morning at new please the court i'm joe harrington i'm an assistant u s attorney for the eastern district of washington in spokane the governments of peel from a district court order that was dated september thirtieth of two thousand and three which dismissed a three count indictment which charged the defendant with being a prior convicted felon in possession of firearms and ammunition the defendant's prior predicate felony offense was a conviction for second degree assault out of spokane county superior court on victim felon on the dates charged in the indictment november of two thousand and one in december of two thousand and one the defendant was a convicted felon on the date the entire indictment was returned in fact the defendant was a convicted felon the day that the district court in its order dismissed in the indictment into the best of my knowledge your honors the defendant continues to today to be a convicted felon it's significant to no that the defendant has not already that his felony conviction indeed has been set aside expunged vacated or that his civil rights have been restored instead the defendant has been relying primarily on two washington state court  opinions the first is state versus summers and the second is state versus gore both of which are cited in the briefs to argue that his second degree assault conviction is invalid as the state of washington one twenty one hundred twenty is for the court to determine whether or not a particular conviction constitutes a conviction a qualifying conviction for the purposes of prosecutions and an it's a supreme court case and if you look at one fourteen supreme court reporter at page six hundred seventy one the court says the following when they're when they're talking about the choice of law clause in one twenty statutory scheme the inquiry is does the person have a qualifying conviction on his record you have to see whether or not the state qualifies that particular event as a conviction under going case under washington law under washington which is much broader than the supreme court's law on attacking prior convictions because that in fact under federal court that seems like the only avenue to attack a prior conviction or uncountable convictions washington was much broader than that you cannot use a prior conviction that for example state versus white you can't use prior conviction for impeachment even though the conviction was in place at the time if that conviction and subsequently reversed on appeal and and for lack of evidence for insufficient evidence you can you can't use a prior conviction even on that conviction still in place to increase that under the old former washington absolutely clear which is one of the seminal cases that we are relying on these cases aren't addressing specific they're just in those specific statutes but there are inherent to the general law under washington that a qualifying conviction must be constitutional to use it for any purpose so washington's line what i make of louis versus united states your honor is that when they were looking at the former section that twelve i believe or one a one and looking at the receiving of a firearm or whatever statute that was at the time is that they looked at the congressional record they look at the plain language of the statute and they said there is nothing under the plain language of the statute that would permit a collateral attack on a predicate felony conviction that comes out of the state court or even a federal conviction there is not nothing in the clear language of that statute but since lewis we have the enactment of nine twenty one and twenty and there is a language now in the federal firearms statute that now has forces us to look to see what is a qualifying conviction not whether or not it's a conviction under the old standard and in louis which is united states because we didn't have nine twenty one and twenty we didn't have an accent by congress we didn't have the voice of congress that was basically saying we now want to rely on state law to determine whether or not we should prosecute people for these crimes washington state may well be in a big minority of states that does permit review of underlying convictions in order to prosecute somebody but washington's was pretty clear in any subsequent prosecution and unconstitutional conviction cannot be used that is not a qualifying conviction that can be i asked the question i asked  so it's one thing to say well if the state had declared invalid at the time he was holding the felony had a gun in any sense maybe one could argue that it had been in some sense crime he did not have a qualifying conviction or honor he didn't have not have either not having a conviction to qualify for use for any purpose for subsequent prosecutions that is that's how broad washington state lie i think and if and that is why beechen says that the first question you ask is is is there a qualifying conviction and you turn to state law to determine if it's a quote qualifying conviction then what this court would be doing is restricting the first sentence of of one twenty one a twenty two only those circumstances where there's been a restoration rights vacation of record issue that that going to have to be had because you have to look at state well to determine whether this thing can be used this thing we call a conviction you have to use fate lot of the term of what a conviction is and how you use it now because one twenty one and twenty and  attack in federal court the conviction based on federal laws they were looking to the state law the state at which the the proceedings were held to determine whether it was a qualifying conviction or state law they were actually taking it on federal grounds this is completely an op a different situation we're using one twenty one and twenty and the laws of the state of determine what a conviction is and that's that's the difference between this case and customs thank you thank you