Opinion
No. MO-00-CR-123.
January 10, 2001
JUDGMENT OF THE COURT
The Defendant Armando Sauseda was indicted by a federal grand jury for possessing a firearm while having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The Defendant waived his right to a jury trial. The Court held a bench trial in Midland, Texas on December 20, 2000.
Having considered all the evidence presented and the relevant case law, the Court finds the Defendant GUILTY as charged, and now enters its Findings of Fact and Conclusions of Law.
FACTS
For the most part, the facts involved are not in dispute. The Defendant stipulates that on July 21, 2000, he did knowingly possess a 12 gauge shotgun, specifically a Mossberg, Model 500A shotgun as well as ammunition for this firearm in the form of Winchester 12 gauge shotgun shells. The Defendant also stipulates that these items had been shipped and transported in interstate commerce. The issue in dispute is whether or not Sauseda had been convicted of a felony at time that he was found in possession of the firearm.
On August, 14, 1994, the Defendant was indicted in Ector County, Texas, on several counts relating to the possession of cocaine. The Defendant entered a plea of guilty of possession of cocaine, in an amount of 200 grams or more but less than 400 grams. On October 3, 1995, a judgment on the plea of guilty was entered against the Defendant by the Honorable Bill McCoy, Judge of the 358th Judicial District Court of Ector County, Texas. For this offense the Defendant received a ten year suspended sentence and was placed on community supervision for a term often years. After sewing over three years or one-third of his community supervision term, Sauseda filed a motion to be released from all penalties and disabilities resulting from his conviction pursuant to TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20 (Vernon 1981). On March 9, 1999, Judge McCoy entered an order discharging the Defendant from the terms, penalties, and disabilities of the offense for which he was convicted. The parties dispute the effect and meaning of this order on the Defendant's liability under 18 U.S.C. § 922(g)(1) for possessing a firearm.
Discussion
18 U.S.C. § 922(g)(1) makes it a federal offense for a person who has been "convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce, any firearm or ammunition" or "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." As noted above, the Defendant does not dispute the fact that he was in possession of a firearm and ammunition, which had been shipped or transported in commerce. What constitutes a conviction is determined in accordance with the jurisdiction in which the predicate offense arose, in this case Texas. 18 U.S.C. § 921(a)(20); see also United States v. Dupaquier, 74 F.3d 615, 617 (5th Cir. 1996) (applying Louisiana state law to determine whether the defendant was "convicted" under Louisiana law for purposes of § 922(g)(1) liability). Any conviction which has been expunged or set aside, however, may not be used as a predicate offense under § 922(h)(1). 18 U.S.C. § 921(a)(20). In addition, any conviction for which the defendant "has had civil rights restored shall not be considered a conviction" for the purposes of this statute. Id.
Sauseda argues that the March 9, 1999 order discharging him from community supervision had the effect of either setting aside the conviction, permitting him to withdraw his prior plea, or restoring all of his civil rights, including the right to possess a firearm. As such, Sauseda contends that he was not "convicted" at the time that he was found in possession of the shotgun and shells. The Court finds this argument unpersuasive.
The authority for a Texas district judge to reduce or terminate a community supervision term is contained in TEX. CODE CRIM. PROC. ANN. art. 42.12, § 20. Section 20 provides that:
[a]t any time, after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge.
Section 20(a) goes on to state that:
[i]f the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment from all penalties and disabilities resulting from the offense or crime of which he was convicted or to which he has pleaded guilty.Id. (emphasis added). As this paragraph makes clear, discharging of the defendant does not mandate or automatically effectuate the setting aside of the conviction or the complete restoration of the defendant's civil liberties. Rather, the judge must still enter an order expressly setting aside a conviction or allowing for a defendant to withdraw his plea. Cf. Wolfe v. State, 917 S.W.2d 270, 277 (Tex.Crim.App. — 1996) (emphasizing that art. 42.12, § 20 clearly contemplates the entry of an order stating that the defendant is released from legal disability before the defendant can be recognized as actually released from the legal disabilities resulting from a conviction).
Although the March 9, 1999 order was entered in response to Sauseda's application to have his conviction set aside and to withdraw his plea, the state district court did not grant the entirety of the Defendant's motion. Rather, the court only ordered that the Defendant be "discharged from the terms, penalties, and disabilities of the said offense . . . [and] discharged and released from the jurisdiction of this Court for the offense for which he was convicted" by the state of Texas. It did not order that Sauseda's conviction be set aside or that his prior plea be withdrawn. Therefore, 18 U.S.C. § 921(a)(20) does not prohibit Sauseda's 1996 conviction for cocaine possession from serving as the predicate conviction for a 18 U.S.C. § 922(g)(1) offen se.
Sauseda further errs in relying on art. 42.12, § 20 because he is not eligible for reduction or termination of his community supervision term, and a fortiori, is not eligible to have his conviction set-aside or guilty plea withdrawn. Regardless of the order entered by the state district judge, art. 42.12, § 20(b) expressly states that the benefit of that section "does not apply to a . . . defendant convicted of an offense punishable as a state jail felony." Sauseda's 1995 conviction for cocaine possession was a state jail felony and punishable as such under Texas law. TEX. HEALTH SAFETY CODE ANN. § 481.115(b) (Vernon 1992 Supp. 2001) (identifying possession of any quantity of a controlled substance listed in Penalty Group I, which includes cocaine, as being at least a state jail felony); TEX. HEALTH SAFETY CODE ANN. § 481.102(3)(D) (identifying cocaine as a Penalty Group I controlled substance). As such, even if the state district judge's order purported to set-aside Sauseda's conviction pursuant to authority granted by art. 42.12, § 20, such an order is invalid because art. 42.12, § 20 has no application to the offense for which Sauseda was convicted.
Therefore, this Court holds that Sauseda was a person who had been convicted for the purpose of incurring § 922(g)(1) liability.
Good Faith Defense
Sauseda also raises the defense of good faith. He argues that, in light of the order discharging him from community service, he had a reasonable belief that he was no longer a person who was convicted for the purpose of section 922(g)(1) liability. While the Court appreciates that the Defendant may not have intended to be in violation of the law by possessing a shotgun, good faith belief is not a defense to section 922(g)(1) liability.
By its terms, § 922(g)(1) does not require that the Defendant have knowledge that his prior offense qualifies as a conviction that would make him liable under this section. United States v. Williams, 588 F.2d 92, 92 (4th Cir. 1978); United States v. Field, 39 F.3d 15, 17 (1st Cir. 1994) (holding that the only scienter element of an offense of felon in possession is that the defendant know that the instrument possessed was a firearm). The absence of a requirement that the defendant know that he is a person who has been convicted indicates that, first, scienter is not an element of this crime and, second, that Congress did not make ignorance of the law a defense to prosecution. Id. at 93; United States v. Schmitt, 748 F.2d 249, 251 (5th Cir. 1984) (rejecting the argument that the government must prove that the defendant knew his status as a person convicted of a felony in order to prosecute the defendant for being a felon in possession). The absence of a scienter requirement is not unreasonable since firearms are not innocuous items, but rather pose an obvious danger to the general public, and owners should be aware of the potential of greater regulations governing the ownership of firearms. Schmitt, 748 F.2d at 252. To this end, Congress has broad power to prohibit ownership of firearms by persons that it classifies as "potentially irresponsible and dangerous." Id.
The Court, therefore, finds that Sauseda's good faith belief is not a defense to prosecution under § 922(g)(1).
JUDGMENT OF GUILT
In light of these findings of fact and conclusions of law, the Court finds the Defendant guilty of Count One, felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
It is accordingly ORDERED that a judgment of GUILTY be entered against Defendant Armando Sauseda.