Crimes of Moral Turpitude

(C)

Improper use of a prior conviction, that has been or should have been[116]  invalidated, to contribute to a later conviction or sentence.[117]  A conviction of violating 18 U.S.C. § 922(g)(9) (possession of firearm by person previously convicted of a misdemeanor domestic violence offense) requires the government to prove the defendant was represented by counsel or knowingly and intelligently waived counsel.[118]  When a defendant pleaded guilty in state court, he signed a form that said he waived counsel, and warned him of consequences, but did not warn him of dangers and disadvantages of self-representation.[119]  The court held this warning was insufficient to prove a knowing and intelligent waiver, and therefore the prior conviction could not constitute a predicate offense on which to sustain a charge of possession of a firearm after conviction of a listed criminal offense.  In this case, the Ninth Circuit expressly extended the Faretta standard to misdemeanor state court crimes. “[A] brief exchange regarding the waiver of counsel should not significantly increase the burden on the courts.  While the volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result, we must continually guard against assembly-line justice, in which expediency is placed ahead of fundamental fairness.”[120]  The court also pointed out that an innocent defendant, unaware of the potential consequences of a misdemeanor conviction, may be more likely to waive counsel to “get the whole thing over with,” especially if s/he is to be sentenced to time served, as was done here.[121]  The defendant, who did not knowingly and intelligently waive the right to counsel in the prior criminal proceeding, cannot be convicted of being a felon or misdemeanant in possession of a firearm under 18 U.S.C. § 922(g)(9).[122]

[116] Cook v. Lynaugh, 821 F.2d 1072, 1978 (5th Cir. 1987) (ineffective counsel to admit prior conviction allegation without investigating whether it was constitutionally invalid).

[117] Johnson v. Mississippi, 486 U.S. 578, 580-84, 585 n.7 (1988).

[118] 18 U.S.C. § 921(a)(33)(B)(i).

[119] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975).

[120] Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006 (1972) (internal quotes omitted).

[121] Footnote 4, quoting Molignaro v. Smith, 408 F.2d 795, 801 (5th Cir. 1969).

[122] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).