United States v. Thomas Stanko Marks

Citations: 379 F.3d 1114; 2004 WL 1873206Docket: 03-30464

Court: Court of Appeals for the Ninth Circuit; August 23, 2004; Federal Appellate Court

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The Ninth Circuit Court of Appeals addressed the government's appeal of a district court's dismissal with prejudice of an indictment against Thomas Stanko Marks for possession of firearms and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). The district court dismissed the indictment on the grounds that Marks' prior state conviction for second-degree assault was unconstitutional due to ineffective assistance of counsel stemming from an actual conflict of interest in his attorney's joint representation of co-defendants. The court cited Washington law, which prohibits the use of unconstitutional convictions as predicates in subsequent prosecutions, and referenced 18 U.S.C. § 921(a)(20), which indicates that state law determines conviction status for federal firearm offenses.

The Ninth Circuit reviewed the dismissal de novo and determined that, regardless of any alleged constitutional defects in Marks' conviction, his felony conviction remained valid under the law and qualified as a predicate conviction for § 922(g)(1). Consequently, the appellate court reversed the district court's decision, allowing the indictment to stand. The background revealed that Marks had been convicted of second-degree assault in 1999, a felony under Washington law, and that this conviction had not been expunged or vacated. In 2002, Marks was indicted on multiple firearms charges, leading to the dismissal challenge based on the constitutionality of his prior conviction. The district court's conclusion regarding the conviction's status under state law was ultimately overturned.

The federal firearms statute prohibits individuals convicted of crimes punishable by over one year of imprisonment from possessing firearms or ammunition, as outlined in 18 U.S.C. 922(g)(1). The Firearm Owners' Protection Act of 1986 specifies that the determination of a qualifying conviction is based on the law of the jurisdiction where the criminal proceeding occurred. Under 18 U.S.C. 921(a)(20), any expunged conviction or one for which a pardon has been granted does not count as a conviction unless restrictions on firearm possession are explicitly included in the pardon or expungement. Prior legal precedents, such as Lewis v. United States, affirm that a felony conviction imposes a firearm disability until vacated or legally relieved. Washington law lacks a single definition of "conviction," but generally recognizes it as a jury or judge's finding of guilt or an accepted guilty plea, encompassing various statutes related to criminal proceedings. Specifically, under Washington law, a person is considered "convicted" once a guilty plea is accepted or a guilty verdict is filed, regardless of ongoing post-trial motions or appeals. This legal framework confirms that Marks was convicted of second-degree assault when the jury rendered its verdict.

The Washington State Supreme Court has clarified the definition of "conviction" in the context of unlawful firearm possession under RCW 9.41.040(1)(a), specifically requiring that the state prove the existence of a constitutionally valid conviction for a crime of violence beyond a reasonable doubt. This requirement was established in State v. Swindell and reaffirmed in State v. Gore, with the court applying the rule of lenity due to ambiguity in the statute's language. The court emphasized that its interpretation is based on state law rather than federal law, rejecting the reasoning from the federal case Lewis.

Consequently, RCW 9.41.040 mandates a constitutionally valid predicate conviction for firearm disabilities. While this allows individuals like Marks to challenge the constitutional validity of their felony convictions in Washington, it doesn't negate their existing convictions. Under Lewis, the existence of a felony conviction, unless vacated, triggers firearm disabilities. Marks' conviction for second-degree assault, punishable by significant penalties, is still valid despite his challenges.

Though Marks argues against the use of his conviction as a predicate in state proceedings, this argument misunderstands the federal law's focus under 921(a)(20) and 922(g)(1), which centers on whether a felony conviction exists under state law rather than its constitutional validity. Thus, Marks' conviction remains applicable for federal prosecutions.

Cases interpreting 18 U.S.C. § 921(a)(20) clarify that prior convictions may be counted for sentencing under § 924(e) unless they have been set aside. The Supreme Court has established that a conviction that has not been set aside can be considered valid for enhancing penalties. In Custis v. United States, the Court emphasized that § 924(e) does not allow for collateral attacks on prior convictions used for sentence enhancements, supporting the notion that once a felony conviction is established, federal law applies regardless of the conviction's constitutional validity. Consequently, even if a defendant such as Thomas Marks received ineffective assistance of counsel in state court, his felony conviction can still be used as a predicate for federal prosecution under § 922(g)(1). The district court's dismissal of the indictment against Marks is reversed and the case is remanded for further proceedings. Marks had previously been convicted of third-degree assault, a Class C felony, while his harassment charge was classified as a gross misdemeanor, which does not qualify as a felony under federal law. The exemption clause in § 921(a)(20) is relevant to understanding the implications of the Firearm Owners Protection Act (FOPA) provisions in this context.

The majority opinion in *Lewis* indicated minimal significant differences between Title IV and Title VII concerning statutory interpretations of 922(g)(1) and related provisions. All relevant sections are now included under 922(g)(1). The ruling in *Custis* established that, with the exception of convictions obtained in violation of the right to counsel, defendants cannot challenge the constitutional validity of prior state convictions during sentencing under 924(e). This principle was affirmed in *Daniels v. United States*, which extended *Custis* to post-sentencing 2255 proceedings. The ruling confirmed that a state felony conviction could still be considered a predicate offense in federal prosecutions under 922(g)(1). Consequently, the district court's dismissal of the indictment was reversed and the case remanded. Additionally, Thomas Marks faced a harassment conviction, classified as a gross misdemeanor under Washington law, while Steve Marks was convicted of third-degree assault, a Class C felony. Marks’ pending second-degree assault conviction at the time of indictment for weapon possession is noted, and the exemption clause of 921(a)(20) is not directly applicable but may clarify the intended impact of the Firearm Owners Protection Act (FOPA).