United States Court of Appeals,
Fifth Circuit.
No. 96-31161
Summary Calendar.
Hugh T. DREHER, Plaintiff-Appellant,
v.
UNITED STATES of America, on Behalf of UNITED STATES BUREAU OF
ALCOHOL, TOBACCO AND FIREARMS, Defendant-Appellee.
June 19, 1997.
Appeal from the United States District Court for the Western
District of Louisiana.
Before SMITH, DUHÉ and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Hugh Dreher appeals a summary judgment in which the district
court refused to declare that he has not been convicted of a crime
punishable by imprisonment for a term exceeding one year for
purposes of 18 U.S.C. § 921(a)(20) (West Supp.1997). Finding no
error, we affirm.
I.
Dreher entered a plea of nolo contendere in August 1987 to two
counts involving mail fraud: conspiracy to commit mail fraud in
violation of 18 U.S.C. § 371 and mail fraud and aiding and abetting
in violation of 18 U.S.C. §§ 1341 & 1342. The charges arose from
a scheme by which Dreher, an independent contractor under a
construction contract with International Paper Company and PAPCO,
Inc., sought reimbursement for work and materials that he claimed
to have supplied, when in fact they had been supplied by
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International Paper and PAPCO.
In September 1995, after having completed his prison and
probation sentences, Dreher sought restoration of his firearm
privileges that had been revoked pursuant to 18 U.S.C. § 922(g)(1)
(West Supp.1997).1 Although Dreher petitioned the Bureau of
Alcohol, Tobacco and Firearms, pursuant to 18 U.S.C. § 925(c), for
relief from § 922(g)(1), he received no response.2 Thereafter,
Dreher filed the instant declaratory judgment action asking the
district court to declare that he is not a convicted felon under §
921(a)(20) because he falls into the "business offenses" exception
of § 921(a)(20)(A) or, in the alternative, to enter a judgment
restoring his firearm privileges pursuant to § 925(c).
The district court denied relief, concluding that the criminal
statutes under which Dreher was convicted do not seek to preserve
competition in the marketplace, the focus of the "business
offenses" exception. The court dismissed Dreher's § 925(c) claim
for lack of subject matter jurisdiction, holding that the language
of § 925(c) permits the court to review ATF denials of firearms
1
Section 922(g)(1) provides in pertinent part, "It shall be
unlawful for any person—(1) who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding one year
... to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce."
2
Dreher acknowledged in the district court that the ATF had
informed him that it could not act on his request for relief under
§ 925(c) because Congress had ceased to provide funding for this
purpose. See Treasury, Postal Service and General Government
Appropriations Act, 1993, Pub.L. No. 102-393, 106 Stat. 1729
(1992). Since 1992, Congress has continued to deny funds for this
purpose.
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disabilities applications only.
II.
Because Dreher has abandoned on appeal his § 925(c) claim, we
address his § 921(a)(20) claim only. Dreher submits that, because
his criminal activities—billing for services not rendered—permitted
him to submit lower bids to International Paper and PAPCO than
otherwise possible and thereby to destroy the competitive bidding
process and injure its (Dreher's) competitors, his "offenses
pertain[ ] to antitrust violations, unfair trade practices,
restraints of trade, or other similar offenses relating to the
regulation of business practices." 18 U.S.C. § 921(a)(20)(A).
We review a grant of summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th
Cir.1992). Summary judgment is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." FED. R. CIV. P. 56(c).
The starting point for statutory interpretation is the
language of the statute. See Kellogg v. United States (In re West
Texas Marketing Corp.), 54 F.3d 1194, 1200 (5th Cir.), cert.
denied, --- U.S. ----, 116 S.Ct. 523, 133 L.Ed.2d 430 (1995).
Absent congressional direction to the contrary, words in statutes
are to be construed according to their "ordinary, contemporary,
common meaning[s]." Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 1495, 123
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L.Ed.2d 74 (1993). Where the statute's language is plain, " "the
sole function of the courts is to enforce it according to its
terms.' " United States v. Ron Pair Enters., 489 U.S. 235, 241,
109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989) (citation omitted).
"If the language of a provision ... is sufficiently clear in its
context and not at odds with the legislative history, it is
unnecessary to examine the additional considerations of policy ...
that may have influenced the lawmakers in their formulation of the
statute." Randall v. Loftsgaarden, 478 U.S. 647, 656, 106 S.Ct.
3143, 3149, 92 L.Ed.2d 525 (1986) (citations and internal
quotations omitted).
Section 921(a)(20) states in pertinent part, "The term "crime
punishable by imprisonment for a term exceeding one year' does not
include—(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offense relating to the regulation of business practices."
Dreher urges that the focus of this section is on the actions
perpetrated by the defendant that comprise the punishable crime.
Thus, according to Dreher, the term "offenses" in § 921(a)(20)(A)
refers to the facts underlying the charged crime—here, Dreher's
unlawful billing of International Paper and PAPCO for services not
rendered. Dreher continues that, because his underlying activities
destroyed the competitive bidding process and injured its
competitors, his "offenses" (i.e., his actions that comprise the
charged offense) "pertain[ ] to antitrust violations, unfair trade
practices, restraints of trade, or other similar offenses relating
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to the regulation of business practices." 18 U.S.C. §
921(a)(20)(A).
We agree with the government that the plain meaning of the
term "offenses" in the context of the statute is the charged
violation of law, not the facts underlying the violation of law.
Cf. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1566 (1986). Thus, the
statute excludes from the applicable crimes "(A) any Federal or
State [violations of law] pertaining to antitrust violations ... or
other similar [violations of law] relating to the regulation of
business, or (B) any State [violation of law] classified by the
laws of the State as a misdemeanor and punishable by a term of
imprisonment of two years or less." Id. To define the term
"offenses" as Dreher has suggested makes little sense within the
context of the statutory scheme.3 See, e.g., United States v.
Meldish, 722 F.2d 26, 28 (2d Cir.1983) (looking to the elements of
the conviction only to determine whether the "offense" has an
anti-competitive effect); United States v. McLemore, 792 F.Supp.
96, 98 (S.D.Ala.1992) (noting that "[t]he government must live with
its decision to prosecute Mr. McLemore's odometer rollback activity
as a Title 15 trade offense [which is defined as an unfair trade
practice], rather than as Title 18 mail fraud or wire fraud offense
3
For example, the statute would read as follows: "[C]rimes
punishable" excludes "(A) any Federal or State [sets of facts
underlying a charged crime] pertaining to antitrust violations ...
or other similar [sets of facts underlying a charged crime]
relating to the regulation of business practices, or (B) any State
[set of facts underlying a charged crime] classified by the laws of
the State as a misdemeanor punishable by a term of imprisonment of
two years or less."
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[which is not an unfair trade practice].").
The "offenses" (or violations of law) of which Dreher was
convicted are conspiracy to commit mail fraud and mail fraud,
pursuant to 18 U.S.C. §§ 371, 1341. To prove conspiracy under §
371, the government must show: (1) an agreement between two or
more persons to commit an unlawful act and (2) an overt act by one
of the conspirators in furtherance of the agreement. See United
States v. Schmick, 904 F.2d 936, 941 (5th Cir.1990). To convict
under § 1341, the government must prove (1) a scheme to defraud;
(2) intent to defraud; and (3) use of the mails in furtherance of
the scheme. See United States v. Nguyen, 28 F.3d 477, 481 (5th
Cir.1994).
Because violations of §§ 371 & 1341 in no way depend on
whether they have an effect upon competition, they are not
"offenses" that are excluded from the § 921(a)(20) definition of
"crimes punishable by imprisonment for a term exceeding one year."
Thus, we agree with the district court that, pursuant to §
922(g)(1), Dreher has been convicted of a "crime punishable by
imprisonment for a term exceeding one year."
AFFIRMED.
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