LEWIS v. UNITED STATES, 445 U.S. 55 (1980)
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
JUSTICE POWELL join, dissenting.
In disagreement with every other Court of Appeals that has addressed the
issue, the Court of Appeals for the
Fourth Circuit, held, by a divided vote, that an uncounseled and hence
unconstitutional felony conviction may form the predicate for conviction under
1202 (a) (1) of the Omnibus Crime Control and Safe Streets Act of 1968. Today
the Court affirms that judgment, but by an analysis that cannot be squared with
either the literal language of the statute or controlling decisions of this
Court. I respectfully dissent.
Two longstanding principles of statutory construction independently mandate
reversal of petitioner's conviction. The first is the precept that "when
choice has to be made between two readings of what conduct Congress has made a
crime, it is appropriate, before we choose the harsher alternative, to require
that Congress should have spoken in language that is clear and definite."
United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221 -222
(1952). The Court has repeatedly reaffirmed this "rule of lenity."
See, e. g., Simpson v. United States, 435 U.S. 6, 14 (1978); United States v.
Bass, 404 U.S. 336, 347 -349 (1971); Rewis v. United States, 401 U.S. 808, 812
(1971); Ladner v. United States, 358 U.S. 169 , [445 U.S. 55, 69] 177 (1958); Bell v. United
States, 349 U.S. 81 (1955). Indeed, the principle that "ambiguity
concerning the ambit of criminal statutes should be resolved in favor of
lenity" has previously been invoked in interpreting the very provision at
issue in this case. See United States v. Bass, supra.
The Court declines to apply this established rule of construction in this
case because, in its view, "[t]here is no ambiguity here." Ante, at
65. In light of the gloss the Court places on the literal language of the
statute, I find this to be a curious conclusion. By its own terms, 1202 (a) (1)
reaches "[a]ny person who has been convicted . . . of a felony." The
provision on its face admits of no exception to its sweeping proscription. Yet
despite the absence of any qualifying phrase, the Court concedes — as it
must — that the statute cannot be interpreted so as to include those
persons whose predicate convictions have been vacated or reversed on appeal.
Ante, at 60-61, and n. 5.
It thus appears that the plain words of 1202 (a) (1) are not so clear after
all, and we therefore must determine the section's reach. Two alternative
constructions are offered: The first is the Government's — that 1202 (a)
(1) may be read to permit only outstanding felony convictions to serve as the
basis for prosecution. Tr. of Oral Arg. 29-30. The second is petitioner's
— that the predicate conviction must be not only outstanding, but also
constitutionally valid. Because either interpretation fairly comports with the
statutory language, surely the principle of lenity requires us to resolve any
doubts against the harsher alternative and to read the statute to prohibit the
possession of firearms only by those who have been constitutionally convicted
of a felony.
The Court nevertheless adopts the Government's construction, relying on a
supposed legislative resolve to enact a sweeping measure against the misuse of
firearms. But however expansive 1202 was meant to be, we are not faithful to
"our duty to protect the rights of the individual," Dalia v. United
States, 441 U.S. 238, 263 (1979) (STEVENS, J., dissenting), [445 U.S. 55, 70] when we are so quick to ascribe
to Congress the intent to punish the possession of a firearm by a person whose
predicate felony conviction was obtained in violation of the right to the
assistance of counsel, "one of the safeguards of the Sixth Amendment
deemed necessary to insure fundamental human rights of life and liberty."
Johnson v. Zerbst, 304 U.S. 458, 462 (1938). Petitioner has once already been
imprisoned in violation of the Constitution. In the absence of any clear
congressional expression of its intent, I cannot accept a construction of 1202
(a) (1) that reflects such an indifference to petitioner's plight and such a
derogation of the principles of Gideon v. Wainwright, 372 U.S. 335 (1963). [445 U.S. 55, 71]
The second maxim of statutory construction that compels a narrow reading of
1202 (a) (1) is the "cardinal principle" that "if a serious
doubt of constitutionality is raised, . . . this Court will first ascertain
whether a construction of the statute is fairly possible by which the question
may be avoided." Crowell v. Benson, 285 U.S. 22, 62 (1932). Accord,
Schneider v. Smith, 390 U.S. 17, 26 (1968); United States v. Rumely, 345 U.S.
41, 45 (1953); United States v. CIO, 335 U.S. 106, 120-121, and n. 20 (1948).
And doubts as to the constitutionality of a statute that could predicate
criminal liability solely on the existence of a previous uncounseled felony
conviction are indeed serious, for a trilogy of this Court's decisions would
seem to prohibit precisely such a result.
Burgett v. Texas, 389 U.S. 109 (1967), held that a prior uncounseled felony
conviction was void and thus inadmissible in a prosecution under a Texas
recidivist statute. Burgett stated: "To permit a conviction obtained in
violation of Gideon v. Wainwright to be used against a person either to support
guilt or enhance punishment for another offense . . . is to erode the principle
of that case. Worse yet, since the defect in the prior conviction was denial of
the right to counsel, the accused in effect suffers anew from the deprivation
of that Sixth Amendment right." Id., at 115 (citation omitted). United
States v. Tucker, 404 U.S. 443 (1972), and Loper v. Beto, 405 U.S. 473 (1972),
respectively prohibited the use of uncounseled felony convictions as a factor
to be considered in sentencing, and to impeach the defendant's credibility.
Burgett and its progeny appear to control the result in this case. The clear
teaching of those decisions is that an uncounseled [445 U.S. 55, 72] felony conviction can never be
used "to support guilt or enhance punishment for another offense."
Here, petitioner could not have been tried and convicted for violating 1202 (a)
(1) in the absence of his previous felony conviction. It could not be plainer
that his constitutionally void conviction was therefore used "to support
guilt" for the current offense. The Court's bald assertion to the contrary
is simply inexplicable.
The Court's attempt to distinguish Burgett, Tucker, and Loper on the ground
that the validity of the subsequent convictions or sentences in those cases
depended on the reliability of the prior uncounseled felony convictions, while
in the present case the law focuses on the mere fact of the prior conviction,
is unconvincing. The fundamental rationale behind those decisions was the
concern that according any credibility to an uncounseled felony conviction
would seriously erode the protections of the Sixth Amendment. Congress'
decision to include convicted felons within the class of persons prohibited
from possessing firearms can rationally be supported only if the historical
fact of conviction is indeed a reliable indicator of potential dangerousness.
As we have so often said, denial of the right to counsel impeaches "the
very integrity of the fact-finding process." Linkletter v. Walker, 381
U.S. 618, 639 (1965). Accord, Lakeside v. Oregon, 435 U.S. 333, 341 (1978);
Argersinger v. Hamlin, 407 U.S. 25, 31 (1972). And the absence of counsel
impairs the reliability of a felony conviction just as much when used to prove
potential dangerousness as when used as direct proof of guilt. Cf. Loper v.
Beto, supra, at 483 (opinion of STEWART, J.).
Finally, it is simply irrelevant that petitioner could have challenged the
validity of his prior conviction in appropriate proceedings in the state
courts. Nor can the existence of such a remedy prohibit him from raising the
unconstitutionality of that conviction as a defense to the present charge.
[445 U.S. 55, 73] In the first
place, neither Burgett nor Loper imposed any requirement that a defendant
collaterally attack his uncounseled conviction before he faces prosecution
under 1202 (a) (1); in both cases the Court held the use of the prior invalid
convictions impermissible even though the defendants had taken no affirmative
steps to have them overturned. More to the point, however, where the very
defect in the initial proceedings was that the accused did not have the
assistance of counsel in defending the felony charges against him, it simply
defies reason and sensibility to suggest that the defendant must be regarded as
having waived his defense to the 1202 (a) (1) prosecution because he failed
first to retain counsel to seek an extraordinary writ of coram nobis.
[Footnote 1] See, e. g., Dameron v. United States, 488
F.2d 724 (CA5 1974); United States v. Lufman, 457 F.2d 165 (CA7 1972); United
States v. DuShane, 435 F.2d 187 (CA2 1970); United States v. Thoresen, 428 F.2d
654 (CA9 1970). See generally Comment, 92 Harv. L. Rev. 1790 (1979).
[Footnote 2] As the Court has previously observed, 1202
"was hastily passed, with little discussion, no hearings, and no
report." United States v. Bass, 404 U.S. 336, 344 (1971). "In short,
`the legislative history of [the] Act hardly speaks with that clarity of
purpose which Congress supposedly furnishes courts in order to enable them to
enforce its true will.'" Id., at 346 (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 483 (1951)). It is thus little wonder that the Court finds
no explicit support in the statute's legislative history for petitioner's
Nor do the few signposts that do exist in the history and structure of Title
VII point unambiguously to the Court's conclusion. That Congress included
provisions within the Omnibus Act whereby a convicted felon could have his
disability removed by a qualifying pardon or the Secretary's consent, see 1203
(2) and 925 (c), does not mean that Congress intended them to be exclusive
remedies. Indeed, these provisions were clearly designed only to provide a
mechanism for those persons with valid felony convictions to seek relief from
the prohibitions of 1202.
Similarly, a comparison between the scope of Title IV and Title VII is
unenlightening on the question before us. Simply because the former Title
imposes a disability on any person under a felony indictment, it by no means
follows, a fortiori or otherwise, that Congress intended by the latter Title to
impose a somewhat harsher disability on those persons with unconstitutional
felony convictions. Cf. ante, at 64. Significantly, the restrictions attaching
to an individual under indictment are necessarily temporary, while those
imposed on the basis of a previous conviction are indefinite in duration.
Moreover, Congress' failure to include persons "under indictment"
within the proscriptions of 1202 more plausibly signals its desire to demand a
greater indication of potential dangerousness [445 U.S. 55, 71] than would be provided by the
mere fact of indictment — or, for that matter, by an uncounseled felony
conviction. In fact, in a slightly different context, Congress has expressly
rejected the proposition that an invalid prior conviction is a reliable
indicator of "dangerousness." See 18 U.S.C. 3575 (e) (dangerous
special offender). [445 U.S. 55,
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