DICKERSON v. NEW BANNER INSTITUTE, INC.

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ORAL ARGUMENT OF KENNETH S. GELLER, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Dickerson against New Banner Institute.

I think you may proceed whenever you are ready, Mr. Geller.

Mr. Geller: Thank you, Mr. Chief Justice, and may it please the Court, the issue in this case is whether a person who has been convicted of a felony in state court and who therefore is disabled from dealing in firearms under the Gun Contol Act of 1968 is relieved of these federal disabilities when his conviction is subsequently expunged under state law.

Unidentified Justice: Mr. Geller, is the question of whether or not this particular respondent was convicted before us?

Mr. Geller: Well, the Fourth Circuit held that he was convicted, and therefore we have not raised that question.

Unidentified Justice: I suppose we will have to wait, then, to hear respondent's argument--

Mr. Geller: But respondent has--

Unidentified Justice: --to see if he urges that as an alternate ground for affirmance?

Mr. Geller: --Yes, I think that the respondent appears to.

Unidentified Justice: Was that mooted in the court of appeals?

Mr. Geller: The Fourth Circuit held that he was convicted.

Unidentified Justice: Well, I know, but was it an issue?

Mr. Geller: I am not sure whether the respondents raised it.

Since we had won on that issue in the Fourth Circuit, we did not consider presenting it here, and never inquired into whether it was briefed in the Fourth Circuit.

The Fourth Circuit seemed to assume without too much difficulty that Kennison, the fellow at issue here, had been convicted when he pleaded guilty in Iowa state court, as I hope to get to in a minute, as I briefly explain the statement of facts here.

David Kennison is the chairman of the board of directors and a substantial stockholder of the respondent, New Banner Institute.

In 1974, he was arrested and charged with kidnapping in Iowa, and pursuant to a plea bargain, the kidnapping charge was dismissed, but he pleaded guilty to the charge of carrying a concealed weapon, which is a felony punishable by five years' imprisonment in Iowa.

The trial judge in Iowa accepted the guilty plea, deferred the entry of judgment, and sentenced Kennison to probation.

Kennison was then allowed to leave Iowa and go home to South Carolina, where he served his period of probation.

At the end of the probationary period, which appears to have been one year, Kennison called up the Iowa authorities, announced that he had successfully completed the term of probation, and he had not been arrested during that period.

And then the Iowa court, under the Iowa expunction statute, automatically dismissed the... released Kennison and did not enter judgment, ordered his criminal record expunged.

Now, a few months later, New Banner Institute applies for three licenses from the Secretary of the Treasury in order to deal in firearms and manufacture ammunition.

New Banner did not list on the application that one of its chief stockholders and officers had been convicted of a felony, and these three licenses were issued.

Shortly thereafter, the Bureau of Alcohol, Tobacco, and Firearms learned of Kennison's Iowa conviction, and served notice of its intent to revoke the licenses.

After a hearing before an Administrative Law Judge, the director of the Bureau of Alcohol, Tobacco, and Firearms found that Kennison had been convicted of a disqualifying offense under state law, and that Kennison had the power to direct the management and policies of New Banner Institute.

Therefore, the Director ordered New Banner's licenses revoked.

The... New Banner sought judicial review, and the district court upheld the revocation order, but the Fourth Circuit reversed.

The court of appeals agreed, as I said a moment ago, that Kennison had been convicted when he pleaded guilty in Iowa court to the felony, and therefore the federal firearms disabilities had been triggered at that point, but the Fourth Circuit believed that since that offense had been expunged under state law, it could no longer serve as a predicate for the imposition of penalties or disabilities under the Gun Control Act.

Therefore, the Fourth Circuit ordered the director to issue the licenses, these three licenses, to New Banner Institute under the federal statute.

Now, the Bureau revoked New Banner's licenses in this case under the provisions of Section 923(d)(1)(B) of the statute, which prohibits the issuance of a license to anyone who is disabled from transporting, shipping, or receiving firearms or ammunition under Sections 922(g) or (h) of the Act.

Sections 922(g) or (h) in turn make it unlawful for an person, and I quote,

"who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year to transport, ship, or receive a firearm or ammunition. "

Now, it's the government's position that Kennison, by virtue of the undisputed finding that he pleaded guilty to a felony in Iowa in 1974 is a person who "has been convicted" within the meaning of this section.

Unidentified Justice: Well, your statement there really subsumes the issue of conviction velno, doesn't it?

The statement you just made?

Mr. Geller: We believe that the Fourth Circuit was correct in finding that the acceptance of the guilty plea constitutes a conviction for purposes of Sections 922(g) or (h).

The question that we presented in the petition is whether the subsequent expungement of that conviction under state law for reasons having nothing to do with innocence or legal error serves to remove the federal disabilities.

Unidentified Justice: Do you prefer to discuss the issue of conviction velno now or in rebuttal?

Mr. Geller: I would be happy to discuss the issue now, if you would like, Justice Rehnquist.

We believe that the Fourth Circuit was correct, and that the question of what is a conviction is a federal question.

It doesn't depend on--

Unidentified Justice: Well, that strikes me as a rather strange proposition for the government to argue, unless you simply mean that it is a federal question and federal law refers to the laws of the several states.

Mr. Geller: --No, we think it is a federal question, that it is the intent of Congress that governs as to what the meaning of the word "conviction" was.

Unidentified Justice: No one would doubt that.

Mr. Geller: Yes.

Unidentified Justice: It is a statute that Congress passed.

Mr. Geller: Right.

Unidentified Justice: But the question is, how did Congress intend that the meaning of the word be sought?

Mr. Geller: Agreed, and what we think, the only thing that makes sense in line with the purposes that Congress intended to accomplish in the Gun Control Act was that a conviction means there has been a formal adjudication of guilt of a serious crime.

I don't think Congress meant to have that question depend on the nuances or the niceties or the peculiarities of state law, whether they call something a conviction or not.

Unidentified Justice: But how do you tell whether it is a formal adjudication?

Do you know, Mr. Geller, what the situation would... excuse me.

I'm sorry.

Do you know what the situation would be under Iowa law?

Mr. Geller: Under Iowa law?

Unidentified Justice: Iowa law.

Mr. Geller: Well, we have explained in our reply brief that Iowa law is somewhat ambiguous as to whether they would consider this a conviction.

The Iowa Supreme Court would consider this a conviction for certain purposes, but perhaps not for others.

Unidentified Justice: Do you know the case of Iowa against Walton?

It is not cited in your brief nor in your opposition's brief.

Let me read what the Iowa court said.

This is the Supreme Court of Iowa, not the court of appeals, and this is Iowa law.

"A deferred judgment order cannot serve as proof of a felony conviction in the prosecution of a Section 724.26 charge. "

That's the Iowa comparable provision.

"The record necessarily has to disclose the revocation of probation and the ultimate conviction. "

Mr. Geller: Well, as we pointed out in our--

Unidentified Justice: Just the opposite of your position here under state law.

Mr. Geller: --Well, it may well be that for purposes of imposing punishment or granting of forgiveness, that Iowa law would not consider this to be a conviction for certain purposes, although I should point out in our reply brief we pointed out that the Supreme Court of Iowa has for other purposes considered the procedure just like the one that Kennison underwent a conviction for other purposes, such as--

Unidentified Justice: Federal law certainly requires that we look to the state law to determine whether or not it is a felony, doesn't it?

Mr. Geller: --It's a felony.

That's correct.

Unidentified Justice: And it is arguable that under that Walton case it isn't a felony because there was no conviction.

Mr. Geller: No, I think not, because it is not a question of a felony.

Congress defined the term "conviction", and it has to be a conviction for an offense that carries a maximum punishment of more than one year.

It is not a question of what the defendant is actually sentenced to.

I think, Justice Blackmun, you might be right that Congress wanted to see how the state courts actually dealt with the defendant for purposes of punishment if they had defined the word "conviction" to mean what sentence did the state actually impose, but they didn't do that.

Congress defined the word "conviction" by reference to what was the maximum punishment that could have been imposed, and--

Unidentified Justice: Let me give you the citation of the Walton case, and if either of you have any comments, as far as I am concerned, you could submit them after the argument.

I am surprised that your opposition hasn't cited it.

It is 311 Northwestern 113, and the jump cite is... I'm sorry.

311 Northwestern 2nd 110, and the jump cite or page is 112.

And it doesn't appear in the headnotes, strangely enough.

Mr. Geller: --Well, we... we obviously didn't make an exhaustive study of Iowa law, because in our view Congress couldn't have wanted the disabilities of the Act to turn upon such formalities as, for example, whether a judgment was entered.

We think what Congress meant to do--

Unidentified Justice: Or whether one state has deviated greatly from another--

Mr. Geller: --Yes.

Unidentified Justice: --so that a man could get a federal license in one state--

Mr. Geller: Precisely.

Unidentified Justice: --and not in another, in the adjoining state.

Mr. Geller: Precisely, precisely, Mr. Chief Justice.

Unidentified Justice: But the felony definition certainly could embrace such deviations, and--

Mr. Geller: Well, it could, Justice Rehnquist, but we don't think it's likely to.

We think that there is some common understanding of what are serious crimes, and virtually every state deals with those crimes by labeling them felonies.

Unidentified Justice: --In Arizona, it is a felony to steal more than $50 worth of citrus.

Now, I dare say that probably isn't a felony in most other states.

Mr. Geller: But there are fail-safe mechanisms in the statute to deal with that situation, and I hope to get to them eventually.

If you have a situation such as that, Congress allowed the Secretary of the Treasury to grant relief from the federal statute.

But what we think Congress meant to do was to set a federal standard for what is a conviction for purposes of imposing these federal, these important federal disabilities.

What that standard is is, has there been an adjudication of guilt of a serious crime?

Have all the facts been found?

Is all that remains to do imposing some level of punishment?

Now, what level of punishment the state decides to impose for its own purposes is really irrelevant to the disabilities that Congress wanted to impose in this situation?

The fact that one state may decide to sentence the person to five years' imprisonment and another to expunge the conviction is relevant only to state law enforcement purposes, not federal law enforcement purposes.

The purpose of relying on the existence or, as this Court said in Lewis, the fact of a conviction, is that people who are convicted, who are found guilty of a serious crime, Congress believed to be a member of a class of presumptively risky people, people who should not be allowed to deal in firearms, unless they get a special dispensation from the Secretary of the Treasury.

Now, we think that that presumption of riskiness attaches when there has been a formal adjudication that the defendant committed a crime, and not... it doesn't depend on what happens thereafter--

Unidentified Justice: Mr. Geller, you have used the word "formal adjudication" I think three times.

What does it mean?

What is a formal adjudication?

What if he just says, I am willing to enter a guilty plea?

Mr. Geller: --I think that if the plea is accepted, as it was here--

Unidentified Justice: And the judge accepts and says, but I won't enter judgment until the two years runs by.

Is it still a formal--

--We don't think that Congress could possibly have meant to have that matter.

Let me, if I could, give you a hypothetical.

Well, but your... by adjudication, you have sort of a special meaning to adjudication.

You don't mean entry of judgment.

Mr. Geller: --That's exactly right.

We think a formal finding of guilt is what Congress meant by conviction.

All that remains is to enter some form of punishment.

Unidentified Justice: What if, instead of his accepting the plea, the judge just said, file the plea with the clerk, and come back in two years; in the meantime, you know, the condition is--

Mr. Geller: That is precisely the situation that I was going to address.

Unidentified Justice: --What would you... Is that a formal adjudication or not?

Mr. Geller: That is.

That is, if all that remains is to see how the defendant--

Unidentified Justice: What if the judge says, we will continue the case for two years?

Mr. Geller: --Well, I would have to know a little bit more.

Unidentified Justice: You have to draw a line somewhere, don't you?

Mr. Geller: You would have to find the point where the judge has actually found the defendant committed the elements of a crime, and that all he is going to do thereafter is to determine the appropriate punishment.

Now, you could have two states, for example, one in... and in both states the defendant commits the exact same crime, violating the exact same statutory provisions, and in State One, the defendant, as you say, enters a guilty plea.

The judge--

Unidentified Justice: His lawyer or he says, I am willing to plead guilty--

Mr. Geller: --Right, the judge--

Unidentified Justice: --if... because it was just my wife's gun--

Mr. Geller: --Yes.

Unidentified Justice: --and it is not a serious thing, and I am just willing to not do something for two years.

It depends on how he says that, doesn't it?

Mr. Geller: Well, no, it doesn't depend on how the defendant says that.

It depends upon what the... if the judge makes a formal finding of guilt, either by accepting the guilty plea or by accepting the jury's verdict or by, if it's a non-jury case, finding all of the facts.

At that point, we think there has been a conviction.

Now, as I was saying, you could have a situation where the judge accepts the guilty plea and defers the entry of the judgment and says, I am going to just watch your behavior over the next year before I sentence you.

You can have a second case, which is what I think probably happened here in Iowa, in which the judge accepts the guilty plea, enters a sentence... here it was a probationary sentence... and at the end of the year, based on the defendant's conduct, expunges the sentence.

It seems to me the only differences between those two situations is that in Case Number Two, the judge has entered a formal document labeled Judgment, but in either case there has been a factual finding that the defendant committed a serious crime.

Both defendants would seem to fall into the presumptively risky category that Congress had in mind in passing the Gun Control Act, and we can't imagine why Congress would have wanted to treat those two individuals differently for the purpose of imposing federal disabilities.

Unidentified Justice: But here is there a judgment or--

Mr. Geller: Here there... here... Yes.

Here the defendant was placed on probation.

There was a finding--

Unidentified Justice: --He couldn't place him on probation--

Mr. Geller: --That's exactly--

Unidentified Justice: --if he didn't enter a judgment, could he?

Mr. Geller: --Absolutely.

The judge could not have sentenced the defendant to even the probationary term unless he had found that he had committed a crime.

Unidentified Justice: Are you saying in response to the Chief Justice's question that there was a judgment?

Mr. Geller: There was an order entered.

It wasn't labeled Judgment.

Unidentified Justice: Well--

Mr. Geller: I am not sure that we should have what Congress intended to accomplish in this important federal statute turn--

Unidentified Justice: --Well, suppose the court had said, I accept your plea of guilty and sentence you to five years in the penitentiary?

Mr. Geller: --Yes.

Unidentified Justice: And he doesn't say, I find you guilty, and he doesn't issue a judgment.

Mr. Geller: Well, I assume the sentence in that situation would be the judgment.

Unidentified Justice: The sentence would be the... but he didn't say judgment.

Mr. Geller: I don't... that's exactly... I don't think that Congress's important purposes here turn on how--

Unidentified Justice: Well, the judge had to do something to justify keeping him... keeping the gentleman... under his control for a year.

Mr. Geller: --Exactly.

He had to find that he had committed an offense under Iowa law, and that offense under the Iowa statutes is punishable by five years.

We think that clearly constitutes a conviction for the purposes of 922(g) or (h).

Unidentified Justice: What would happen with a pardon?

The same thing?

Mr. Geller: A pardon?

Unidentified Justice: The same thing.

Mr. Geller: It is interesting that you mention a pardon, because Congress dealt with a pardon.

Unidentified Justice: Yes, that's what I mean.

Mr. Geller: Congress dealt with a pardon in Title VII, and it said that a pardon, if it specifically announces that the defendant is still... is to be allowed to engage in carrying of firearms, serves to relieve disabilities, but Congress did not say that in Title IV, which is the statute at issue here.

So presumably Congress did not want to allow gubernatorial parties to relieve defendants of the disabilities imposed by federal law, yet the Fourth Circuit has held that state expungements, which may be less of an indication that the defendant is a responsible person than a gubernatorial pardon, relieve the defendant of those... of those important federal disabilities.

Now, I had hoped to get into a discussion of some of the statutory provisions in order to show the Court that the Fourth Circuit's decision is clearly inconsistent with Congress's intent, and I am not going to have time to discuss several of them, but I do want to discuss what we believe perhaps is the most important indication that the Fourth Circuit has incorrectly construed the statute, and that is Section 925(c) of the Act, which I alluded to earlier.

Congress realized that not everyone who was convicted of a felony under state law is a risky person.

They also realized that it would be... people, even if they were initially risky, might rehabilitate themselves, and it would be unduly harsh to subject those people to lifetime or permanent disabilities.

But it is instructive to see what Congress did in that situation.

In Section 925(c), Congress delegated to the Secretary--

Unidentified Justice: What page is that on in your brief?

Mr. Geller: --It's in the very back of the brief, in the statutory appendix, Justice Rehnquist, on Page--

Unidentified Justice: Page 3-A, I think.

Mr. Geller: --Yes, Page 3-A.

Let's look at what Congress did to deal with that very serious problem.

Congress empowered the Secretary of the Treasury to grant relief from the disabilities of the Act in selected cases, but at the same time Congress restricted the Secretary's authority in a number of significant ways.

First, relief under Section 925(c) can't be granted to anyone convicted of a crime involving the use of a firearm.

Second, before relief can be granted under Section 925(c), it has to be established to the satisfaction of the Secretary that the circumstances regarding the applicant's conviction and his record and reputation are such that the applicant will not be likely to act in a manner dangerous to the public safety, and that the granting of relief, i.e., allowing him to deal with firearms, would not be contrary to the public interest.

Congress wrote that right into the statute, and the Secretary must make this precise finding after an individualized inquiry every time he grants relief from the disabilities of the Act, and under Section 925(c), whenever the Secretary grants relief, he has to promptly publish notice of that fact in the Federal Register.

Unidentified Justice: Is it correct to think that under 925(c) the Secretary may not grant relief if the crime in question is one... is one involving the use of a firearm or other weapon?

Mr. Geller: That's correct.

The Secretary is disabled from granting relief in that situation, but look at the anomalies that would arise if the Fourth Circuit were correct, because state officials would, even though Congress carefully circumscribed the power of the Secretary to grant relief from the firearms disabilities imposed by the Act, state officials would have unfettered discretion to accomplish even more than Congress authorized the Secretary of the Treasury to do.

State officials could grant, by granting expungements, they could grant relief from the federal Gun Control Act even for people who are convicted of a firearms offense.

Unidentified Justice: Well, but that might happen in any number of ways, Mr. Geller, and certainly some of which Congress couldn't prevent.

What if you knew of a particular metropolitan jurisdiction where the state prosecuting attorney didn't happen to like the federal firearms Act, and so every time he had somebody on a felony that involved firearms, he would take a plea to a misdemeanor in order to let the guy off?

Mr. Geller: Well, Congress obviously had to bow to the... to certain realities.

There is nothing Congress can do about that situation, but Congress can do something about the situation in which defendants were convicted of serious crimes.

That's the issue in this case.

Here, defendant was... pleaded guilty to a five-year felony--

Unidentified Justice: You used the word "convicted".

Mr. Geller: --Yes, I understand.

Well, that is our position, Justice Rehnquist, and it is the view also of the Fourth Circuit.

Unidentified Justice: Mr. Geller, assuming with you for a moment there was a conviction, so we don't get off onto that again, supposing that the man convicted appealed, and the conviction was set aside, or there is a collateral attack on the ground he didn't have counsel, or he didn't plead knowingly.

Is your view the same as it was in the last case, that then... you don't read the statute literally as applied to that?

Mr. Geller: Well, we don't think that would accomplish Congress's purpose.

We agree with the statement we made in the Lewis case.

Unidentified Justice: In other words, if you have exactly the same facts you have here--

Mr. Geller: Yes.

Unidentified Justice: --but instead of expunction, the man comes in with a lawyer and files a corum nobis writ or something like that and says, I want that conviction set aside because it was really my wife's gun and not mine, and I didn't realize that it had to be my gun, and therefore set it aside.

You have exactly the same facts all the way through, but they set it aside instead of expunging it.

You would say he is eligible to be a dealer.

Mr. Geller: Yes, but I think that... I mean, I think that is perfectly consistent with Congress's purpose in selecting out people who have had convictions entered against them.

Unidentified Justice: It turns on the reason for the state action--

Mr. Geller: Is relevant.

Unidentified Justice: --of vacating the judgment.

Mr. Geller: Yes.

It is extremely relevant.

I mean, the purpose in fixing disabilities on people who are convicted is that the fact of conviction, as the Court said repeatedly in Lewis, is a reliable indicator of whether that person is presumptively irresponsible or too risky.

Unidentified Justice: Yes, but it is equally reliable if you reverse on the ground that the evidence was improperly obtained with a search warrant, or something like that.

Mr. Geller: Well, there may also be constitutional problems in imposing disabilities on someone who has had his conviction reversed, but we don't have to reach that.

We think simply as a matter of Congressional intent, the fact of conviction is no longer a reliable indicator of riskiness if in fact the defendant has had his conviction reversed because of some legal error or because of innocence.

At that point, there is no reason to assume that he has committed a crime, but expunction is quite different.

Expunction assumes that the defendant has committed a serious crime, and the state for its own law enforcement purposes has decided to engage in an act of partial or complete forgiveness.

The question is, would Congress have wanted the states to forgive federal disabilities.

We think the answer to that on its face is probably wrong, but it is certainly wrong when Congress has put in a specific forgiveness provision in the federal statute, Section 925(c), which requires a cabinet level federal official to make an individualized inquiry before granting relief from the Gun Control Act, to see whether the defendant is in fact a responsible, reliable person who should be trusted with a firearm.

Unidentified Justice: In other words, a conviction for manslaughter by use of an automobile might be the kind that the Secretary would have discretion to waive.

Mr. Geller: Absolutely.

Absolutely.

In fact, the Secretary granted relief in 800 cases last year in which he was satisfied that the person in question was not risky or could be trusted to carry or deal in firearms, but as I said, every time he did that, he had to publish a notice of that fact in the Federal Register, so that people would be aware of what the legal status of this individual is.

Unidentified Justice: Well, the Secretary can grant relief, can't he, for a triple first degree murder punishable by death if it was committed with a knife.

Mr. Geller: Yes, he could.

He may not do it, but Congress was willing to entrust that decision to a cabinet level federal official applying uniform federal standards.

We don't think they were willing to entrust that--

Unidentified Justice: Do you think the Secretary of the Treasury spends a lot of his waking hours passing on these applications?

Mr. Geller: --I would be surprised if he spends very much time, but there are people in the Bureau of Alcohol, Tobacco, and Firearms who do spend a great deal of time studying these applications and making individualized inquiries.

Unidentified Justice: And if they got too casual about the exercise of that discretion, they would probably hear from Congress.

Mr. Geller: I think that's right.

This is an important federal statute.

The Court has remarked on that many times, and I needn't remind the Court of the history that gave rise to Title IV and Title VII of the Omnibus Crime Control Act.

Congress was not cavalier about allowing people who were convicted of felonies to carry firearms.

It imposed a disability on these people, and it allowed the Secretary of the Treasury, a cabinet level federal official, to remove that disability.

It didn't, we think, mean to allow state officials using unfettered discretion across the country and not making any inquiry into whether the person could be trusted to carry a firearm to relieve the disabilities of the Gun Control Act.

Now, I just want to make one more point before I reserve time for rebuttal, and that is that if the Court agrees with the Fourth Circuit, if it says that effect must be given to state expungements, then it is going to have to confront the much more difficult question of exactly what effect is to be given to these various expungement statutes.

Nearly half the states have expungement statutes.

They are a bewildering array.

They are... They vary in almost every single particular.

Now, when a state convicts someone of a crime, it imposes on that defendant a bundle of disabilities.

It would be quite bizarre if by expunging only a portion of those disabilities, federal courts were willing to remove the disabilities imposed by Congress under the Gun Control Act.

Therefore, it would seem that there would have to be an individualized inquiry by the federal courts in every single case to see whether what remains after the expungement is still considered a conviction for federal gun control purposes.

Now, this would be, we think, chaotic.

It would lead to massive confusion in enforcement of the Act.

No one would know what their legal status is if they had an expunged conviction.

The Fourth Circuit here masked those difficulties by calling the Iowa expungement statute absolute and unconditional, where we think that is plainly incorrect for reasons we have discussed in our reply brief, but even if it were true in the case of the Iowa statute, there were dozens and dozens of other expunction statutes out there, and if we had to give effect to those expunction statutes under federal law, the situation would be chaotic.

The Secretary of the Treasury would not know whether he could grant a license to someone who had an expunged conviction.

The gun dealers would not know whether they would be committing a crime by selling a firearm to someone with an expunged conviction.

Law enforcement officers would not know whether someone with an expunged conviction would be committing a crime by carrying a firearm.

And the defendant himself would not know what his legal status is.

We think that Congress could not have intended to allow such an ambiguous and confusing situation to occur in the enforcement of an extremely important federal statute.

What we think Congress meant was that when someone has been adjudicated guilty of a serious crime, he falls within the disabilities of the federal Act, and if he is to be relieved of those disabilities, it is to be done by application to the Secretary of the Treasury, followed by public notice of that fact, and not in the helter-skelter fashion that the Fourth Circuit seems to envision involving dozens and dozens of state expungements by officers, giving no thought at all to whether the person should continue to be disabled under federal law.

I would like to reserve the balance of my time.

Chief Justice Burger: Very well.

Mr. Lanier.

ORAL ARGUMENT OF LEWIS C. LANIER, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Lanier: Mr. Chief Justice, may it please the Court, beginning with Justice Rehnquist's questions concerning conviction, we have argued in the brief that whatever happened in Iowa was not a conviction.

Unidentified Justice: Did you present this to the court of appeals?

Mr. Lanier: No, Your Honor, we did not.

Unidentified Justice: The court of appeals had no way of passing on it then.

Mr. Lanier: That's correct, Your Honor.

Unidentified Justice: And you think that... you are suggesting affirmance on this ground.

Mr. Lanier: Yes, Your Honor, on the basis that in the Fourth Circuit's opinion, they do talk in terms of a conviction, but in other portions of the opinion they talk about a temporary disability running because of the Iowa action.

Unidentified Justice: My question is whether you... you must believe, then, that under our rules you are entitled to present this issue.

Mr. Lanier: No, Your Honor.

We did not raise that.

Unidentified Justice: Well, I know, but--

Mr. Lanier: But since it was argued, we feel that we should have an opportunity to reply to the conviction element of the case.

Unidentified Justice: --Are you suggesting that the court of appeals uses the term "conviction" casually and loosely, without regard to consequences of the use of that term, having a statute before them where that was very relevant?

Mr. Lanier: Mr. Chief Justice, I believe the Fourth Circuit did in their holding indicate... go away from the term "conviction".

Granted, they did use the term "conviction".

They did tend to go away from the term "conviction" in their holding that whatever happened in Iowa was a temporary disability that was relieved upon the expunction.

Unidentified Justice: Relieved for all purposes, under all circumstances?

Mr. Lanier: That was the holding of the Fourth Circuit, that the relief was unconditional and absolute.

Under that reasoning, I think it would be relevant to go to the Iowa statute.

Unidentified Justice: Are we or are we not bound to accept the court of appeals' holding as a determination that there was in law and fact a conviction in Iowa?

Mr. Lanier: Mr. Chief Justice, I think you are correct.

Unidentified Justice: Well, Mr. Lanier, does that mean you are retreating from the position you took in your brief?

This is your brief, the red one, isn't it?

Mr. Lanier: Yes, Your Honor.

Unidentified Justice: On Page 14, in your summary of argument, where you say in the first short full paragraph on the page,

"The ruling of the Fourth Circuit Court of Appeals should be affirmed because there never was a conviction. "

Do you... Is that a statement of your position?

Mr. Lanier: Justice Rehnquist, that is a statement of our position on the brief.

Unidentified Justice: Well, then, you do assert that, quite apart from the Fourth Circuit's ruling on expunction, there never was a conviction under the statute in the first place.

Is that correct?

Mr. Lanier: That's correct.

Unidentified Justice: Then we have to read the opinion again and see whether when they used... the three judges used the term "conviction" they mean what lawyers and judges usually mean by the term "conviction".

Mr. Lanier: Which, Mr. Chief Justice, seems to vary a great deal, adding to the ambiguity created by the federal Act and the use of the term "has been convicted".

Unidentified Justice: But you never... you didn't suggest to the court of appeals what happened here shouldn't be considered a conviction, did you?

You didn't make the argument in that court that you are making here.

Did you?

Mr. Lanier: Your Honor, I believe there was argument at the Fourth Circuit that it was not a conviction.

Unidentified Justice: What was expunged?

Mr. Lanier: Mr. Justice Marshall, what was expunged was the record of the Iowa deferred judgment proceedings.

We would resist the characterization that the plea offered was accepted by the trial judge.

The Iowa statute has directed toward a state interest in not evoking the criminal process.

Under the Iowa statute, the trial judge has really three alternatives.

He can go ahead and accept the plea, sentence and fine, either/or, or he can use the two elements under the Iowa code, Section 789-A.1.

He can suspend sentence and put the defendant under a probationary period, and then, after the expiration of the probationary period, the court may make a recommendation to the chief executive of the state for an expunction.

Or, he can take the least punitive element of that statute, and he can defer judgment on the plea.

We take the position that the plea was offered, that the judge did not accept the plea--

Unidentified Justice: All I... I want to ask a very simple question.

What was expunged?

Mr. Lanier: --The record of the deferred judgment proceedings in Iowa.

Unidentified Justice: The entire proceeding?

Mr. Lanier: That's correct, Your Honor.

Unidentified Justice: Do you think Congress contemplated that this national legislation should be subject to the idiosyncracies of more than fifty different state statutes, and twenty odd thousand judges' interpretation of that statute in those states?

Mr. Lanier: I think that Congress did interpret that way by using the state definition of the sentence, the maximum sentence, to trigger the disabilities under the federal Act.

I think Congress definitely contemplated looking at the state law.

Unidentified Justice: How does that help you?

Mr. Lanier: Looking at--

Unidentified Justice: Here is something for which the punishment was more than one year, was it not?

Mr. Lanier: --That's correct.

The Act also looks to the state.

If the state classifies an act as a misdemeanor, state classification of misdemeanor, and it is less than two years, then it is beyond the reach of the federal gun control Act.

Unidentified Justice: Well, if Congress meant what you are suggesting, wouldn't it have been very simple to add a few words, that is, unless such conviction is expunged, or unless the record of such proceeding is expunged?

Mr. Lanier: Congress could have done that.

Some of the circuits have held that the express exclusion of expungement is not binding in the Arrington, Frier, and Ferguson decisions, in that they said under the federal Youthful Offender Act, the expungement portion of that provision will not toll the disability.

Therefore, we hold that the... it is our position that when you look at those circuits' review of the idea of expunction, they did intend it not to impose a disability.

As to the question raised by the government in the situation of whether or not there has been any determination as to whether this Kennison is a particularly risky person, the Iowa statute addresses that also.

Before the Iowa trial judge can impose or elect to give the deferred judgment proceedings, he makes a determination whether or not the nature and seriousness of what is charged, the stability of the person's employment, any prior record, and the state interest in what will effect the maximum opportunity for rehabilitation and the protection of the community at large.

These decisions are by Iowa statute required to be considered by the sentencing judge or the trial judge.

Unidentified Justice: Do you think a license could have been issued... would he have a right to have a license the day after his guilty plea?

Mr. Lanier: No, Your Honor.

I think he would be under a temporary disability, much like the federal Act speaks in terms of being under a temporary disability after indictment.

Unidentified Justice: Well, if that is so, he must have been convicted within the meaning of the statute.

During that period of probation, at least, he was disqualified for a license.

You agree with that, apparently.

Mr. Lanier: Yes, Your Honor.

Unidentified Justice: Well, then, there had to be a conviction, didn't there?

Mr. Lanier: Your Honor, I find the Iowa statute there a little bit unique in the criminal concept--

Unidentified Justice: Well, it may be unique, but you have said that he was disqualified during the period of his probation.

Mr. Lanier: --That's correct, Your Honor, but he was still--

Unidentified Justice: Within the meaning of this federal statute.

Mr. Lanier: --Yes, he was disqualified during that period of probation.

Unidentified Justice: That had to mean that for a while, anyway, there was a conviction.

Mr. Lanier: Your Honor, we take the position that the defendant in this case actually consented to the probation under the terms of the Iowa statute, and that Iowa has spoken in this term, and said, we don't want the criminal law to come into effect in this particular case.

The legislature has authorized it, and has given the judicial branch through the trial judge the authority not to evoke the criminal process.

Unidentified Justice: Of course, your other argument is that even if there was a conviction, it was removed by the expunction.

Mr. Lanier: That's correct.

And the--

Unidentified Justice: Mr. Lanier, did you represent the client before the court of appeals?

Mr. Lanier: --Yes, Your Honor.

Unidentified Justice: And before the Administrative Law Judge?

Mr. Lanier: No, Justice O'Connor, my law partner represented him before the Administrative Law Judge, Judge Travis.

Now... and I was not at Fourth Circuit and on the brief.

Unidentified Justice: You did not make the oral argument?

Mr. Lanier: At Fourth Circuit?

Unidentified Justice: Yes.

Mr. Lanier: No, Your Honor.

No, Ms. Justice O'Connor.

Unidentified Justice: Was the case orally argued to the Fourth Circuit?

Mr. Lanier: Yes, Mr. Justice.

Unidentified Justice: But not by you?

Mr. Lanier: That's correct.

Unidentified Justice: Could you have made the same argument if it hadn't been expunged?

Mr. Lanier: Justice Marshall--

Unidentified Justice: And I used "it" deliberately.

Could you?

Mr. Lanier: --No.

Unidentified Justice: Why not?

Mr. Lanier: Because the expunction was an unconditional action.

Unidentified Justice: No.

Why not?

Mr. Lanier: Why not... I'm sorry, Mr. Justice.

Unidentified Justice: Why not?

What would prevent you from arguing that?

Mr. Lanier: Arguing that the expunction--

Unidentified Justice: That you were entitled to a license.

Mr. Lanier: --If it hadn't been expunged--

Unidentified Justice: What hadn't been expunged?

Mr. Lanier: --The record of the deferred judgment proceedings.

Unidentified Justice: Your conviction, right?

Mr. Lanier: No, Your Honor, we still resist the fact that there was a conviction.

Counsel for the petitioners argue there was an adjudication in this case.

We find no adjudication there.

There was a decision to do nothing.

Unidentified Justice: But the state is the one that decides today he is and tomorrow he is not.

Mr. Lanier: In conjunction with the defendant.

It is a consensual act in Iowa.

Unidentified Justice: That's right.

So the state decides it.

The day before the state expunged it, he couldn't get it.

Mr. Lanier: That's correct.

Unidentified Justice: The day after it, he could get it.

Mr. Lanier: Yes, Mr. Justice.

Unidentified Justice: So the state is deciding a federal statute.

You just said that the state, that is, through the judge, had decided, and I think you used the words "do nothing".

Now, in Iowa, can you put people on probation for a year or two years or three by doing nothing?

Just pluck them off the street?

Mr. Lanier: The trial judge in conjunction with the defendant elected a deferred judgment.

Unidentified Justice: Well, there had to be a proceeding first, did there not?

Mr. Lanier: There was a proceeding.

Unidentified Justice: Charging him with kidnapping, was it, and armed conduct?

Mr. Lanier: The kidnapping charges were dismissed prior to--

Unidentified Justice: Yes, I know, but the charge was... that's how he got into the court, was it not?

Mr. Lanier: --That's correct.

He was charged with possession of a concealed weapon.

Unidentified Justice: In connection with the kidnapping?

Mr. Lanier: The result of a plea bargain.

Unidentified Justice: Well, no, I'm talking about the facts now.

Forget the plea bargaining.

He was charged with using firearms in connection with the kidnapping?

That's the charge I am speaking of.

That's the way I read this record.

Mr. Lanier: Mr. Chief Justice, I believe the charge of kidnapping was dropped, and then the possession--

Unidentified Justice: Yes, I know it was dropped, but the initial charge was a charge of kidnapping using a firearm.

Is that not correct?

Mr. Lanier: --That's not correct.

Unidentified Justice: Well, then, tell me what is the charge.

Mr. Lanier: He was initially charged with the only charge of kidnapping.

Unidentified Justice: Yes.

Kidnapping whom?

Mr. Lanier: His wife, a South Carolina citizen in Iowa.

They dropped the kidnapping charge, and then charged, not as a lesser included under the kidnapping charge, but then charged with possession of a concealed weapon.

Unidentified Justice: A new charge.

Mr. Lanier: A new charge, which was... which was the subject of the negotiated or the conditional plea in Iowa.

Unidentified Justice: So his plea then was an admission that whatever he did, whether you call it kidnapping or whatever, whatever the offense was, it was accomplished by him by the use of a firearm.

Is that correct?

Mr. Lanier: Mr. Chief Justice, I say that is not correct, either, because there may be a difference in terms between use and possession.

He was charged with possession.

He was never charged with using it, just the fact, the simple fact of possession.

Unidentified Justice: Whose gun was it?

Mr. Lanier: It was his wife's gun also.

He was offered a deferred judgment, not a suspended sentence.

The judge would have sentenced him at that time.

We take the position that Boykin went a little bit further than saying that a plea of guilty is in itself a conviction.

It said, all that remains is a judgment of guilt and a sentence thereon.

We submit that those two other elements of judgment of guilt and sentence thereon are absent in this case, and they are absent because Iowa intended them to be absent, because Iowa intended not to evoke the state criminal law in this situation.

Unidentified Justice: But are we entitled to assume on this record that whatever he did that led to the charge of kidnapping, he did it at a time when he had a firearm on his person or in his possession?

Mr. Lanier: Yes.

In the car that he was using at the time.

In this case, it appears that the government is using the petitioner in this case, the Linity in reverse.

They are saying, we admit that we have to trigger the federal firearms statute through the state criminal statute, and we will only invoke it or we will invoke it to impose disabilities.

They have said that there is a proceeding under the Act, the federal firearms Act, where the Secretary can remove the disability.

In Iowa, there was a state judge determination that this man was not a risky person.

He made that determination and elected not to evoke the criminal law of the state of Iowa.

He did that because the statute in itself says he has to consider these things and in fact put on the record why he elected--

Unidentified Justice: Was an order issued at the end of his trial?

Mr. Lanier: --Some type of order was issued that was not a judgment.

Unidentified Justice: Is it in the record any place?

Mr. Lanier: Your Honor, I don't think that order is in the record.

Unidentified Justice: Well, isn't it rather important as to what happened?

Mr. Lanier: I am sorry, Justice Marshall.

Unidentified Justice: Isn't it rather important?

Suppose the judge says, I find you guilty and sentence you.

Wouldn't that be a different case from what you have been arguing?

Mr. Lanier: Absolutely.

Unidentified Justice: And I don't know what he said, do I?

And you don't, either.

Mr. Lanier: That's correct, Your Honor.

Unidentified Justice: Thank you.

May I ask if under the Iowa expungement procedure they physically destroy the records of the proceeding?

Mr. Lanier: The only record... the record of the... the Iowa statute compels the expunction, it does not specify the destruction, of the deferred judgment proceedings.

There is a record, called an administrative record, that is kept in the office of the clerk.

That administrative record is kept in order to advise the court if there is... Under the Iowa statute, you can have two deferred judgments for a misdemeanor, and only one for a felony.

So we take the position that the record housed in the clerk's office is just to determine whether or not he is eligible for a deferred judgment.

Unidentified Justice: What are the contents of the administrative record after the expungement proceeding is terminated?

What is retained?

Do you know?

Does the statute tell us?

Mr. Lanier: The statute does not tell us what it contains.

In this case, there appears to be an analogy that can be made that people that are confronted with the Iowa statute come in and go out of a disability status.

The Fourth Circuit has held that from the time of the granting or the... the granting of the probationary period, that Kennison is disabled, that at the end of the probationary period, under the deferred judgment statute, that that probation is ended, and his record of the conditional plea of a deferred judgment is expunged.

If the only thing there is is offer to plea under the deferred judgment statute, and those proceedings are expunged, we submit there is nothing left of a conviction, and that administrative record retained by the clerk of court is nothing more than something... the equivalent of an arrest record, which we would submit evokes no disabilities under the federal Act.

The state statute involved, when the trial judge elects to use the deferred judgment as opposed to the suspended sentence, works automatically.

Petitioner's brief indicates that the disabilities are not automatic, they are not unconditional, and they are not absolute on the theory that nothing... no recommendation was made by the trial judge to restore the disabilities imposed or to restore civil rights in Kennison's case.

However, that is not necessary under the deferred judgment portion.

The statute specifically states that under the deferred judgment statute, upon discharge from probation, if the judgment has been deferred under 789-A.1, the court's criminal record with reference to the deferred judgment shall be expunged, and that is the conclusion of the case.

We submit that the... whatever happened in Iowa was not a conviction, and in any event, upon the successful completion of the probationary period involved in the case, that the expungement lifted the disabilities under the federal firearms Act.

Unidentified Justice: Excuse me.

Do we have any appendices besides that in the petition?

I don't mean these... these are copies of brief before court of appeals.

I mean of--

Mr. Lanier: The appendix from Fourth Circuit was adopted.

It is in a blue binding, black--

Unidentified Justice: --Blue binding?

Well, where is it?

Mr. Lanier: --I believe that the appendix from the Fourth Circuit was submitted by the petitioner.

Unidentified Justice: Nine copies?

I just don't have any.

That's all I'm complaining about.

Well, I thought there was a motion to dispense with printing the Joint Appendix, and that was granted.

Mr. Lanier: That's correct, and that was granted.

Unidentified Justice: So it has just been... it has been filed here, like a record.

The original record.

Mr. Lanier: That's correct.

Unidentified Justice: Ask the clerk over there.

Could I see it?

I understand there is nothing up here now.

That is all I want to find out.

Has a record been lodged with the Court?

Mr. Lanier: Yes, the record has been filed.

Unidentified Justice: Where is it?

Mr. Lanier: The fact of the expunction has been addressed, as I stated previously, under Ferguson, Frier, and Arrington, and in those circuit courts the court has held that the federal expunction under the Youthful Offender Act effectively lifts the disabilities imposed upon the federal Gun Control Act.

We would rely also on those decisions in those circuits.

Thank you.

Chief Justice Burger: Very well.

Do you have anything further, Mr. Geller?

ORAL ARGUMENT OF KENNETH S. GELLER, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Geller: One or two things, Mr. Chief Justice.

First, in answer to Justice Stevens' question, Iowa doesn't in fact destroy the record.

Unidentified Justice: Does not?

Mr. Geller: Does not.

In fact, the Bureau of ATF found out about Kennison's conviction in this case from the Iowa authorities.

Unidentified Justice: Mr. Geller, supposing you had exactly the same procedure you had here in Iowa, and 30 days after the guilty plea was accepted and there was a conviction entered, the defendant came in by his attorney and moved for leave to withdraw his guilty plea, and said he had misunderstood, just, whatever charges.

The judge just said... And then the prosecutor came in and said, we do not oppose the motion, and the judge said, leave to withdraw plea granted.

Mr. Geller: I would... My position would be, I think the government's position would be that there would not be a conviction in that case.

The plea has been legally set aside, vacated.

There has been no finding that the defendant committed the crime.

Unidentified Justice: But the same finding... I want to have the same finding that you got here.

Mr. Geller: Yes, but an expunction is not a finding that the defendant did not commit the crime.

That is crucial.

Unidentified Justice: Well, but in my hypothetical, the same thing.

Mr. Geller: Yes.

I don't agree, Justice Stevens.

If the--

Unidentified Justice: Supposing two years later, then, just instead of expunging, he came in and said, I move to withdraw my guilty plea, and the judge said, motion granted.

Mr. Geller: --Well, I think I would have to know more about the state procedure to see whether this is--

Unidentified Justice: Same state procedure you have got here.

Mr. Geller: --If there is no... if it is just an expunction, if there is no finding that the--

Unidentified Justice: It just gives the judge the authority to allow the defendant at the end of the probation period to withdraw his guilty plea.

Mr. Geller: --I would think that if the basis for the relief, it has nothing to do with the fact that the defendant did not commit the crime--

Unidentified Justice: He just says in his motion, I want to withdraw it, and the prosecutor doesn't oppose it.

Do we have that kind of a statute here?

Mr. Geller: --We don't.

In fact, if I could just turn for a second to the case we have before us before my time runs out, because there is in fact an order entered in this case by the trial judge.

It is Government's Exhibit 13, which I think the Court will find in the record, and it begins by saying that the defendant has entered a plea of guilty.

It has not just been offered.

The judge has accepted it.

And under cases of this Court like Boykin, I think that a guilty plea is a conviction for these purposes.

There is no question here that the plea--

Unidentified Justice: Well, do you think Boykin was attempting to categorize guilty pleas in a strictly technical sense?

Mr. Geller: --No, of course... of course not, but we are trying to categorize what Congress meant by... what it meant when it used the word "conviction".

We think it was using it in the same sense that the Court has frequently used it, such as in Kercheval and Boykin, a formal finding of guilt.

Now, the sorts of questions that, Justice Stevens, you were asking about what is left after the expungement, and Justice Blackmun was asking about how does state law deal with this expunction, that is... those are the sorts of questions that federal courts would have to wrestle with, and federal administrative officials would have to wrestle with day after day in enforcing this important federal statute if the Court holds that state expunction provisions, which vary wildly from state to state, and are very ambiguous as to what has been expunged, what is the basis for the expunction, if the Court were to hold that that finding in itself wipes out the important disabilities imposed by the Gun Control Act, we don't think Congress could ever have intended that, especially in light of Section 925(c).

Unidentified Justice: I don't mean to be too repetitious, Mr. Geller, but I am not sure I understand your answer to my question.

Mr. Geller: Yes.

Unidentified Justice: And it really would be helpful to me.

Mr. Geller: Yes.

Unidentified Justice: Take my hypothetical.

Precisely the same kind of judgment that we have here.

And a year later, a lawyer comes in and files a motion asking leave to withdraw the plea, and on the ground that the prosecutor does not oppose it, and the prosecutor says, that is right, the judge says, we had a finding, you start out the same way you did there, but the leave is hereby withdrawn, and the judgment is vacated.

What is the government's position as to whether he would be disabled or not?

Mr. Geller: Well, if I may, I would like to give a somewhat more extended answer than one word.

On one pole, we have the Lewis situation.

Unidentified Justice: I understand that.

Mr. Geller: On the other pole, it seems to me we have the Kennison situation, where there is no question that the conviction was expunged for reasons wholly unrelated to guilt.

Now, Justice Stevens, you have just presented a hypothetical which is in between those two.

It seems to me that you have to make a further inquiry.

I would have to have facts that are not included in your--

Unidentified Justice: Are you able to answer my hypothetical?

Mr. Geller: --I think the answer is that if the judge has not made a finding that the defendant did not commit the crime, then there has been a conviction.

He has been convicted under Section 922(c).

Unidentified Justice: Your answer is, under my hypothetical, he would be disabled.

I just want you to answer it.

Mr. Geller: I think that's my answer, but I'd like to know more of the facts before I commit the government to that position.

Unidentified Justice: But those facts and the hypothesized statute aren't present in this case.

Mr. Geller: Are not what the Court has before us here by any means.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.