JOHNNY LEE WALLACE, PETITIONER V. UNITED STATES OF AMERICA No. 89-7081 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 889 F.2d 580. JURISDICTION The judgment of the court of appeals was entered on November 22, 1989. Pet. App. A1. A petition for rehearing was denied on December 27, 1989. Pet. App. B. The petition for a writ of certiorari was filed on March 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's handgun was seized in violation of the Fourth Amendment. 2. Whether 18 U.S.C. 922(g) is unconstitutional because it fails to require a nexus to interstate or foreign commerce. 3. Whether petitioner was sentenced under 18 U.S.C. 924(e) (Supp. V. 1987) in violation of the Double Jeopardy Clause. 4. Whether, in order to qualify as predicates for an enhanced sentence under 18 U.S.C. 924(e)(1) (Supp. V 1987), convictions must arise from separate criminal proceedings. 5. Whether the term "three previous convictions" in 18 U.S.C. 924(e)(1) (Supp. V 1987) is ambiguous, requiring the application of the rule of lenity. 6. Whether the Texas offense of burglary of a building is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii) (Supp. V 1987). STATEMENT Following a jury trial in the United States District Court for the Western District of Texas, petitioner was convicted on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). /1/ The district court enhanced petitioner's sentence under 18 U.S.C. 924(e)(1) (Supp. V 1987) /2/ because it determined that petitioner had three previous convictions for "violent felon(ies)" within the meaning of Section 924(e)(2)(B) -- two Texas burglary convictions and one Texas robbery conviction. The district court therefore sentenced petitioner to 15 years' imprisonment, three years' supervised release, and a $2000 fine. The court of appeals affirmed. Gov't C.A. Br. 2-6; Pet. App. A2. 1. In December, 1987, two Brenham, Texas, police officers responded to a reported disturbance at an apartment complex. The officers heard loud voices in one of the apartments and knocked on the door. The door was opened by a red-faced, crying woman, who stepped outside. Petitioner then stepped into the doorway, placing his hands on the door frame. Pet. App. A3; Gov't C.A. Br. 3-4. The officers told the couple of the complaint, and asked if "everything was okay." Petitioner responded affirmatively, but the woman quickly said "no," and informed the officers that petitioner had a gun and was threatening to kill himself. As she spoke, petitioner stepped back into the apartment and lowered his hans. Pet. App. A3. The officers immediately approached petitioner, secured his hands, and conducted a pat-down search. The search revealed a handgun behind petitioner's belt, which the officers removed. Petitioner was then handcuffed and arrested for disorderly conduct. Petitioner was a previously convicted felon. Pet. App. A3, A6. 2. Petitioner moved to suppress all statements and physical evidence obtained as a result of his arrest and the seizure of the gun. The district court held that the warrantless arrest was illegal under Texas law, but that the gun had been seized lawfully and should not be suppressed. Petitioner was convicted of possession of a firearm by a convicted felon (18 U.S.C. 922(g)), and sentenced with an enhancement for three previous "violent felony" convictions (18 U.S.C. 924(e) (Supp. V 1987)). Pet. App. A3, A5-A6. 3. Petitioner raised several grounds on appeal. He claimed that the initial knock on his apartment door, the removal of the pistol from his belt, and the taking of the pistol to the police station violated his Fourth Amendment rights. The court of appeals found that the knock on the door lacked the element of coercion or duress necessary to trigger Fourth Amendment protections, and that the seizure of the pistol was clearly authorized as a proper stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968). Pet. App. A3-A4. Additionally, the court of appeals determined that the police had "legally come into the possession of the gun" and that "'(i)n the language of the "time worn metaphor" of the poisonous tree, the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned.'" Pet. App. A4 (quoting United States v. Crews, 445 U.S. 463, 472 (1980)). Petitioner also challenged the constitutionality of Section 922(g), claiming that it required possession of a gun "in or affecting commerce," and that neither Section 922 nor the preceding definitional section of the statute limited commerce to "interstate commerce." The court of appeals thought it clear, based on the text of the statute and its legislative history, that Section 922(g) reached only those firearms that had traveled in interstate or foreign commerce. The court concluded that "'the words "affecting commerce" are jurisdictional words of art, typically signalling a congressional intent to exercise its Commerce Clause power broadly, perhaps as far as the Constitution permits.'" Pet. App. A5 (quoting United States v. Gillies, 851 F.2d 493, 493 (1st Cir.), cert. denied, 109 S. Ct. 147 (1988)). Petitioner further claimed a violation of the Double Jeopardy Clause of the Fifth Amendment because one of his three prior felony convictions was "used" twice -- once to bring him within the scope of the substantive offense in Section 922(g) (possession of a firearm by a felon), and again to bring him within the scope of the sentence enhancement provision in Section 924(e). The court of appeals rejected that contention, finding that reliance on a prior felony for sentence enhancement did not constitute punishment for the prior offense, but instead constituted a heavier penalty for the present offense based upon repeated criminal conduct. Pet. App. A5-A6. Petitioner also contended that he did not have three previous convictions under Section 924(e) because two of his prior convictions arose from the same judicial proceeding and resulted in concurrent sentences. The court of appeals noted that the claim was precluded by United States v. Herbert, 860 F.2d 620 (5th Cir. 1988), cert. denied, 109 S. Ct. 2074 (1989), in which the court held that multiple criminal transactions should be treated as separate convictions, regardless of the number of judicial proceedings involved. Pet. App. A6. Finally, petitioner asserted that he did not have three previous convictions for "violent felon(ies)" within the meaning of Sections 924(e)(1) and 924(e)(2)(B). He contended that, unlike the common law offense, his Texas state burglary offenses were not violent and therefore did not trigger sentence enhancement under Section 924(e)(1). Relying on its prior holding in United States v. Leonard, 868 F.2d 1393 (5th Cir. 1989), cert. pending, No. 88-1885, the court of appeals disagreed. Pet. App. A6. /3/ ARGUMENT Petitioner raises six issues: (1) his handgun was seized in violation of the Fourth Amendment; (2) Section 922(g) is unconstitutional because it does not include a requirement of a nexus to interstate or foreign commerce; (3) the use of a prior conviction for both the substantive offense under Section 922(g) and the sentence enhancement under Section 924(e) violates the Double Jeopardy Clause; (4) Section 924(e) requires that convictions used as predicates for an enhanced sentence must arise from separate criminal proceedings; (5) the term "three previous convictions" in Section 924(e)(1) is ambiguous, and should be interpreted under the rule of lenity; and (6) one of his prior convictions is not a "violent felony" within the meaning of Section 924(e)(1). With respect to the first five issues, petitioner's claims are not meritorious. With respect to the sixth issue, the petition should be granted, the judgment vacated, and the case remanded for further consideration in light of Taylor v. United States, No. 88-7194 (May 29, 1990). 1. Petitioner asserts (Pet. 4-6) that the seizure of his gun violated the Fourth Amendment. This contention is baseless. The officers were confronted at the scene by a sobbing woman who asserted that petitioner was armed and threatening to take his own life. The officers manifestly had a reasonable and articulable suspicion that petitioner was armed and dangerous, and, as the court of appeals concluded (Pet. App. A3-A4), the brief detention and frisk were therefore justified under Terry v. Ohio, 392 U.S. 1, 21 (1968). As the court of appeals also concluded, the police lawfully obtained the gun, and the seizure of the gun was not the fruit of the warrantless arrest. Pet. App. A4. The exclusionary rule does not apply to evidence in police possession prior to any illegality. Maryland v. Macon, 472 U.S. 463, 471 (1985). /4/ 2. Petitioner also seeks this Court's review of his claim (Pet. 6-9) that Section 922(g) is constitutionally infirm because it requires that a firearm have been "in or affecting commerce," rather than in or affecting interstate or foreign commerce. As the court of appeals correctly determined, however, "the text of the statute, its legislative history and interpretive jurisprudence" (Pet. App. A4) lead to a conclusion that "section 922(g) reaches only those firearms that traveled in interstate or foreign commerce and is thus constitutional." Pet. App. A5. The court explicitly agreed with the First Circuit's interpretation of Section 922(g) in United States v. Gillies, 851 F.2d 492, 493 (1st Cir.), cert. denied, 109 S. Ct. 147 (1988), and its interpretation does not conflict with the decision of any other court. See also United States v. Lowe, 860 F.2d 1370, 1373-1374 (7th Cir. 1988), cert. denied, 109 S. Ct. 1639 (1989). 3. Petitioner also urges this Court to review his claim (Pet. 9-13) that the use of one of his prior convictions both as an element of the underlying felony under Section 922(g) and as a predicate for sentence enhancement under Section 924(e)(1) violated the Double Jeopardy Clause. As the court of appeals determined, however, "(c)onsideration of the same felony to convict under section 922(g) and to enhance punishment under section 924(e)(1) is neither a double prosecution nor a double punishment." Pet. App. A6. A sentence enhancement based on a prior conviction is not "new jeopardy" for a prior offense, but is instead a "stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Gryger v. Burke, 334 U.S. 728, 732 (1948). The fact that the prior conviction is also an element of the substantive offense does not alter this conclusion. As a result, contrary to petitioner's contention, "(t)he double jeopardy clause is not implicated." Pet. App. A6. 4. Petitioner renews his contention (Pet. 13-18) that convictions must arise from separate criminal proceedings in order to qualify as predicates for an enhanced sentence under 18 U.S.C. 924(e)(1) (Supp. V 1987). The plain language of the statute imposes no such requirement. The version of Section 924(e)(1) in effect at the time of petitioner's offense prescribed an enhanced sentence for any felon in possession of a firearm who "has three previous convictions by any court referred to in Section 922(g)(1) of this title for a violent felony." The courts of appeals have uniformly held that Section 924(e)(1) and its predecessor statute do not mandate that convictions arise in separate criminal proceedings; rather, the convictions must arise from separate criminal episodes or transactions. See, e.g., United States v. Schoolcraft, 879 F.2d 64, 73-74 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989); United States v. Herbert, 860 F.2d 620, 622 (5th Cir. 1988), cert. denied, 109 S. Ct. 2074 (1989);; United States v. Gillies, 851 F.2d at 497; United States v. Rush, 840 F.2d 580, 581 (8th Cir.), cert. denied, 108 S. Ct. 2908 (1988); United States v. Wicks, 833 F.2d 192, 193 (9th Cir. 1987), cert. denied, 109 S. Ct. 87 (1988); United States v. Greene, 810 F.2d 999, 1000 (11th Cir. 1986). /5/ Congress has recently amended Section 924(e)(1) in conformity with the prevailing view among the courts of appeals. In the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4402, Section 7506, Congress amended Section 924(e)(1) to provide that the enhanced sentence applies to otherwise qualified felons who have "three previous convictions" for enumerated offenses "committed on occasions different from one another." The amended statute now makes clear that the construction adopted by the court of appeals, in accord with other circuits, is correct: a felon's three prior convictions need only arise from separate criminal episodes occurring on different occasions. Consequently, the issue that petitioner presents has no continuing importance. 5. Petitioner also asserts (Pet. 19-20) that the phrase "three previous convictions" as used in Section 924(e)(1) is ambiguous, and that the rule of lenity therefore requires that this language be interpreted to require three separate judicial proceedings. The touchstone of the rule of lenity, however, is statutory ambiguity, Bifulco v. United States, 447 U.S. 381, 387 (1980), and a natural reading of the phrase "three previous convictions" unambiguously suggests that Congress meant three separate convictions, not convictions arising from three separate judicial proceedings. Furthermore, as noted previously, this issue is of no continuing importance because the statutory provision has been amended, and now explicitly refers to convictions for offenses "committed on occasions different from one another." /6/ 6. Finally, petitioner renews his contention (Pet. 20-21) that "burglary" as used in Section 924(e)(2)(B)(ii) does not include the Texas offense of burglary of a building. The court of appeals held that "'a conviction for a crime which the state denominates "burglary" is a conviction within the meaning of section 924(e)(2)(B)(ii).'" Pet. App. A6. In Taylor v. United States, No. 88-7194 (May 29, 1990), this Court clarified the standard for determining whether an offense is a "burglary" within the meaning of Section 924(e)(2)(B)(ii), and specifically rejected the court of appeals' interpretation. Slip op. 14-16; see also slip op. 3 n.2 (citing Fifth Circuit precedent relied on by court of appeals and noting that it was the "same" as the interpretation rejected in the case before the Court). Accordingly, the judgment of the court of appeals should be vacated and the case remanded to that court for further consideration in light of Taylor v. United States. CONCLUSION With respect to Questions 1 through 5, the petition should be denied. With respect to Question 6, the petition should be granted, the judgment vacated, and the case remanded to the court of appeals for further consideration in light of Taylor v. United States, No. 88-7194 (May 29, 1990). Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ANDREW LEVCHUK Attorney MAY 1990 /1/ 18 U.S.C. 922(g) provides in pertinent part: It shall be unlawful for any person -- (1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; * * * to * * * possess in or affecting commerce, any firearm or ammunition * * *. /2/ 18 U.S.C. 924(e) (Supp. V 1987) provides in pertinent part: (1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. (2) As used in this subsection -- * * * (B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year that -- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. /3/ The court of appeals also rejected petitioner's claims that (1) the government's evidence as to the out-of-state origin of his gun was inadmissible hearsay and, if admissible, insufficient to support the jury's verdict; and (2) petitioner was denied a fair trial because the district court admonished his attorney not to make unnecessary objections during the government's closing argument. Pet. App. A5. Petitioner does not seek further review of those claims. /4/ As the government argued below (Gov't C.A. Br. 14-16), the seizure and retention of the weapon were justified under the exigent circumstances exception to the warrant requirement. See Mincey v. Arizona, 437 U.S. 385, 392-393 (1978). /5/ The Third Circuit's in banc decision in United States v. Balascsak, 873 F.2d 673 (1989), in which the court was evenly divided on whether Section 924(e)(1) requires offenses to be separated by intervening convictions in order to qualify as predicates for an enhanced sentence, does not create a conflict among the circuits on the issue. Any doubt on the Third Circuit's position was resolved by that Circuit's more recent decision in United States v. Schoolcraft. /6/ As petitioner points out (Pet. 19), in United States v. Herbert, supra, the Fifth Circuit concluded that the term "three previous convictions" and the legislative history were ambiguous. However, the court specifically noted that, "(o)n its face, the term 'three previous convictions' does not appear to be ambiguous" (id. at 621), rested its conclusion of ambiguity on a position taken by the government in a different context concerning the predecessor statute (ibid.), and nevertheless concluded that "where * * * a defendant is convicted in a single judicial proceeding for multiple counts arising from separate distinct criminal transactions * * * those convictions should be treated as multiple convictions under Section 924(e)." Id. at 622. Although we do not agree that the statutory language is ambiguous, we agree with the Fifth Circuit's ultimate conclusion about the meaning of the statute; in any event, as noted, the statute has been subsequently amended.