United States v. Charles Michael Potts

We took this case in banc in order to re-examine the principal question presented in United States v. Hoctor, 487 F.2d 270 (9th Cir. 1973).

Appellee Potts, like Hoctor, was charged with a federal crime requiring as an element the defendant’s prior conviction of a felony. 1 Both Potts and Hoctor had been convicted of a felony under the laws of the State of Washington, but before the commission of their alleged federal crimes each had caused his state conviction to be duly expunged pursuant to Wash.Rev.Code Ann. § 9.95.240 (the statute), which reads in part as follows:

In Hoctor , we concluded that the defendant was no longer a person who had been convicted of a felony, the reason being that his former “conviction was absolutely erased from his record [and that he] was entitled to the same rights, and held the same status, as any citizen.” 487 F.2d at 271 . Accordingly, we affirmed the judgment dismissing the indictment. If that conclusion was valid with respect to Hoctor, it would necessarily be the same with respect to Potts, for, as in Hoctor , the erasure or setting aside of the conviction and the restoration of Potts’ prejudgment status likewise should have effectively…

(concurring):

I concur in the opinion of Judge Koelsch.

The majority notes that today’s decision “overruling Hoetor, undoubtedly expands the scope of potential criminal liability under § 1202(a)(1).” As a consequence, it calls only for prospective application and refuses to apply the rule retroactively to Potts because he did not have notice of this court’s “revised view” of the statute. He is fortunate in two respects. Not only is the dismissal of the indictment affirmed, but he also receives adequate notice of this court’s “revised view.” Today’s opinion makes no provision for notice to numerous other similarly situated individuals for whom this decision expands the scope of potential liability.

Wash.Rev.Code Ann. § 9.95.240 has been in existence in similar form since 1939. 1 Thousands of persons have had felony convictions expunged under its terms. Until today, they “could not reasonably have suspected that [their] possession of a firearm, in or affecting commerce, would constitute a § 1202(a)(1) violation.” Those who may have relied on the prior opinion of this court, an opinion of the Supreme Court of the State of Washington, or the opinions of the Washington Attorney…

(concurring in the result).

I concur in the result reached by Judge Koelsch in his opinion. I wish to disassociate myself from its analysis, however, except insofar as that analysis pertains to the retroactivity issue. As I view it, state law must be examined to determine whether the defendant has been convicted of a felony. The relevant state law to be examined in this determination does not include expunction statutes. Such statutes do not rewrite history; they merely provide that previous history is immaterial for certain purposes under state law. It is not within the power of a state to make such history immaterial to the administration of the federal criminal law or the interpretation of federal criminal statutes. Only Congress can do that.

It follows, it seems to me, that 18 U.S. C.App. §§ 1201-3 must be examined to determine the extent to which state ex-punction statutes are to be considered as relevant either to the finding of a “conviction” by a court of a state or the presence of an “exemption” within the scope of 18 U.S.C.App. § 1203. A search of these provisions yields no express or implied reference to such statutes. I conclude from this that Congress chose to…

528 F.2d 883 UNITED STATES of America, Plaintiff-Appellant, v. Charles Michael POTTS, Defendant-Appellee. No. 74--1817. United States Court of Appeals, Ninth Circuit. Nov. 19, 1975. Robert S. Linnell (argued), U.S. Atty., Yakima, Wash., for plaintiff-appellant. John A. Moore, Jr. (argued), Yakima, Wash., for defendant-appellee. OPINION Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges. KOELSCH, Circuit Judge: 1 We took this case in banc in order to re-examine the principal question presented in United States v. Hoctor, 487 F.2d 270 (9th Cir. 1973). 2 Appellee Potts, like Hoctor, was charged with a federal crime requiring as an element the defendant's prior conviction of a felony. 1 Both Potts and Hoctor had been convicted of a felony under the laws of the State of Washington, but before the commission of their alleged federal crimes each had caused his state conviction to be duly expunged pursuant to Wash.Rev.Code Ann. § 9.95.240 (the statute), which reads in part as follows: 3 'Every defendant who has fulfilled the conditions of his probation . . . may . . . be permitted in the discretion of the…