ILNews

Prior conviction doesn't fall under exception

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The 7th Circuit Court of Appeals rejected a defendant's argument that his felon-in-possession indictment was insufficient because his previous conviction of stealing cable doesn't meet the definition of a "crime punishable by imprisonment for a term exceeding one year" under 18 U.S.C. Section 921(a)(20)(A). This is the first time the 7th Circuit had addressed this issue.

In United States of America v. Kevin R. Schultz, No. 09-1192, the federal appellate judges looked to other Circuit Court decisions that have addressed Section 921(a)(20)(A), and those courts have held that not all offenses related to the regulation of business practices fall within the exclusion.

Schultz argued that his prior felony conviction doesn't meet the definition of a "crime punishable by imprisonment for a term exceeding one year" because Congress created an exception under 18 U.S.C. § 921(a)(20)(A), to exclude "any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices."

Schultz maintained his 2005 felony conviction is excluded under "similar offenses" because he was convicted of knowingly trafficking in a telecommunications instrument. After his 2005 conviction - for which he was sentenced to two years probation, with the first six months to be served on home detention - a search warrant of his home yielded a shotgun and ammunition in the attached garage. Schultz was convicted of violating 18 U.S.C. Section 922(g), which makes it unlawful for one convicted of a crime punishable of a term exceeding one year to possess a firearm.

For Schultz's 2005 conviction to fall under the exception, the government would have to prove, as an element of the predicate offense, that competition or consumers were affected. Based on United States v. Stanko, 491 F.3d 408, 413-14 (8th Cir. 2007); United States v. Meldish, 722 F.2d 26, 27 (2d Cir. 1983); and United States v. Dreher, 115 F.3d 330, 332-33 (5th Cir. 1997), the government wasn't required to prove Schultz's conduct had an effect on consumers or the competition, wrote Judge William Bauer.

"Schultz's conviction was under Title 18, which regulates crimes and criminal procedure and not Title 15, which regulates commerce and trade. Therefore, the Section 921(a)(20)(A) exclusion does not apply to Schultz's predicate conviction," wrote the judge.

The Circuit Court also rejected Schultz's other arguments on appeal - that the Section 921(a)(20)(A) is impermissibly vague; he should have had a Franks hearing to test the validity of the affidavit used to obtain the search warrant for his house; and that his statements made while his home was searched should have been suppressed.

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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