United States v. Phillip Clark Herrell

Appellant Phillip Herrell appeals his conviction by a jury for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922 (h). We affirm.

I

In 1973, Herrell pleaded guilty in an Arizona court to a charge of grand theft. He was placed on probation for three years. On March 4, 1977, the judgment against Herrell was vacated, the grand theft charge dismissed, and Herrell’s civil rights were restored. This expunction was made under Ariz.Rev.Stat. § 13-1744.

On June 6, 1977, Herrell was found in possession of a pistol which is the subject of Count I of his federal indictment. On September 14,1977, he was found in possession of another pistol which is the subject of Count II of his federal indictment. Herrell testified at trial that the pistol in Count I was his, but that the pistol in Count II was not. Herrell was convicted on Count I and was found innocent on Count II.

II

Herrell first claims that his Arizona conviction for grand theft is invalid as a matter of both state and federal law. Therefore, he argues, that conviction is an inadequate basis for criminal liability under 18 U.S.C. § 922 (h). The grand theft conviction is attacked on the ground that there…