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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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