120 A.3d 618
D.C.2015Background
- In 2008 Jamal Solomon pled guilty to unauthorized use of a vehicle (UUV); in 2009 the conviction was set aside under the D.C. Youth Rehabilitation Act after he completed probation.
- In 2011 the D.C. Council amended the Youth Act to provide that convictions set aside under the Act may be used to determine whether a person violated the District’s unlawful possession of a firearm (UPF) statute.
- Solomon was arrested on January 1, 2013 for possession of a firearm; the government used his set-aside UUV conviction as the predicate felony for a UPF charge.
- Solomon moved to dismiss the UPF charge as an ex post facto violation, arguing the 2011 amendment retroactively disadvantaged him by treating his set-aside conviction as an element of a new crime.
- The trial court denied the motion; a jury convicted Solomon of UPF and possession of an unregistered firearm. The D.C. Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether applying the 2011 Youth Act amendment to Solomon violated the Ex Post Facto Clause | Solomon: the amendment retroactively punished him by using a previously set-aside conviction as a predicate, changing evidentiary value and reinstating exposure to punishment | Government: the amendment is forward-looking; it criminalizes post-amendment firearm possession and merely allows use of existing set-aside convictions as prior offenses | Affirmed: no ex post facto violation—the amendment is prospective and does not fit Calder categories |
| Whether the amendment "made innocent past conduct criminal" or otherwise aggravated punishment | Solomon: setting-aside equated to forgiveness; using it later criminalizes past conduct | Government: set-aside is not a pardon and a legislature may enact forward-looking restrictions based on past conduct | Held: set-aside does not erase conviction; the conduct (possession) occurred after amendment, so Calder’s first and punishment categories are not met |
| Whether the amendment altered evidentiary rules in a way that violates Calder’s fourth category | Solomon: the amendment transformed a conviction with no evidentiary value into proof of an element of a crime | Government: evidentiary standards for UPF at the time of possession were unchanged; amendment affects future prosecutions | Held: no violation—using a preexisting conviction as proof for a post-enactment offense is permissible |
| Whether Solomon had a legitimate expectation that his set-aside would prevent future legislative uses | Solomon: set-aside provided assurance his conviction wouldn’t be used against him | Government: there was no enforceable expectation; set-aside already allowed uses (recidivist, sentencing, impeachment) | Held: no reasonable expectation that legislature would not change laws to restrict future conduct |
Key Cases Cited
- Calder v. Bull, 3 U.S. 386 (1798) (defines four categories of ex post facto laws)
- Collins v. Youngblood, 497 U.S. 37 (1990) (confirms Calder categories are exhaustive)
- Carmell v. Texas, 529 U.S. 513 (2000) (Ex Post Facto Clause protects fair warning and reliance on existing law)
- Stogner v. California, 539 U.S. 607 (2003) (retroactive prosecution as a form of increased punishment)
- Garner v. Jones, 529 U.S. 244 (2000) (distinguishes enactments that increase punishment retroactively)
- United States v. Brady, 26 F.3d 282 (2d Cir. 1994) (no ex post facto violation where legislature proscribes future possession based on prior conviction)
- Lindsay v. United States, 520 A.2d 1059 (D.C. 1987) (set-aside shields conviction from public effect but does not erase fact of conviction)
- Jones v. United States, 719 A.2d 92 (D.C. 1998) (standard of de novo review for ex post facto claims)
- Dean v. United States, 938 A.2d 751 (D.C. 2007) (ex post facto requires both retroactivity and disadvantage to the offender)