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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

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  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

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  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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