         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,[1] 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.

                              I

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).[2] [445 U.S. 
55, 71] 

                             II

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.).

                             III

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 construction.

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, 74] 


