*1 ILLEGAL VESTING OF DISCRETION that warrant true issued It is it should be specified returned “me” that argument Defendant’s final is that judge. in —the state court The return statutory permits prose scheme which printed on the war struction was standard prosecute determine cutor to whether by judge. Had the employed rant form same conduct under either 18 U.S.C. the word “me” inserted judge stricken 922(h) 1202(a), or 18 App. § magistrate,” “a federal the strictures penalty, latter which has a lesser is un fully 41(c)(1) Rule would have been com has been ex constitutional. matter Nonetheless, plied light pressly against by the fact determined defendant with. Supreme States v. Court actually that the warrant was returned to a — Batchelder, —, U.S. 99 S.Ct. unwilling magistrate, we are re (1979). 60 L.Ed.2d 755 verse on issue. this AFFIRMED. arguments relating Other to the execu- tion of are for the the warrant asserted appeal

first time on and do not raise issues

which would rise to the level of fundamen-

tal error.

VOLUNTARINESS OF STATEMENTS

To the extent defendant claims inculpatory that certain statements were America, Appellee, UNITED STATES of search, illegal the fruit of an that matter already against we have resolved him by Johnny STOBER, Appellant. Edward However, upholding the search. defendant also claims he was compelled that to incrim No. 77-1854. inate police himself coercive conduct. Appeals, United States Court of Although signed defendant a statement ac Tenth Circuit. knowledging “voluntary” nature of his statements, now understood assert Argued May 1979. Submitted acknowledgment itself out arose Aug. Decided 1979. coercive Voluntary conditions. waiver of right to remain silent is not mechanical ly to be determined but is to be determined

from totality of the circumstances as a

matter of fact. See North Carolina v. But

ler, —U.S.—, 1755, 60 L.Ed.2d (1979). While there was considerable

force used connection' effecting de arrest, government’s

fendant’s testimo

ny apparently believed —which provoked trial court —indicates that it was

by the defendant was reasonable under

the circumstances. The evidence shows was properly informed of rights

his his statements

sufficiently removed in time occa

sion of his forcible arrest and were

under such circumstances trial

court had a concluding reasonable basis for

that they were voluntarily made.

SETH, Judge. Chief Rehearing En Banc

Opinion on for a was indicted viola- The defendant 922(h) 924(a) for § tion of 18 U.S.C. § shipped in interstate receiving firearms convicted of a he had been commerce after was tried without a felony. Defendant suspended guilty, and jury, found appeal. sentence. He took this appeal is whether the issue on The basic previously defendant had been convicted as Act under which he was the Federal Defendant had entered a charged requires. Deferred guilty under the Oklahoma plea of Procedure, O.S.Supp.1977 Judgment procedure way. was under 991c and the § charged in previous conviction This is the considered. indictment here 924(a) penalty contains the 18 U.S.C. § requirements. the disclosure provisions and part: “It 922(h) provides in § person . any be unlawful for shall of, any who has been convicted punishable any crime ... to receive The Act contains defi- firearm . . .” nitions, of “convicted but not a definition have been left to any court.” The courts procedures, whether certain determine conventional, are, or depart from the which in, Thus was the de- result “convictions.” any “convicted in court” fendant Stober De- during the course of Oklahoma Procedure, O.S.Supp. Judgment ferred 991c, he was involved at the in which acquired the firearm as time or before he Before that alleged in the indictment. resolved we must determine question can be III, City, Frank R. Courbois Oklahoma ap- are to be what standards or definitions O’Brien, (David City, N. Oklahoma Okl. deciding *in whether defendant Stober plied Okl., brief), appellant. with him on “convicted in court.” Jr., Davies, Atty., Dept, of Jus- Joseph S. urges that the statutes The defendant tice, Patton, (Larry Washington, D.C. D. Oklahoma, and decisions of State Pritchett, Atty., Atty., Asst. U.S. Susie had, should be proceedings where the Okl., Brysh arid City, Oklahoma Paul J. he was determining whether followed Justice, Smith, Attys., Dept, of David B. would there “convicted.” The Government D.C., brief), Washington, appellee. the firearm have the federal court where HOLLOWAY, standards, its charge brought apply SETH, Judge, and Before Chief standards, necessarily fol- McWILLIAMS, BARRETT, LE, “federal” DOY LOGAN, Judges. low state statutes and decisions. McKAY and cant, together We hold state’s determina with the admonitions in the proceedings to whether the tion as consti entered, statute that no be tuted a “conviction” in its courts should the procedure whereby is not acted have been followed the federal trial upon. The evaluation and characterization prosecution. court in this It is obvious that proceedings by its own the state should *3 there are “convictions” for some purposes be determinative. The is state free to at- and not for others in both the federal and tach consequences what it wishes to viola- courts, example, state when the issue tions of its laws. If the defendant Stober in impeachment arises the context of of a does not stand by convicted in Oklahoma witness, compared with recidivist stat pro- Oklahoma courts before whom the purposes. utes and most other The Oklaho ceedings had, it is difficult to see how proceedings ma on which the indictment of the federal court can hold that he was defendant Stober was based were under the convicted in the Oklahoma courts for to do Judgment Oklahoma Deferred Act. This is so is to by have him convicted the federal not a deferred sentencing statute but a circumstances, court. In these if the feder- judgment provides part: deferred act. It used, al court’s test is it is entirely possible “Upon plea or guilty, verdict of but be that another federal court could hold that fore judgment guilt, of may, court did not result in a procedure the Oklahoma entering judgment guilt without of conviction. The vary matter can thus de- defendant, with the consent of the defer venue; pending on the defendant can be proceedings further . . .” Thus “fur- guilty in jurisdiction one but not in another. proceedings” ther are deferred before any It would preferable seem to rely on the judgment plea. is entered on a The statute court where proceedings were had to twice says guilt.” “before a of decide so there will be but one answer. It was, course, There plea of guilty by great would not be a burden on the federal Stober, but procedure under the Oklahoma courts to determine whether a defendant the court did not act on it to judg- enter a by the court which tried guilt, ment of plea and the was thus not him. accepted rejected. subsequent In pro- Act, ceedings under is with- The term “convicted in any court” as drawn or upon by is acted the court. used in the statute would not seem to have any meaning, unusual experts legislative Both Oklahoma law who testi- history fied does opinion were of the that ho indicate conviction it should had procedure resulted from the use of the have. The term special significance has no in Stober’s charge. state as to the federal courts nor their internal procedure. special No rules of statutory The Oklahoma Court of Appeals Criminal construction are called for. There is no has held that a “conviction” does not come indication whatever of meaning a “federal” about under Judgment the Deferred Procedure. for such an ordinary phrase. It is a term in State, lle Be (Okl.Cr.), 516 P.2d 551 usage, common and we do not see that issue, is directly on the State, and Hefner v. anything means different being con 542 (Okl.Cr.), P.2d 527 before two of the by victed the court which tried the accused. same judges, appears to assume the same That court really only was court which consequences and refers to Belle v. State. convict; there, could guilty if he was not Thus under the decisions of the Oklahoma purpose was not making court, the defendant was not convict hi's here posi ed act concerned a crime. This in the during state court pro that state tion conforms ceeding with the observations as to which became an element in the in Barrett v. generally the act charge here considered. There was States, no 212, 498, courts, conviction in the Oklahoma state S.Ct. 450, no guilt, determination of L.Ed.2d which says Oklaho concerned the interstate ma law. The fact that there and in Huddleston v. transportation aspect, was no deter S.Ct, mination States, signifi- would seem to be 415 U.S. punishable by The offense was im- general 782. full theft. 39 L.Ed.2d also See statute, 28 but prisonment up years, 1738. to ten faith and credit county jail. year was sentenced to any is an ele- The “conviction in court” imprisonment under California law Such charged against offense ment the federal the offense misdemeanor. There made Stober, and it must be established like question as to whether no whatever was other There is no issue as to the element. convicted, and there defendant had been just admissibility proof of a evidence — possible penal- no but that necessary requirement element. here statutory ty clearly met the federal defini- is conviction the Oklahoma subsequent classification tion. Oklahoma court. issue of There no comi- rejected. The only state of the offense ty and issue preemption. no length possible imprison- issue was the In R. County, F. C. v. Beaver 328 U.S. ment, clearly federal statute 204, 66 L.Ed. 1172 referred to *4 be, was, said followed. We then and the by parties, the issue was whether cer- Place, (10th 561 213 United v. F.2d States property tain of the R.F.C. could be taxed Cir.): it property.” and whether was “real “. . term ‘convicted’ must [T]he Court in R. F. C. Beaver v. said: interpretation. be a nonrestrictive Congressional purpose “We think the established, plea guilt by Once has been accomplished application can by best be verdict, sentencing but naught or and of settled state rules as what to consti- remains, been ‘convicted’ a defendant has it is property,’ long plain, tutes ‘real so as meaning ques- within of that word in the . do not effect a discrimination tion 8.b.” patently . or run counter to the

terms of the Act.” us, course, guilt of In the case before plea by not or defendant was “established” Also, evidentiary matters in federal determination was otherwise because that courts peculiarly are matters for determina- expressly reserved. The state statute ex- by tion such Thus courts. in United States Also, Place pressly twice reserved it. under Turner, (10th Cir.), v. 497 406 F.2d we held “naught it cannot be said that here but be impeached the defendant could as a consequence sentencing Thus Place cannot be plea O.S.Supp. under 22 remains.” 991c, interpreta- 1973 the statute here concerned. applied, and the “nonrestrictive” here, evidentiary problems No present are play tion does come into because the not comparison help and the does not solve our necessary its are assumptions use not Beebe, problem. v. United States 467 F.2d interpreta- present. A “nonrestrictive here (10th Cir.), typical suspended 222 awas guilt has tion” where a determination jury following guilty sentence verdict. used expressly withheld cannot be States, also Braswell v. United F.2d See 224 in the federal court convict (10th Cir.). 706 attaching guilt to this assuming or guilty plea. To do so is to have the federal Dotson, In United States v. 555 F.2d 134 guilty of two offenses court find defendant (5th Cir.), the Fifth Circuit held where problem is no with rather than none. There accepted plea a district court a nolo had interpretation in the usual nonrestrictive “specifically withholding adjudication Place, guilt contemplated situation guilt,” there was no “conviction.” See “[ojnce States, says, Thus it applied. should be also Lott v. U.S. established, (a guilt by plea ver- L.Ed.2d under 34). Rule not that a federal rule dict.” Place did hold applied because to convictions as such be Significant statements our relative to length question presented only was Place, problem appear in United States of sentence that could be served. (10th Cir.), 561 F.2d 213 where we con- plea does previous sidered in California conviction Thus existence of pled guilty grand place ‘where defendant It provide an answer. often, part The statutes here are guilty plea A and usu- involved start instead. conviction, parcel Title IV of the Omnibus but Crime ally, constitutes a not al- Control and Safe Streets Act of 1968. The this is one of the “not ways, always” legislative history of the act is clear on the sig- What comes after is most situations. point Congress was intent on pre- does not provide nificant. Place answer venting backgrounds with those criminal following shows merit in either. This possessing urgency firearms. of Oklahoma court decisions and State application a uniform of federal law inter- statutes decide under its Judg- Deferred pretive of term “conviction” overrides very consequence ment Act the limited contrary my law interpretation, unaccepted plea. The Stober’s Government view. proceedings refers to the state as one for sentence,” they “deferred but are not such DOYLE, E. Judge, WILLIAM dis- very consequences. and are of different senting. respectfully I dissent. summary, In of defendant Stober in the Oklahoma was never contend, I contrary majority, to the determined, plea not accepted, meaning of the term “convicted” is to withheld, and proceedings be determined in accordance deferred. Such a not be accept need all, law. After this is a federal crime if States, ed. Kercheval v. subject we are interpretation to be to the *5 71 L.Ed. 1009. Since which of every the courts state in the land was not established give, going as the Government unholy as it is to be an mess. serts, as expressly that matter was with The prosecuted pursuant defendant was held, any there was no in “conviction 922(h) 924(a). to 18 and §§ U.S.C. Section court.” The statutes case and law of Okla 922(h) declares that “It shall be unlawful homa so demonstrate. The defendant cer for any person (1) who is under indictment — tainly was not the convicted court which for, or has any who been convicted in court him, tried and under these circumstances of, punishable imprisonment a crime the federal courts hold he cannot was con exceeding term one year; ... to victed in the Oklahoma The court. defend receive firearm or ammunition which to, must, ant rely entitled and on the transported shipped in inter- jurisdiction in charged. which he was The foreign state or commerce.” rely federal courts must also on the state to majority although The holds that the de- determine whether there was a conviction. guilty, fendant entered a since he Stover, The federal courts cannot convict was the benefit of deferred sen- and in position, by others his their view or tence, he had not convicted under their Again, several views. the states can prose- law and hence he could not be punish decide how to violations of their cuted under federal law. laws, not the federal courts. agents, The are facts that the while is REVERSED and the fugitive, searching for went to the resi- case is REMANDED with direction to dis- appellant dence of the on information that miss the indictment. flight the subject ap- unlawful was at the

pellant’s garage agents home. In the the observed an automobile which identi- BARRETT, Judge, dissenting: fugitive’s fied They parked as the car. I join Judge Doyle’s dissenting in opinion. their car the and driveway went inside I have some observations in addition to the garage. They talked to one Janice those expressed Doyle I by Judge which Holding, just emerged had who from her believe support that view the term fugitive if the automobile. She was asked “convicted” should be determined in accord- was she there and said that was not.» ance with federal appellant law. She was then asked if the previously who not According that lowed a defendant and she said he was. there such a agents, invited into of a to receive they felony the FBI were been convicted Texas, was living- were into the the home and shown sentence. Under law - There, appellant nonappealable. was. room where nonfinal number, weapons, plain sight, were was similar The contention Braswell object caliber including a .30 which was here, namely, that he is made that which inquiry. agents After the left of some of a previously convicted had not been Alcohol, place they notified Bureau statute. required by violence as crime of presence Firearms Tobacco and as to The court said: agents knew weapons in the home. The hinges on the this argument point His on They case. prior of the defendant burglary after his conviction for fact that search-warrant, February obtained a the Texas given advantage of he was 16, 1977, executed it. Ten firearms were statutes which allowed rehabilitation these, subjects three seized. Of were judge suspend sentence. presiding charges. present He did the argues, at 709. 224 F.2d trial there was contention At here, no defendant-appellant there was illegal. The invasion of the residence was been con- order and hence he had not final subject. trial does not reach this court federal stat- victed in accordance with the in, agents invited found that the court indeed court stated that it would ute. Our is final. and this strange construction of the statute be a my I shall therefore confine discussion impose its on those which would sanctions whether the of “con- definition tried but yet under indictment same in 18 viction” as the is used prohibition include its would not within 922(h) 924(a) to state shall be left § violence and crimes of those decision. The court receiving suspended sentences. the con- unnecessary it was said that govern. contend that federal law must I appealable. be final and viction First, not leave the statutes themselves do *6 being I evaluate the Braswell decision the and that question this to forum state the because to case at bar closely parallel argues is a question fact itself that the that had not here it is said since sentence Secondly, majority one. the view is plea did not imposed that of fact, course, concept. a new That does of Here, true, it is constitute a conviction. it, against not in itself militate but before has to be argued is not that sub- we abandon our own decisions on the prob- both appealable, but in cases the basic ject carefully prob- we should consider lem is that the basis for the defendant’s lem. had not been argument is that sentence strongest of is Bras- these authorities Braswell, readily In court imposed. this States, (10th well v. United 224 F.2d 706 argument. this In the case at bar dismissed 1955). The statute which was con- Cir. majority argument embraces sidered in Braswell was somewhat different dealing Braswell. The does so without with statute, but the present from the firearms repudiation a of court’s action constitutes similarity in great nevertheless has case Braswell. unlawful for principle. It declared it to be (10th Place, v. F.2d 213 United States 561 under or has been anyone who is indictment 1977), is a more decision of this recent or is a Cir. of a crime of violence convicted charged In that case defendant was court. justice ship transport in fugitive from or in making a false statement with written commerce a firearm or ammunition. with the of a fire- acquisition connection had been of a crime of arm, question. to the in contrary statute violence and was under the 1955 charged had been convicted in Cali- version of the As in the The defendant firearms statute. case, fornia, alleged, pro- grand had a so it was theft. present State of Texas suspended al- vision for sentence which The defendant filled out a form on which 1280 question regarding ment a criminal record. There

he answered “no” to whether in any he had been convicted court of that the term argued the defendant “con- by imprisonment punishable crime for a question victed” was of fact that should year. exceeding term one The defendant held, jury. to the have been submitted We grand pled theft guilty to and was however, question that it was of law for granted years provided five probation for the court. The defendant had been sen- county jail. spend year first one Un- years prison, to five but the con- tenced imprisonment der in only California law suspended viction was and the defendant jail is county a misdemeanor not a was spend ordered to four months in the grand crime. We theft held that defini- custody Diego County. the Sheriff San tion in the California code was a crime We further the court is not re- said that punishable years, ten for not more than quired question to instruct on convic- Congress we said that the intent could be tion. Our court not hold in case did that only carried out the term “convicted” is if subject firearms conviction was interpretation. a nonrestrictive We the state law of what view constituted said: conviction. We held the trial court established, Once by plea has been determining was correct in it was a verdict, naught sentencing but matter The opinion of federal law. remains, has been a defendant “convict Judge on United v. Barrett relied States meaning ed” within the that word in Rosenstengel, F.Supp. (E.D.Mo. 499 323 Beebe, 8.b. States v. 467 1971). (10th 1972), den., F.2d 222 cert. Cir. 416 Turner, In v. United States 497 F.2d 406 1607, 40 94 L.Ed.2d 108 S.Ct. (10th 1974), guilty plea Cir. we held that a Willis, (1974); United States F.2d under federal law is a conviction and thus (9th 1974), den., cert. Cir. 420 U.S. that decision out of harmony is also (1975); L.Ed.2d 441 in this majority opinion case. Johnson, States v. F.2d 548 (4th 1974). Cir. teachings recognize All of our plea that a

[******] of guilty constitutes a conviction. Sentenc- ing necessary bring is not this about. On the contrary, we are in accord with Guilt once established statement of district States, entered. It until it is expunged. McMullen continues v. United 349 F.Supp. aff’d, (C.D.Cal.1972), 504 F.2d 1108 As, we policy, matter of should not be (9th 1974), only Cir. “the purpose in subject rulings courts. The stat- * * * looking to state law is to deter- ute in question makes it unlawful *7 mine the penalty maximum which could person for, who indictment or who is under * * * imposed have been .” 349 F.Supp. of a crime to receive at 1351. 561 F.2d at 215. We went on to Judge firearm As Thomp- or ammunition. say: .. . . bar, son said the case at in view at trial in Having here determined that the maxi- cogni- statute takes the fact * * * mum penalty exceeded one merely charged zance of one who with an year, the investigation into state law is offense, a strict construction should not be exhausted. given to to exclude a “conviction” fact situ- 561 F.2d at 215. ation, case, such where as in this agree has entered. I majority opinion constitutes a repu Judge Thompson that this strict construc- Place, diation relatively recent decision So, therefore, also, illogical. tion is So, as a this court. is in matter conflict with Beebe, law and as of reason and (10th policy, States v. 467 F.2d 222 a matter 1972), den., 904, justification Cir. there is incorporating cert. no 94 S.Ct. (1974). Beebe, L.Ed.2d 108 like definition “conviction” in Place, making involved the of a false state- 922 and §§ 924. period during ensuing predict that

I the law in the Tenth the rule is

while confusion

Circuit, great create it will officers, prosecutors, law- minds of

in the judges.

yers

McWILLIAMS, joins Judge, Circuit DOYLE, Judge.

the dissent of COMPANY, a OIL Ne

The SUPERIOR Corporation, Plaintiff-Appellant,

vada

v. COMPANY, GAS

WESTERN SLOPE Corporation,

Colorado

Defendant-Appellee COMPANY, OIL

CONTINENTAL Corporation,

Delaware

Plaintiff-Appellant, COMPANY,

WESTERN SLOPE GAS Corporation,

Colorado

Defendant-Appellee. 77-1806,

Nos. 77-1807. Appeals, Court of States

Tenth Circuit.

Argued March 1979. Aug. 13,

Decided 1979. Denver, (Gret- Hawley, Colo. Robert C. Rehearing Sept. Denied 1979. Ireland, VanderWerf, Stapleton, chen A. Colo., brief), Holmes, Denver, Pryor & Superior Co. Oil plaintiffs-appellants Oil and Continental Co. *8 Timmons, Jr., F. Patrick Wagner,

W. B. Tex., brief, plaintiff-appel- Houston, on lant Oil Co. Superior Johnston, Burton, Hous- Joseph

Tom C. ton, brief, Tex., plaintiff-appellant Co. Continental Oil Denver, (Rich- Colo. McCotter, James R. & O’Don- Kelly, ard W. Bryans, Stansfield