F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
April 3, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 05-1049
HARRY B. WILLIAMS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 02-CR-493-MK)
David A. Lane of Killmer, Lane & Newman, LLP, Denver, Colorado, for
Defendant-Appellant.
Martha A. Paluch, Assistant United States Attorney (William J. Leone, United
States Attorney, with her on the brief), District of Colorado, Denver, Colorado,
for Plaintiff-Appellee.
Before BRISCOE, McKAY, and SEYMOUR, Circuit Judges.
McKAY, Circuit Judge.
Defendant was convicted, after a four-day jury trial, of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). He had been involved
in a dispute with several construction sub-contractors which resulted in Defendant
firing shots at them. Defendant was tried on state felony charges stemming from
the shooting incident. He was convicted on misdemeanor charges of reckless
endangerment.
Defendant’s predicate felony offense was a 1989 plea of nolo contendere to
a violation of California Health and Safety Code § 11351. This statute provides
in relevant part that “every person who possesses for sale or purchases for
purpose of sale (1) any controlled substance . . . shall be punished by
imprisonment in the state prison for two, three, or four years.” (Emphasis
added).
Prior to trial, the government filed a motion requesting that the district
court take judicial notice that a violation of this statute is a crime punishable by
imprisonment for a term exceeding one year. Defendant’s counsel opposed this
motion. At a motions hearing, the district court granted the government’s motion
in part “insofar as [the court] take[s] judicial notice of the contents of the statute,
and in light of the fact that there has been no argument to the contrary.” The
district court noted, however, that judicial notice of the statute “does not relieve
the government of the obligation in its case to prove that Mr. Williams was
indeed convicted of the statute.”
Defendant was sentenced to only ten months’ imprisonment for his
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conviction under § 11351 and therefore argues that this conviction did not
constitute a felony. He argues that, by taking judicial notice of the fact that a
violation of § 11351 is a felony, the court impermissibly relieved the government
of its burden to prove each and every element of the crime charged beyond a
reasonable doubt.
Defendant’s second challenge on appeal pertains to a supplemental
instruction given by the district court after defense counsel’s closing argument.
Defense counsel argued that a deficiency in the paper work pertaining to
Defendant’s California conviction–a certain box was not checked–meant that
Defendant was not convicted of a felony. After hearing argument from counsel,
and after the conclusion of closing arguments, the court gave the jury the
following supplemental instruction:
In closing arguments, you have heard reference to whether or not the
defendant has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year. That is part of
Instruction No. 13. It is the first element that the Government must
prove beyond a reasonable doubt. If you conclude that the
government has proved that element beyond a reasonable doubt, you
should not consider whether or not the conviction was lawful. That
issue is not before you.
Defendant argues that the giving of this supplemental jury instruction warrants
reversal.
Defendant argues that, because he was not sentenced to “imprisonment in
the state prison for two, three, or four years” as stated in § 11351, he could not
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have been convicted of violating this statute, and therefore the government did
not prove that he had sustained a felony conviction. (Defendant was sentenced to
ten months in jail and probation.)
A district court’s decision of “whether to take judicial notice of facts is
reviewed for abuse of discretion.” Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th
Cir. 2001). The district court here took judicial notice that a violation of the
California statute § 11351 is a crime punishable by more than one year of
imprisonment.
“That the courts are allowed to take judicial notice of statutes is
unquestionable.” United States v. Coffman, 638 F.2d 192, 194 (10th Cir. 1980).
Statutes are considered legislative facts–“established truths, facts or
pronouncements that do not change from case to case but apply universally”–and
courts may take notice of legislative facts. Id. at 195. In addition, for purposes
of determining a felony conviction, “[w]hat matters is not the actual sentence
which the [defendant] received, but the maximum possible sentence.” United
States v. Arnold, 113 F.3d 1146, 1148 (10th Cir. 1997). Therefore, the fact that
Defendant’s term of imprisonment was reduced by probation does not convert his
violation of the statute into a misdemeanor.
Defendant also maintains that, by “taking judicial notice of the fact that a
plea of nolo contendere is the same as a plea of guilty,” the district court relieved
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“the government of proving his conviction beyond a reasonable doubt.” It is
particularly with this argument that Defendant’s counsel does a good job with a
difficult case. However, we have held that the plea of nolo contendere under
Colorado law satisfies “‘conviction in any court’ as the term is used in 18 U.S.C.
§ 922.” United States v. Brzoticky, 588 F.2d 773, 774-75 (10th Cir. 1978).
Defendant’s second challenge is that the district court erred in giving the
jury a supplemental instruction after defense counsel’s closing argument. The
submission of a supplemental jury instruction “is a matter committed to the trial
court’s discretion.” United States v. Arias-Santos, 39 F.3d 1070, 1075 (10th Cir.
1994).
In closing argument, defense counsel argued to the jury that Defendant was
not convicted of a prior felony offense because a box was left unchecked on his
California sentencing form. The court, in response, instructed the jury that this
legal issue–whether a violation of § 11351 constitutes a felony–was not properly
before them. In Lewis v. United States, 445 U.S. 55, 67 (1980), the Supreme
Court stated that “a convicted felon may challenge the validity of a prior
conviction, or otherwise remove his [firearm] disability, before obtaining a
firearm. We simply hold today that the firearms prosecution does not open the
predicate conviction to a new form of collateral attack.” Therefore, we do not bar
Defendant from attacking the predicate felony conviction, but he must attempt
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this in another forum and not through collateral review when being prosecuted for
possession of a firearm.
We AFFIRM the judgment of the district court.
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