UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: April 15, 1976.
UNITED STATES OF AMERICA
BENNIE GRAVES, APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 73-212)
Before ALDISERT, GIBBONS and ROSENN, Circuit Judges
GIBBONS, Circuit Judge
Defendant Bennie Graves was indicted on two counts for violations of various provisions of the Omnibus Crime Control and Safe Streets Act of 1968*fn1 as amended later that year by the Gun Control Act of 1968.*fn2 The first count charges that Graves violated 18 U.S.C. §§ 922(a)(6)*fn3 and 924(a)*fn4 when, in connection with the purchase of a 12-gauge shotgun, he certified in writing to a licensed firearms dealer that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year*fn5 when he knew, in fact, that he had been.*fn6 The second count charges that Graves, having been convicted of a crime punishable by imprisonment for a term exceeding one year, violated 18 U.S.C. Appendix § 1202(a)(1)*fn7 when he willfully and knowingly received and possessed that same shotgun, which had been transported in interstate commerce.
Prior to trial Graves moved to dismiss the indictment on the ground that his 1971 Allegheny County larceny conviction had not been constitutionally obtained. The court denied that motion. The case was then tried to the district court without a jury. The government's case consisted of the following stipulation:
1. On January 19, 1973 in the Western District of Pennsylvania, Bennie Graves, in connection with the acquisition of a firearm, that is, one F.I.E. 12-gauge shotgun, serial No. 292568, from Braverman Arms Company, 912 Penn Avenue, Wilkinsburg, Pennsylvania, a licensed dealer in firearms, made a statement to said dealer which he knew to be false; that is, Bennie Graves certified in writing that he had not been convicted of a crime punishable by a term of imprisonment exceeding one year when in fact Bennie Graves knew that he had been convicted on April 15, 1971 of the crime of larceny of an automobile, a crime punishable by a term of imprisonment exceeding one year in the Criminal Court of Allegheny County, Pennsylvania.
2. On January 19, 1973, in the Western District of Pennsylvania, Bennie Graves, having been convicted on April 15, 1971 of the crime of larceny of an automobile, as mentioned in paragraph one of this stipulation, knowingly received one F.I.E. 12-gauge shotgun, serial No. 292568, from Braverman Arms Company, 912 Penn Avenue, Wilkinsburg, Pennsylvania; this shotgun was manufactured in a state other than Pennsylvania and was transported to Pennsylvania sometime within two years prior to January 19, 1973. (Record at 24).
In response to this stipulation Graves moved for a judgment of acquittal on the ground that a prior invalid conviction would not support a conviction for the offenses stated in the indictment. This was the same objection defendant had raised in his motion to dismiss the indictment. The government opposed the motion for acquittal in the same way it had opposed the motion to dismiss the indictment. It was the government's position that the objection to the constitutional validity of the auto larceny conviction was irrelevant to the instant indictment and that it need offer no proof on that issue.*fn8 The district court, consistent with its ruling on the pretrial motion to dismiss the indictment, found Graves guilty on both counts.*fn9
Because we find that a constitutionally valid prior conviction is an element of the federal offenses with which Graves was charged in the indictment, that Graves properly placed the validity of his prior conviction in issue thereby requiring the government to prove that element of the new charges beyond a reasonable doubt, and that the government failed to carry such a burden, we reverse the judgment of conviction and sentence.
I. GRAVES' CONTENTION
The pretrial motion, and the motion for judgment of acquittal, put in issue the process by which the state court had certified a juvenile complaint to the Allegheny County Court of Common Pleas for trial as a felony. At the time of his arrest for auto larceny Graves was 17 years, 7 months of age. He argues that he was denied the constitutional rights first set forth by the Supreme Court in Kent v. United States, 383 U.S. 541 (1966), and further defined by this court in United States ex rel. Turner v. Rundle, 438 F.2d 839 (3d Cir. 1971).*fn10 Under the Pennsylvania procedure in effect at the time of the disputed certification hearing, the juvenile court was required to exercise discretion in determining whether or not to transfer him to an adult court.*fn11 We held in United States ex rel. Turner v. Rundle, supra, that before such a transfer could be certified, the juvenile: (1) must have been given adequate notice of the charges against him; (2) must have access to his social records; (3) must be given the opportunity to cross-examine and to present evidence; and (4) must be provided with an adequate statement of reasons explaining the juvenile court judge's decision.*fn12 In Smith v. Yeager, 459 F.2d 124 (3d Cir. 1972), we held that the juvenile also had the right to counsel in the transfer proceeding.
In support of his motions Graves furnished the district court with a transcript of the juvenile court proceedings. The parties do not dispute that Graves put in issue the constitutional validity of the prior state conviction.*fn13 Relying on Burgett v. Texas, 389 U.S. 109 (1967), Graves urged that the government could not in support of this indictment rely on that conviction unless the court found that it was constitutionally valid.
In Burgett v. Texas, supra, the Supreme Court held that a prior conviction was invalid because it had been obtained without the right to counsel in violation of Gideon v. Wainwright, 372 U.S. 335 (1962), and could not be used to support guilt or enhance punishment for a subsequent offense. Justice Douglas, for the Court, gave two reasons for this rule. First, such use would erode the principle of Gideon v. Wainwright, supra. Second, it would mean that the victim of the first constitutional violation would be forced to suffer anew from that deprivation.*fn14
II. THE DISTRICT COURT'S RULING
The district court made no finding that the state court conviction was constitutionally valid. Instead, looking at the juvenile court proceeding, the court concluded that Graves had counsel in the certification proceedings. Then it concluded that the Burgett v. Texas rule was inapplicable to any constitutional violation other than the deprivation of the right to counsel. Thus, the court held, in effect, that the other Kent violations were irrelevant, and that Graves' conviction, even if invalid, could support convictions under § 924(a) and § 1202(a)(1). In so holding the district court declined to follow the example of the fifth, seventh and ninth circuits which have expressly applied the Burgett v. Texas rule to prior convictions obtained through denials of constitutional rights other than the right to counsel.*fn15
III. OUR RULING
The rule announced in Burgett v. Texas, supra, cannot, as the district court assumed, be restricted to convictions obtained against defendants deprived of the right to counsel. It would be unthinkable that the government could, in obtaining a federal conviction, rely, for example, on a prior conviction obtained by use of a coerced confession. It would be equally unthinkable, particularly when the prior offense is an element of the federal crime, that the government could, in proving the crime, rely on a prior conviction based upon an illegal search or wiretap. We have not been informed of any considerations of social policy or even any plausible arguments which would support a principled distinction, for purposes of the Burgett v. Texas rule, between fourth, fifth, sixth, or fourteenth amendment violations. We hold that a Kent violation, implicating as it does significant due process rights in addition to the right to counsel, falls squarely within the prohibitions of Burgett v. Texas, supra, United States v. Tucker, supra, and Loper v. Beto, supra.
The government on appeal urges that we should nevertheless affirm the conviction because the defendant did not, by the evidentiary standards of 28 U.S.C. § 2254(d) and Townsend v. Sain, 372 U.S. 293 (1963), satisfy the burden of proof required for a collateral attack on the prior conviction. This argument, however, confuses the habeas corpus petitioner's burden of proof in seeking to have a state court conviction set aside in a collateral proceeding with the quite different burden of the federal government in prosecuting the defendant to prove every element of the crime charged beyond a reasonable doubt, including, where applicable, that a prior conviction was constitutionally valid. The latter burden is placed on the government by the requirements of due process.*fn16
We construe 18 U.S.C. §§ 922(h) and 1202(a)(1) to refer to constitutionally valid convictions.*fn17 We do so because we have been referred to no legislative history suggesting that Congress intended the word "convicted" in either section to mean "unconstitutionally or constitutionally convicted." So construing the statute, we have no occasion to consider whether Congress could in a criminal statute include as an element of the offense an unconstitutional conviction.*fn18
Since there would be no offense under either count of the indictment in the absence of a valid conviction, proof of such a conviction is an element of the government's case. That element can ordinarily be satisfied by evidence of the record of a prior conviction. But where, as here, the validity of that offense has been put in issue, the burden shifts to the government to prove that it was not invalid on the grounds which have been put in issue or that the defendant waived his constitutional rights.*fn19 The precise issue of the standard of proof that the government must meet, however, has not been considered heretofore, but there are analogies. For example, in federal criminal trials the government may rely on the presumption of sanity until the "defense" of insanity has been raised. Then it must prove a defendant's mental capacity beyond a reasonable doubt.*fn20 A holding that after raising the issue of the invalidity of a prior conviction the defendant had to convince the trier of fact of such invalidity, either by preponderance of the evidence or beyond a reasonable doubt, would be a significant departure from settled principles of federal criminal law. There is no evidence that Congress intended such a new departure in these two statutory provisions.
Since in this case the government chose to rest its case without any effort to establish the validity of the state court conviction on which it relied, the validity having properly been put in issue, the motion for a judgment of acquittal should have been granted.*fn21
The judgment appealed from will be reversed.