United States District Court, Eastern District of Illinois
November 27, 1974
UNITED STATES OF AMERICA, PLAINTIFF,
WILLIAM PAUL LATHAM, DEFENDANT.
The opinion of the court was delivered by: Foreman, District Judge:
Defendant William Paul Latham is charged in a two-count
indictment with being a convicted felon in possession of
a revolver in violation of 18 U.S.C. § 1202(a)(2) and knowingly
receiving another revolver in interstate commerce and affecting
interstate commerce in violation of the same statute.
Defendant has moved to dismiss the indictment against him on
the ground that his prior conviction was for a misdemeanor,
rather than a felony. The indictment alleges that he was
"convicted in St. Clair County, Illinois, on September 19,
1969 of intimidation which is a felony as defined by Title 18,
Appendix, United States Code, Section 1202(c)(2)."
Defendant contends that he was convicted of the charge of
intimidation pursuant to S.H.A., Ch. 38, § 12-6. Paragraph (b)
of that statute establishes the following penalty provisions:
"A person convicted of intimidation shall be
fined not to exceed $5,000 or imprisoned in a
penal institution other than the penitentiary not
to exceed one year or in the penitentiary from
one to five years, or both fined and imprisoned."
Illinois Courts have consistently held that where the
penalty for an offense provides for the alternative of a fine
or imprisonment in a penal institution other than the
penitentiary, or imprisonment in the penitentiary, the offense
is a misdemeanor. People v. Novotny, 41 Ill.2d 401,
244 N.E.2d 182 (1968); People v. Spector, 28 Ill.2d 554, 192 N.E.2d 926
(1963); People v. Stavrakas, 335 Ill. 570, 167 N.E. 852
(1929); Lamkin v. People, 94 Ill. 501 (1880). Thus, under
Illinois law, the crime for which defendant was convicted was
Section 1202(c)(2), however, defines a felony as follows:
"`[F]elony' means any offense punishable by
imprisonment for a term exceeding one year, but
does not include any offense (other than one
involving a firearm or explosive) classified as a
misdemeanor under the laws of a State and
punishable by a term of imprisonment of two years
This statute, in defining the exception for stated offenses
uses the conjunctive "and". Therefore, for a state offense to
be a misdemeanor within the meaning of this statute, it must
be classified a misdemeanor under state law and must be
punishable by a term of imprisonment of two years or less.
United States v. Glasgow, 478 F.2d 850
(8th Cir. 1973); United
States v. Pederson, 359 F. Supp. 1151 (D.Minn. 1973). The
Illinois criminal statute for intimidation provides a maximum
sentence of five years in the penitentiary. Accordingly,
although the prior conviction is considered by the state to be
a misdemeanor conviction, for purposes of § 1202, it is a
Defendant places substantial reliance upon United States v.
Schultheis, 486 F.2d 1331 (4th Cir. 1973). That case, however,
is based upon a different factual background. There the
defendant had been convicted under the Maryland law of simple
assault which was a common law crime. That court noted that
§ 1202 speaks clearly of the statutory convictions to which it
will apply, but that the statute is silent regarding its
application to common law convictions. That court looked at the
actual sentence imposed for the conviction, because there was
no clearly defined maximum sentence established by statute.
In the instant action, the state statute clearly establishes
the maximum term of imprisonment, so there is no need to
examine the actual sentence imposed. Moreover, in a footnote,
the Schultheis court clearly stated: "Our opinion, of course,
is not to be read as precedent that the punishment imposed be
utilized as the criterion for the classification of crimes that
do not have the peculiar characteristics of Maryland's common
law simple assault." (486 F.2d at 1335)
Thus, defendant's Motion to Dismiss the indictment must be
and is hereby denied.
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