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United States v. Schultz

November 5, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KEVIN R. SCHULTZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:08-cr-00004-RLM-1-Robert L. Miller, Jr., Chief Judge.

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

ARGUED SEPTEMBER 11, 2009

Before BAUER, ROVNER and WILLIAMS, Circuit Judges.

Kevin Schultz was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal, he challenges his conviction. We affirm.

I. BACKGROUND

On February 25, 2005, Schultz pleaded guilty to one count of trafficking in counterfeit telecommunications instruments, in violation of 18 U.S.C. § 1029(a)(7), an offense punishable by fine and/or imprisonment not to exceed ten years. Schultz was sentenced to two years probation, with the first six months to be served on home detention.

On December 7, 2007, pursuant to a search warrant, federal agents searched Schultz's residence and found a 12-gauge Remington shotgun and ammunition in the attached garage. Thereafter, a two-count indictment was filed against him: Count One for violating 18 U.S.C. § 922(g), which makes it unlawful for one convicted of a crime punishable of a term exceeding one year to possess a firearm ("felon-in-possession"); and Count Two for making a false statement regarding his ownership of the shotgun, in violation of 18 U.S.C. § 1001.

Schultz filed a motion to dismiss the indictment and a motion to suppress both the shotgun and his statements; the district court denied both motions. Thereafter, a bench trial was held on stipulated facts for Count One; and the government moved to dismiss Count Two. The district court found Schultz guilty and sentenced him to eighteen months of imprisonment, to be followed by three years of supervised release.

II. DISCUSSION

On appeal, Schultz argues that the felon-in-possession indictment was insufficient because his prior conviction does not meet the definition of a "crime punishable by imprisonment for a term exceeding one year" under 18 U.S.C. § 921(a)(20)(A), or in the alternative, that the charge should be dismissed because § 921(a)(20)(A) is impermissibly vague. Schultz further maintains that he was entitled to a Franks hearing to test the validity of the search warrant affidavit. Finally, Schultz asserts that the statements he made when his home was searched should have been suppressed.

A. The 18 U.S.C. § 1029(a)(7) Conviction

1. Schultz's Previous Conviction

Schultz argues that his prior felony conviction does not meet the definition of a "crime punishable by imprisonment for a term exceeding one year" because Congress carved out an exception under 18 U.S.C. § 921(a)(20)(A), to exclude "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." Schultz contends that his 2005 conviction is excluded under "similar offenses relating to the regulation of business practices" because he was convicted of knowingly trafficking in a telecommunications instrument.

It does not appear that this Circuit has ever addressed whether a § 1029(a)(7) conviction is exempt under § 921(a)(20(A). However, other circuits that have discussed § 921(a)(20)(A) have held that not all offenses related to the regulation of business practices fall within the exclusion; the plain meaning of the statute indicates Congress' intent to exclude only those offenses that pertain to antitrust violations, unfair trade practices, restraints of trade, or similar offenses. United States v. Stanko,491 F.3d 408, 413-14 (8th Cir. 2007). For example, Stanko held that it did not apply to a Federal Meat Inspection Act ("FMIA") conviction, 491 F.3d at 416; Meldish ruled it did not apply to a conviction for importing merchandise into the United States by means of a false customs declaration, United States v. Meldish,722 F.2d 26, 27 (2d Cir. 1983); and Dreher concluded it did not apply to convictions for mail fraud and conspiracy to commit mail fraud, United States v. Dreher, 115 F.3d 330, 332-33 (5th Cir. 1997). In holding that ยง 921(a)(20(A) did not apply, Stanko reasoned that "none of [FMIA's] provisions . . . require the Government to prove an ...


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