Petition for Writ of Certiorari — Bruscantini v. United States

, ( ) Cou

85-325 sig

40

AUG 28 1989

SEPH F. SPANIOL, SR

CLERK

rt, U.S.

ED

NO.

in the

Supreme Court

of the

United States

EMILIO BRUSCANTINI,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PAUL MORRIS, P.A.

2000 S. Dixie Hwy., Suite 212

Miami, Florida 33133

(305) 858-8820

Counsel for Emilio Bruscantini

QUESTIONS PRESENTED

i

WHETHER DICKERSON v. NEW BANNER

INSTITUTE, 460 U.S. 103, 103 S.Ct. 986, 74

L.Ed.2d 845 (1983), SHOULD BE HELD

RETROACTIVE.

I.

WHETHER THE RULE OF COX v.

LOUISIANA, 379 U.S. 559, 85 S.Ct. 476, 13

L.Ed.2d 487 (1965), AND RALEY v. OHIO, 360

U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959),

HOLDING THAT DUE PROCESS FORBIDS

THE GOVERNMENT FROM ACTIVELY

MISLEADING A CITIZEN AS TO THE LAW’S

COMMAND, APPLIES WITH EQUAL FORCE

WHERE THE CITIZEN IS MISLED BY A

STATE GOVERNMENT, AND BY VIRTUE

OF HAVING RELIED UPON THE STATE

OFFICIALS, HE IS PROSECUTED BY THE

FEDERAL GOVERNMENT.

TABLE OF CONTENTS

Page

Questions Presented ........................ i

mene 5 CE 65 is kee ii

Table of Authorities .... 2.0... ccc ccc cca s eas iii

Judgment and Opinion of the Court Below....... 1

Statement on Jurisdiction .................... 1

Constitutional Provisions Involved ............ 1

Statement of the Cage... oc... dccssceccns 2

Reasons for Granting the Writ ................ 6

SN o's seen eee wohl tie cea 13

AOE .. eee App. 1-5

ii

TABLE OF AUTHORITIES

Cases Page

Cox v. Louisiana,

379 U.S. 559, 85 S.Ct. 476,

a 11, 12

Dickerson v. New Banner Institute,

460 U.S. 103, 103 S.Ct. 986,

74 L.Ed. 3a S45 (1968)... ww eee 3, 5, 6,

7,9, 11

Lott v. United States,

367 U.S. 421, 81 S.Ct. 1563,

Oy I ED 5 vnc cu cnn vancccacss 7, 8,9

Raley v. Ohio,

360 U.S. 423, 79 S.Ct. 1257,

= 4. 11,12

United States v. Dotson,

555 F.2d 134 (Sth Cir. 1977) .............. 7,9, 10

United States v. Garcia,

727 F.2d 1028 (11th Cir. 1984) .............. 7,11

United States v. Lehmann,

613 F.2d 180 (5th Cir.1980) ................ 7,11

United States v. Padia,

Gb6 F.te OS th Cir. 1976)... . 2... 7,11

iii

TABLE OF AUTHORITIES (Continued)

Statutes

Te

a ne

iv

JUDGMENT AND OPINION

OF THE COURT BELOW

On May 28, 1985, the United States Court of Appeals

for the Eleventh Circuit filed an opinion affirming the

conviction of the Petitioner. (App. 1-3). On July 15,

1985, the Eleventh Circuit entered an order denying

the timely filed Suggestion of En Banc Consideration

on Rehearing and Petition for Rehearing. (App. 4-5).

JURISDICTION OF THIS COURT

This Petition is filed within sixty days of July 15,

1985, when the Court of Appeals denied the Petitioner's

Suggestion of En Banc Consideration on Rehearing

and Petition for Rehearing.

The jurisdiction of this Court is invoked pursuant

to Title 28, U.S.C., Section 1254(1) and Rules 17 through

23 of this Court’s rules.

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, Section 9, Clause 3, of the Constitution

of the United States provides in pertinent part:

No Bill of Attainder or ex post facto Law shall

be passed.

The Fifth Amendment to the Constitution of the

United States provides in pertinent part:

No person shall . . . be deprived of life, liberty,

or property without due process of law.

STATEMENT OF THE CASE

Course of Proceedings Below

A one-count information was filed on January 19,

1984, with the United States District Court for the

Southern District of Florida. The information charged

that, having pled nolo contendere to a state felony

charge of burglary, Petitioner Bruscantini violated federal

frearms statutes 18 U.S.C., §§ 922(hX1) and 924(a), by

having knowingly received two firearms on August 12,

1982.

On January 19, 1984, the petitioner entered a written

conditional plea of nolo contendere, pursuant to Rule

1i(aX2), Federal Rules of Criminal Procedure, preserving

for review the denia! of his motion to dismiss.

On September 20, 1984, the petitioner was convicted

of Count 1 of the superseding information, ple>ed on

probation for five years, and ordered to pay a fine of

$1,000.00. Notice of Appeal was filed on September 20,

1984, pursuant to 28 U.S.C., §1291.

On May 28, 1985, the Eleventh Circuit affirmed.

(App. 1-3). Rehearing was denied July 15, 1925. (App.

4-5)

Facts

On April 17, 1974, Petitioner Emilio Bruscantini

entered a plea of nolo contendere to a Florida burglary

charge filed Fy information in the Circuit Court of the

Eleventh Judicial Circuit in and for Dade County, Florida.

The state judge, the Honorable Paul Baker, withheld

adjudication of guilt and placed the petitioner on probation

for two years. After the petitioner successfully completed

the two-year probationary term, he was advised by the

state judge, prosecuting authorities, and his counsel,

that by virtue of the withheld adjudication and successful

completion of probation that he did not have a “conviction”.

Approximately eight years later, on or about August

12, 1982, the petitioner received two firearms which

gave rise to the federal charge in this case.

A one-count information was filed on January 19,

1984, with the United States District Court for the

Southern District of Florida. The information charged

that, having pled nolo contendere to the state felony

charge of burglary in Dade County, Florida, on April

17, 1974, the petitioner violated federal firearms statutes

18 U.S.C., §§ 922(h\(1) and 924(a), by having knowingly

received two firearms on August 12, 1982. Section 922(hX1)

prohibits the receipt of a firearm by any person who

has been convicted of a crime punishable for a term

exceeding one year. The second charge was dropped.

The petitioner sought dismissal of the charge on

two principal grounds: (1) he was not a “convicted”

person at the time he received the firearms, and (2)

even if he was a “convicted” person, as defined in

Dickerson v. New Banner Institute, 460 U.S. 103, 103

S.Ct. 986, 74 L.Ed.2d 845 (1983) (discussed infra),

retroactive application of Dickerson would be violative

of the Due Process and Ex Post Facto Clauses. In

further support of his motion to dismiss, the petitioner

attached four affidavits alleging the following:

(1) Stephen I. Mechanic attested that he was the

Chief Assistant Public Defender in the courtroom of

Florida Judge Paul Baker from 1972-1975. (Judge Baker

passed away before the petitioner was charged in federal

court.) With respect to a defendant entering a plea of

nolo contendere to a felony and receiving a withheld

adjudication of guilt and a period of probation, it was

Judge Baker's practice to advise such a defendant that

a withholding of adjudication of guilt was not a legal

conviction for the purposes of any disabilities imposed

', the future, and the defendant could lawfully possess

a firearm after the period of probation.

(2) Thomas E. Scott, then Judge of the Circuit

Court for the Eleventh Judicial! Circuit in and for Dade

County, attested that when a defendant’s adjudication

of guilt was withheld and he was placed on probation,

it was routine practice and procedure for the Florida

judge to advise the defendant that the withheld

aGjudication was not a conviction, and that the defendant

was prohibited from possessing a firearm only while on

probation.

(3) Mike Russell, Probation and Parole Supervisor

of the State of Florida Department of Probation and

Parole, Dade County, Florida, stated that as to any

defendant who received a withheld adjudication ¢f guilt

and a term of probation prior to February 23, 1983,

that defendant would have been advised by the probation

officer that the withheld adjudication did not constitute a

conviction, and the probationer was prohibited from

possessing a firearm only during the term of probation.

(4) Affiant Paul Pollack stated that he represented

Petitioner Bruscantini before Judge Baker on the state

charge. It was his routine practice to advise a defendant -

who pled nolo contendere and received a withheld

adjudication that the defendant would not be considered

a convicted felon, and that the defendant could legally

possess a firearm after the probationary term.

In response to the motion to dismiss, the government

did not dispute any of the petitioner's factual allegations.

The government argued that Dickerson could be applied

retroactively without violating the Ex Post Facto Clause,

and that a plea of nolo contendere should be treated

the same as a plea of guilty for the purposes of the

federal firearms statutes. The motion to dismiss was

denied by the district court.

On January 19, 1984, the petitioner entered a written

conditional plea of nolo contendere, pursuant to Rule

11(aX2), Federal Rules of Criminal Procedure, preserving

for review the denial of the motion to dismiss.

On September 20, 1984, the petitioner was convicted

of Count 1 of the superseding information, placed on

probation for five years, and ordered to pay a fine of

$1,000.00. Notice of Appeal was timely filed on September

20, 1984.

On May 28, 1985, the Eleventh Circuit affirmed,

ruling in pertinent part as follows:

—the petitioner was a convicted felon at the time

of his arrest;

— Dickerson can be applied retroactively;

— because the government that advised the

petitioner that he was not a convicted felon was not

the same government that filed the firearms charge,

the petitioner could not benefit from those decisions of

the United States Supreme Court that prohibit

prosecution against one who reasonably relies upon

interpretation of the law by authoritative officials. (App.

1-3)

REASONS FOR GRANTING THE WRIT

The petitioner’s conviction in this case violates

the constitutional prohibition against ex post facto laws,

as well as fundamental notions of due process and

fairness. After successful completion of probation imposed

by a Florida court, the petitioner was advised by the

state judge, the prosecutor, and his lawyer, that he

was not a convicted felon because adjudication of guilt

had been withheld pursuant to his negotiated plea.

Accordingly, the petitioner had no reason to believe

that he could not legally possess a firearm.

Eight years after his Florida case had been closed,

the petitioner obtained firearms. The federal government

filed charges against him on the ground that because of

the state proceedings, he was a convicted felon who

could not legally obtain firearms. The petitioner

unsuccessfully sought dismissal of the federal charge

in the district court and in the Eleventh Circuit Court

of Appeals.

The first issue worthy of certiorari review is whether

Dickerson v. New Banner Institute, 460 U.S. 103, 103

S.Ct. 986, 74 L.Ed.2d 845 (1983) should apply retroactively.

Petitioner Bruscantini received the firearms in 1982,

before Dickerson had been rendered. Dickerson held

that expunction of a state conviction does not remove

the disabilities imposed by the federal gun control

statutes. Application of Dickerson to the petitioner is

violative of due process and constitutes an ex post

facto violation.

The Eleventh Circuit held that the retroactivity

issue had already been decided adversely to the petitioner

in United States v. Garcia, 727 F.2d 1028 (11th Cir.1984).

Garcia held:

There is no problem of Dickerson being applied

retroactively to Garcia. The prevailing law in

the former Fifth Circuit prior to Dickerson

was that state statutes that withheld finality

do not prevent conviction within the meaning

of Sec. 922. U.S. vu. Lehmann, 613 F.2d 130 (5th

Cir.1980); U.S¥ Petia, 584 F.2d 85 (5th Cir.1978).

To the contrary, there were numerous problems

with applying l ‘ckerson retroactively. The Garcia holding

would have one believe that the petitioner and others

similarly situated were reasonably on notice that they

were “convicted” persons by virtue of the “prevailing

law”. But Dickerson did not restate already settled

principles of law. In fact, the state of the law would

have confounded most jurists, much less the lay citizenry.

One need only consider the decisions in Lott v. United

States, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961),

and United States v. Dotson, 555 F.2d 134 (5th Cir.1977),

to come to the reasonable conclusion that the petitioner

had not been “convicted”.

Lott supports the claim that at the time of the

petitioner’s plea in state court, federal law provided

that a plea of nolo contendere followed by a withheld

adjudication of guilt did not constitute a “conviction.”

Lott addressed the question of time for appeal in criminal

cases. The case concerned defendants who had pied

nolo contendere to various charges, filed motions for

arrest of judgment, and notices of appeal after the

motions were denied. Because of the language of Rule

34 which required that motions for arrest of judgment

had to be filed within five days of the “determination of

guilt”, and because the trial court deferred pronouncement

of judgment convicting the defendants for three months

.c await the outcome of the trial of two other defendants,

an issue arose as to the timeliness of the notices of

appeai. Reversing the dismissal of the appeals by the

Fifth Circuit, this Court held that the judgment of

conviction and sentence, not the tender and acceptance

of the pleas of nolo contendere, constituted the

“determination of guilt” within the meaning of Rule 34,

thereby rendering timely the motions in arrest of

judgment and the notices of appeal. This Court reasoned,

in pertinent part:

Although it is said that a plea of nolo

contendere means literally “I do not contest

it’? ...and ‘is a mere statement of

unwillingness to contest and no more” .. . it

does admit “every essential element of the

charge.” . . . Hence, it is tantamount to “an

admission of guilt for the purpose of the

case,” .. . and “nothing is left but to render

judgment, for the obvious reason that in the

face of the plea no issue of fact exists, and

none can be made while the plea remains of

record” ... Yet the plea itself does not

constitute a conviction nor hence a

“determination of guilt.” It 1s only a confession

of the well-pleaded facts in the charge. It does

not dispose of the case. It is still up to the

court “to render judgment” thereon.

Lott, supra, 367 U.S. at 426, 81 S.Ct. at 1567. (e.s.)

Thus, it follows from the reasoning in Lott, that

where the trial court does not “render judgment”, there

is no “conviction.” Lott was the law of the land until

Dickerson was rendered twenty-two years later. The

petitioner’s plea of nolo contendere in state court was

entered in 1974, and no judgment of guilt was ever

entered. Given Lott, the Eleventh Circuit’s holding in

Garcia is highly questionable.

Further support for the petitioner was to be found

in United States v. Dotson, 555 F.2d 134 (5th Cir.1977).

In Dotson, the Fifth Circuit affirmed an order of a

federal district court which dismissed an indictment

for alleged violations of 18 U.S.C., § 922(a)(6) and 922(h),

on the ground that Dotson had not been previously

convicted of a crime. The order of the district judge

was attached to the affirmance as Appendix A and

stated in pertinent part:

The previous felony conviction referred to

in the indictment allegedly occurred on February

11, 1972, in the United States District Court

for the Northern District of Georgia upon a

charge of unlawfully receiving and concealing

a stolen motor vehicle which had been moving

in interstate commerce in violation of 18 U.S.C.

§2313.

Defendant contends that he was never

convicted of the above offense but rather that

the district judge accepted defendant’s plea of

nolo contendere to the charge and imposed a

suspended sentence and one year probation

term, specifically withholding any adjudication

of guilt. ...

It appears that the clear intent of that (Georgia

- federal district] Court was that no adjudication

of guilt be imposed, presumably so that upon

completion of the term of probation, defendant’s

record would be clear of any conviction for

thai offense.

Consequently, because there was no conviction

of the prior offense at the time defendant

purchased the firearm he had not previously

been convicted of a felony and therefore made

no false statement on his application for the

firearm, nor did he receive the firearm

uniawfully ...

Dotson, supra, 555 F.2d at 135-136.

The only distinction between Dotson and the case

at bar is that the underlying alleged “conviction” in

Dotson arose from a federal charge as opposed to a

state charge. This is a distinctior. without a difference. |

Dotson and the petitioner were in identical situations

and relied upon the same advice by the judges who

placed them on probation. The Fifth Circuit decision in

Dotson and this Court’s decision in Lott call into serious

10

question the Garcia holding that the prevailing law

prior to Dickerson did not support the petitioner.

The Padia and Lehmann cases cited in Garcia did

not clearly establish that persons such as the petitioner

would be considered “convicted” persons. The two cases

hardly informed the petitioner or those similarly situated

in clear terms consistent with due process requirements

that they could not receive firearms, and neither

purported to overrule Dotson.

Lehmann is also aistinguishable because the

defendant in that case had been found guilty of felony

theft. The Fifth Circuit held that suspension of his

sentence did not alter his status as a convicted felon.

Here, the petitioner was neither found guilty nor

adjudicated guilty. Padia is similarly distinguishable

because the defendant in that case was convicted.

In addition to the issue of the retroactivity of

Dickerson, certiorari review is appropriate because

fundamental notions of fairness and due process clash

with the novel, narrow reading given Cox v. Louisiana,

379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), and

Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d

1344 (1959), by the Eleventh Circuit. In brief, Cox and

Raley held that due process forbids the government

from actively misleading a citizen as to the law’s command.

The Eleventh Circuit held that this principle of due

process is limited to situations where the government

that misleads is the same government that prosecutes.

That court further held that due process is not implicated

wnere the citizen is misied by a state government, and

by virtue of having relied upon the state officials, he is

11

prosecuted by the federal government. Whether Cox

and Raley were intended to be so limited is questionable

and worthy of certiorari review by this Court.

In all likelihocd, there are countless others, in

addition to the petitioner, who have relied upon state

government representations that they are not “convicted”

persons by virtue of adjudications having been withheld

by the state courts. Yet these persons are subject to

federal prosecution if they have applied for or received

firearms having reasonably relied upon their state

government’s pronouncements. Despite the apparent

unfairness, only this Court can remedy this situation

through certiorari review of the claimed due process

and ex post facto violations.

12

CONCLUSION

The Petitioner requests that certiorari review be

granted, that his conviction be reversed, and that the

charge be dismissed.

Respectfully submitted,

LAW OFFICES OF

PAUL MORRIS, P.A.

2000 S. Dixie Hwy., Suite 212

Miami, Florida 33133

(305) 858-8820

Counsel for Petitioner

13

Appendix

UNITED STATES of America,

Plaintiff-A ppellee,

v.

Emilio BRUSCANTINI,

Defendant-A ppellant.

No. 84-5780

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

May 28, 1985.

Appeal from the United States District Court for

the Southern District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH and

HATCHETT, Circuit Judges.

GODBOLD, Chief Judge:

This is an appeal from a denial of a motion to

dismiss the indictment. We affirm.

In 1974 appellant Bruscantini entered a plea of

nolo contendere to a Florida burglary charge. The state

judge withheld adjudication of guilt and placed him on

probation. Appellant was told that the disposition of

his case did not constitute a conviction. He successfully

completed his probationary term.

App. 1

In 1982 Bruscantini obtained two firearms. He

was subsequently charged with violating 18 U.S.C. §922(b)

(1982), which prohibits convicted felons from receiving

firearms that have been shipped in interstate commerce.

He was also charged for making false statements to

the vendor of the firearms in violation of 18 U.S.C.

§924(a) (1982). This second charge was dropped. Bruscantini

entered a conditional plea of guilty to the first charge,

reserving the right to appeal the court’s denial of his

motion to dismiss the indictment. He received a $1,000

fine and was sentenced to five years probation.

Appellant claims that he was not a convicted felon

at the time of his arrest for receiving firearms because

he had pleaded nolo contendere to the state burglary

charge and because the state judge had withheld

adjudication. We rejected this argument in US. wu

Garcia, 727 F.2d 1028 (11th Cir.1984) (relying upon

Dickerson v. New Banner Institute, Inc., 460 U.S. 103,

103 S.Ct. 986, 74 L.Ed.2d 845 (1983)). Appellant’s second

contention, that Dickerson cannot be applied retroactively,

was also rejected. See U.S. v. Garcia, supra.

Appellant’s final contention is that he cannot be

convicted for violating §922 because the state judge

who accepted his nolo plea, as well as the state prosecutor,

told him that he was not a convicted felon. Therefore,

he argues, because he reasonably relied upon the

interpretation of law provided by authoritative state

officials, he cannot now be convicted for violating a

statute that prohibits convicted felons from possessing

firearms. Appellant’s estoppel argument was held to

establish a valid defense in Cox v. Louisiana, 379 U.S.

559, 85 S.Ct. 476, 138 L.Ed.2d 487 (1965), and Raley v.

Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959).

App. 2

The facts of this case do not warrant application of

the rule of Cox and Raley. Here, while state officials

provided the interpretation upon which appellant relied,

federal officials indicted and convicted him for a violation

of federal law. On the other hand, in both Supreme

Court decisions, state officials had interpreted state

law and subsequently convicted the defendants under

that law. This distinction is important here, particularly

where the analysis of the federal law §922, does not

depend on state practice, see Dickerson v. New Banner

Institute, Inc., supra, and where knowledge of one’s

status as a convicted felon is not an element of the

offense of receiving firearms. See U.S. v. Goodie, 524

F.2d 515 (5th Cir.1975), cert. denied, 425 U.S. 905, 96

S.Ct. 1497, 47 L.Ed.2d 755 (1976).

The rule of Cox and Raley is a narrow exception to

the general principle that ignorance of the law is no

defense. It was prompted by the Court’s observation

that permitting the government to prosecute individuals

who reasonably rely upon that government's

interpretation of the law would constitute a kind of

entrapment. Where, however, the government that

advises and the government that prosecutes are not

the same, the entrapment problem is different. Moreover,

if one benefit of the estoppel defense is that it encourages

government officials to better know and articulate the

law, that benefit is not present where application of

the defense would penalize the wrong government —the

government that prosecuted appellant rather than the

government that mistakenly and misleadingly interpreted

the law. Appellant, therefore, is not insulated from

prosecution.

AFFIRMED.

App. 3

[FILED JUL 10, 1985]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 84-5780

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

VETSUS

EMILIO BRUSCANTINI,

Defendant-A ppellant.

Appeal from the United States District

Court for the Southern District of Florida

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion May 28, 11 Cir., 198__, F.2d____).

(JULY 15, 1985)

Before GODBOLD, CHIEF JUDGE, KRAVITCH and

HATCHETT, Circuit Judges.

PER CURIAM:

(.~) The Petition for Rehearing is DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court

App. 4

be polled on rehearing en banc (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit Rule 26), the

Suggestion for Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/

United States Circuit Judge

App. 5