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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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