Opposition Brief — Breier v. United States

. [Supreme cour us.

) Court, U.S.

FILE COPY(s\ | Ses

FEB 17 1988

JR,

No. 87-986

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

DONALD DOUGLAS BREIER, PETITIONER

Vv.

BE PPI INTE DpyTeD STATES OF AMERICA

5

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

THOMAS E. BOOTH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY |

o

QUESTION PRESENTED

Whether convictions under 18 U.S.C. (1982 ed.) 922 for

unlicensed dealing in firearms should abate in light of the

Firearms Owners’ Protection Act, Pub. L. No. 99-308, 100

Stat. 449.

(I)

TABLE OF CONTENTS

Page

EES ESE Spa ae a |

a ee a aw da Wades wale |

ee ea W deka sie daw bees ss |

eek eee Sie N hae se da padet ene ede saeaee 7

SESS SER OS Cn ce rr 14

TABLE OF AUTHORITIES

Cases:

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

et ee Ea ail eels wanes vee 8, 9

Great Northern Ry. v. United States, 208 U.S. 452

EIS EERSTE OT RE ee rr 1]

Hamm vy. City of Rock Hill, 379 U.S. 306 (1964) ..... Mu, 4%, 13

Hertzv. Woodman, 218 U.S. 205 (1910) ............... 11

Omni Capital International, Ltd. v. Rudolf Wolff & Co.,

I ID i sew e cc cccccccccess 7

Pipefitters v. United States, 407 U.S. 385 (1972) ........ ey

12, 13, 14

United States v. Burgos, 720 F.2d 1520 (11th Cir. 1983) .. 3

United States vy. Carter, 801 F.2d 78 (2d Cir.), cert.

a 3, 7-8

United States v. Jackson, 824 F.2d 21 (D.C. Cir. 1987) ... 8

United States v. Orellanes, 809 F.2d 1526 (11th Cir.

EARS SUSE OO 8, 9, 10

United States v. Pennon, 816 F.2d 527 (10th Cir. 1987) ... 8

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

I IE EE oo ns cence cccsccnsccs 3

United States v. Reisinger, 128 U.S. 398 (1888) ......... 11

United States v. Wilmoth, 636 F.2d 123 (Sth Cir. 1981) ... 3

Warden v. Marrero, 417 U.S. 653 (1974) .......... 7, 11, 13, 14

Statutes:

Comprehensive Drug Abuse Prevention and Control Act

of 1970, Pub. L. No. 91-513, 84 Stat. 1236 ........... 13

Federal Election Campaign Act of 1971, Pub. L. No.

a ar 12, 13

IV

Statutes — Continued: Page

Firearms Owners’ Protection Act, Pub. L. No. 99-308, 100

i gr 0h cso ub ces bisereeuareeaan 3

OR ererrrrr Peer ey 9, 10

ID bos kav enn sd sed vavevaveans 3,4

CPi OME, o's decd c's ad euwnets exons he Pe

Guns Control Act of 1968, 18 U.S.C. (& Supp. IV) 921 ef

seq.:

Be er I EEE bk dere hades evecconsaes 3, 5, 7, 14

18 U.S.C. (1982 ed.) 921 (a)(1I)(A) ............... ee

18 U.S.C. (Supp. IV) 921(a)(21)(C) ............. 3, 4, 5, 6

18 U.S.C. Goa. TV a) GEEZ)... 2 eee ees 3, 4, 5, 6

BU RA SE a hack de ce vec cawnceeen 3, 3.7

EUR Pe! er i)

PRR Rome °F Re” | | Berane 2,3

18 U.S.C. CIGE OER GONE) onc icc ccc ccen 8, 9

OER ee ee oak oichs seo va aden ssace en 6, 7, 8, 10, 11, 13

GR Se SE OS Se eee rer ere Peers 2, &

p IR Se Gg) errr rere ere rr re 13

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-986

DONALD DOUGLAS BREIER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 6a-15a)

is reported at 813 F.2d 212.

JURISDICTION

The judgment of the court of appeals was entered on

March 16, 1987. A petition for rehearing was denied on

September 16, 1987. On November 9, 1987, Justice

O’Connor granted an extension of time, until December

15, 1987, for filing a petition for a writ of certiorari, and

the petition was filed on that date. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Central District of California, petitioner was con-

victed on five counts of unlicensed dealing in firearms, in

(1)

2

violation of 18 U.S.C. (1982 ed.) 922(a)(1). The district

court sentenced petitioner to 45 days’ imprisonment, five

years’ probation, and a $5,000 fine. The court of appeals

affirmed.

1. Petitioner is a gun collector. During the summer of

1984, he began renting tables at gun shows, where he

bought, sold, and traded firearms. In April 1985, he was

contacted by an agent of the Bureau of Alcohol, Tobacco

and Firearms (ATF). The agent told petitioner that ATF

had reason to believe he was trading in firearms on a

regular basis and warned him that a federal firearms

license is required for persons who regularly traffic in

firearms. Petitioner assured the agent that he was only a

collector and that he was not regularly trading in firearms.

Over the next year and a half, however, ATF agents at-

tended several gun shows in an undercover capacity and

purchased firearms from petitioner; petitioner realized a

gross profit on those sales, although he claimed to have

suffered a net loss, because of associated expenses, on his

overall dealings. In February 1986, a grand jury indicted

petitioner on five counts of violating the Gun Control Act

of 1968, 18 U.S.C. (1982 ed.) 922(a)(1), which made it

unlawful “for any person, except a * * * licensed dealer, to

engage in the business of * * * dealing in firearms.” Pet.

App. 7a.

A jury trial commenced on April 1, 1986 (Pet. App. 7a).

At the close of the evidence, the case was submitted to the

jury with instructions that the term “dealer” in 18 U.S.C.

(1982 ed.) 922(a)(1) meant “ ‘any person engaged in the

business of selling firearms * * * at wholesale or retail.’ ”

Pet. App. 9a n.1 (quoting 18 U.S.C. (1982 ed.)

921(a)(11)(A)), and that the phrase “engage[d] in the

business of dealing in firearms” in 18 U.S.C. (1982 ed.)

922(a)(1) meant that the defendant “hfe]ld [himself] out as

a source of firearms, or * * * engage[d] in regular and

3

repeated buyings and/or sellings of firearms, as opposed

to an isolated or occasional transaction,” even if the de-

fendant did not sell firearms as his primary business or ac-

tually realize a profit from his sales (Pet. App. 9a n.1).'

The jury convicted petitioner on all five counts and, on

May 11, 1986, the court imposed sentence (Pet. App.

7a-8a).

2. On May 19, 1986, a few days after petitioner was

sentenced, Congress enacted the Firearms Owners’ Protec-

tion Act (FOPA), Pub. L. No. 99-308, 100 Stat. 449. The

FOPA did not change the offense set forth in 18 U.S.C.

(1982 ed.) 922(a)(1) or the definition of “dealer” set forth

in 18 U.S.C. (1982 ed.) 921(a)(11)(A). Rather, it added a

new subsection 21(C) to 18 U.S.C. 921 and thereby re-

defined the phrase “engaged in the business” to refer to a

person who “deal{s] in firearms as a regular course of

trade or business with the principal objective of livelihood

and profit through the repetitive purchase and resale of

firearms” (§ 101(6), 100 Stat. 450).2 The FOPA also added

a new subsection 22 to 18 U.S.C. (1982 ed.) 921, which

' That instruction was consistent with the construction of Section

922 uniformly embraced by the courts of appeals. See, e.g., United

States v. Carter, 801 F.2d 78, 82 (2d Cir.), cert. denied, 479 U.S. 1012

(1986); United States v. Burgos, 720 F.2d 1520, 1527 n.8 (11th Cir.

1983); United States v. Wilmoth, 636 F.2d 123, 125 (Sth Cir. 1981).

See also United States v. Powell, 513 F.2d 1249, 1250 (8th Cir.), cert.

denied, 423 U.S. 853 (1975).

2 Section 921(a)(21)(C) (18 U.S.C. (Supp. IV)) provides that the

term “engaged in the business” means:

{A]s applied to a dealer in firearms, as defined in section

921(a)(11)(A), a person who devotes time, attention, and labor to

dealing in firearms as a regular course of trade or business with

the principal objective of livelihood and profit through the

repetitive purchase and resale of firearms, but such term shall not

include a person who makes occasional sales, exchanges, or pur-

chases of firearms for the enhancement of a personal collection

or for a hobby, or who sells all or part of his personal collection

of firearms.

4

defined the phrase “with the principal objective of

livelihood and profit” to mean that the intent was

“predominantly one of obtaining livelihood and pecuniary

gain” (§ 101(6), 100 Stat. 450).? And Section 110 of the

statute provided that, with a few specific exceptions, the

provisions of the FOPA, including new subsections 21(C)

and 22, would take effect 180 days after their enact-

ment —i.e., on November 15, 1986. 100 Stat. 460-461.

3. On appeal, petitioner argued that recently enacted

subsections 21(C) and 22 should be applied retroactively to

his case and, accordingly, that his convictions should be

reversed (Pet. App. 7a). The court of appeals rejected that

argument and affirmed petitioner’s convictions (id. at

6a-15a).

The court began by noting (Pet. App. 10a) that subsec-

tions 21(C) and 22 are not included among the list of pro-

visions that the FOPA expressly made retroactive. In spite

3 Section 921(a)(22) (18 U.S.C. (Supp. IV)} provides, in pertinent

part: 2

The term “with the principal objective of livelihood and profit”

means that the intent underlying the sale or disposition of

firearms is predominantly one of obtaining livelihood and

pecuniary gain, as opposed to other intents, such as improving or

liquidating a personal firearms collection. * * *

* Specifically, Section 110 provides, in pertinent part:

(a) INGENERAL.— The amendments made by this Act shall

become effective one hundred and eighty days after the date of

the enactment of this Act. * * *

(b) PENDING ACTIONS, PETITIONS, AND APPELLATE

PROCEEDINGS.—The amendments made by sections

103(6)(B), 105, and 107 of this Act [which affect 18 U.S.C.

923(f), 925, and 926A] shall be applicable to any action, petition,

or appellate proceeding pending on the date of the enactment of

this Act.

(c) MACHINEGUN PROHIBITION. -—Section 102(9) shall

take effect on the date of the enactment of this Act.

5

of that omission, petitioner argued that those provisions

should be given retroactive application so that they would

apply to conduct that was governed by the prior version of

Section 921 at the time the conduct occurred. In making

that argument, the court of appeals observed, petitioner

“faces the formidable obstacle of the federal savings

clause, 1 U.S.C. § 109” (Pet. App. 10a). That statute pro-

vides that “[tjhe repeal of any statute shall not have the ef-

fect to release or extinguish any penalty, forfeiture, or

liability incurred under such statute, unless the repealing

Act shall so expressiy provide, and such statute shall be

treated as still remaining in force for the purpose of sus-

taining any proper action or prosecution for the enforce-

ment of such penalty, forfeiture, or liability.” The court

determined that Congress enacted the saving clause in

order “ ‘to abolish the common-law presumption that the

repeal of a criminal statute resulted in the abatement of

“all prosecutions which had not reached final disposition

in the highest court authorized to review them” ’ ” (Pet.

App. lla (citations omitted)). And it found that,

“fajlthough the savings clause on its face applies to the

‘repeal of any statute,’ it has been held to apply to

statutory amendments as well” (ibid.). Accordingly, the

court concluded that “the determinative question is

whether the repealed prohibition is a ‘penalty, forfeiture,

or liability’ saved from extinguishment by | U.S.C. § 109”

(Pet. App. 12a).

The court determined that new subsections 21(C) and 22

of the FOPA repealed a “liability” to which petitioner

previously was subject (Pet. App. 13a). The court then

noted that “Congress * * * included a provision in the

1986 Act specifying which sections were to have retroac-

tive effect and the sections in question here were not in-

cluded in that list.” The omission of the amendments to

Section 922 from the list of provisions that were meant to

BLE COPY

6

have retroactive effect, the court held, “precludes the find-

ing of an implied congressional intent of retroactivity” and

“returns us to [section] 109, which directs that the guilt of

[petitioner] be measured by 18 U.S.C. § 922(a)(1), with its

accompanying judicial construction, as it stood prior to

the effective date of the 1986 Act” (Pet. App. 13a). The

court added that “[t]he legislative history of the 1986 Act

shows that Congress was well aware of the judicial inter-

pretations of the term ‘engaged in the business’ ” and that

it enacted new subsections (21)(C) and (22) “in order to

limit the conduct deemed to be criminal” (Pet. App. 13a

(footnote omitted)). Congress, the court concluded, must

be presumed to be familiar with the general saving clause,

and if Congress had intended to have the new subsections

affect conduct occurring prior to the effective date of the

amendments, it would have so indicated (ibid.).

4. Judge Noonan initially concurred in the court of

appeals’ judgment; while he did not believe that the FOPA

amendments addressed a “liability” within the meaning of

1 U.S.C. 109, he did find it to be “the express intent of

Congress to make the amendments to [FOPA] * * * effec-

tive only 180 days after the enactment of the law” (Pet.

App. 15a). On petition for rehearing, however, Judge

Noonan reassessed that conclusion and determined that,

notwithstanding the explicit provision delaying their effec-

tive date, the FOPA amendments should be applied

retroactively to petitioner’s case. The retroactive applica-

tion of those provisions of the FOPA was necessary,

Judge Noonan concluded, in order to promote Congress’s

objective of correcting prior ATF enforcement policies

with which Congress disagreed (id. at 4a-Sa).

ARGUMENT

1. The decision of the court of appeals is correct. The

general saving clause states that the repeal of a statute does

not “release or extinguish any * * * liability” under that

statute “unless the repealing Act shall so expressly

provide” (1 U.S.C. 109). The amendments to Section 921

are subject to the general saving clause because they

altered the definition of the activity made criminal by 18

U.S.C. (1982 ed.) 922 and thereby affected the “liability”

of persons subject to the statute. See generally Warden v.

Marrero, 417 U.S. 653, 661-664 (1974); Pipefitters v.

United States, 407 U.S. 385, 434-435 (1972). Moreover, as

the court of appeals noted (Pet. App. 10a), the “repealing

Act” does not “expressly provide” that the new provisions

relating to firearms dealers should be given retroactive ef-

fect. On the contrary, Section 110 of the FOPA expressly

provides that the FOPA amendments would take effect

only 180 days after their enactment. While certain provi-

sions of the FOPA were given retroactive application “to

any action, petition, or appellate proceeding pending on

the date of the enactment of this Act,” the amendments to

Section 921 were not included among them. This omission

is strong if not conclusive evidence that Congress did not

intend the amendments to Section 921 to apply retroac-

tively and thereby to override the effect of the general sav-

ing provision. See generally Omni Capital International,

Lid. v. Rudolf Wolff & Co., No. 86-740 (Dec. 8, 1987),

slip op. 9.

2. Nor is there any dispute among the courts of ap-

peals concerning whether the amendments to Section 921

should apply retroactively. The only other court of ap-

peals to address the issue has also held that the “firearms

dealer” provisions of the FOPA are not to be given

retroactive effect. United States v. Carter, 801 F.2d 78, 83

8

(2d Cir.) (“retrospectivity is plainly contrary to Congress’s

intent”), cert. denied, 479 U.S. 1012 (1986); see also

United States v. Jackson, 824 F.2d 21, 22-23 & n.2 (D.C.

Cir. 1987); United States v. Pennon, 816 F.2d 527, 529

(10th Cir. 1987). And, contrary to petitioner’s suggestion

(Pet. 5-8), the decision in this case does not conflict with

the decision of the Eleventh Circuit in United States v.

Orellanes, 809 F.2d 1526 (1987).

In Orellanes, the defendant was charged with receiving

firearms and ammunition, in violation of 18 U.S.C. (1982

ed.) 922(h)(1). The charges were based on Orellanes’s pur-

chases of firearms and ammunition between 1982 and

1985, after he had pleaded guilty to two felonies in Florida

state court. The defendant argued (1) that his convictions

abated on the date ihe FOPA became effective; (2) that

because the Florida court had entered an order

withholding adjudication after his guilty plea, he was not a

“convicted” felon within the meaning of 18 U.S.C. (1982

ed.) 922(h)(1); and (3) that this Court’s decision in Dicker-

son v. New Banner Institute, Inc., 460 U.S. 103 (1984),

holding that a guilty plea is a conviction for purposes of

Section 922(h)(1), even if it is not accompanied by an ad-

_judication of guilt, should not be applied retroactively to

his case.

- The court of appeals rejected each of those arguments

and affirmed Orellanes’s conviction. With respect to the

abatement argument, the court held that the general sav-

ing clause, 1 U.S.C. 109, prevented the prosecution from

abating at the time the FOPA became effective, particular-

ly since the FOPA “contains no provision precluding the

retention of accruing penalties” (809 F.2d at 1529). With

respect to the meaning of the term “convicted,” the court

held that, even under Florida law, a plea o guilty con-

Stitutes a conviction, even in the absence of an adjudica-

tion by the court (801 F.2d at 1528). And, finally, with

ers rc ee See

9

respect to the challenge to the application of Dickerson,

the court held that Dickerson was fully applicable to peti-

tioner’s conduct (809 F.2d at 1528).

Petitioner does not claim that the decision below con-

flicts with any of those three holdings by the court in

Orellanes. Rather, he relies on the court’s reference to the

FOPA in the course of its discussion of Florida

law —specifically, its notation that Section 101(5) of the

FOPA statutorily overruled the decision in Dickerson and

requires a court to look to state law in determining

whether a guilty plea constitutes a conviction (809 F.2d at

1528). But because Orellanes was considered “convicted”

under both state and federal law, the Eleventh Circuit did

not have to decide whether Section 101(5) of the FOPA

would have applied retroactively to relieve the defendant

of liability for the firearms offenses he committed prior to

the effective date of the Act. Thus, the decision in this case

does not conflict with the decision in Orellanes; at most,

the decision in this case is contrary to an unarticulated

premise of a portion of the opinion in Orellanes, a premise

that was unnecessary to the court’s judgment.°

Moreover, the internal inconsistencies in the Eleventh

Circuit’s opinion in Orellanes make it unclear whether that

court would have reached a different result from the court

below on the facts of this case. The court in Orellanes sug-

gested both that the FOPA provided the governing defini-

tion of the term “convicted” and that the Dickerson case

was applicable to Orellanes’s conduct; but the term “con-

victed” cannot draw its meaning from state and federal

law at the same time. Similarly, the Orellanes court sug-

5 We note, in addition, that Orellanes dealt with a different section

of the Gun Control Act. Orellanes involved the “prior conviction”

provision, 18 U.S.C. (1982 ed.) 922(h)(1), while this case involves the

“firearms dealer” provision, 18 U.S.C. (1982 ed.) 922(a).

10

gested that both Section 101(5) of the FOPA and the

general saving clause, | U.S.C. 109, controlled the case;

but a statute cannot be both retroactive and nonretroac-

tive at the same time.® These internal inconsistencies in-

dicate that the Eleventh Circuit’s discussion of Section

101(5) of the FOPA cannot properly be used as the basis

for an asserted conflict among the circuits.

Finally, even if some of the language in Orellanes can be

read as implying that Section 101(5) of the FOPA is to be

applied retroactively, review by this Court is unwarranted

because of the diminishing importance of the issue. The

question whether the FOPA amendments should be given

retroactive application has arisen in only a small number

of cases under the Gun Control Act and, in light of the

passage of time since the FOPA amendments were enacted

in 1986, it is not likely to arise in many more. As we have

shown, the Ninth Circuit’s application of the general sav-

ing clause was clearly correct, and only the rather cryptic

language from a portion of the Orellanes case stands on

the other side. Because that language has not caused con-

fusion among other courts —and did not even result in an

incorrect outcome in the Orellanes case itself —this Court’s

intervention is not warranted.

3. Petitioner next contends (Pet. 8-17) that this

Court’s decisions do not establish a clear “analytical proc-

6 The confusion in the opinion of the Orellanes court may have

resulted from that court’s focus on the term “penalty” in the general

saving clause. While recognizing that the general saving clause

preserves “any penalty” established in a prior statute, the court may

have overlooked that the saving clause also preserves any “liability”

established in a prior statute, absent an express provision to the con-

trary in the repealing or amending statute. If the general saving clause

is applicable to the FOPA amendments, as the Orellanes court held it

was, the result is the preservation of a liability—in this case, the

preservation of petitioner’s liability for trading in firearms without a

license, as that term was defined prior to the FOPA amendments.

11

ess” for the federal courts to follow in applying 1 U.S.C.

109 and that the lower courts need guidance concerning

the effect that the general saving provision has on an

amending statute such as the FOPA. This contention is

without merit.

The principles governing the abatement of criminal

prosecutions are, in fact, relatively clear. The common law

rule provided that a prosecution under a statute that is

repealed or amended while the case is pending on direct

review must abate in the “absence of a demonstration of

contrary congressional intent or a general saving statute.”

Pipefitters v. United States, 407 U.S. 385, 432 (1972). See

also Warden v. Marrero, 417 U.S. 653, 660 (1974); United

States v. Reisinger, 128 U.S. 398, 401 (1888). The general

saving clause is such a statute; it was enacted to abolish the

common law presumption that the repeal of a criminal

statute resulted in the abatement of all prosecutions that

had not yet become final. Warden v. Marrero, 417 U.S. at

660-661 & n.11; Pipefitters v. United States, 407 U.S. at

433. The general saving clause does not create an inflexible

rule that no repealing or amending statute can be given

retroactive effect; instead, it creates a presumption in

favor of nonretroactivity, which can be overridden if Con-

gress has indicated a desire to make a _ particular

statute—or certain provisions of a statute—retroactive.

See Hertz-v. Woodman, 218 U.S: 205 (1910); Great North-

ern Ry. v. United States, 208 U.S. 452, 464-466 (1908).

Petitioner suggests that Hawim v. City of Rock Hill, 379

U.S. 306 (1964), is inconsistent with this analysis. In

Hamm, the Court held that state prosecutions of persons

who had participated in “sit-in” demonstrations at retail

store lunch counters had to abate because of the subse-

quent enactment of the Civil Rights Act of 1964. In the

course of its discussion, the Court stated (379 U.S. at 314)

that, if the “sit-in” convictions had been federal convic-

12

tions, they would not have been saved from abatement by

the general saving clause. The Court held that the effect of

the Civil Rights Act went far beyond merely repealing

prior contrary laws—instead, the Act “substitutes a right

for a crime” (ibid.). That “drastic * * * change” in the law,

the Court stated, “is well beyond the narrow language of

amendment and repeal.” Therefore, the Court concluded,

the effect of the Civil Rights Act was to go beyond the

“mere technical abatement” that the saving clause was

meant to avoid (ibid.).

Unlike the Civil Rights Act of 1964, the FOPA amend-

ments were not intended to “substitute{] a right for a

crime”; they merely removed certain categories of conduct

from the reach of the criminal sanction—the same effect

that any repeal of a criminal statute would have. The

Court’s analysis in Hamm is therefore inapplicable here.

Moreover, the Court in Hamm was applying a statute that

did not contain a powerful guide to statutory construction

of the kind that was available to the court of appeals in

this case: Section 110 of the FOPA, which indicates that

certain provisions of the FOPA would be applied retroac-

tively to cases on appeal at the time of enactment, but

which did not include the provisions at issue in this case.

Later decisions by this Court have made clear that the

Hamm case was not intended to mark a departure from

the Court’s traditional construction of the general saving

clause and its relationship to statutes that repeal or amend

criminal sanctions. In Pipefitters v. United States, supra,

for example, the Court addressed the question whether a

prosecution for illegal campaign contributions under 18

U.S.C. (1970 ed.) 610 was affected when the statute was

amended by Section 205 of the Federal Election Campaign

Act of 1971, Pub. L. No. 92-225, 86 Stat. 10. The Court

found no evidence that Congress intended the 1971 statute

a enn.

13

to preserve prosecutions under the former version of Sec-

tion 610; nonetheless, the Court held that the general sav-

ing clause barred the abatement of any prosecutions under

the prior version of Section 610. 407 U.S. at 432-433. The

Court distinguished the Hamm case by pointing out that,

although Section 205 of the Federal Election Campaign

Act of 1971 may have “ma[d]e lawful what was previously

unlawful,” it did not “[{substitute] a right for a crime.” 407

U.S. at 434. Therefore, the Court held that, even if the

former Section 610 was implicitly repealed by the 1971

statute, the defendants remained punishable under the

prior version of Section 610.

Two years later, in Warden v. Marrero, supra, the

Court again applied the general saving clause to preserve a

penalty that had been repealed by a statute that was

enacted after the defendant’s conviction. In that case, the

Court held that the general saving clause preserved the no-

parole provision of the pre-1970 narcotics laws, 26 U.S.C.

(1964 ed.) 7237(d), as applied to the defendant, even

though that provision was repealed by the Comprehensive

Drug Abuse Prevention and Control Act of 1970, Pub. L.

No. 91-513, 84 Stat. 1236. Because there was no indication

in the latter statute that the repeal of the no-parole provi-

sion was meant to be applied retroactively, and because

the Court concluded that the no-parole provision of the

former statute was a “penalty” within the meaning of 1

U.S.C. 109, the Court held that the defendant was not en-

titled to relief based on the later statute.’

7 Although thé decision in Warden v. Marrero, supra, drew a dis-

sent, the analysis adopted by the dissenters supports the position taken

by the Ninth Circuit in this case. The dissenters accepted the basic prop-

osition that “apart from exceptional circumstances [citing Hamm v.

Rock Hill, supra), one who violates the criminal law should not escape

sanction if, subsequent to the commission of his criminal act, the law

14

The decisions in Pipefitters and Warden v. Marrero

contro: this case. Like the amending statute at issue in

Pipefitters, the FOPA amendments merely “ma[d]e lawful

what was previously unlawful”; they did not substitute “a

right for a crime.” 407 U.S. at 434. Moreover, as in both

Pipefitters and Warden v. Marrero, there is nothing in the

FOPA to indicate that Congress intended the amendments

to Section 921 to apply retroactively; on the contrary, as

we have noted, there is a strong textual basis for the in-

ference that those amendments were not intended to have

retroactive application: Petitioner committed an act

which, at the time, was clearly criminal. Indeed, even

though he had been warned by an ATF agent that his con-

duct was criminal, he persisted in it. He should not receive

a windfall from Congress’s subsequent decision to

decriminalize certain kinds of firearms transactions.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

THOMAS E. BOOTH

Attorney

FEBRUARY 1988

happens to be repealed.” Warden v. Marrero, 417 U.S. at 665

(Blackmun, J., dissenting).

we U.S. GOVERNMENT PRINTING OFFICE: 1988—202-037/60305

a aa te a Te

I aeecceeeeneeiaeseeaeciaanenaiaiietiiiiiiiiiiiaitaiaaiiaasiidiiad