United States v. Ralph R. Ross

elapsed, (citizen ninety-day appeal period has facts “are not substitutes provisions suit light changed have of the various to that would review sections come judicial for the statutes”). operator’s agency’s permitting A hazardous waste decision about substan- per- endangerment. the terms of its RCRA In addi- and imminent compliance tial jurisdiction un- tion, modify district court EPA or terminate a precludes mit can 6972(a)(1)(B) challenge properly- § to any if it previously permit der issued time activity. permitted facility presents an immi- determines endangerment health nent and substantial Attack Improper Collateral B. An 6973(a), § 42 U.S.C. or the environment. Permitting Decisions 270.43(a)(3) 270.41, §§ C.F.R. Greenpeace’s ob plain that It seems however, earlier, the record As noted validity jective of the EPA to attack the is does the dioxin this case not indicate It the incinerator permit refers to decisions. Greenpeace’s alleged 1 of com- risk Count “allegedly properly permitted,” and being as only after the time to plaint became known any enjoin the test burn as well seeks permitting appeal the U.S. EPA’s decisions handling of waste or waste other incineration elapsed. suggests that This the dioxin opinion not activity. As the district court’s new issue was raised not because ed, regulations not allow EPA did environmental dan- realization imminent permit approve for EPA Administrator simply way facility oppo- for ger, but as a having without first determined the test burn hoped seek would be a more nents to what present trial burn itself will not an that “the procedure appeal forum favorable than hazard to human health or the imminent by Congress. provided 270.62(b)(5)(h) § 40 C.F.R. environment.” (1992). Accordingly, Greenpeace al when III. complaint test burn leged in its that the post-test present would an imminent burn reasons, foregoing this cause is For asking endangerment, it was and substantial remanded to district court with instruc- enjoin district court review jurisdic- that it be for lack tions dismissed That, permit decision. EPA Administrator’s tion. out, pointed would contravene the as we have 6972(b)(2)(D) 6976(b). §§ provisions of demon- Greenpeace prepared

If disregarded the U.S. EPA

strate that hazard at time it issued the

imminent

permit post-test for the test burn and burn 6976(b) required §

period, 42 Green- U.S.C. bring directly to

peace appeal its this ninety days. Because that was court within America, UNITED STATES done, Greenpeace any opportu- forfeited Plaintiff-Appellee, judicial nity of claims that could review v. the RCRA appealing have been raised City permit See amendments 1992. Defendant-Appellant. Ralph ROSS, R. Bond, 927, 931 Rochester No. 92-3774. (D.C.Cir.1979). may citizen Greenpeace have believed Appeals, United States Court 6972(a)(1)(B) § brought ap- under are suits Seventh Circuit. propriate vehicles to a substantial address Argued June endangerment arises and imminent after concern, permit the EPA is issued. This 5, 1993. Decided Nov. however, fully provi- other addressed regulatory sions in the scheme. Under 6976(b), provision is made

U.S.C. if,

delayed appeal after this court Finnegan, Atty., Asst.

Sheila U.S. Crim. Div., Chicago, (argued), plaintiff-ap- IL pellee. Averkiou, Chicago, (argued),

Chris IL defendant-appellant. POSNER, Judge, Chief RIPPLE

Before ROVNER, Judges. and Circuit RIPPLE, Judge. Circuit illegal posses- Ralph was convicted of Ross illegal unregistered of an sion firearm explosives. possession of After Mr. Ross three-year prison served a he was re- term proba- on on leased release and Subsequently, tion. filed a alleging that Mr. motion Ross violated request- several conditions release why ing required that he cause show probation release and should not be revoked. After a revocation matter, was held on the the district court proba- revoked his and his challenges tion. Mr. now the revoca- Ross proba- tion of his release and his also contests initial conviction. probation. reverse revocation of In We regards, judgment all other of the district affirmed.

BACKGROUND 1989, January charged In Ross was charged a two-count indictment. Count I possession unregistered machinegun of an on 1987, 4, November in violation of 26 U.S.C. 5861(d), prohibits possession which unregistered certain firearms. The firearm question antique. was a 1915 World War Ross, According weapon tech- to Mr. was (DE- nically Trophy” War “Deactivated WAT) weapon on because the barrel was fused to plugged and the receiver tube was firing pin, preventing pate psychiatric automatic counselling program; thus firing of more than one round of ammunition (3) report he was to probation trigger. single pull Prior to officer as directed truthfully and answer all May when the Firearms Owners’ Pro officer, inquiries by including (“1986 Act”) enacted, Act tection inquiries. financial appeal, direct apparently weapon was not considered a ma- this court affirmed Mr. Ross’ conviction. subject chinegun at all and thus was not 5861(d). registration requirements §of serving On March after the full Ross, See United States v. I, three-year prison term for Count Mr. Ross (7th Cir.1990) curiam), denied, (per cert. custody. was released from April On 112 L.Ed.2d 1183 1992, the district court issued a minute order (1991). However, illegal the 1986 Act made stating period probation the of under possession machineguns of all not owned and II consecutively Count was to run to the properly registered Act before the took ef incarceration, period of concurrently and fect, statutory and broadened the definition release, period with the of im- machinegun particular parts of to include posed under Count I.2 weapon. well as the entire See 18 U.S.C. 922(o) (1988); Jones, § United States v. 22, 1992, probation On June Mr. Ross’ (4th Cir.1992) (“amendment F.2d report officer a alleging issued that Mr. Ross effectively Act the Gun Control rendered (1) probation had his violated because: he possession guns of certain automatic viola (2) unemployed; receiving was he was not tions of both the Gun Control Act and the (3) treatment; psychiatric he had not made — Act”), denied, National Firearms cert. any payments toward his fine and various U.S.—, 2351, 124 (4) assessments; court he refused to fill out a (1993). Accordingly, upon the effective date (5) questionnaire; financial and he failed to Act, weapon of the 1986 Mr. Ross’ became sign monthly probation reports attesting his subject registration to the of strictures complete that the information was and truth- 5861(d). § undisputed It is that Mr. Ross Consequently, ful. the filed a registered has never weapon accor why motion for an order to show cause Mr. 5861(d). provisions § dance with the probation Ross’ should not be revoked. charged storage explosives Count II 842(j). August violation of 18 U.S.C. On August On a was held on pled guilty Mr. Ross II to Count and conviction, the motion. Prior to his Ross Mr. August jury on 9 a convicted him on the legally possessed private collection of charges alleged in I. Count However, fifty guns. over because one of the by Mr. Ross was sentenced the court on probation conditions of his was that he not 29,1989. I, December On Count firearms, any contact have with the court thirty-six Mr. sentenced Ross to inquired, during August hearing, what incarceration, by months’ to be followed gun he had done with collection. Mr. his years three release.1 On responded guns. Ross that he had sold the II, suspended Count the court and sentence However, asserting Fifth his Amendment imposed five-year probation. term himself, right not to incriminate he refused specify probation- court did not whether this reveal, grant immunity, absent a ary period under II was to run concur- Count whom he had sold the collection. The court rently consecutively or to the sentence im- however, immunity; grant refused to official posed Special I. under Count conditions of very it made clear to his Mr. Ross and probation Mr. Ross’ release and (1) attorney satisfy if required Mr. Ross did not that: he to have (2) firearms; partici- contact with guns longer he was to court that no in his were $5,000 1. The district court also a fine of 2. The record is not clear as to whether this court on Count I and ordered Ross to reimburse sponte response order was issued sua or in to the Program the Federal Defender costs of government’s request. See R. 68. representation. his hearing, During this same October probation be revoked.3 possession, his would found Mr. Ross had lied to his grav- court also he understood Mr. Ross stated missed probation officer and had two or situation, ity and the court instructed appointments scheduled and that there three govern- response him to file a written proba- to revoke his was therefore reason report. probation and the motion ment’s separate independent and from failure response in his written On Oct. gun his reveal the whereabouts of collection. motion, submit- Mr. Ross government’s exchange Specifically, after an with Mr. Ross not revoke the district court could ted that proba- his appointments missed about for re- probation he had access to a tion officer whether pro- questions asked fusing to answer insurance, and car the court concluded car or court because he officer bation his proba- his lack of candor with both an invoca- had based his refusal on expressly separate was “a tion officer the court rights. Addi- Fifth Amendment tion of his revoking pro- independent basis for time, argued, the first tionally, Mr. Ross Tr. of 1992 at 12. bation.” Oct. modify jurisdiction no court had that the supervise obviously, people cannot who We 13,1992, April it when issued his sentence me, lie to the officer seems probation stating order that his the minute appointments not keep and do that are consecutively to to on II was run his Count mean, I that is the fundamen- scheduled. Specifically, prison for Count I. he sentence supervision; probation tal for the basis 35(c) of Procedure argued that Criminal Rule keep that the defendant in contact with his only sentencing has provides that a court reasonably probation request- officer when sentencing days amend orders. seven to get I is a to do so. And all lot of ed malarkey here in the about car/no car/it’s 20, the held district court a On October mine, driveway/it’s somebody it’s not re- probation revocation and second driving it. else’s/he’s arguments. jected The court stat- Mr. Ross’ everfy] to think There is reason that he sentence, ed it had not amended the but I disposal. have a car does at his credit proba- merely specified period when testimony] probation has [the officer’s —he again explicitly The tion to start. court was He done some homework here. found out that, if not reveal to the told Mr. Ross he did about the car and he has circumstance collection, gun location of his court the his good authority Mr. it on a Ross does probation again would be revoked. Mr. Ross and, fact, disposal; ear at have a his express grant of refused to answer absent an and, a in it I does drive car and was seen immunity from the court.4 The court told guess, stopped. ... law, under the effect of Mr. Ross compelling give an answer was the court Nevertheless, hearing, immunity.5 Ross re- At him the conclusion of court II, grant probation Mr. Ross’ under Count fused to answer without a formal revoked one-year and immunity. imposed sentence ordered you, games 3.Specifically, the court with unless I am satisfied that he stated: guns anymore not does have those —all lawfully-imposed condition and unless This is right? going am to revoke his —I I am satisfied that that condition has been you your Fifth release can sit on Amend- satisfied, looking he is at revocation of his going you protect ment all want. It is not supervised release. complying him from with the conditions of So, your you can claim the Fifth heart's supervised release. telling you but I am that the effect of content Aug. Tr. of 1992 at 10-11. that is to take the absence of some affirmative guns he those statement—that does not have also to submit financial infor- 4. Mr. Ross refused answer, will, being anymore you if —as mation, again asserting Fifth his Amendment So, negative implications will for him. I tell right. right? you that. All had referred the and Mr. 5. The Murphy, giving immunily anything. him Ross to Minnesota v. I am (1984). play just telling you, going am and I am not custody. arguments underlying that his Addition- conviction him taken into immediate should be vacated. ally, court revoked Mr. Ross’ however, I; the court under Count The district court next offered Mr. Ross sentencing count until No- on that deferred opportunity comply final with its informa- parties to allow the in order vember requests concerning the whereabouts of brief the issue. gun his collection and his financial state- However, again ments. Mr. Ross refused a Motion to response, Mr. Ross filed privi- Fifth reasserted the Amendment Sentence, underlying attacking the Vacate lege against Accordingly, self-incrimination. asking the court vacate conviction year the court a term of one original' In this motion to 1989 sentence. I, incarceration for Count to be served con- vacate, claimed, time, Mr. Ross for the first currently one-year period with the Mr. Ross he was convict- that the statute under which already serving was II. Count The court 5861(d) ed, unregistered § ma- (possession that no reasoned additional time should be gun), effectively repealed chine was before served for the revocation of re- conviction, rendering his conviction thus lease under Count because the basis for the Specifically, Mr. Ross con- unconstitutional. release revocations 5861(d) May § repealed tended was the same. prior date eighteen months 102(9) § charged, by of the Firearms he was II 922(o) § Owners’ Protection Act. 18 U.S.C. argued, Mr. Ross also for the first ANALYSIS

time, the court could not that under period impose both a of incarceration under appellant presents many issues. As period probation noted, I and a of under just Count we have the district court ad- Finally, argued II. Mr. Ross that the Count dressed these matters over several in months during his initial trial hearings. pre- district court erred a series of To facilitate our jury comprehension, it instructed the that there was no when sentation and the reader’s track, possession closely un- knowledge element for of an we believe it is best that we as government, possible, chronological development registered machinegun. The the of Ross, these matters in the district court. submitted Mr. should have been re- quired prove gun that knew was a he is,

machinegun, capacity had the to fire 1. more than one round of ammunition automat- We turn first to the district court’s ically single pull trigger, with a and probation revocation of Mr. Ross’ on Count just any not firearm. earlier, the district II. As we have noted court, sentencing, original time of November the district court held its On imposed a on I that consist sentence Count third and final on Mr. Ross’ revoca- ed, pertinent part, thirty-six of months’ only tion. The court concluded that the issue incarceration, by years to be followed three properly before it on November was the time, supervised release. At the same appropriate alleged for Mr. Ross’ sanction following district court entered the sentence probation release violations. imposition respect with to Count II: “The expressed The district court the view that it suspended sentence on Count and the jurisdiction did not have to consider probation on defendant will be sentenced to challenge constitutionality Ross’ to the respect 2.” R. 68 at 2. to the Count With opined proper that the conviction. The court probation, court entered in the period post-conviction relief was to vehicle such hereby placed “[t]he order that defendant is petition corpus. for a writ of file habeas (5) years.” probation period for a on FIVE Nevertheless, 1992 at 6. Tr. of Nov. Id. at 4. pronouncing jurisdiction no after that it had merits, government acknowledges in its would not reach the the district As the brief, by permitted reject Mr. substantive such a sentence is not court went on to Ross’ 3561(a)(3) (1988) arithmetical, technical, clear er- or other Title U.S.C. statute. ror. provides: impris- a sentence of imposes

If the Court adapts Rule This new version of the indictment, it any count of the onment on of the sen- earlier scheme to the demands to a term of the defendant must sentence preserv- tencing guidelines while structure remaining on each of the imprisonment scale, very ing, albeit on a constricted may not sentence the court, The Court counts. authority of the district former on various mixed sentences defendant to and, prior to the grounded in rule at least proba- involving imprisonment and counts rules, power, to correct errors inherent imprisonment on 35(c) tion. The sentences advisory sentences. See Fed.R.Crim.P. must conform the various counts note. committee’s run requirements of the USSG will Accordingly, must conclude that we expressly concurrently unless the Court imposition of a sentence not district court’s they run are to consecutive. orders by on Count II could not be authorized law court at imposed the district The sentence effectively the order remedied issued sentencing was there- time of the initial imposition of twenty-eight months after the that could have been fore not one to incar- the sentence and after the sentence applicable statute. under the companion count had been ceration on the Therefore, court’s revo- served.6 entire the defendant had served the After cation of under Count was imposed on Count sentence of incarceration judgment court’s effective and the district serving period and was regard must be reversed. count, imposed on that the dis- release also April an order on trict court entered read, pertinent part: hereby modi- defendant’s sentence is question of now turn to the We proba- that the sentence of fied to reflect validly whether the district court revoked the consecutively 2 is to run tion on Count on Count I. Mr. period of period of incarceration Count improperly Ross that the court re submits super- currently the sentence if [sic] release because he re voked on Count 1. Remainder of

vised released inquiries about fused to answer the court’s previously to stand as defendant’s sentence gun and his disposition the collection imposed. ground his Fifth Amend finances on the against right self-incrimination. Ross submits that the district ment R. 93. Mr. jurisdiction this modifi- court lacked to make government responds by suggest- The first twenty-eight months his initial cation after that, us, ing on the record before we need response, govern- In sentencing date. the view, In district not reach this issue. its court was not amend- ment asserts that the revoking proba- that it was his court stated merely clarifying, original ing, sen- but reasons, including indepen- for three tion Appellee’s Br. at 39. tence. See ground to his dent that Mr. Ross had lied authority to cor- The of the district court probation officer and had missed scheduled illegal is now rect an sentence circumscribed Moreover, appointments. gov- submits the of Federal Rule of Criminal the terms ernment, even had the court revoked Mr. 35(c). provides: Procedure That section now probation Ross’ for the sole reason that he court, present locale of the acting days within 7 after the refused to reveal the The sentence, collection, gun Fifth Amendment claim is imposition may correct a sen- assertion, support of its that was as a result of without merit. tence brief, contends, government government the defendant and we note that the In its without authority, rights attempt citation of that the defendant waived made no to ensure that the it now argument by objecting sentencing defendant, this not to the protected. on the asserts were The appeal. upon entry orders their or on direct hand, object illegal sentence other did when the court, however, error of the district worked probation was revoked to his detriment. government than to the detriment of the rather banc). (en case, adopt In that depart- asks us to the ratio the state in Asherman v. nale of the Second Circuit ment of corrections refused to allow a sen- (2d Cir.1992) (en Meachum, prisoner tenced to continue on home release banc). prisoner after it was informed that the would questions refuse to answer about the under- government’s turn first to the We lying psychiatric offense at a scheduled eval- super suggestion that the revocation of that, recognized uation. The court in a ser- justified ground on the vised release can be cases, Court, Supreme although ies of not proba Ross failed to meet that Mr. situation, addressing precise this had set tion officer and lied to the court. We have forth, decisions, significant a series of ground an ade no doubt that this could be guideposts. recognized The Second Circuit quate for the court’s action. We also basis that, rule, general person as a “a cannot be very note that the record does make it clear compelled against to be a witness himself uncooperative and that Mr. Ross was evasive proceeding a criminal nor ‘to forced answer topics during about each of the three several questions put official to him in other In hearings conducted the district court. criminal, proceeding, civil or formal or infor- deed, earlier, point at one as we have noted mal, might where the answers incriminate proceed protracted and unstructured ” him in proceedings.’ future criminal Id. at ings, expressly stated on the district court (quoting Turley, 414 U.S. Lefkowitz unresponsiveness that Mr. Ross’ record 70, 77, 94 S.Ct. 38 L.Ed.2d 274 concerning his access to a car and failure to (1973)). Therefore, continued the Second appear appointments at several scheduled Circuit, prisoner could not have been provided an with his officer inde questions ordered to answer the under the pendent adequate reason for the revoca pain contempt. Nor could he have been Nevertheless, tion. when the record is eval required privi- to waive the self-incrimination whole, is a uated as there substantial doubt Broderick, lege. (citing Gardner v. analysis, in the final the district court 88 S.Ct. 20 L.Ed.2d 1082 regarded report failure to to his Ross’ (1968)). Nor, Circuit, continued the Second probation officer and his untruths punished could he have been because he adequate independent court to be an privilege against self-incrimina- invoked ground for the revocation of his Higher tion. v. Board See Slochower During hearing, release. the November Educ., 551, 558-59, appeared controlling the court to narrow the (1956) (holding city 100 L.Ed. 692 provide concern to Mr. Ross’ refusal to infor may discharge a teacher because the gun mation on the whereabouts of the collec teacher invoked the Fifth Amendment before situation, informa tion and on his financial committee). congressional provide on the basis of that he refused to guarantee against Fifth self- Amendment Nevertheless, Circuit, held the Second Accordingly, incrimination. we believe that circumstances in which adverse there are we must address that issue.7 refusal, person’s may upon actions be taken grounds, on Fifth Amendment to answer very The situation before us is similar questions pertinent of state analytically to the exercise to the one that confronted our assertion, colleagues authority. support in in In of that the Second Circuit Asher (2d Cir.1992) Meachum, Newman, writing Judge F.2d 978 for the en banc man v. 957 McGee, (7th Cir.1992). concurring colleague As we 7. Our is of the view that we 273 because, may rule, ground general text, that, rely on this as a in not at in have noted it is all clear appellate may any an affirm on analysis, the final the district court believed that ground supported by the record. We do not alone, ground, standing warranted the revo- this believe, however, general principle that this can Accordingly, cation of the release. applied easily so here. to terminate be Whether therefore, say, action is we cannot that such an modify or Mr. Ross’ release on the authority Certainly, to before us. we have no having basis his lied to his officer of ground on a deemed revoke release having appointments and his missed scheduled (as been) inadequate may by have to the discretion of the district was committed court. 3583(e); 18 U.S.C. United States v. court. See 1190 Gardner, that, inquiry relevant

court, cuss his crime. The was which held noted discharge police public responsibili- of a offi- to the Commissioner’s unconstitutional carefully cer, noted that Supreme periodic Court He entitled to conduct ties. “ discharged to ‘not failure suitability he had been for home reviews of Asherman’s questions about his official release, answer relevant to assess the and he was entitled duties, for a refusal to waive a constitu- but upon impact parole of denial Asherman’s ” Asherman, right.’ 957 F.2d at 982 tional attempt mental health. Asherman’s Gardner, at at (quoting S.Ct. pre- questions about his crime foreclose all 1916). noted He also pursuing a from vented the Commissioner Uniformed Ass’n, Inc. v. Commissioner Sanitation Men inquiry, inquiry. pursuing In relevant Sanitation, impair took no action to the Commissioner of “ (1968),the workers ‘were dis- privilege. Asherman’s self-incrimination merely to account for charged not for refusal compelling an- sought He no court order city. They employees their conduct as swers, require im- he did not a waiver of invoking refusing to were dismissed for munity, that Asher- and he did not insist right against self- waive their constitutional against him man’s answers could be used ” Asherman, F.2d at incrimination.’ proceeding. stayed well in a criminal He Men, (quoting 392 U.S. at Sanitation authority within outlined Gardner 1919). cases, On the basis of these by conducting Men a rele- and Sanitation Judge concluded: Newman taking appropriate inquiry vant and then clearly emerges from these decisions What action, adverse not for Asherman’s invoca- grant power limit and a of with is both a rights, of constitutional but for his respect governmental inquiries. Public inquiry. In failure to answer a relevant agencies may impair privilege terms, just public Harlan’s offi- Justice by compelling in- against self-incrimination may discharged lawyers cials disci- answers, criminating by requiring or plined refusing divulge appropri- “for immunity, by asking or even waiver authority pertinent information to the ate incriminating questions conjunction offices,” performance faithful of their Sani- explicit threat to use the answers Men, 392 U.S. at 88 S.Ct. at tation proceedings. public agencies criminal But 1920, prisoner may from be terminated authority questions retain the to ask rele- refusing divulge home release status for public responsibilities and to vant their information to a corrections commissioner against take adverse action those whose pertinent of a home administration impedes discharge refusal to answer program. pub- responsibilities. The fact that a those 957 F.2d at 982-83. employee might unpleasant lic face the addressing whether the district losing surrendering his silence or

choice period court’s revocation job consequence no to an adverse is bar right against release violated Mr. Ross’ self- long consequence as the so advisable, incrimination, think it at the we inquiry failure to answer a relevant outset, sharpen the focus of the issue give up a not for refusal to constitutional precision stating before us with some right. Supreme public Court left em- ployees facing ruling what the record shows and what it does not this choice without all, definitively manifestly as to the effect of the choice show. First of it is clear that upon governmental responses inquiries it did for use the district court made the employee give. legitimate the elected to See Gard- ensure that the one reason —to ner, 278-79, at at 1916- parole previously S.Ct. that it had conditions of 17; Men, 284, id. at being Sanitation S.Ct. met. There is not the were suggest 1919-20. whisper of an echo in this record to in that the district court had an interest teaching Applying the of these decisions to case, ferreting incriminating admissions to fa out Asherman’s we conclude that the prosecution cilitate the further of the defen Commissioner entitled to revoke Ash- Indeed, several to dant. the court mentioned erman’s SHR status for his refusal dis- record, any ing very to visit of the to be limited to the issue of that it was reluctant times Mr. Ross. It is also sentencing further incarceration on alternatives available to the simply that the record will important to note upon district court the revocation of the su- support suggestion a that Nevertheless, pervised day release. on the revoked the release because hearing, of the counsel for Mr. Ross a filed Fifth protections invoked the of the Mr. Ross purported document that to be a motion for very that the court’s Amendment. It is clear the vacation of the sentence. ar- Counsel it obtain information sole concern was that gued requirements that it conformed to the considered, justification, ample that it with challenged, among of 28 2255. It U.S.C. respon- necessary to the fulfillment of its things, validity original other con- monitoring period super- in sibilities ground viction on the that Mr. Ross had been Therefore, like vised release. the Second convicted a that had re- under statute been Circuit, with a situation in we are confronted pealed prior to Mr. After Ross’ conviction. a adverse action in a re- which court takes ascertaining that counsel sponse questions a to answer un- refusal only opportunity study a brief der circumstances which answers document, expressed the district court very might tend to incriminate but are also by view the document submitted counsel legitimate a informational need of relevant to ought hearing in not be considered at the that the district court the court. We believe progress ought separate proceed but as a that, correctly concluded the absence action. necessary the information to determine Well, I am inclined to think The CouRT: living up to the condi- whether Mr. Ross was Averkiou, following. you are at- release, permis- it was tions underlying tacking the conviction court, and indeed its sible for the district by your I papers, first instance take it? supervised re- responsibility, revoke correctly lease.8 Mr. Ross has asserted jurisdiction. the basis of Averkiou: On MR. during probation hearing, probationer a a you think have to do that The Court: clearly right to invoke his Fifth has corpus or the either a writ of habeas privilege. Minnesota v. Amendment See only statutory substitute therefore. Murphy, 465 U.S. today appropriate issue before me is the (1984). Nevertheless, 1143, 79 L.Ed.2d 409 punishment or sanction for the conditions accept we cannot that he has an additional release, already which I have right express upon to avoid the conditions So, deny I will the motion on determined. or, granted probation, in this which he was inappropriate you the basis that it is case, supervised He must make a release. way. can raise it in another enjoy advantages choice. If he is to release, comply Mr. Ross must Tr. of Nov. 12 at 6. Counsel for the defen- any lawfully imposed pro- conditions of to have dant then said that he “would like Indeed, argu- Mr. Ross’ bation. we find Appeals” issue raised the Court particularly given how di- ments untenable believed that his motion and noted he questions rectly related the district court’s qualified relief under 28 as a motion for explicit were to his initial offense and § 2255. Id. at 7. U.S.C. any that he not have condition opined in The court then a brief sentence contact with firearms. on the merits of the case: 3. accept proposition find it difficult to legislature later action viti- The last on the revocation of was, by any prior and vacates a criminal statute supervised release fair read- ates Pierce, upon rights ... [and to] constitutional failed also States v. See United (9th Cir.1977) (noting provide[ any justification that a defendant who other for his refusal ] right to silence in asserted his Fifth Amendment probation”), comply condition of cert. with the refusing questions regarding to answer his fi denied, 55 L.Ed.2d nances that related to condition of his (1978). 516 infringed the conditions "failed to show that 1192 instance, ruling primary of its decision a on the in the first basis appropriate

that was preemptory procedure. constitutionally in merits after such a valid the first that was instance, good part that is a and I think court acted We believe that your argument. determining that well within its discretion by motion filed defense counsel was out immediately: continued Id. at 7. It then day’s hearing. of order at that The issues it; that I will not entertain But think complex presented were constitutional ones that, and, deny I will it on the beyond required ample reply by the that time for legislature did basis that whatever Moreover, government. there was also a is, think, thereafter, part your which that serious issue of waiver you argue that the stat- argument, I think right had a to address. There was no abuse under was a revenue he was convicted ute part court. of discretion on the of the district later raising and some enactment statute of that by Congress changed the character that over firearms? Is kind of control We have determined in the immedi

gist your argument? ately preceding section that the district court proceeded the defendant Id. Counsel for address, way, did not intend to a definitive explanation posi- give a brief additional interjected § petition 2255 the merits and the court then asked if tion on the merits pro into the release revocation in this motion had been the issue raised Nevertheless, ceedings at minute. the last position took the that raised before. Counsel contingency cover the that we have misread position supporting his “had the caselaw regard, the record we address the 1992 and this was the evolved” in 1991 and presented An issue of law is and it merits. then when Mr. Ross had first instance since parties. has addressed been subject to additional sanctions. The been requires private Title 26 U.S.C. 5861 expressed disagreement with the latter register ownership citizens to their of ma- statement and then terminated the discus- chineguns. statutory purposes For a ma- event, by saying: “But in I am sion chinegun gun automatically is a that can fire deny your you going to motion and can take single multiple upon rounds of ammunition Appeals.” it to Id. at 8. The the Court original pull trigger. of the The statute was merely minute order recites that all written ly pursuant enacted as a revenue statute are denied. motions Congress’ taxing power. Sonzinsky v. See that, We believe when the record is evalu- States, 506, 513, 300 57 United U.S. S.Ct. whole, as a the action of the district ated (1937). required 81 L.Ed. 772 It ruling court can best be characterized as a registration machineguns in order to presentation of the motion to vacate Treasury tax facilitate collection De sentence at the November pos partment. prohibited The 1986 Act beyond scope it out of order because was machineguns all not session of were hearing. par- This characterization is (that is, legally possessed registered) prior to ticularly appropriate when we remember that Hig the Act’s effective date. See Farmer v. day, opposing the motion was filed the same (11th Cir.1990), gins, 907 F.2d only opportunity to counsel had a brief re- denied, 753, 112 cert. S.Ct. it, court itself confessed view and the district somewhat, having “looked at motion [the] although extensively.” not 7. As far Mr. Ross invites our attention ascertain, govern- posses can for the once the as we counsel several cases hold opportunity illegal, reg machineguns ment never had the to address sion of became argument taxing requirement whether the raised the motion istration and was effec ought tively meaningless. to be deemed waived because rendered See United Cir.1992), (10th Dalton, appeal. raised on direct believe 960 F.2d 121 been We States — denied, U.S.—, credulity beyond that it strains all reason to rt. ce (1993); 253, 126 States v. conclude that the district court made the L.Ed.2d United

1193 Inc., 117, Armory, F.Supp. Rock Island 773 sions of the impliedly earlier statute were (C.D.Ill.1991).9 Thus, Ross, 126 submits Mr. repealed to the they required extent that registration requirement “the is unconstitu actions that longer possible. were no In Congress tional because removed the under short, the court concluded that the 1986 Act lying Appellant’s basis for the statute.” Br. “undercut the constitutional registra- basis of at 17.10 tion which had been the rule since Sonzin- Armory, sky.”

In Rock Island Rock Armory, defendant was Island F.Supp. 773 at §§ prosecuted under 5822 and for fail- 5861 125.

ing register guns machine that were man- Dalton, In United States v. 960 121 F.2d 922(o) § ufactured after the effective date of (10th Cir.1992), the Tenth Circuit followed of the F.Supp. 1986 Act. 773 at 125. The reasoning. same The court held that pointed defendant out that after the 1986 Act 922(o), “[a]s result of section compliance effect, longer took no would impossible.” with section 5861 is Id. at 126. registration machineguns allow the Consequently, the court vacated the defen- already properly registered. had not been dant’s Thus, ground conviction on defendant, being submitted it was “constitutionally prosecuted failing perform impossi- infirm.” Five months later, agreed again ble action. The district court the Tenth Circuit and had occasion to registration taxing provi- 922(o) held that § consider the intersection of and the 1468, trilogy F.Supp. (C.D.Cal.1993) (claim 9. Mr. Ross also invites our attention to a 827 1472 of cases decided in 1921. See alleging 5861(d) Ketchum v. United § that indictment violation of States, 416, (8th 1921); 270 F. 419 Cir. Maresca against fails to state an offense the United States States, (2d Cir.1921), v. United 277 F. 747 jurisdiction is a claim of defective and is not denied, cert. 257 U.S. 42 S.Ct. 66 L.Ed. subject procedural rules); default accord Gon (1922); Yuginovich, 420 450, 463, United States v. 256 U.S. Abbott, (11th Cir.1992), 967 F.2d 1499 zalez 551, 553, - 41 S.Ct. denied, 65 L.Ed. 1043 -, cert. U.S. 114 S.Ct. 126 (1921). presented question, These cases all (1993). L.Ed.2d 210 Eighteenth whether the Amendment and the Vol approach exception general This is an (prohibition) impliedly repealed prior stead Act present argument rule that failure to this in di legislation imposed registration and taxation proceedings rect constitutes a waiver absent a requirements on the manufacture and sale of showing procedural of cause for the default liquor. Although ultimately the cases do con States, prejudice. Salberg actual See v. United prior impli clude that the revenue statutes were (7th Cir.1992) (failure 969 F.2d edly repealed, 381 they help to raise do not Mr. Ross. Yuginovich, challenge a constitutional Supreme explicitly at trial or on Court direct noted: appeal raising bars a defendant from such issues Congress may authority under the broad corpus proceeding ain federal habeas absent a taxing power intoxicating liquors tax notwith- showing procedural of cause for the default and standing production prohibited their is prejudice). rely actual Mr. Ross does not on this punished, question. we have no exception, but maintains that “where a constitu legal tional claim is so novel that its basis is not is, course, repeals by implica- It settled that counsel, reasonably available to a defendant has equally tion are not It favored. well settled cause for his failure to raise the claim in accor repeals that a later statute former ones when applicable procedures.” dance with state Reedv. clearly inconsistent with the earlier enact- Ross, 1, 16, 2901, 2910, 468 U.S. ments. Mr. Ross asserts that 462-63, Yuginovich, 256 41 S.Ct. at 553- forming legal theory caselaw the basis for his Thus, expressly 54. the cases found that Con- reasonably was not available to his counsel in gress implied repeal. intended to effect an Con- 1990, when his case was on direct review. He sequently, indepen- Mr. Ross’ case involves an Higgins, stresses the fact that Farmer v. 907 F.2d analysis dent of whether the two statutes in- (11th Cir.1990), United States v. Rock Is volved can be reconciled. (C.D.Ill.1991), Armory, F.Supp. land Dalton, (10th United States v. 960 F.2d 121 Cir. An unconstitutional law is void and thus con 1992), were all decided after his process. viction under initial convic it violates due See Ex 241, 248, parte Royall, tion. Prior to Mr. Ross’ conviction there was no (1886); States, holding any portion 29 L.Ed. 868 caselaw of 5861 had Johnson v. United (7th Cir.1986). repealed by Although been the 1986 Act. We cannot ac cept argument. we have this never addressed the matter and need The authorities available to today, authority not do so there is some counsel in the cases cited Mr. Ross were error, exists, proposition equally during pendency that such an if it is not available to him O’Mara, subject to appeal. waiver. See United States v. his direct 1194 newly-made may register requirements § in Unit he not able to 5861

registration Cir.1992), (10th deals, guns in machine which he neither Staples, 971 F.2d 608 v. ed States — guns. U.S.—, requires him in such 113 act to deal granted, S.Ct. rt. ce (1993). Staples, put, comply with both Simply In Jones can 124 newly-made refusing did to deal process that the clause acts court held due the guns.... really is possession of a machine What Jones conviction for prohibit not registered complaining the amendment machinegun that have been about is that could 922(o) effectively § of the ban. the Control Act rendered the effective date Gun before explicitly distinguished Dalton be automatic possession guns certain vio- The court not weapon in Dalton was Act the involved both the Control and cause lations Gun § years three the 922 until after Yet there possessed the National Firearms Act. is properly thus could not have been nothing ban and either or unconstitu- inconsistent contrast, machinegun in In registered. the tionally Congress’ decision to about unfair the purchased years And, before Staples appli- was three equally two do so. faced with court, Thus, the if the § ban. concluded statutes, 922 penal nothing there is cable ma- properly registered the defendant wrong government’s decision to with have fallen chinegun other, before he would under not the prosecute one and so language grandfather within against any long it does not as discriminate clause.11 class defendants. omitted) (em- (citation rejected Jones, rationale

The Fourth Circuit 976 F.2d 183 added). Armory Dalton in United of Rock Island that phasis Ross asserts Jones (4th Cir.1992), Jones, because, 976 F.2d 176 distinguishable although v. it States did is — denied, U.S.—, 5861(c), (e), (j) cert. 113 reject arguments § Jones, In the defen 124 L.Ed.2d rendered the 1986 were unconstitutional shotguns to function 5861(d) had modified two dant Act, technically § it not address did machineguns 5861(e) and had sold them to as disagree. at all. We makes Section in violation of the federal undercover officer illegal possess it a firearm manufactured Act”). (the Firearms Act “old 5861(d) National chapter; in violation of the section rejected Niemeyer arguments Judge Jones’ unregistered illegal possess it makes 922(o) § compliance § made 5861(e) firearm; illegal section makes it effectively repealed and thus impossible chapter; transfer a firearm in violation of the registration requirements. earlier 5861(j) illegal and section makes trans- unregistered port in interstate “In the absence of affirmative show- commerce some short, only sections are at- ing repeal, of an intention to firearm. all four justification repeal by tempting accomplish im- the same task —to permissible government may carefully plication is when the earlier and later stat- ensure that regulate machineguns. are ... two track and We find [T]he utes irreconcilable.” because, analysis applied de- to be well- statutes are not irreconcilable Jones contrary, spite equally applicable and to be Jones’ assertions to reasoned 5861(d).12 comply § Jones can with both acts. While Kurt, (9th machinegun’s ing knowledge States v. 988 F.2d 73 whether actual of a In United 11. 1993), the Ninth addressed the effect physical properties Cir. Circuit an essential element of the 922(o) upon validity § § As did of 5861. machinegun possession unregistered of an of- Staples, Circuit in the court distin the Tenth 5861(d). correctly § has also fense under He gun ground guished Dalton on that Kurt’s Supreme recently Court has noted registered May properly before could have been granted agreed and has to resolve the conflict O'Mara, Subsequently, 1986. in United States v. Staples, 608. certiorari to hear 971 F.2d This (C.D.Cal.1993), F.Supp. 1468 the United pending has resolved the issue and fur- circuit Court District of States District for the Central Supreme we direction from the Court will ther rejected California the Dalton and Rock Island Indeed, today. revisit it the issue settled 5861(d) Armory analysis § found years ago in Mr. in this court almost three Ross' 922(o) unconstitutionally are not inconsistent. Ross, appeal very first in this case. F.2d 997. Additionally, Mr. has our atten- Ross invited split regard- to the fact that the circuits are Lady Foods, Inc.,

Conclusion Baltimore (7th Cir.1989) (“It is well established that reasons, foregoing For the the revocation federal courts must not rule on constitutional is reversed. In all other re- other, issues where disposi- nonconstitutional spects, judgment of the district court is grounds available.”); tive are Indiana Port affirmed. Comm’n v. Corp., Bethlehem Steel 835 F.2d (7th 1207, Cir.1987). 1210 part; in part. REVERSED Affirmed in majority has nonetheless reached the ROVNER, issue, constitutional my ILANA DIAMOND and in Circuit view has re Judge, concurring in judgment. incorrectly. solved it The fifth amendment plainly forbids the revocation of agree I that we must affirm the district response release to Ross’ invocation of his court’s revocation of release on privilege against self-incrimination. It is count I and reverse the revocation of Ross’ well established that the fifth amendment probation on count II. am constrained to only protects “not against the individual be however, separately, write because the ma- ing involuntarily against called as a witness jority what, mind, my countenances is a prosecution himself in a criminal but also rights. violation of fifth Ross’ amendment privileges him not to ques answer official join judgment thus the court’s but not 2 Part put any tions him in proceeding, other civil opinion. of its criminal, informal, or formal or where the might answers incriminate him in future I would affirm the revocation of Ross’ su proceedings.” criminal Turley, v. Lefkowitz pervised ground that he failed 70, 77, 316, 414 322, U.S. 94 S.Ct. 38 L.Ed.2d appear appointments proba with his 274 As the explained Court tion officer and lied to the district court Murphy, 420, 435, 104 Minnesota v. about his access to an automobile. The dis (1984): S.Ct. 79 L.Ed.2d 409 20, trict court observed at the October 1992 separate that this constituted “a may require A probationer State a ap- independent basis” for the revoca pear and discuss matters that affect his (Oct. 20,1992 12), govern Tr. at and the status; probationary requirement, such a ground ment asks that we affirm on this more, give without does not rise to a self- reaching without ques the fifth amendment executing privilege. may The result majority tion. The has “no doubt that this questions put proba- different if ... adequate could be an basis for the [dis tioner, probation- however relevant to his trict] court’s action” but then refuses to so status, ary call answers that would decision, limit expressing its “substantial pending incriminate him in a or later doubt” that ultimately the district court prosecution. criminal grounds “indepen deemed these alternative added). (emphasis Indeed, Murphy ob adequate dent and ... for the revocation of precedents served that (Ante Court’s “have [Ross’] release.” at 1189 added).) made clear that the State could not (emphasis constitu I respectfully submit tionally carry proba out a threat to revoke that or not whether the district court ulti legitimate tion for the mately exercise of the Fifth ground relied on this inconsequen tial, 438, privilege.” Amendment at 104 may as we S.Ct. affirm on basis that finds (United 1148; Frierson, at support in see also United v. the record States States v. Ew (3d (7th 903, 650, Cir.1991), ings, Cir.1991); 945 F.2d 936 F.2d 907 661 cert. de Unit —nied, Thomas, (7th —, ed States v. U.S. 112 934 F.2d 843 117 Cir.1991)), (1992); agree and we all United States v. Perez- revocation Franco, (1st Cir.1989). appropriate independent ground. on this 873 F.2d If we are able to appeal penalty precisely resolve an without That “classic situation” is reaching a question, difficult what Murphy, constitutional confronted Ross here. See See, certainly we e.g., should do so. Robbins 465 U.S. at 104 S.Ct. at 1146. might fol syn- possible criminal ramifications Murphy Marshall’s dissent

Justice principles response. Murphy, an- low from Ross’ Under the fifth amendment thesizes therefore, not revoke the district court could the Court:1 nounced his failure compel Ross’ release based on proba- power a State [T]he‘ respond inquiry without first question to the court’s given varies tioner to answer immunity. Lefkowitz, granting manner which him See depending upon the might 84-85, 326; incriminate at probationer’s answer United States (2d response might Oliveras, him. If a truthful reveal n. 6 Cir. Meachum, 1990); he has condition violated Asherman v. see also subject Cir.1992) banc) (Carda- him to (2d (en probation but would F.2d may prosecution, the State insist criminal mone, J., dissenting). Murphy explains may penalize respond him for that he fifth amend once an individual asserts his contrast, refusing By if there is to do so. ‘may required to not right, ment “he be given answer a a chance that a truthful to if rational question answer a there is some probationer to question expose would the believing that it will incriminate basis for liability for crime different from the a him, being at as without that time at least already con- he has been crime which may nor be neither it its fruits sured that victed, right he a to refuse to answer has subsequent him’ in a criminal against used attempt may not to coerce and the State at proceeding.” U.S. at 104 S.Ct. 465 majority forgo right. As him to the (quoting Meyers, 1143 Maness v. 419 U.S. out, question answer to a points if 449, 473, 598, 42 L.Ed.2d 574 95 S.Ct. might lead to criminal sanctions and both result) (1975) (White, J., concurring in the revocation, the has the to state re (emphasis original)). in Ross’ counsel probationer insisting that option of here, quested grant immunity of but it such a express guaran- an respond, in return for forthcoming. By revoking super was not liability. immunity criminal tee of from securing grant first a of vised without however, option, it exercises Unless immunity government, the district from the pro- may not interfere "withthe State infringed plainly Ross’ constitutional right “to remain silent unless he bationer’s rights. speak in the unfettered exercise chooses majority The avoids conclu- this sensible will,” Hogan, Malloy v. of his own by contending that court’s sion the district 12 653 84 S.Ct. L.Ed.2d only posing question was to interest in its verify compliance legitimate Ross’ ‘with the 441^2, (Marshall, J., at 1150 Id. at majority parole. thus conditions of his The added); dissenting) see at (emphasis also id. “[tjhere whisper is observes that not (“Orn- 7,n. 104 at 1146 & n. 7 435 & suggest that the an in this record echo indicate, moreover, may that a eases state ferreting in out district court had interest validly insist on to even incrimina- answers fur- incriminating admissions to facilitate the sensibly ting questions and hence administer at prosecution of the {Ante ther defendant.” long probation system, recognizes so as it its 1191.) I find the court’s inten- Yet district required may that the answers not be used analy- fifth tions irrelevant. The amendment proceeding a criminal and thus elimi- ”) incriminatory (emphasis necessarily turns on the nates the threat incarceration sis added); answer, Amestoy, F.Supp. potential purpose Mace 765 of Ross’ not on the (D.Vt.1991). court, 850 question. The district court’s all, govern- prosecutor; a it is the after is not question response There is no that Ross’ any, charges, if ment that would decide what inquiry could to a the district court’s have led answer to bring against Ross based on his prosecution further criminal as well as to the event, any long as the inquiry. In so release. revocation Ross was question response court’s calls for a what he had done with collection of asked fifty guns. any in additional implicate There are could the defendant over number ously Murphy’s 104 S.Ct. at disa- in (Marshall, case. at 1. Justice Marshall dissented because he J., greed principles, but he with those because dissenting). applied thought majority them errone- conduct, mone, J., dissenting); Oliveras, need not re- the defendant see also criminal (“citizens immuni- granted may unless and until he is F.2d at spond not be forced merely ty- incriminate themselves because governmental need”); Mace, serves a majority The relies on the Second Circuit’s (even F.Supp. if at 852 “the state has a support decision Asherman to its en bane legitimate purpose rehabilitative in demand- conclusion, agree analyt- is that case disclosure, ing full ... that does not make (See 1189.) ically similar to this one. ante the disclosure less incriminating”). It that an Asherman court concluded ad- seems to me this is the clear lesson consequence may constitutionally verse Murphy. upon prisoner visited “home detention” “so consequence long as the for fail- view, my when Ross refused to answer to answer inquiry ure a relevant not for inquiry relevant fifth amendment give up right.” refusal a constitutional grounds it was clear that his answer F.2d Applying at 982. that rationale ramifications, might further have criminal here, majority emphasizes right avoid trumped self-incrimination legitimate court’s informational need de- governmental interest substance termining abiding by whether Ross was inquiry. Adverse action such as the rev- conditions release. The ocation or of of majority thus concludes that prohibited govern- was therefore unless the merely posed inquiries court its ensure provided express grant immunity. ment an compliance legitimate with the conditions of Thus, necessary if it were to reach the fifth parole Ross’ and that the revocation of su- amendment to affirm issue the revocation pervised nothing release had to do with Ross’ release, I would hold that Ross’ rights. invocation of his fifth amendment rights fifth amendment were violated. (Ante 1191.) at As the Asher- dissenters Furthermore, join I also cannot Part 4 of observed, however, nothing man this is more opinion, majority expressly the Court’s as the attempt” a than “tortured to avoid the result 3 that states Part the district court found by compelled fifth amendment. F.2d Ross’ inappropri- motion vacate sentence (Cardamone, J., dissenting). agree at 988 ate issue because the raised there was be- Judge can Cardamone that there be no yond scope the November 12 principled distinction between invocation of separate proceed- and should raised fifth amendment and to re- the failure (Ante 1192.) ing under 28 U.S.C. spond inquiry: to a relevant majority The thus concludes that the district two inextricably are intertwined. [T]he refusing court did not abuse its discretion in Asherman’s failure to relevant answer (Id.) to consider Ross’ motion. The court inquiry solely directly the result proceeds nonetheless to reach the merits right invocation of the remain argument Ross’ that his conviction was con- words, silent. other his assertion of Again, stitutionally infirm. has right complete did not constitute [the] ques- reached to address a out constitutional respond questions, refusal to relevant unnecessary tion that is to resolution this appearance ap- evidenced at the instance, appeal prop- in this is not evaluation; pointed undergo time to reasons, erly join For before us. these respond only instead Asherman refused to respectfully join Part 3 but decline to Part insofar as to do so could incriminate him. opinion. of the Court’s (Cardamone, J., major- dissenting). ity’s essentially right view means that

guaranteed the fifth automat- amendment yields

ically inqui- the face of relevant so,

ry. simply This cannot be for the fifth is itself

amendment “a limitation fundamental governmental ability agency’s

on a to conduct (Carda- inquiry.”

such Id. at

Case Details

Case Name: United States v. Ralph R. Ross

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 5, 1993

Citation: 9 F.3d 1182

Docket Number: 92-3774

Court Abbreviation: 7th Cir.