Memorandum — Lewis v. United States

Supreme Court, U.S.

FILED

No. 78-1595 MAY 30 1979

A ERREEOON, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

GEORGE CALVIN LEWIS, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

oso *

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1595

GEORGE CALVIN LEWIS, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-

15) is reported at 591 F.2d 978.

JURISDICTION

The judgment of the court of appeals was entered

on January 24, 1979. A petition for rehearing was

denied on March 19, 1979. The petition for a writ

of certiorari was filed on April 18, 1979. The juris-

(1)

diction of this Court is invoked under 28 U.S.C. 1254

(1).

QUESTION PRESENTED

Whether a defendant who is a previously convicted

felon may challenge the constitutionality of his prior

conviction as a defense to a prosecution for unlaw-

fully possessing a firearm.

STATEMENT

Following a bench trial in the United States Dis-

trict Court for the Eastern District of Virginia, pe-

titioner, who had previously been convicted of a

felony, was convicted of unlawfully possessing a fire-

arm, in violation of 18 U.S.C. App. 1202(a) (1). Peti- .

tioner received a sentence of 18 months’ imprison-

ment. A divided panel of the court of appeals af-

firmed (Pet. App. 1-15)...

The undisputed evidence at trial showed that on

January 28, 1977, petitioner possessed a .32 caliber

revolver that had previously been shipped in inter-

state commerce. In addition, petitioner acknowledged

that in 1961 he had been convicted in Florida state

court of the felony of breaking and entering with in-

tent to commit a misdemeanor.

Shortly before trial, petitioner’s counsel advised the

court that he had information that petitioner had not

been represented by counsel at his 1961 Florida trial.

He contended that a conviction for violation of Sec-

tion 1202(a)(1) could not be predicated on a prior

conviction obtained in violation of petitioner’s Sixth

3

4

Amendment rights. The district court, however,

ruled that the constitutionality of the Florida convic-

tion was immaterial with regard to petitioner’s status

as a previously convicted felon for purposes of Section

1202(a)(1). Accordingly, petitioner did not present

any evidence on whether in fact he had been convicted

in 1961 without the aid of counsel.

DISCUSSION

This case presents an important and recurring

question under the federal gun laws. The courts of

appeals have divided over whether an allegedly un-

constitutional prior felony conviction may serve as

the predicate for prosecuting a previously convicted

felon who has received, possessed, or transported a

firearm in violation of 18 U.S.C. 922(g) (1), 922(h)

(1), or App. 1202(a)(1). See, eg., United States

v. Edwards, 568 F.2d 68, 72 n.3 (8th Cir. 1977)

(noting conflict without deciding the issue). Al-

though we believe that this issue was correctly de-

cided against petitioner, we do not oppose his petition

for a writ of certiorari in light of the conflict among

the courts of appeals.

1. As the court of appeals recognized (Pet. App.

8), there is a conflict among the circuit courts as to

whether and in what circumstances a defendant may

raise the invalidity of his prior conviction as a de-

fense to a prosecution for unlawfully possessing, re-

ceiving or transporting a firearm in violation of 18

U.S.C. 922(g)(1), 922(h)(1), or App. 1202(a)

1

(1).*. In addition to the instant holding both the

Third and the Tenth Circuits have held that at least

some categories of unconstitutional convictions may

be the basis for a valid conviction under either Sec-

tion 1202 or Section 922. See United States v.

Graves, 554 F.2d 65, 68-70, 73-75, 76-82 (3d Cir.

1977) (en banc) (Section 1202(a)(1)); and Barker

v. United States, 579 F.2d 1219, 1226 (10th Cir.

1978) (Section 922(h)(1)).? Conversely, the Fifth,

1 Petitioner was convicted of violating Section 1202 (a) (1).

Although that statute differs substantially in scope from

Sections 922(g) and 922(h), see United States v. Batchelder,

No. 78-776 (argued Apr. 18, 1979), the three statutes are

seemingly identical with regard to the issue presented by this

case. Thus the various statutes were simultaneously enacted

by Congress as separate provisions of the Omnibus Crime

Control and Safe Streets Act of 1968, Pub. L. No. 90-351,

82 Stat. 225-235, 236-237. And the pertinent language of the

provisions is virtually the same insofar as all three sections

prohibit any person who has been convicted of a crime punish-

able by imprisonment for a term exceeding one year from

obtaining firearms. See 18 U.S.C. 921(a) (20)), 922(g) (1),

922(h) (1), App. 1202(a)(1), and App. 1202(c) (2). Ac-

cordingly, we do not believe that decisions involving Section

1202 may be distinguished from those involving Section 922

with regard to the issue presented here. In any event, we

further note that the decision below is in square conflict with

United States v. Pricepaul, 540 F.2d 417 (9th Cir. 1976), and

United States v. Lufman, 457 F.2d 165 (7th Cir. 1972).

2? Both Graves and Barker involved a prior conviction that

was allegedly unconstitutional as a matter of due process of

law rather than a denial of the Sixth Amendment right to

counsel that was alleged here. See Gideon v. Wainwright, 372

U.S. 335 (1963). The Graves court specifically indicated that

it might reach a different result if a Sixth Amendment viola-

tion were involved. See 554 F.2d a’ 82 & n.68. See also United

—— eee

5

Sixth, and Seventh Circuits have stated that a prose-

cution under either Section 1202 or Section 922 may

not be predicated on a prior conviction that was

obtained without counsel. See Dameron v. United

States, 488 F.2d 724 (5th Cir. 1974) (Section 922

(g)); United States v. Maggard, 573 F.2d 926 (6th

Cir. 1978) (Section 1202 (a) ; dictum) ; United States

v. Lufman, 457 F.2d 165 (7th Cir. 1972) (Section

1202(a)). See also United States v. DuShane, 435

F.2d 187, 189-190 (2d Cir. 1970) (Second Circuit

reached same result under predecessor statute to Sec-

tion 1202). Moreover, the Ninth Circuit has con-

cluded that a defendant may not be convicted under

Section 1202(a)(1) if his prior conviction was ob-

tained in violation of any federal constitutional right

that implicates “the judicial guilt-determination proc-

ess.” United States v. Pricepaul, 540 F.2d 417, 421

(9th Cir. 1976). Cf. United States v. Liles, 432 F.2d

18 (9th Cir. 1970).’ |

States v. Maggard, 573 F.2d 926 (6th Cir. 1978) (only con-

stitutional violations appearing on the face of the prior con-

viction may be raised as a defense to prosecution under Sec-

tion 1202; ineffective assistance of counsel distinguished from

complete absence of counsel). In Barker, the Tenth Circuit

broadly held that “an underlying prior conviction will apply

in a federal firearm prosecution if it has not been challenged

on appeal or by collateral attack.” 579 F.2d at 1226.

3’ There appears to be a related conflict among the courts

of appeals regarding whether a defendant may raise the

invalidity of a prior conviction as a defense to a prosecution

for making a false statement in connection with the acquisi-

tion of a firearm. See 18 U.S.C. 922(a) (6). All of the circuit

courts that have considered this question except the Ninth

Circuit have held that the constitutionality of the prior con-

6

2. The courts below correctly concluded that pe-

titioner may not raise the alleged unconstitutionality

of his prior conviction as a defense to a prosecution

under Section 1202(a)(1). That statute broadly de-

clares that no “person who * * * has been convicted

by a court * * * of a felony” shall receive, possess or

transport firearms. No exception is made for persons

whose convictions are for any reason invalid (pro-

vided, of course, that they have not been set aside

prior to the alleged offense). To the contrary, the

language of Section 1202 strongly suggests that it is

the fact of conviction that imposes a disability on an

individual. See United States v. Graves, supra, 554

F.2d at 69.*

The conclusion of the court of appeals is further

buttressed by the express enumeration of the limited

exceptions to Section 1202(a)(1) found in Section

viction is immaterial to a prosecution under Section 922

(a) (6). Compare United States v. Graves, supra; United

States v. Allen, 556 F.2d 720 (4th Cir. 1977) ; United States

v. Ransom, 545 F.2d 481 (5th Cir.), cert. denied, 434 U.S.

908 (1977) ; Cassity v. United States, 521 F.2d 1820 (6th Cir.

1975) ; United States v. Edwards, supra, with United States

v. Pricepaul, supra.

Congress could reasonably assume that the fact of con-

viction was a strong indicator of potential irresponsibility

and dangerousness, even if that conviction was subject to col-

lateral attack. See Scarborough v. United States, 431 U.S. 563,

571-572 (1977); United States v. Liles, supra. See also 18

U.S.C. App. 1201. Indeed, Section 922(h) (1) prohibits any

one under indictment for a felony from receiving a firearm,

regardless of whether that person is later acquitted. See, e.g.,

United States v. Pricepaul, supra, 540 F.2d at 421; DePugh v.

United States, 393 F.2d 367 (8th Cir.), cert. denied, 393 U.S.

832 (1968).

7

1203. Section 1203 provides that the only felons who

are exempt from the prohibitions of Section 1202 (a)

(1) are those who have been entrusted with a weapon

by a prison authority and those who have obtained

a specific pardon meeting the requirements of Section

1203(2). The existence of these two specific exemp-

tions belies petitioner’s contention that felons who

have never challenged their convictions are exempted

from the purview of Section 1202(a)(1).° And the

legislative history clearly reflects Congress’ under-

standing that the fact of conviction terminated a per-

son’s right to possess a firearm, subject only to the

exceptions of Section 1203. See 114 Cong. Rec.

13868-13869, 14773-14774 (1968) (remarks of Sen.

Long, sponsor of Section 1202).

Finally, we do not believe that Burgett v. Texas,

389 U.S. 109 (1967), and its progeny*® mandate a

different result here. The Burgett line of cases stand

for the proposition that convictions obtained without

5 We further note that the contrary conclusion could seri-

ously hamper the comprehensive regulation of firearms estab-

lished in Title IV of the Omnibus Crime Control and Safe

Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 225-235, as

modified by the Gun Control Act of 1968, Pub. L. No. 90-618,

82 Stat. 1213-1226 (codified at 18 U.S.C. 921-928). Section

922(d)(1) prohibits a firearm dealer from transfering a

firearm to anyone he has reasonable cause to believe has been

convicted of a felony. This simple and effective prohibition

would be rendered nugatory if a convicted felon could relieve

the dealer of responsibility by stating that he believed his

prior conviction to be unconstitutional.

6 See United States v. Tucker, 404 U.S. 448 (1972) ; Loper v.

Beto, 405 U.S. 473 (1972).

8

counsel cannot reliably be used for certain purposes.

This Court has never suggested, however, that the

Constitution precludes mere recognition of an un-

counseled conviction as historical fact or that Con-

gress could not constitutionally prohibit a person who

has been convicted of a felony from possessing fire-

arms until such time as he successfully challenges his

conviction or obtains a pardon in accordance with

Section 1203(2). Thus, just as Congress reasonably

concluded that the fact of indictment warrants im-

position of a disability, see note 4, swpra, so too Con-

gress could constitutionally bar a convicted felon

from receiving or possessing a firearm, regardless of

whether that conviction was obtained in violation of

the Sixth Amendment. See, Note, Prior Convictions

and the Gun Control Act of 1968, 76 Colum. L. Rev.

326, 336-339 (1976) (concluding that any collaterally

unchallenged conviction is a valid predicate felony for

purposes of the Act).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

May 1979

W ov. S. Government printing orrice; 1979 294208 399