United States v. Timothy Patrick Hoctor

CARTER, plea guilty of and enter a ELY and Circuit draw his Before FERGUSON, plea guilty Judges, District not . . court and of . the * Judge may the in its discretion set aside ver- guilty; dict of court the Judge: ELY, may thereupon Circuit dismiss the informa- against tion or indictment such de- appeals fro3n the The Govern3nent fendant, who shall thereafter be dismissing part of order Court’s District penalties leased disabili- from all and Finding against Hoctor.1 indictment resulting from or ties the offense ruling, no error District Court’s the of which he been convicted.” we affirm. indicted, in the rele- Supreme was count According Washington Hoctor alleged appeal, for an viola- Court, to this vant (transporting tion of 18 U.S.C. § legislative expres- is a “This statute receiving explosives or in interstate or public policy of sion in the field of having foreign con- commerce after It criminal rehabilitation. trial, felony.) Before Hoctor of victed unambiguous terms, to undertakes of motion The basis filed a to dismiss. deserving to his restore a offender contention that motion was Hoctor’s the preconviction full-fledged status as a of not he had (Emphasis supplied.) citizen.” meaning 842(i). ad- He within Kaiser, Matsen v. 74 Wash.2d guilty felony, having pleaded to a mitted (concur- (1968) 443 P.2d 846-847 argued subsequent ex- he but ring opinion). also See Tembruell v. Se- pursuant pungement to of his attle, 64 Wash.2d 453 392 P.2d Washington law, 9.95.- Wash.Rev.Code § (1964). Further, Attorney General (1957), from removed him the class Washington, published opinion, in a 842(i). persons subject con- His provisions has also written that April, 1969, expunged in was viction prohibiting 9.41.040, Wash.Rev.Code alleged years two more than owning certain convicted felons from violation carrying pistols, apply not do to a held that Hoctor The District Court son who has obtained a dismissal felon as a at the could be classed proceedings Washing- criminal under alleged not, offense and of his was time 'expungement Op. ton’s statute. therefore, prosecution under amenable Att’y Thus, Gen. 5. Hoctor’s agree the District We absolutely was erased record. from his expungement procedure, Court rights, He to the same entitled Washington, interpreted in effective- as status, held the same as citizen. prosecution. ly insulated Hoctor from this Government contends provides: expungement state determination could not affect “Every has fulfilled defendant who expungement 842(i), probation conditions his eliminating was ineffective Hoctor’s permitted may liability In with- of the court to under statutes.2 the discretion * alleged possession Ferguson, of a firearm in violation Honorable Warren J. United Angeles, App. 1202(a) Judge, was dismiss- Los Cali- of 18 District U.S.C. States designation. court, fornia, sitting by Bass deci- ed under i sion. 1. There was a indictment. three-count position, support of its the Govern- Court counts One and District dismissed grounds decided ment cited cases Three on the and the Gov several same appealed. Thereafter, with the effect ernment the Su court deportation preme or- statutes Court decided Bass, g., Kelly S., ders. I. F.2d 30 L.Ed. E. N. S.Ct. denied 382 mo 2d 488 On the Government’s ; (1965) tion, One, L.Ed.2d 344 count dealt with Hoctor’s Rehearing argument, over- however, it On Petition For making that pro- section That looks U.S.C. originally panel majority A : vides constituted in the case has voted Rehearing deny the Petition for [in- “No reject suggestion 842(i)] cluding construed shall be Judge dissenting. banc, en Carter part of indicating on intent the having The of occupy in full court Congress field been advised rehearing suggestion for en banc and operates to the provision which such panel vote, judge of the and a in active law State of the exclusion having requested service be matter, a vote there unless the same suggestion appellant’s taken on the positive conflict be- is a direct and rehearing, en banc such a vote has been the law and tween such 35(b) Fed.R.App.P. be, taken. The Rule cannot the two so that State judges thirteen in active service have consistently to- or stand reconciled voted, by majority four, a nine gether.” suggestion rejected. be Washington and law Both the Accordingly, the Petition for Rehear- matter. the same deal with only ing denied, appellant’s sugges- them is difference between rejected. for en tion banc specifically on the law focuses federal explosive while the materials control of Judge CARTER, M. JAMES Circuit general most state statute deals (dissenting Rehearing)'. on Petition for rights and disabilities terms with the persons having Noth- over-persuaded records. I criminal must I confess was companion by my ing Ely joined sec- its or brother in either in opinion. under standards I Now am convinced tions sets forth that we in- when an were in error. it is to determined crime of a dividual has been presented The issue in case is this chapter. Sec- for the legislature may whether a state define Wash.Rev.Code, provides 9.95.240, tion terms a federal statute. The fed- necessary portion defi- a of the at least question eral statute in U.S.C. § people by removing nition a class 842(i), which it a for a makes imposed seemingly from restrictions person previously who has con- pre- The state law the federal law. victed of explosives a to receive 842(i); Congress intend- had if dated § in construing interstate In commerce. of that state the effect ed to override statute, this court must decide area, done it have so. could prior whether a conviction ceases to be language employed does prior a conviction when a law “ex- state not, however, an intent. indicate such punges” it. light imply that In will we Timothy defendant, Patrick Hoc- it so intended. tor, acquired his conviction in 1966 degree burglary second under the Affirmed. quently probation S., fulfilled his terms with- I. N. 344 F.2d 804 Garcia-Gonzalez v. out denied, further incident. We cannot assume Congress here that such Those 15 L.Ed.2d 81 (i). applicable. broad of § 842 More- are not here Con- ^decisions over, gress plenary power we are here with a the treat- crim- over prosecution, specific inal and, and once had lan- Hoctor aliens from the by Washington been told guage peculiar that he had involved of the conviction, suffered he cases, could not held that those our court necessary deportation] have had the e., advance notice intended the sanction [i. that his act constituted a federal of- fact of with- to follow the mere regard fense. the alien subse- out to whether Washington. explosive material with a This tion of an laws having punishable by imprison- felony, son In 18 was a criminal tendencies. (d), years. 841(e), (e), (f) ment for not more than 15 U.S.C. § materials,” “explosive court sentenced to a term defined Hoctor probation. relatively simple Nobody had ex- task. would When the term discharged expunge pired contend that a' state could the state court Washington’s pursuant the conviction alter this definition. statute,” “expungement so-called Revised Defining person having criminal Washington, Code of 9.95.240. Soon aft- tougher. tendencies 18 U.S.C. § erwards, charged Hoctor was under the expedient relied on the statute, 842(i), with assumption and reasonable receiving explosives in interstate com- tendencies are those who criminal having after merce con- crimes, have committed as evidenced felony. victed of a district court The shortcomings previous convictions. The Hoctor, expunge- held that because obvious, definition but it is are ment in court, the state had not been workable, perhaps improve- defies previously convicted of a within any event, ment. it a con- reflects meaning 842(i). panel The § gressional determination as to which unanimously affirmed in Iwhat now be- handling sons should be barred from ex- interpretation lieve to be a mistaken plosives who been have —those federal law. Washington expunge- of felonies. The My analysis parts: first, has four a expression public an of the general interpretation of 18 842 U.S.C. § policy state, of the must not be allowed (i); second, a consideration of 18 U.S.C. congressional to undercut a determina- 845; third, a consideration of § tion. 848; fourth, C. a consideration be should allowed relevant cases from the Ninth Circuit. 842(i) affect only terms 18 U.S.C. § policy if the state’s coincides with

I purpose. not; the federal I think it does my by view was well-articulated the Su- (i) 18 U.S.C. § 842 preme Court when it said v. Jerome guides construing twin a stat- States, 101, 104, 63 S.Ct. ute are its words and its ascertainable 483, 485, (1942): 87 L.Ed. 640 times “At purpose. plain meaning If the of the it has been inferred from the nature words in 18 U.S.C. controlled problem Congress with which case, the outcome would be certain. application of a federal provides, statute “It shall be unlaw- dependent should on state any person ful for . who has generally law. . But we must any convicted in court of assume, plain in the absence of a indica- punishable by a imprisonment for contrary, Congress tion to the that when exceeding a year term one ... making it enacts a statute is not any explosive receive in inter- plication dependent of the federal act on foreign state or commerce.” Hoctor has assumption state law. That based convicted—that cold the fact that the of federal argument, fact. therefore, His must nec- legislation (United is nationwide essarily plain be that behind the words Pelzer, proviso a lies silent 402 [61 S.Ct. that “ex- convictions punged” by 913]) state law do not count. L.Ed. times on the at proviso Whether such a is indeed im- program fact that the federal would be plied by must be resolved reference to impaired if state law to control. were Congress’ purpose enacting 842(i). Ry. Horton, Seaboard Air Line Congress’ apparent purpose 58 L.Ed. [34 was to thwart volatile mixture —the combina- 1062].” congres- 845(b) suggests the 842(i) necessarily depends flict. § 18 U.S.C. § that, sional desire the extent law to on state authority “expunge” (i), only may by can be rendered convictions courts; clearly Con- a conviction. that was indication, however, gress. is, There Ill otherwise, plain intend- say a ed to law to allow state 18 U.S.C. § 848 purposes of conviction for the opinion says congressional intent to allow indicates a pur- “expunge” convictions states II to at- poses unable I am meaning to tach such 18 U.S.C. § 845 provides provision of that “No alone, If stood 18 U.S.C. § indi- construed this cating shall be given interpretation part of the intent on the might bear more credence. But (cid:127) gress occupy such the field which (i) alone; merely does not stand it is provision operates to the exclusion larger statutory provision in one subject mat- same on the scheme intends ter, positive unless there is a direct and regulate the interstate in ex- commerce between such and the conflict law of the plosives. key provision A in the scheme [Emphasis . . . .” 845(b), is 18 “A U.S.C. reads: added]. person who had been indicted for or con- For two is evident that reasons punishable by imprison- victed of a crime operate permit 848 does not states exceeding year may for a term one expunge purposes convictions for Secretary make to the for imposed by lief from the disabilities chapter Secretary may . . and the First, preceding as stated in the sec- grant such relief if it is established to tion, I see a direct conflict between his satisfaction that the circumstances 845(b): by giving state statute and § regarding the indictment or effect to the state statute in this case applicant’s reputa- and the record and' deprive Secretary we would tion, applicant are such that the will not authority final vested in him likely dangerous to act in a manner gress. suggest This is not to safety public . .” entirely violating state law is void for Supremacy Clause, many for in other 845(b) gives Secretary Thus expungement situations a state will have power exactly to do what ex- the state impact policies on federal or federal pungement purports to do—determine law; but, to the extent it would under- particular person may that a be trusted 845(b), cut the state law cannot be explosives despite convic- given effect. tion. Since intended this de- termination to Secondly, be made to the satisfac- the state law does not con- Secretary, tion of the cern whose discretion the same matter as guided by (i). Report federal policy, House the scheme No. 91-1549 indi- by Congress disrupted intended if a cates the matter to which Con- state, guided policies, may state make refers: section “This sets 848] [§ nullify forth determination to intent of If the state’s shall op- not be construed to erate determination should differ from the exclusion Sec- of State statutes covering retary’s, explosive we would face a direct conflict materials . .” authority. Cong. between state and 1970, federal U.S.Code p. & Admin.News, Congress surely [emphasis 4048. Washing- no such con- added]. expungement not cover rather than does leave matter viction”] ton ” Garcia, any way; hence at explosive variable statutes.’ materials pp. actually to this has no relevance 807-808. case. petition should be granted reversing filed, .opinion and an IV judgment below. Cases

The Ninth Circuit numerous cases has The Ninth Circuit

holding statutes that state of certain not affect do g., Kelly deportation. E. v. I.N.S.

laws cert, denied, 473, (9 1965) 349 F.2d Cir. L.Ed.2d S.Ct. (1965); v. I.N.S. Garcia-Gonzales America, UNITED (9 STATES de- 344 F.2d Plaintiff-Appellee, nied, L.Ed.

2d 81 al., et James Jerome ASTOLAS in this aside case brushes Defendants-Appellants. footnote, saying precedents in a these 232-234, 73-1730, 73-1679, Dockets Nos. they applicable. are not Two distinc- 73-1731. drawn, tions are neither of which is Kelly and Garcia do not suasive Appeals, Court ply to Hoctor. Second Circuit. First, opinion points out that Argued Oct. deportation statute, 8 U.S.C. Nov. Decided language different from 18 (i). deportation refers who have been convicted “at any time,” while 18 simply fers who have been convicted. The absence “at time” Congress’ fails indicate in- say

tent to let states a conviction is not

a conviction. Secondly, states that Con- plenary power deporta- has over Congress’ tion power regu- while explosives

late course limited to sphere of interstate commerce. Al- though so, the fact that Con- gress’ power regulate explosives is less plenary than does not mean that a valid enactment, within the limited Congress’ power, is to alteration by the law, expressing states. Federal policy, supreme, whether or it concerns a over which plenary power.

The decision in Garcia controls this case. said there, As “It is sheer fiction say ‘wiped conviction is out’ ‘expunged.’ ‘Congress in- defining tended to do its own “con- [of

Case Details

Case Name: United States v. Timothy Patrick Hoctor

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 6, 1973

Citation: 487 F.2d 270

Docket Number: 71-2773

Court Abbreviation: 9th Cir.