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UNITED STATES v. JULIAN

August 13, 1997

UNITED STATES OF AMERICA
v.
DALE J. JULIAN, Defendant



The opinion of the court was delivered by: MCCLURE

 August 13, 1997

 BACKGROUND :

 On March 25, 1997, a grand jury sitting in the Middle District of Pennsylvania returned an indictment charging defendant Dale J. Julian with being a felon in possession of ammunition and firearms (Count I) and making a false statement in connection with the acquisition of a firearm (Count II). Julian entered a plea of not guilty at his arraignment on May 27, 1997. Jury selection currently is scheduled for October 9, 1997, with trial to commence as soon as feasible thereafter.

 Before the court are Julian's pre-trial motions, including a motion to dismiss the indictment or to suppress evidence of expunged criminal record. A motion to suppress evidence will be addressed by separate order.

 After completion of a draft of this memorandum and order, as well as the order relating to the motion to suppress evidence, the Government moved for an extension of time in which to respond to Julian's pre-trial motions. Based on our disposition of the motions and the fact that the memorandum and orders were complete, we see no purpose to be served by a response at this juncture. We note, however, that the government was late even in moving for an extension of time. This silence on the part of the government should be viewed in the context of a motion affecting the validity of the instant prosecution and the government's own evidence that Julian was engaging regularly in the disposition of stolen firearms. See Affidavit of Special Agent Donna Slusser in Support of Probable Cause, appended as Exhibit D to Defendant's Pre-Trial Motions. It was due to the importance of the issues that the court addressed the motions without the aid of a brief from the government. Regardless, the motion for an extension of time will be denied as moot.

 DISCUSSION :

 I. FACTS

 The following are the facts necessary for disposition of the instant motion. They are the facts set forth in Julian's motion and the indictment, but should not be considered findings nor otherwise regarded as conclusive statements of fact.

 Count I of the indictment charges Julian with possession of 12 different firearms. The firearms were discovered during the execution of a search warrant at Julian's residence on November 22, 1994. One of the firearms was a .22 pistol which was purchased by Julian from the owner of D&R Sports Center, a licensed firearms dealer. On a form completed relative to this purchase, Julian indicated that he had not been convicted previously of an offense punishable by imprisonment for more than one year.

 Contrary to this representation, Julian entered pleas of guilty to 12 counts of burglary on December 7, 1970, in the Court of Common Pleas of Columbia County, Pennsylvania, and was sentenced to a term of imprisonment. The burglary offenses were punishable by imprisonment for more than one year.

 On August 23, 1995 (nine months after the search), Julian filed a motion in the Court of Common Pleas of Columbia County to set aside the 1970 convictions for burglary based on lack of jurisdiction. That court granted the motion by Order of Court dated October 5, 1995, "upon agreement of the Commonwealth." Defendant's Pre-Trial Motions, Exhibit F. Further, the Court ordered the matter expunged because the Commonwealth failed to object. Id. See also 18 Pa. Cons. Stat. Ann. §§ 9102, 9122 (defining "expunge" and providing for expungement *fn1" of a criminal record, respectively). *fn2"

 Julian now moves to dismiss the present indictment because he no longer is a convicted felon. The argument continues that the expungement of the record makes the 1970 conviction void ab initio so that Julian cannot be considered to have been a felon on November 22, 1994, when the government alleges that he was found in possession of the firearms. Moreover, Julian contends that the order vacating his conviction and expunging the record makes his statement on the firearms purchase form retroactively or retrospectively accurate.

 II. STATUTORY PROVISIONS

 Count I is brought pursuant to 18 U.S.C. § 922(g), which reads in relevant part:

 
It shall be unlawful for any person--
 
(1) who has been convicted in any court of, [sic] a crime punishable by imprisonment for a term exceeding one year;
 
. . .
 
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

 18 U.S.C. § 922(g)(1). The penalty for violating § 922(g) is a fine, up to ten years' imprisonment, or both. 18 U.S.C. § 924(a)(2).

 Count II of the indictment is brought pursuant to 18 U.S.C. § 922(a), which reads in relevant part:

 
It shall be unlawful--
 
. . .
 
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;
 
. . .

 18 U.S.C. § 922(a)(6). The same potential penalty applies for a violation of this provision. Sec. 924(a)(2).

 In either instance, then, Julian may be found guilty only if he was convicted of a "crime punishable by imprisonment for a term exceeding one year." Under Count I, his possession (if proven) of the firearms would be unlawful, and, with respect to Count II, his statement (if proven) that he had not been so convicted would be false. Although the term is self-defining, it is clarified for purposes of firearms offenses as follows:

 
As used in this chapter--
 
(20) The term "crime punishable by imprisonment for a term exceeding one year" does not include--
 
(A) 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, or
 
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
 
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.

 18 U.S.C. § 921(a)(20).

 The issue is whether a conviction which is set aside and expunged after a felon *fn3" is found in possession of firearms and after the felon has stated in writing that s/he ...


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