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United States v. Leuschen

January 21, 2005

UNITED STATES OF AMERICA
v.
DOUGLAS B. LEUSCHEN, APPELLANT



Appeal from the United States District Court For the Western District of Pennsylvania D.C. No.: 02-cr-00163-1 District Judge: Honorable Maurice B. Cohill, Jr.

Before: Nygaard, Rosenn, and Becker, Circuit Judges.

The opinion of the court was delivered by: Rosenn, Circuit Judge

PRECEDENTIAL

Argued: December 14, 2004

OPINION OF THE COURT

Although the appellant in this appeal challenges the constitutionality of the federal felon in possession of a gun law, 18 U.S.C. § 922(g)(1), the most serious aspect of this appeal is the question whether his extant prior conviction, if flawed, may constitute the predicate conviction for his subsequent prosecution under § 922(g)(1). This question is one of first impression in this circuit.

Following a bench trial in the United States District Court for the Western District of Pennsylvania, appellant Douglas B. Leuschen ("Leuschen") was found guilty of one count of possessing firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to sixty-three months' imprisonment to be followed by three years' supervised release. He asserts that his 1989 conviction under Pennsylvania law, on which the Government relied in securing his conviction under § 922(g)(1), is invalid, because his counsel failed to recognize that the state law had been amended before his trial and afforded him an unassailable defense to the charge on which he was convicted. Thus, he contends that his state conviction cannot satisfy § 922(g)(1)'s predicate conviction requirement. Leuschen also asserts that, with respect to his 1989 state conviction, he retained his rights under Pennsylvania law to vote and hold public office, in addition to the right to possess firearms. He argues that he therefore qualifies for the "restoration of civil rights" exception to § 922(g)(1)'s prohibition on firearm possession, provided by 18 U.S.C. § 921(a)(20). Lastly, Leuschen challenges § 922(g)(1)'s constitutionality under the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. For the following reasons, we will affirm the District Court's judgment of conviction and sentence.

I.

In July 2002, Leuschen, a resident of Pennsylvania, spoke with a local law enforcement officer about his legal and financial troubles, and complained about what he perceived to be a corrupt and unjust legal system. During this conversation, Leuschen repeatedly referred to Homeland Security Secretary Tom Ridge, and conveyed his belief that he had little choice but to "take his gun and go to war against the people whom caused him such injustice for many years." (App. 46.) The officer reported Leuschen's remarks to the Federal Bureau of Investigation. Viewed in light of his history of firearms violations and his "long-term fixation" on Secretary Ridge, Leuschen's statements prompted federal Secret Service agents to obtain a warrant to search his home. Inside his home, federal agents uncovered six firearms and several rounds of ammunition. All of the firearms were manufactured outside of Pennsylvania.

The Government charged Leuschen with being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1), based on his 1989 conviction in the Court of Common Pleas of Erie County, Pennsylvania, for carrying a concealed 9 millimeter semiautomatic pistol without a license. See 18 Pa. Cons. Stat. § 6106(a). In August 2002, a grand jury in the United States District Court for the Western District of Pennsylvania indicted Leuschen on one count of violating § 922(g)(1).

Leuschen moved to dismiss the indictment on the ground that § 922(g)(1) is unconstitutional under the Commerce Clause of the federal Constitution. Applying United States v. Singletary, 268 F.3d 196 (3d Cir. 2001), the District Court, Cohill, J., appropriately denied his motion. By way of a second pretrial motion to dismiss, Leuschen argued that he was not a felon for § 922(g)(1) purposes, because his 1989 state court conviction was invalid, and because he qualified for the "restoration of civil rights" defense under § 921(a)(20). The District Court also denied this motion. It held that Leuschen could not collaterally attack his predicate felony conviction, and that he did not qualify for the restoration of civil rights defense, because his right to sit on a jury had not been restored under Pennsylvania law.

After a brief trial, the District Court found Leuschen guilty. He timely appealed.

II.

Because Leuschen's appeal poses legal questions of statutory interpretation, our review is plenary. Singletary, 268 F.3d at 198-99; United States v. ...


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