The defendant was charged with possession of firearms by a convicted felon in violation of 18 U.S.C.A. § 922(h)(1).1 The district court dismissed the indictment, finding that the prior conviction was invalid for purposes of 18 U.S.C.A. § 922(h)(1), since it had been dismissed under an Idaho statute which allows the expunction of state criminal convictions.2 We reverse.

Jurisdiction of the district court was based on 18 U.S.C.A. § 3231. Jurisdiction of this court is proper under 28 U.S.C.A. § 1291.

The defendant was found guilty of receiving stolen property. On November 13, 1973, the state court ordered the defendant imprisoned in the Idaho State Penitentiary for five years. (C.R. 35) However, the state court ordered that the defendant's sentence be withheld on condition that he serve four months in the county jail, pay a $1,000.00 fine, pay court costs, and serve the balance of the term on parole. (C.R. 35-36)

On March 30, 1977, after the defendant's probation officer petitioned the court, the state court entered an order discharging the defendant from further probation supervision and dismissing the charges against the defendant. (C.R. 25)

Based upon this dismissal by the state court, the defendant moved to dismiss the federal indictment claiming that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year, as required by 18 U.S.C.A. § 922(h)(1). (C.R. 22) The district court agreed with defendant's contention and dismissed the charges against him. (C.R. 86)

The sole question presented on appeal is whether a person who has had a state criminal conviction dismissed pursuant to the Idaho expunction statute may still be considered a person who has been convicted of a crime punishable for a term exceeding one year within the meaning of 18 U.S.C.A. § 922(h)(1). This involves the construction and interpretation of federal law, and the extent to which, if at all, a federal statute incorporates or refers to a state's law. United States v. Pricepaul, 540 F.2d 417, 424 (9th Cir. 1976), and See Reconstruction Finance Corp. v. Beaver County, 328 U.S. 204, 208, 66 S. Ct. 992, 90 L. Ed. 1172 (1946). In view of the recent decisions of this court, some of which were decided after the district court's decision in the present case,3 we conclude that despite the state expunction, the defendant is still a convicted felon within the terms of 18 U.S.C.A. § 922(h)(1), and therefore reverse.

Our analysis of the question presented for review must begin with United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc). Potts was charged with possession of a firearm by a convicted felon.4 However, the prior felony conviction had been expunged under a Washington state statute. All twelve members of this court agreed that despite the expunction of the conviction under state law, it still could be used as an element of the federal crime.

Four other judges joined in the opinion by Judge Koelsch. Judge Wright concurred, recommending that the court adopt a fair warning system to advise all of the other people who were affected by the decision. And Judge Sneed, joined by five other judges, concurred in the result, but disagreed with the analysis used by Judge Koelsch.

The Koelsch opinion analyzed the Washington statute, Washington court interpretations of it and concluded that, even in state courts, despite the expunction, the conviction would still be used as an "essential element of a subsequent crime." 528 F.2d at 885. Observing no conflict between state and federal law, the Koelsch opinion declined to "consider the extent to which the federal statute may preempt arguably conflicting state law." 528 F.2d at 886 n. 5. On the other hand, the Sneed opinion criticized the analysis of state law as immaterial. According to the concurring opinion's view, under the federal criminal statute, it was only necessary to look to the original conviction under state law, since Congress had chosen to consider state expunction statutes irrelevant. 528 F.2d at 887-888.5

As a district judge, this author observed that there was a conflict between the Koelsch and the Sneed opinions on the question of whether federal law or state law determines a person's status as a convicted felon. United States v. Locke, 409 F. Supp. 600, 604 n. 4 (D.Idaho 1976), Aff'd, 542 F.2d 800 (9th Cir. 1976). However, after further reflection, and in view of the subsequent decisions of this court, the difference appears to have been resolved in favor of both viewpoints.6

This court placed any doubts about a possible conflict between the Koelsch and Sneed opinions in Potts to rest in Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978). The question of whether state or federal law would control a convicted felon's right to carry a firearm was resolved in favor of federal law, relying upon the Sneed opinion in Potts. We said in part:

"This argument is without merit. In United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc) we held that a state felony conviction which had been expunged pursuant to a statute which 'released (the felon) from all penalties and disabilities resulting from the offense or crime of which he has been convicted' was not erased for purposes of the prior felony element of section 1202. We stated that there was no preemption issue because there was simply 'no conflict' between section 1202 and the state expunction statute. Id. at 886 n. 5. Although the expunction statute could determine the status of the conviction for purposes of state law, it could not 'rewrite history' for the purposes of 'the administration of the federal criminal law or the interpretation of federal criminal statutes.' Id. at 887 (Sneed, J., concurring in result). We believe this principle is controlling here." (emphasis added)

580 F.2d at 980-981. This principle also controls our result in the present case.

Our conclusion is supported by the legislative history of 18 U.S.C. § 922(h) (1). This provision was originally adopted as part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968. One of the principal purposes of Title IV was to keep firearms out of the hands of those who had a criminal background. Sen.R. No. 1097, 90th Cong., 2nd Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News, p. 2112. Consistent with this purpose, Congress made it a crime for a convicted felon to possess a firearm. 18 U.S.C. § 922(h) (1). Congress specifically explained the term "convicted felon" as used in Title IV.7 Congress also specifically provided a method by which a person who has been convicted of a felony may lawfully possess firearms.8 Nowhere in the statute or in the legislative history did Congress make an exception from the operation of Title IV's sanctions for felons who have had their convictions expunged under state law. United States v. Potts, 528 F.2d 883, 887 (9th Cir. 1975) (en banc) (Judge Sneed concurring); and See United States v. Mostad, 485 F.2d 199, 200 (8th Cir. 1973), Cert. denied, 415 U.S. 947, 94 S. Ct. 1468, 39 L. Ed. 2d 563. Following the familiar precept of statutory construction, Expressio unius est exclusio alterius, we decline to supply such an exception. To do so would be inconsistent with the broad purpose of Title IV which was to prevent those with criminal backgrounds from obtaining firearms. See Huddleston v. United States, 415 U.S. 814, 94 S. Ct. 1262, 39 L. Ed. 2d 782 (1974).9

Additional support for our decision is found in the rather anomalous situation which would otherwise result. If a conviction were to be determined by application of the different expunction statutes of each state, then the application of federal criminal sanctions would depend solely upon where the defendant's previous conviction had occurred. If the person had his conviction expunged under either the Washington or Arizona statutes, then he could not possess a firearm. United States v. Herrell, 588 F.2d 711 (9th Cir. 1978) (Arizona); United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc) (Washington). Whereas, if the person had his conviction expunged under the Idaho statute, then he could possess a firearm. Congress certainly could not have intended a federal criminal law to be applied in such a patchwork fashion. In the absence of an expression to the contrary, Congress generally intends federal criminal law to receive a uniform application. See Jerome v. United States, 318 U.S. 101, 104, 63 S. Ct. 483, 87 L. Ed. 640 (1943); United States v. Patz, 584 F.2d 927, 930 (9th Cir. 1978).

Our conclusion is consistent with prior holdings of this court in the context of deportation proceedings. Despite state expunction of convictions, we have held that the convictions are still valid and may be used as a basis for deportation under 8 U.S.C.A. § 1251. See Ocon-Perez v. Immigration and Naturalization Service, 550 F.2d 1153, 1154 (9th Cir. 1977); Tsimbidy-Rochu v. Immigration and Naturalization Service, 414 F.2d 797, 798 (9th Cir. 1969); De la Cruz-Martinez v. Immigration and Naturalization Service, 404 F.2d 1198, 1200 (9th Cir. 1968), Cert. denied, 394 U.S. 955, 89 S. Ct. 1291, 22 L. Ed. 2d 491.10

We hold that the expunction of a conviction under Idaho law does not change the status of a person as a convicted felon for purposes of 18 U.S.C.A. § 922(h)(1).11 The judgment of dismissal by the district court is REVERSED.

I respectfully dissent.

Discussion begins, as it did with the majority opinion, with an analysis of United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc). In Potts, This court had the opportunity to define the extent to which the federal criminal statute may preempt conflicting state law. Judge Koelsch, joined by five other judges, did not reach the resolution of that issue. While acknowledging the expunction statute, Judge Koelsch's opinion noted that there was a limitation proviso in the statute which stated "(t)hat in any subsequent prosecution, for any offense, such prior conviction may be pleaded and proved, and shall have the same effect as if probation had been granted, or the information or indictment dismissed." Additionally, he noted that a conviction, even though expunged, could be used for impeachment purposes in any subsequent prosecution. Judge Koelsch thereby concluded that the Washington expunction statute effectuated only a "partial erasure" and that such a conviction could form the predicate for § 1202(a)(1) liability.1 The opinion, however, did not reach the preemption issue:

"As we perceive no conflict between (the Washington expunction statute) and § 1202(a)(1), we need not, and do not, consider the extent to which the federal statute may preempt arguably conflicting state law."

Id. at 886 n. 5.

Judge Sneed, joined by five other judges, concurred in the result but upon a different ground. He viewed the federal statute as preempting state law, i. e., state expunction statutes were irrelevant for purposes of § 1202(a)(1):

"The relevant state law to be examined in this determination does not include expunction statutes. Such statutes do not rewrite history; they merely provide that previous history is immaterial for certain purposes under state law. It is not within the power of the state to make such history immaterial to the administration of the federal criminal law or the interpretation of federal criminal statutes. Only Congress can do that."

Id. at 887.

While the Koelsch and the Sneed opinions both held that under Washington law, a convicted felon, whose record had been expunged, could still be subject to § 922(h)(1), they did so under divergent theories.

The writer of the majority opinion in the case at bar, states that while he had once recognized a conflict between the opinions, "after further reflection, and in view of the subsequent decisions of this court, the difference appears to have been resolved in favor of both viewpoints." While not entirely clear, the apparent reason for the majority's position that the conflict has been resolved by this court is simply the fact that this court has invoked both theories in addressing later cases which raise issues similar to Potts. The majority cites United States v. Herrell, 588 F.2d 711 (9th Cir. Nov. 16, 1978), where this court followed the Koelsch opinion, and Hyland v. Fukuda, 580 F.2d 977 (9th Cir. 1978), where this court adopted the Sneed opinion.2 The mere fact that both opinions have been utilized by this court, however, fails to explain how the difference between the opinions has been resolved.

The majority goes on further to state that a possible conflict between the opinions has been resolved in Hyland v. Fukuda, supra "The question of whether state or federal law would control a convicted felon's right to carry a firearm was resolved in favor of federal law (in Hyland )."

A careful reading of Hyland, however, reveals serious flaws in the rationale.

In Hyland, this court addressed the question of whether there was a preemption problem in an apparent conflict between a Hawaii state statute exempting state employees from the operation of Hawaii's gun laws, Haw.Rev.Stat. § 134-11(3), and § 1202(a)(1), which provides no such exemption. The Potts case was cited by this court, in Hyland, but it inexplicably failed to fully address the Koelsch opinion. Referring to Potts, this court stated:

"(W)e held that a state felony conviction which had been expunged pursuant to a statute which 'released (the felon) from all penalties and disabilities resulting from the offense or crime of which he has been convicted' was not erased for purposes of the prior felony element of Section 1202. We stated that there was no preemption issue because there was simply 'no conflict' between section 1202 and the state expunction statute. (Citation omitted)."

Id. at 980-1. The decision failed to point out that the expunction in Potts was only a partial one. It was that fact which led Judge Koelsch to conclude that there was no conflict between § 1202 and the state expunction statute and that, therefore, the preemption issue need not be reached. The decision in Hyland went on to state, immediately following the above-quoted language:

"Although the expunction statute could determine the status of the conviction for purposes of state law, it could not 'rewrite history' for purposes of the 'administration of the federal criminal law or the interpretation of federal criminal statutes.' (Citation omitted). We believe this principle is controlling here."

Id. at 981.

The conflict in Potts was not set out in Hyland. Instead, this court erroneously cited the Sneed opinion as the holding in Potts. The Hyland case, therefore, does not resolve the conflict in favor of both viewpoints.

Additionally, it should be noted that there seems to be an inconsistency between the finding in Hyland, that the Sneed opinion was controlling, and the remaining part of the opinion. The Sneed opinion acknowledged a preemption issue and decided that the issue should be resolved in favor of federal law. In Hyland, however, this court, rather than determining whether federal law had preempted state law, concluded that there was no conflict, in that the state statute was only effective in interpreting state, not federal law. "Conflict", used in this sense, would imply that there could never be a preemption problem since federal and state law operate on separate and non-intersecting planes. The threshold question of the Sneed opinion of whether there was a preemption issue was not even reached in Hyland. To hold, therefore, that the Sneed opinion is controlling, is inexplicable.

To suggest that the conflict between the Koelsch and Sneed opinions, in Potts, Has been put to rest, in Hyland, and that the question of whether state or federal law controls has been resolved in favor of federal law (the Sneed opinion), is further undermined by United States v. Herrell, supra, which was decided After Hyland. In Herrell, this court was faced with the identical question presented in the instant case, i. e., whether a convicted individual whose record was expunged, falls within the definition of "convicted" for purposes of § 922(h)(1). If the question had been put to rest in Hyland, one would have expected this court in Herrell to follow suit. The opinion in Herrell, which was authored by Judge Choy (who had concurred with Judge Sneed in Potts ) and concurred with by Judge Sneed, however, adopted Judge Koelsch's opinion in rejecting appellant's contention that he was not "convicted" for purposes of § 922(h)(1), rather than merely stating that federal law controlled:

"Arizona's expunction statute provides for the vacating of conviction, dismissal of charges, and restoration of civil rights. . . . However, a proviso to Ariz.Rev.Stat. § 13-1744 states that after a conviction is expunged 'the conviction may be pleaded and proved in any subsequent prosecution of such person for any offense as if the judgment of guilt had not been set aside.'

In United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc), this court was faced with a claim similar to that of Herrell. In addition, the Washington expunction statute involved in that case had a proviso almost identical to that found in Ariz.Rev.Stat. § 13-1744. We decided in Potts that expunction under the Washington statute did not eliminate a prior state conviction as a basis for a federal conviction for possession of a firearm by a convicted felon. We find that Potts controls Herrell'S claim and thus reject this asserted error."

Id. at 713 (footnote omitted).

Since the difference between the opinions has not been resolved, the issue in the present case as to whether appellee, whose record was expunged, is "convicted" for purposes of § 922(h)(1) remains unresolved. The view taken in this dissent is that state law controls and that the expunction statutes are material in the determination of whether a person is "convicted."3 I share the Fifth Circuit's opinion, as expressed in United States v. Matassini, 565 F.2d 1297 (5th Cir. 1978):

"We have no doubt that Congress is free within constitutional limits, to choose its own indicia of dangerousness in constructing a regulatory scheme. It is not slavishly bound to follow the characterizations adopted by the states. But in Title IV, by identifying those subject to the proscription of § 922(h)(1) as 'any person . . . who has been convicted in any court . . . ' Congress chose to rely, at least in part, on state criminal law. We see no reason, in either the language or legislative history of Title IV, to doubt that Congress adopted the states' own definitions of conviction, including the effects of an (expunction) thereon."

This holding rests upon the view that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. . . . This congressional policy is rooted in the same concepts of American federalism that have provided the basis for Judge-made doctrines." United States v. Bass, 404 U.S. 336, 349, 92 S. Ct. 515, 523, 30 L. Ed. 2d 488 (1971).

Concern for protection of the federal-state balance is manifest in the rule of statutory construction which prohibits the enlargement of criminal statutes by interpretation. This doctrine is based not only on delegation of powers, but is also intended to preserve due process guarantees. United States v. Gambling Devices, 346 U.S. 441, 448, 74 S. Ct. 190, 98 L. Ed. 179 (1953). Justice Jackson explained the basis of this doctrine in United States v. Gambling Devices, stating:

"(T)his Court will construe a statute in a manner that requires decision of serious constitutional questions only if the statutory language leaves no reasonable alternative. (Citation). This is not because we would avoid or postpone difficult decisions. The predominant consideration is that we should be sure Congress has intentionally put its power in issue by the legislation in question before we undertake a pronouncement which may have far-reaching consequences upon the powers of the Congress or the powers reserved to the several states. . . . Judicial abstention is especially wholesome where we are considering a penal statute."

Id. at 449, 74 S.Ct. at 194. This rule preserves the due process protections including the presumption of innocence and fair notice and hearing requirements, since it requires that Congress speak in language that is clear and definite, to prevent the courts from deriving "criminal outlawry from some ambiguous implication." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222, 73 S. Ct. 227, 229, 97 L. Ed. 260 (1959).

However, it would be impractical for the courts to enforce a policy of total abstention in cases involving ambiguous provisions in criminal statutes. Thus an additional rule of statutory construction was developed to guide the resolution of ambiguity based on the same concerns of proper delegation and due process. The rule that evolved was enunciated in Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 622, 99 L. Ed. 905 (1955):

"When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity."

This rule has been applied to prevent imposition of multiple sentences for a single offense. Bell v. United States, supra; Ladner v. United States, 358 U.S. 169, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958). It has also been applied to prevent the inclusion of intra-state criminal activity under federal statutes regulating interstate travel for the purpose of carrying out illegal activity. Rewis v. United States, 401 U.S. 809, 812, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971); United States v. Gambling Devices, supra. The previously cited cases all involved criminal activity governed by state law and arguably federal law. In each instance the courts were faced with the task of interpreting an ambiguous federal statute. The courts relied on the rule of lenity based on their concerns over the imposition of federal law in areas properly within the realm of state law enforcement and the overextension of limited federal law enforcement resources.

This court is faced with the same problem of ambiguity. The majority has, however, chosen to interpret § 922(h)(1) in such a manner that the states would be effectively denied the right to define the criminal status of persons who are charged with violations of their laws and who will be rehabilitated, if at all, under their programs. The interpretation would further interfere with state rehabilitation programs which offer expunction of criminal records in one form or another to promote speedy reassimilation of law offenders as useful members of society and to discourage recidivism. Cf. United States v. Potts, supra at 885 n. 3.

While it is recognized that in the absence of a plain indication to the contrary, it is generally assumed that Congress when enacting a statute, does not intend to make the application of the federal act dependent upon state law, Jerome v. United States, 318 U.S. 101, 63 S. Ct. 483, 87 L. Ed. 640 (1943), in the present case, there is a clear intention to the contrary. Pursuant to 18 U.S.C. § 927:"No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together."

The federal definition of a "convicted" individual is not irreconcilable with state expunction statutes. Quite the contrary, the state expunction statutes when incorporated into § 922(h)(1) help to clarify the definition of the word "convicted" while allowing the state to pursue the equitable goals underlying expunction statutes.

The majority asserts that an anomalous situation would exist if we were to recognize state expunction statutes. A situation would be created whereby one would be subject to § 922(h)(1), if the state where the individual was convicted had only a partial expunction, while another person who had committed the same crime would not be convicted under § 922(h)(1), if the expunction was total. The majority further asserts that this situation would be inimical to uniform application. The very terms of § 922(h)(1), however, preclude national uniformity. Section 922(h)(1) reaches persons convicted "in any court of, a crime punishable by imprisonment for a term exceeding one year." By definition, the scope extends to those crimes for which the states wish to impose a possible sentence exceeding one year. States, of course, differ as to the length of a sentence for a particular crime. A situation is, therefore, created where an individual, who is convicted of a crime, falls within the scope of § 922(h)(1), while another individual, who has committed the identical crime, would not fall within the scope, because the convicting states differ as to the length of the sentence. To impliedly suggest that this comports with national uniformity, while recognition of expunction statutes creates an anomalous situation, eludes logic. If Congress truly intended national uniformity in § 922(h)(1), it would have described which particular crimes would subject an individual to § 922(h)(1), rather than relying upon state laws, and explicitly provide that expunction statutes are irrelevant.

The immigration cases cited by the majority do not compel a similar finding in the present case. The Constitution has specifically granted to Congress plenary power over immigration and naturalization and a corollary of the plenary power is the need for uniform federal law. In contrast, penal enactment has historically been a power exercised by both Congress and the states. Lacking the luxury of achieving the complete uniformity of laws which can accompany a plenary power, the inevitable conflicts between state and federal law must be resolved by application of the preemption doctrine. Thus, the majority opinion's analogizing of the nonrecognition of state expunction statutes under the deportation statute to § 922(h)(1) fails to appreciate the disparate powers from which each statute derives.

Based on the aforementioned reasons, I would affirm the district court's ruling.