United States v. Rudolph George Stanko

After exclusion. COLLOTON, Before BRIGHT, and United States District Court for the Dis- GRUENDER, Circuit Judges. trict of Montana denied relief on the mer- its, the Ninth Circuit GRUENDER, Appeals Court of Circuit Judge. reversed with instructions to dismiss the Rudolph appeals Stanko his convictions case for lack standing. Stanko v. Unit- for two counts of possessing firearms and States, ed 95-35289, No. 1995 WL by ammunition prohibited a person, in vio- *1-2 August Cir. (unpub- lation of 18 U.S.C. 922(g)(1). appeal, On decision). lished table primary argument is that the dis- trict court1 erred in concluding that Stan- a grand federal jury for the qualifies ko prohibited as a person under District of Nebraska returned indict- § 922(g)(1) because his 1984 conviction for ment charging Stanko one count of violating the Federal Inspection Meat Act possession prohibited firearms (FMIA) does not fall within the person “business and one count possession of am- practices” exclusion U.S.C. munition prohibited person, both in Bataillon, 1. The Joseph Honorable Judge, Chief United States District Court respect allegations in some “Although 922(g)(1), of 18 U.S.C. violation ... could be considered provides: tices, charges these gravamen any person- for It shall be unlawful —who fraud, safety and drug issues of food any court of convicted been has trial and At practices.” unfair trade for by imprisonment punishable crime court objections, the district over Stanko’s ship or year ... exceeding one term to instruct request declined Stanko’s com- foreign interstate transport his mo- and denied jury on the exclusion affecting com- merce, in or or possess jury acquittal. judgment for tion or ammunition.... merce, any firearm counts, and on both guilty found Stanko cited counts 922(g)(1). Both 18 U.S.C. to 72 him court sentenced the district his establish to FMIA convictions Stanko’s prison. in months status. person prohibited substantive to his addition mo- hearing on Stanko’s pretrial After a 921(a)(20)(A) contends argument, Stanko § indictment, the district the dismiss tion to fatally indictment was appeal the con- that Stanko’s court concluded include the it did not because defective the within fall did viction 921(a)(20)(A) of as an element § exclusion exclusion, in 921(a)(20)(A) states § the dis- offense and because charged the part: relevant treating in his erred court trict by impris- punishable “crime The term 921(a)(20)(A) of question argument as a § year” exceeding one for a term onment one of fact rather than for the court law (A) or Federal does not include — jury.2 for vi- antitrust pertaining to State offenses re- olations, practices, trade unfair II. DISCUSSION trade, of- similar of other straints to challenges raised his Stanko regulation relating to fenses court’s and to the district the indictment practices. business 921(a)(20)(A)exclu § refusal to submit 921(a)(20)(A). district The § 18 U.S.C. in motions jury his sion issue (1) exclusion was that: reasoned court judgment and for dismiss indictment restraints illegal “directed towards the district review de novo We acquittal. anti-competitive trade, and monopolies, motion to dismiss of a court’s denial not towards marketplace,” in the forces Postley, indictment, States United Stanko’s; such as convictions fraud-related (8th Cir.2006), we also and F.3d (2) language offenses” for “similar a denial of to the review apply de novo na- in must be similar apply, offense acquittal, judgment motion for trade, or antitrust, restraint ture to (8th Cannon, States also relate and must practices, .2007). Cir (3) and practices; regulation suffi legally An “is indictment depend on did not FMIA conviction all of it contains if cient on its face competition. or on on consumers effect fairly in- charged, offense saying, elements summarized The district court Unit See to address them. briefs decline his counseled addition to appeal, 2. On Peck, 1174 n. F.3d briefs, pro “Petition[s] se ed has filed two States Stanko (“It practice con Corpus” in which he not our of Habeas for Great Writ Cir. why his arguments represented as to by parties pro advances additional filed se briefs sider omitted). We con- ....”) (internal be overturned. convictions should citation by counsel pro supplemental se filings as strue these Therefore, against forms the of the charges defendant tion. the district court did not defend, which he suffi alleges refusing must err to dismiss the indictment. cient information to allow a defendant Likewise, we conclude that whether plead acquittal bar to a conviction as a predicate FMIA convictions qual subsequent prosecution.” United States v. ified under the exclusion Hernandez, F.3d Cir. question was a for the court law rather 2002). prove three Government jury. than one fact for the The defini 922(g)(1) essential convic elements for 921(a)(20) tional nature of the exclusions (1) previously tion: was con the defendant places the responsibility on the court to punishable by victed of a term of crime determine as a matter of whether the (2) imprisonment exceeding year; one he prior qualifies conviction as a pun “crime firearm; knowingly possessed by imprisonment for ishable a term ex firearm traveled or affected inter ceeding year” one 922(g)(1). Bar state v. Max commerce. United States telho, 71 F.3d at 440 (considering the well, (8th Cir.2004). 921(a)(20) exclusion aof conviction which have not included the ex aside, expunged has been set or for 922(g)(1) clusion of a element of a person pardoned has been or has addition, fense. In several circuits have restored); rights had civil see also United 920(a)(20) § held that the exclusions of are 749, (4th Hayes, v. States 482 F.3d 750-51 legal rather than definitions elements of a Cir.2007) (noting questions that regarding § 922(g)(1) E.g., violation. United States the definition of a predicate offense set (1st Bartelho, 436, v. 71 F.3d 439-40 Cir. 921(a)(33)(A) § forth in questions 921(a)(20) § (holding that the exclu law); Bethurum, United States v. 343 F.3d definition, element, sion a legal is an (5th Cir.2003) 712, 716-17 (holding that for and noting that the holding follows the § purposes of 922(g)(9), the trial judge approach by circuits); other taken United jury rather than the should determine Jackson, 1012, States v. 57 F.3d 1015-17 “a particular whether conviction is admissi (11th Cir.1995); (rejecting the defendant’s ble relevant of a as evidence misdemeanor 921(a)(20) argument § a adds new crime domestic violence” as defined in 922(g)(1) offense; § element to a holding 921(a)(33); § noting that numerous courts government had no obligation questions have treated regarding the defi prove that the exclusion inapplicable was 921(a) §in purely legal nitions as ques where the proffer defendant did not evi tions); Akins, United States v. 276 F.3d dence that prior within conviction fell (9th 1141, Cir.2002) (“Because 1146 Flower, the exception); United States v. 29 921(a)(33)(B)(i)(I) definition, 530, legal is a F.3d 534 (holding that 921(a)(20) application presents a question of law legal to be is a definition that de decided judge.”); fines a trial exceeding “conviction for term United one 513, (5th year”). Daugherty, States v. agree We hold that the indict 514 Cir.2001) (“The question ment felony was not defective whether a because the 921(a)(20)(A) predicate conviction serve exclusion is not an element as a offense of a for a 922(g)(1) prosecution being offense. for a in pos- The indictment felon in this case contained each session a pursuant element of the firearm offense, one.”) (inter- fairly legal is 922(g)(1) purely informed Stanko a omitted). charges, alleged sufficient nal quotation agree information plead allow Stanko a conviction or these circuits and hold whether a acquittal a a subsequent as bar to prosecu conviction falls within the exclusions de-

413 statute, meaning of a examining the 921(a)(20)(A) of law question ais §in fined plain begins with statute’s inquiry v. our States United the court.3 for Cf. Cir.2005) Cacioppo, v. States language. United 898, Mincks, F.3d (8th Cir.2006). 1012, “The a F.3d conviction prior that whether (noting of a interpretation will avoid Career Court the Armed felony violent altogeth some words statute renders distinctly question “is Act Criminal Alaska, redundant,” denied, States United court, cert. er jury”), anot law for the L.Ed.2d S.Ct. 164 L.Ed.2d 521 U.S. 1176, 126 S.Ct. U.S. (internal omitted), quotation (2006). Therefore, court did 231 the district statutory construction and should “avoid argument rejecting Stanko’s not err part another that would submitted render have been issue should that the States superfluous,” statute same jury. to the Gomez-Hernandez, substantive turn to the We now (8th Cir.2002). argues that Stanko court cor the district question of whether offenses excluded enumerated con that Stanko’s rectly concluded violations, un- —antitrust within fall do victions and restraints practices, fair exclusion, question array of busi- a vast encompass trade — court This this circuit. impression first the busi- and that ness-related questions to ... review de novo “applfies] simply to em- clause serves practices ness statutory interpre involving of federal the three Congress viewed phasize Bach, 400 F.3d States tation.” United similar, namely as enumerated offenses omitted), Cir.) (internal citation regulation related to denied, rt. ce result, As Stan- broadly speaking. a tices (2005). begin We 243, L.Ed.2d contends, to the any offense related ko ar considering Stanko’s by discussion our with- falls practices regulation business reading of the his upon gument, based exclusion. in the 921(a)(20)(A) similar of clause “or other broad agree not with Stanko’s do of busi We regulation to the relating fenses practices of the business (“the interpretation practices business practices” ness First, or claus words “[qualifying ex clause. to clause”), Congress intended antecedent preceding to the next es refer for all business-related clude convictions meaning sense except when evident as a qualifying defendant offenses from construction.” United require different 922(g)(1). We person prohibited 842, Friedrich, whether, reject if States even we then consider 961, denied, 126 S.Ct. Cir.), 546 U.S. cert. business of the interpretation Stanko’s (2005). do not 495, 163 L.Ed.2d clause, fall his convictions practices meaning in the or sense any find evident of enumerated specifically the within ap- to avoid require us statute would fenses. element of included the charged, which necessarily that Stanko’s conclude We also 3. on “materiality” statements of Gaudin's false jury by was right to a trial Sixth Amendment Develop- Housing and Urban Department to refusal by the district court's violated 522-23, Id. 921(a)(20)(A) ment loan documents. exclu- jury on the instruct here, because By contrast 2310. 115 S.Ct. States reliance on United Stanko's sion. an ele- 921(a)(20)(A) is not exclusion Gaudin, 115 S.Ct. offense, does 922(g)(1) Gaudin (1995), ment of misplaced. Gaudin L.Ed.2d on jury to be instructed require judge instruc- that a submit held trial exclusion. every the crime jury element tions to Thus, lar plying grammatical defining this rule. character “similar” as to qualifying “relating regula- [njearly corresponding; resembling clause alike; only many refers practices” respects; having tion of business to somewhat likeness”) (internal preceding “general quotations antecedent “other similar omitted). Thus, functioning, than as general offenses” rather Stan- we believe the it, descriptive phrase ko have of the “or other similar relating would offenses regulation practices” between each of the enu- to the commonalities and as an indication of a refers back for its meaning merated offenses the three types intent to exclude busi- of offenses congressional Congress specifically Second, violations, Congress offense.4 ness-related enumerated- —antitrust comparative practices, term “similar” trade used the and restraints of trade. “offenses,” saying “any rather than modify reading broad of the phrase simply only other offenses” “other offenses.” would not render the use “similar” nonsensical, “similar” an term indicates intent it would also the enu- render practices limit superfluous the business clause’s reach merated terms because each “comparable” by offenses enumerated offense is definition of- “nearly corresponding” to the regulation enumerated fense related to the of business offenses. See Webster’s Third New Inter- Therefore, practices. we conclude (2002) Dictionary national plain (defining meaning indicates statute Con- “having gress’s “similar” as characteristics in com- intent limit the that fall very comparable”); mon: much see alike: within exclusion to also United States Lindsey, violations, pertaining those to antitrust un- curiam) (per trade, fair practices, 117-18 restraints (discussing whether were of a crimes simi- offenses similar to them.5 statute, commerce,” engaged foreign 4. Until a to the 1986 amendment or interstate read "or similar offenses re- id. at 121 S.Ct. the Court conclud- lating regulation practices to the of business ed that the residual clause "should itself be Secretary may by regulation designate.” as the controlled and defined reference (a)(20)(A) (1968), amended categories enumerated of workers which are added). (emphasis Pub.L. No. 99-308 it,” just recited before id. at any Our has not research revealed offense so principle apply 1302. The same would here. designated by Secretary prior the under this Congress types chose to three enumerate of version, any Congress's nor indication of ra- 921(a)(20)(A) qualify § offenses that for the deleting language. tionale for that exclusion and to add the residual clause "or relating regula- other similar offenses the 5. ambiguity Even if we were to find in the practices.” tion of business Were we to 921(a)(20)(A), as- language suggested as by Stanko, practices sume that the business clause application the the established ambiguous, statutory ejusdem we would gen- maxim of still conclude under construction the support interpretation. ejusdem eris also generis would our doctrine of the clause "[wjhere Ejusdem provides generis gener- by must be "controlled and defined” refer- specific al in a statutory words follow words ence to the enumerated See id. offenses. enumeration, general the are words construed addition, argument In any Stanko's only objects to embrace similar in nature to ambiguity requires in the statute resolution in objects those preceding enumerated the lenity misinterprets his favor the rule under Stores, Inc., specific City words.” Circuit v. Martinez, the reach of that rule. See v. Bernitt Adams, 105, 114-15, (8th Cir.2005) curiam) (per 432 F.3d 869 omitted). (quotation L.Ed.2d ("We where, lenity do not resort to the rule of considering phrase in the Federal Arbi- here, as ambigu we can otherwise the tration Act that excluded the resolve from Act's cover- seamen, statute.”). age ity employment reject “contracts of of the We rail- also Stanko's employees, road argument class of other workers that the exclusion is unconstitution- not concern itself “[s]ection the does concluded Having practices. unfair trade 921(a)(20)(A) matters” related to not extend exclusion does (2d Cir.1983). offenses, Finally, 27-28 we must to all business-related McLemore, in the United States court whether Stanko’s now determine violations, rolling held that a conviction for back un- pertain to antitrust odometers, trade, in violation of 15 U.S.C. restraints of practices, fair trade 1990c(a), §§ did an qualify fall within so as to “other similar offenses” practice trade the statutes because Although briefly Stanko the exclusion. punish “are meant to an ‘unfair trade and restraint mentions antitrust violations meaning tice’ within the of 18 brief, he forth no in his sets of trade 921(a)(20)” explicitly referred to the arguments that FMIA con- his substantive protect need to consumers from unfair either. therefore pertain to victions practices. F.Supp. trade they per- to whether limit our discussion (S.D.Ala.1992). unfair-trade-practices offenses or tain to violations, unfair similar to antitrust are Significantly, purpose the focus on the of trade col- restraints practices, in and elements the statute of conviction Ashcroft, lectively. Chay-Velasquez See notwithstanding these the cases endures (noting possibility that the criminal defendant’s meaningfully argued the that claims not incidentally have conduct also ham- waived). opening brief competition negative or had econom- pered example, ic effects on consumers. For Only analyzed three courts have wheth- specifically rejected the argu- Dreher court qualifies under er offense activities had ment that because Dreher’s 921(a)(20)(A) Each of exclusion. these billing process destroyed competitive courts has on whether the statute focused injured competitors, his offense his type of offense of conviction constitutes qualify should under 921(a)(20)(A), as evi- enumerated Dreher, In- 115 F.3d at 332. exclusion. primary purpose denced stead, the plain the court concluded that the elements the Gov- criminal statute and solely to meaning of “offenses” referred prove for conviction under ernment violation of law and not to the charged States, after re- it. In Dreher possible incidental effects of defen- the elements of the statute of counting agree activities. Id. We dant’s conviction, the court held that convictions context term “offenses” to commit conspiracy for mail fraud and charged refers to the viola- the exclu- qualify mail fraud did not Thus, primary purpose of tion law. “[bjecause §§of & sion violations the elements conviction and statute way depend they in no whether have an for con- prove that the Government must F.3d upon competition.” effect it, possible rather than the viction under (5th Cir.1997). In United States v. 332-33 ac- effects of the defendant’s incidental Meldish, none of the court noted that the tions, the proper are the focus bringing elements of the offense of wrist- inquiry. by into the United States means of a watch agree with Dreher and false declaration included effects We also the customs implicit in the courts that term on consumers and that Meldish competition or conduct, second, Bamberg, lend ally itself vague. See States v. scribed statute, (“The enforcement.”). arbitrary F.3d first, provide adequate pro- of the notice practices” requirement (defining id. at “unfair trade is “restraint trade” as on competi- of an adverse economic effect “1. A dealings limitation on business or Dreher, tion or 115 F.3d professional gainful consumers. See occupations. or 2. An- Meldish, 332-33; 722 F.2d at 28. The agreement titrust. An or combi- between definition dictionary standard term nation of to eliminate businesses intended supports requirement adverse eco- competition, monopoly, artificially create unfair Although nomic effects. trade can prices, adversely raise or otherwise affect generally any “inequitable include business market.”) the free This choice of enumer- it practice,” especially applies “the act suggests ated Congress terms intend- or an of a competitor’s repeating instance prohibi- ed to from 922(g)(l)’s exclude conveys way misrepre- in a words tion those felons convicted under criminal injures materially per- sentation addressing only statutes harm economic words, by appropri- son who first used the consumers, competition or not to but ex- ating by credit some kind earned clude those felons convicted under criminal Dictionary, first user.” Black’s Law 1564 statutes designed primarily to address oth- (8th ed.2004); see also id. at 1563 (defining er societal concerns. competition” generally “unfair as “dishon- Stanko argues violating the FMIA rivalry est or fraudulent in trade and com- practice is unfair trade aas matter of practice especially merce” but “the of en- clearly established law one of because pass goods off own deavoring one’s or purposes protect FMIA’s main is to products in the market for those of anoth- unfair competition market from and be- by er of imitating counterfeiting means cause the underlying activities his FMIA name, brand, size, shape, other dis- competition. conviction harmed He also tinctive characteristic of the article or its argues that mislabeling products and com- Moreover, under

packaging”). the doc- mitting business fraud constitute sociis, trine of noscitur a which instructs by trade practices definition that a company word “known it FMIA must an unfair-trade-practices Co., keeps,” v. Alloyd Gustafson it has all preempted because state 561, 575, 131 L.Ed.2d 1 unfair-trade-practices laws. (1995), “avoid ascribing we to one word a disagree with Stanko’s characteriza- meaning so broad that it is inconsistent tion of the primary purpose of the FMIA words, accompanying giving thus potential well as his reliance on the breadth unintended to the Acts of Con- (internal incidental adverse competition effects on omitted). gress,” id. quotation resulting consumers his Thus, from while the term “unfair trade violations. is true It that the statement of apply broadly tices” can inequitable congressional findings at 21 practice, meaning it carries includes concerns about the effects of un- here must be determined reference to wholesome on competition meat and mar- other two enumerated terms —anti- concerns, however, kets. These trust violations and restraints of subor- trade— dinate clearly primary public- both of to the FMIA’s negative involve eco- health purpose nomic competition. protecting effects consumers consumers (8th from Dictionary, See Black’s Law unsafe meat: “It is essential ed.2004) (defining public law” interest that the and “antitrust as health welfare “[t]he body designed of protect protected by to of assuring trade and consumers restraints, commerce from monopolies, products meat and meat food distrib- discrimination.”); and price-fixing, price wholesome, uted to them are not adulterat-

417 labeled, significantly, marked, and Even more none ed, properly and require provisions of the FMIA the Gov- Indeed, 21 602. U.S.C. packaged.” an effect on prove competition ernment to uniformly the FMIA de- discussing cases of or as element the offense. consumers primarily as concerned the statute scribe provisions More none of the specifically, See, e.g., public health. protecting with re- under which Stanko was convicted Bergland, Pork Council Nat’l Producers quired prove the Government to such ef- Cir.1980) (noting 1361 §§ (requiring fects. 21 605 See U.S.C. charged the Congress expressly meat inspection products), (prohibit- of 610 assuring that meat distributed USDA ing misbranding of meat adulteration wholesome, not adulterat- consumers is (prohibiting and 611 mislabel- products), labeled, marked, ed, and properly and Instead, mislabeling, mis- ing). Mullens, 583 States packaged); United meat, branding, adulteration of and delib- (“The (5th Cir.1978) purpose F.2d 139 ran inspection erate of alone avoidance Inspection Act of as the Meat of FMIA, independent of the afoul of the high level of amended ... is ensure may incidental effects those actions have safety products.”); and meat cleanliness competition had on or consumers. Co., & Co. v. Wilson Trading Pac. is An instructive contrast to the FMIA (“The Federal F.2d (PSA), Stockyards and Act Packers Inspection Act has its stated pur Meat afoul of Meatpackers U.S.C. 192. run of of sani pose, enforcement standards engaging for such offenses as PSA meatpacking plants.”); throughout tation unfair, unjustly discriminatory decep- ... Articles Food States v. of Buf if apportioning supplies tive practices; (D.Neb. Jerky, F.Supp. falo the effect of re- apportionment such has 1978) (“The is, Inspection Act Meat creating a mo- straining commerce or terms, designed protect the health very nopoly; engaging and course ‘by assuring welfare of consumers: and or with the effect purpose business for food distrib products that meat and meat controlling manipulating prices. wholesome, not uted to them are adulterat (e). 192(a), (c), comparing U.S.C. ed, marked, and labeled and properly FMIA, the Sixth Circuit PSA with 602); (citing packaged’.”) noted that “the stat- Appeals Court of has Hardin, 328 Fed’n. Homemakers v. quite purposes. utes different have (D.D.C.1971) (“The pri- F.Supp. statute, aimed public FMIA is a health Meat Act mary purpose of the Wholesome commerce of meat ‘preventing the use in and to enable is to benefit the consumer products and food which are adulter- meat ” understanding to have correct of and him Block, Centers, Inc. v. ated.’ D & W Food products purchased. confidence in meat Cir.1986) (quoting F.2d mislabeling are an in- against Prohibitions 603(a)). contrast, By “the 21 U.S.C. Thus, tegral part purpose.”). this de- practices Act a fair trade Stockyards statutory spite the fact that law, at which it was the chief evil and necessarily regulating involves scheme packers, monopoly was the aimed pro- have effect of and arbitrarily unduly them enabling from tecting competition consumers injure suppliers by control- consumers and (internal harm, the pri- quotation we conclude that omit- ling pricing.” economic Id. ted). protect prohibition mary purpose explicit of the FMIA is The PSA’s economically commercially health from the effects unwhole- activities public or consumers competition harmful meat. some in an accomplishment stands marked contrast the FMIA’s obstacle to the and ex- public-health prohibitions, purposes related none of ecution of full objectives Co., requires proof of economic effects of Congress.” v. Rath Packing Jones Therefore, competition 519, 525-26, on or consumers. 1305, 430 U.S. S.Ct. (1977). despite potential for Stanko’s criminal L.Ed.2d 604 While it is true activities to have incidental such effects on the FMIA prohibits imposing states from consumers, competition and we find that labeling, “[mjarking, packaging, or ingredi- provisions none of the FMIA under which to, requirements ent addition or differ- requires Stanko was convicted the Govern- than, ent those” mandated under prove competition ment an effect or FMIA, nothing text an consumers as element the offense. of the FMIA indicates an intent preempt unfair-trade-practices state laws Having pri determined general, nor have we found cases mary FMIA purpose protect is to supporting claim Stanko’s that it so. does public health and that the elements of In Rath Packing, the Court held that FMIA Stanko’s conviction do labeling requirements where FMIA con- involve an competi economic effect on flicted labeling with California require- consumers, tion or find we Stanko’s addi bacon, ments with respect the FMIA arguments unavailing tional as well. That requirements preempted California’s. Id. Stanko’s acts involved fraud and mislabel S.Ct. 1305. Court based its ing does not an transform FMIA offense prohibition conclusion on “the 678’s into unfair-trade-practices offense or an imposition ‘[mjarking, labeling, packag- offenses, offense similar to the enumerated ing, ingredient requirements or in addition notwithstanding the fact fraudulent to, than, or different those made under’ mislabeling may conduct and be present in the Act.” Id. at (quoting S.Ct. 1305 many unfair-trade-practices statutes.6 In 678); see also Animal Legal addition, Defense argument Veal, Fund v. 626 F.Supp. Provimi all preempted has state unfair- (D.Mass.1986) (“[M]eat ingredient and, trade-practices therefore, laws standards, labeling and packaging have one itself is meritless. In assessing FMIA, been pre-empted and states whether a federal has preempted state impose cannot different or additional affir- law, courts the assumption “start with requirements mative on meat and meat police powers the historic of the states (citation omitted). food products.”) Rath were to be superseded the Federal not, however, Packing does stand for the Act unless that the clear and was manifest proposition that the FMIA preempted has Medtronic, purpose Congress.” Inc. v. unfair-trade-practices state laws in addi- Lohr, tion meat-product to state la- ingredient, (1996) (quotation 135 L.Ed.2d 700 omit beling, packaging laws. ted). Congressional enactments may “override state they conclude, laws with which con Therefore we based on flict” and primary where the state law purpose “stands as of the FMIA and the required 6. An “intent year, to defraud" is not for than one a fine of not more than conviction under the FMIA. When an $1,000, fine; intent to imprisonment or both such convictions, present, defraud is as in Stanko's but if such involves violation intent to defraud potential punishment criminal for the vio- person ... subject impris- such ... shall be 676(a) lation (any increases. See U.S.C. years onment for than not more three any provision violation of of the FMIA sub- $10,000, both....”). fine of not more than jects person imprisonment "for not more 921(a)(20) it, tion, § (Supp.V.1969). U.S.C. under for conviction requirements Protection do to The 1986 Firearms Owners’ pertain not FMIA offenses Stanko’s 99-308, Act, violations, Pub.L. No. Stat. 449 practices, unfair trade “antitrust (1986), trade, however, Secretary’s of- similar eliminated other restraints regulation of busi- and left to determine which to the role the courts relating fenses (a)(20)(A). § 921 are similar to antitrust practices” under business offenses ness

violations, practices, unfair re- trade CONCLUSION III. of trade. straints hold that Stanko’s Accordingly, we exemp- interpreting A court’s task of fall within convictions do not FMIA' lack complicated by Congres- tion is result, and, exclusion § 921(a)(20)(A). commentary on sional prohibited person that he was a recently, Congress amended Most when affirm his con- 922(g)(1). therefore Fire- by enacting the Gun Control Act victions. Act, arms Owners’ Protection the bill’s McClure, James ex- sponsor, Senator BRIGHT, dissenting. Judge, Circuit plained: “who ordinarily anyone unlawful for It is bill Firearms Owners’ Pro- [the [T]his of, court a crime convicted has been painstakingly Act] tection has been a term by imprisonment for publishable on the crafted to focus enforcement possess to a firearm exceeding year” one kinds of Federal firearms law violations has in inter- traveled or ammunition likely to fire- most to contribute violent commerce, but 922(g)(1), 18 U.S.C. state compel arms crime.... We us ex- congressional enactment before to, stop hon- enforcing agency harassing certain individuals who commit busi- empts their est and to direct efforts people 921(a)(20)(A). crimes, ness 18 U.S.C. give gun who all the violent criminals gun the bar owner- exemption The from a bad name. owners of “anti- applies persons convicted ship (daily ed. Cong. Rec. Jan S23 violations, re- practices, trust trade McClure). (statement of Sen. trade, or other similar straints prohi- to limit the The statement seems relating regulation only to “those who gun ownership on bition (em- tices];.]” 18 U.S.C. ‘they may have demonstrated added). person who has Thus phasis be- possess a firearm without trusted if gun still felony own committed ” society.’ Scarborough a threat to coming busi- person’s felony relates to certain States, U.S. v. United crimes. ness (quoting 52 L.Ed.2d 582 S.Ct. majority speculates Congress, The (1968)) (explaining Cong. Rec. 14773 only a excluded passing legislation, this against prohibitions felons the intent crimes, limited subset of business contained in the Omni- firearms possessing Act Inspection Meat Federal 1968). Act of Control bus Crime (“FMIA”) offenses, et 921(a)(20)(A), enacting Congress, by seq., practices” “unfair criminals who commit a-subset has deemed offenses” within crimes “similar the definition business crimes outside The Control scope exemption. Gun trusted,” it has “may not be but required the Secre- those who originally Act of 1968 of that the contours done little outline “similar offenses” tary designate the sug- here have not exemp- parties scope subset. that were within history explaining of gested any legislative recognize the enumerated crimes 921(a)(20)(A) 921(a)(20)(A) meaning § the original likely § not lack do constitu- exemption choice to tionally required they or the remove specificity; are no defining scope, and Secretary’s vague felony” role than more “violent or “mis- have majority like the I found none. demeanor crime of domestic violence.” And, majority plausibly distinguishes Congress’s The result of abdication is catego- Stanko’s FMIA violations from the criminal impermissibly statute ry practices” excluded trade of “unfair Lawson, v. 461 vague. See Kolender U.S. public crimes because the FMIA is a 352, 357, 1855, 103 S.Ct. 75 L.Ed.2d 903 health statute in addition to an economic (1983); Bass, v. 404 United States U.S. 921(a)(20)(A)’s However, regulation. § ex- 336, 515, 348, 92 30 L.Ed.2d 488 S.Ct. of similar clause emption offenses lacks (1971); States, see James v. United also — specificity. same U.S. -, 1586, 1601-03, 167 127 S.Ct. (2007) (Scalia, J., dissenting). L.Ed.2d 532 “similar offenses” clause of 921, § The definitions contained in § is crucial to this appeal. regulation gun those to the of pertaining If, notes, majority this court is to ownership generally, are loadstones for obey of statutory a fundamental tenet in- process challenges due predicated terpretation, must contemplate clause See, vagueness. e.g., United States v. relegated some crimes or be to “mere sur- Smith, 617, Cir.1999); 171 F.3d 622 States, plusage.” See Potter United v. 155 Decker, 164, United States v. 446 F.2d 166 438, 144, 446, U.S. 15 39 S.Ct. L.Ed. 214 (8th Cir.1971); States v. Nieves- United (1894). is, moment, But the at the clause Castano, (1st Cir.2007) 597, 480 F.3d 603 the Secretary seemingly hollow: failed to cases); (collecting Dep’t White v. Jus of any I designate prior crimes to 1986 and (Fed.Cir.2003). tice, 1361, precedent am familiar placing The challenges have thus far un proved a crime within its scope. United States Cf. successful. McLemore, (S.D.Ala. 96, 792 F.Supp. 1992) (crime But vagueness goes here the of statute tampering, odometer beyond, 1990c(a), example, uncertainty 1984, § § for in an U.S.C. “unfair trade defining felony” herent practice” “violent for scope crime within the (codi 924(e)(2)(B) 921(a)(20)(A)). purposes of 18 U.S.C. have only, Courts like fying in part majority case, Armed provided Career Criminal in this some — Act), States, see guidance James v. U.S. regarding crimes are outside -, 1586, 6, See, n. 1598 n. 167 the e.g., clause.7 United States v. (2007), L.Ed.2d 532 or a Oldroyd, 97-30354, “misdemeanor No. 1998 WL 476395 crime violence” for purposes July (unpublished domestic opin Cir. ion) § 922(g)(9), 18 U.S.C. see (harboring illegal United States alien not offense (8th Cir.2004). Pfeifer, 371 F.3d I relating regulation of prac- majority 7. The includes United v. Meld- States ed in similar clause offenses because ish, (2d Cir.1983) catalogue analyzed F.2d 26 in its exemp- Meldish 921(a)(20)(A)’s of cases prior that have examined Secretary tions when the was exemption. gatekeeper Meldish held that the crime of similar offenses clause. court, importation by of a possible means false customs dec- least examining It is at laration, today, is not an unfair the crime could conclude that crime, practices and that prohibit determination do not offenses an unfair trade But, provides guidance. some judicially the case is tice but within the constructed unhelpful example as an includ- crimes not set similar offenses. Kolender, States, 461 U.S. at tices); enforcement.” v. United Dreher (mail fraud That should not be right 103 S.Ct. 1855. excluded approach fraud jeopardized wire statute Kruckel, 921(a)(20)(A)); United States drafting interpretation forces at (D.N.J. 92-611, 1993 (for No. WL arguably least one each eco- individual 1993) (crime filing tax false Aug.13, crime) learn, ex he post, nomic whether clause). similar offenses returns not within a crime possessing has committed a court in Dreher may that the district It James, firearm.8 See 1609-10 it when described the similar was correct J., (Scalia, dissenting). clause to include “violations offenses The similar clause to com- likewise seek enhance laws which major- could be as the read to prevent injuries consumers petition determines, otherwise, as ity contended States, Dreher United and businesses.” is a plausible interpre- Stanko. Either (W.D.La.1996). But, 680, 683 F.Supp. tation of the text. Stanko should not be definition judicially constructed is so convicted under a statute that uncer- that it to the extent also be too restrictive meaning, to I tain as and therefore Meat the Federal statutes —like excludes respectfully dissent. primarily, par- Act—that are Inspection beyond tially, evils designed prevent yet have dis- harm. Courts

economic presented with—an instance

cover—or be such sought use government

where the crime, three outside the purely

a economic an 18 categories, justify

enumerated prosecution. America, UNITED STATES complete Congressional absence of Appellee, federal scarcity precedent guidance meaning similar offenses leaves the thus unconstitutionally vague, clause BAKER, Appellant. Robert L. may possess the class of individuals who prosecution the threat of firearm without No. 06-3927. part persons, All includ- is undefined. Appeals, Court of United States Stanko, enjoy right like ing those Eighth Circuit. system “a live of laws which criminal penal statute offense define[s] June 2007. Submitted: ordinary with sufficient definiteness that 20, 2007. Filed: June people can understand what conduct in a prohibited and manner that does discriminatory arbitrary and

encourage Aug.22, Cir. attempted get but failed a final 1995 WL 8. Stanko opinion). (unpublished The Ninth Cir- adjudication rights in a of his noncriminal highlights sought the concern I ex- setting. declaratory judgment cuit's decision He system laws scope press dissent: our within the this his FMIA offense was vague 921(a)(20), accept a statute so court denied on should a district merits, 922(g) of a suffer the harm but the Ninth Circuit vacated individual must not, learning from courts had at that conviction before order because Stanko court’s time, prior conviction falls within and thus lacked stand- whether his suffered harm States, 921(a)(20)’s scope exemptions. ing. 95- Stanko v. United No. See

Case Details

Case Name: United States v. Rudolph George Stanko

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 20, 2007

Citation: 491 F.3d 408

Docket Number: 06-3157

Court Abbreviation: 8th Cir.