United States v. Thomas Stanko Marks

The government appeals the dismissal with prejudice of an indictment charging Thomas Stanko Marks with possession of firearms and ammunition by a felon in violation of 18 U.S.C. § 922 (g)(1). The district court held that Marks’ predicate state conviction was unconstitutional, because he received ineffective assistance of counsel due to his attorney’s actual conflict of interest in jointly representing both defendants. Since Washington law forbids the use of an unconstitutional conviction as a predicate for subsequent criminal prosecutions, the court dismissed the indictment, citing 18 U.S.C. § 921 (a)(20), which provides that state law determines what constitutes a conviction for the purposes of § 922(g)(1). This court has jurisdiction under 28 U.S.C. § 1291 . We conclude that, regardless of any alleged constitutional defect in Marks’ Washington conviction, his felony conviction qualifies as a predicate conviction for the purposes of § 922(g)(1). We therefore reverse the decision of the district court.

We review de novo a district court’s decision to dismiss an indictment based on an interpretation of a federal statute. United States v. Boren, 278 F.3d 911, 913 (9th Cir.2002). We…