH TERM—May 13, 1976

Before The Honorable David T. Lewis, Chief Judge,

The Honorable Delmas C. Hill, The Honorable

Oliver Seth, The Honorable William J. Holloway,

Jr., The Honorable Robert H. McWilliams, The

Honorable James E. Barrett and The Honorable

William E. Doyle, Circuit Judges

No. 75-1403

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

ROY RATLEY,

Defendant-Appellant.

This matter comes on for consideration of the peti-

tion for rehearing and suggestion for rehearing en banc

filed by the appellant in the captioned cause.

Upon consideration whereof, the petition for re-

hearing is denied by Circuit Judges Seth, Barrett and

Doyle to whom the case was argued and submitted.

The petition for rehearing having been denied by

the original panel to whom the case was argued and

submitted and no member of the panel nor judge in

regular active service on the Court having requested

that the Court be polled on rehearing en banc, Rule 35,

Federal Rules of Appellate Procedure, the suggestion

for rehearing en banc is denied.

/s/ Howard K. Phillips

Howard K. Phillips, Clerk