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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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