New Trial on Firearms Charge Properly Denied

Wednesday, November 3, 2004

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New Trial on Firearms Charge Properly Denied—Ninth Circuit

Court Rejects Contention That Order Vacating Underlying State Felony Conviction Undermined Outcome

By DAVID WATSON, Staff Writer

A state court order vacating a felony conviction nunc pro tunc does not require a federal judge to grant a defendant a new trial on charges of being a felon in possession of a firearm, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed the conviction of Nicholas Padilla, who was arrested by Los Angeles police officers after a traffic stop in 2001. Officers said Padilla discarded a .38 caliber revolver before fleeing on foot with a companion.

The federal weapons charge, under 18 U.S.C. Sec. 922(g)(1), was premised on Padilla’s 1997 conviction for possessing cocaine for sale. Padilla was tried and convicted of the weapons offense in federal court in July of 2002, but about six months later he succeeded in obtaining a Los Angeles Superior Court order vacating the earlier drug conviction “nunc pro tunc to January 9, 1997.”

The order was based on the fact that Padilla had been tried as an adult on the state charge, but was actually a minor at the time.

After obtaining the order, Padilla asked for a new trial, but U.S. District Judge Nora M. Manella of the Central District of California denied the motion.

In his opinion for the Court of Appeals, Senior Judge William C. Canby, Jr. said Manella’s ruling was correct.

Canby noted that the U.S. Supreme Court ruled in Lewis v. United States, 445 U.S. 55 (1980), that a constitutionally invalid conviction, though subject to collateral attack, could still serve as a predicate conviction for a weapons possession charge.

“Thus,” the appellate jurist declared, “the only relevant circumstance for present purposes is Padilla’s status as a convicted felon at the time he possessed a firearm. The state court’s later order, nunc pro tunc or not, has no effect on that status....Because the record is clear that Padilla’s state felony conviction was not invalidated until after his federal conviction, the federal conviction stands.”

Canby dismissed Padilla’s contention that the defect in his conviction was more fundamental than that involved in Lewis. Since the adult court lacked jurisdiction over him, the drug conviction was void ab initio, the defendant argued.

Canby wrote:

“We reject this argument for several reasons. First, we are not convinced that the flaw in Padilla’s state conviction was any more fundamental than that in Lewis, which involved a conviction attended by a denial of the right to counsel. Second, as Padilla concedes, the state court did not lack subject matter jurisdiction over his case; the only ‘jurisdictional’ question concerned which division of the state court should exercise the subject matter jurisdiction that the court unquestionably had over his case. Third, the policy and congressional purpose of [Sec.] 922(g) are served by requiring a felon to clear his felony record before possessing a firearm no matter what infirmity infects his conviction.”

The judge conceded that Padilla’s view was supported by the reasoning of a 1986 decision by the U.S. District Court for the District of Kansas. That ruling, however, was reversed by the Tenth Circuit the following year in United States v. Mayfield, 810 F.2d 943, he noted.

In Mayfield, the court commented that the “distinction between a conviction that is ‘invalid’ and one that is ‘void from its inception’ depends too much on semantics.”

Canby declared:

“We agree that the difference in Padilla’s case is semantic and has no significance for the purposes of [Sec.] 922(g)(1).”

Nor, Canby said, did a 1986 amendment to the law require the result Padilla sought. That amendment provided that qualifying offenses should be determined based on the law of the jurisdiction involved, and that any conviction which “has been expunged, or set aside” should not be considered.

It is significant, Canby said, that the amendment refers to a conviction which “has” been removed from the defendant’s record.

“This phraseology suggests no change in the rule of Lewis or Mayfield; the expungement...(whether or not on the ground that the conviction was void ab initio) must occur before the erstwhile felon takes possession of a firearm,” he reasoned. “The controlling state determination operates only prospectively, so that after the expungement...that felony conviction no longer serves to impose a firearm disability.”

Canby said the Ninth Circuit had already held that the rule of Lewis survived the 1986 amendment earlier this year in United States v. Marks, 379 F.3d

1114. The same conclusion, he added, has been reached by the First, Fifth, Sixth, and Seventh Circuits.

Canby went on to reject Padilla’s contention that his conviction should be reversed because a statement he made to an FBI agent was erroneously admitted at his trial.

The use of the statement—Padilla told the agent he was not worried about the firearms charge, since the police planted the gun—was improper, Canby agreed, since Padilla was not given a Miranda warning before he made it and the agent’s declaration to him that this was his “last chance to cooperate” made it the result of an interrogation.

But Canby said there was no possibility that the error contributed to Padilla’s conviction.

At trial, he noted, Padilla’s defense was based on testimony from his companion in the vehicle that the companion, not Padilla, discarded the weapon. The only usefulness of the erroneously admitted statement to the prosecution was that it undercut that defense, the judge said.

But, Canby observed, that defense was already undercut by “overwhelming evidence” establishing that Padilla’s companion was lying as part of an arrangement under which the companion would receive protection and benefits from Padilla’s gang.

“We are satisfied beyond a reasonable doubt that the jury’s verdict would have been exactly the same had the disputed statement been excluded,” the judge declared.

Judge Sidney R. Thomas and Senior Judge J. Clifford Wallace concurred.

The case is United States v. Padilla, 02-50636.