United States v. Gerald Ray Bergeman

dissenting:

I respectfully dissent.

Discussion begins, as it did with the majority opinion, with an analysis of United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc). In Potts , this court had the opportunity to define the extent to which the federal criminal statute may preempt conflicting state law. Judge Koelsch, joined by five other judges, did not reach the resolution of that issue. While acknowledging the expunction statute, Judge Koelsch’s opinion noted that there was a limitation proviso in the statute which stated “[t]hat in any subsequent prosecution, for any offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had been granted, or the information or indictment dismissed.” Additionally, he noted that a conviction, even though expunged, could be used for impeachment purposes in any subsequent prosecution. Judge Koelsch thereby concluded that the Washington expunction statute effectuated only a “partial erasure” and that such a conviction could form the predicate for § 1202(a)(1) liability. 1 The opinion, however, did not reach the preemption issue:

Id. at 886 n. 5.

Judge Sneed, joined by five other judges,…

The defendant was charged with possession of firearms by a convicted felon in violation of 18 U.S.C.A. § 922 (h)(1). 1 The district court dismissed the indictment, finding that the prior conviction was invalid for purposes of 18 U.S.C.A. § 922 (h)(1), since it had been dismissed under an Idaho statute which allows the expunction of state criminal convictions. 2 We reverse.

Jurisdiction of the district court was based on 18 U.S.C.A. § 3231 . Jurisdiction of this court is proper under 28 U.S.C.A. § 1291 .

FACTUAL BACKGROUND

The defendant was found guilty of receiving stolen property. On November 13, 1973, the state court ordered the defendant imprisoned in the Idaho State Penitentiary for five years. (C.R. 35) However, the state court ordered that the defendant’s sentence be withheld on condition that he serve four months in the county jail, pay a $1,000.00 fine, pay court costs, and serve the balance of the term on parole. (C.R. 35-36)

On March 30, 1977, after the defendant’s probation officer petitioned the court, the state, court entered an order discharging the defendant from further probation supervision and dismissing the charges against the defendant. (C.R. 25)

Based…

592 F.2d 533 UNITED STATES of America, Plaintiff-Appellant, v. Gerald Ray BERGEMAN, Defendant-Appellee. No. 78-2219. United States Court of Appeals, Ninth Circuit. Jan. 31, 1979. Rehearing Denied March 21, 1979. Jeffrey G. Howe, Asst. U.S. Atty. (argued), Boise, Idaho, for plaintiff-appellant. Franklin Smith (argued), Idaho Falls, Idaho, for defendant-appellee. Appeal from the United States District Court for the District of Idaho. Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, * District Judge. J. BLAINE ANDERSON, Circuit Judge: 1 The defendant was charged with possession of firearms by a convicted felon in violation of 18 U.S.C.A. § 922 (h)(1). 1 The district court dismissed the indictment, finding that the prior conviction was invalid for purposes of 18 U.S.C.A. § 922 (h)(1), since it had been dismissed under an Idaho statute which allows the expunction of state criminal convictions. 2 We reverse. 2 Jurisdiction of the district court was based on 18 U.S.C.A. § 3231 . Jurisdiction of this court is proper under 28 U.S.C.A. § 1291 . FACTUAL BACKGROUND 3 The defendant was found guilty of receiving stolen property. On November 13, 1973, the state court…