FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE L. JENNINGS; B.L. JENNINGS, 

INC.,

Plaintiffs-Appellants,

No. 05-16869 v.

M D.C. No. ICHAEL MUKASEY;* U.S.  CV-03-00284-LRH DEPARTMENT OF JUSTICE; BUREAU OF

ALCOHOL, TABACCO AND FIREARMS; OPINION

MARY B. LERCH, Director of

Industry Operations DOJ/BATF,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

October 16, 2007—San Francisco, California

Filed December 20, 2007

Before: Arthur L. Alarcón, David R. Thompson, and

Richard C. Tallman, Circuit Judges.

Opinion by Senior Judge Thompson

*Michael Mukasey is substituted for his predecessor, Alberto R. Gonzales, as Attorney General of the United States, pursuant to Fed. R. App.

P. 43(c)(2). 

16567
COUNSEL

James C. Sabalos, Newport Beach, California, for the appellants. 

JENNINGS v. MUKASEY 16569
Greg Addington, Assistant United States Attorney, Reno,

Nevada, for the appellees. 

OPINION

THOMPSON, Senior Circuit Judge: 

The Bureau of Alcohol, Tobacco, and Firearms (“ATF”)

denied the petitioners-appellants Bruce L. Jennings’

(“Jennings”) and B.L. Jennings, Inc.’s (“B.L. Jennings”)

application for renewal of B.L. Jennings’ federal firearms

license (“FFL”). The ATF denied the renewal application

because Jennings had been convicted in California of a misdemeanor crime of domestic violence (“MCDV”); in addition,

Jennings had failed to disclose that conviction on the license

renewal questionnaire. 

Jennings did not disclose his MCDV conviction because,

he argues, it was “expunged” by a 1999 expungement order

granted under California law. Jennings contends this “expungement” wiped out the conviction and the ATF was

thereby precluded from using it, or his failure to disclose it,

to deny the FFL renewal application. The district court disagreed and upheld the ATF’s action. 

We have jurisdiction under 28 U.S.C. § 1291 and we affirm

the district court. The “expungement” provided under California law did not eliminate the MCDV conviction, and the ATF

properly relied on it to deny B.L. Jennings’ FFL renewal

application. 

I. BACKGROUND

On or about April 9, 1985, Jennings was charged in San

Bernardino County, California with assault by means likely to

produce great bodily injury in violation of California Penal

16570 JENNINGS v. MUKASEY
Code section 245(a). The information alleged that Jennings

inflicted great bodily injury on his former wife. On October

17, 1985, as part of a plea agreement, Jennings pled nolo contendere to a misdemeanor violation of California Penal Code

section 245(a), assault with force likely to produce great bodily injury.1

 Jennings was sentenced to 90 days in jail and 24

months supervised probation. 

In 1996, Congress amended the Gun Control Act (“GCA”),

making it unlawful for any person convicted of an MCDV 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.” 18 U.S.C.

§ 922(g)(9). The ATF is required to deny a federal firearm

license to anyone subject to the prohibitions of 18 U.S.C.

§ 922(g)(9), or to any company controlled by such a person.

18 U.S.C. § 923(d)(1)(B). 

On or about April 1, 1998, B.L. Jennings filed a Renewal

of Firearms License application as a Dealer in Firearms Other

Than Destructive Devices. As part of the application, Jennings, owner and president of B.L. Jennings, executed ATF

Form 8, Part II, “Renewal Questionnaire.” Question 11 asked:

Have you ever been convicted in any court of a[n]

[MCDV]? This includes any misdemeanor conviction involving the use or attempted use of physical

force committed by a current or former spouse, parent, or guardian of the victim or by a person with a

similar relationship with the victim. 

Jennings checked “no” in response to this question. He signed

the questionnaire, certifying that the statements contained

therein were true and correct. 

1Under California law, a plea of nolo contendere is “the same as a plea

of guilty and upon a plea of nolo contendere, the court shall find the

defendant guilty.” Cal. Penal Code § 1016. 

JENNINGS v. MUKASEY 16571
On June 23, 1999, ATF issued a Notice of Revocation of

License, ATF Form 4500, advising B.L. Jennings that ATF

was revoking its FFL because (1) Jennings, as a responsible

party for B.L. Jennings, was a person prohibited from possessing firearms under 18 U.S.C. § 922(g)(9); and (2) Jennings falsely stated on an application to renew the FFL that

he had never been convicted of an MCDV. 

On September 23, 1999, the Superior Court of California,

County of San Bernardino, issued an “Order Expunging Conviction Nunc Pro Tunc to October 18, 1987.” That order

granted Jennings relief under California Penal Code section

1203.4, replaced his nolo contendere plea with a “not guilty”

plea and dismissed the case against him. The California

court’s order, however, required Jennings “to disclose the fact

of this misdemeanor conviction in response to any direct

question contained in any questionnaire or application for

public office, for licensure by any state or local agency, or for

contracting with the California State lottery.” 

On June 22, 2001, B.L. Jennings filed a Renewal of Firearms License application, listing Bruce L. Jennings as sole

shareholder and manager of litigation for B.L. Jennings. An

administrative hearing was held, and on March 25, 2003, the

ATF issued a Final Notice of Denial of Application or Revocation, revoking B.L. Jennings’ FFL. The ATF found that

Jennings, who was the responsible person for B.L. Jennings,

(1) was prohibited under 18 U.S.C. § 922(9)(g) from transporting, shipping, receiving or possessing firearms, and (2)

violated 18 U.S.C. § 924(a)(1)(A) by responding falsely to

question 11 on the application to renew B.L. Jennings’ FFL.

Jennings then filed a petition with the district court for the

District of Nevada seeking to overturn the ATF’s decision. On

July 25, 2005, after de novo review, the district court affirmed

the ATF’s revocation of B.L. Jennings’ FFL, and this appeal

followed. 

16572 JENNINGS v. MUKASEY
II. STANDARD OF REVIEW

Our review of a district court’s interpretation of the Gun

Control Act is de novo. United States v. Dahms, 938 F.2d

131, 133 (9th Cir. 1991). We review de novo whether a prior

conviction may be used as a predicate offense under that Act.

United States v. Laskie, 258 F.3d 1047, 1049 (9th Cir. 2001).

An agency’s interpretation or application of a statute is a

question of law reviewed de novo. Schneider v. Chertoff, 450

F.3d 944, 952 (9th Cir. 2006). In the context of a decision by

the ATF to revoke a firearms license, we “review freely questions of law.” Perri v. Dep’t of Treasury, 637 F.2d 1332, 1336

(9th Cir. 1981). Factual findings will not be disturbed unless

“clearly erroneous.” Id. at 1335. 

In reviewing the district court’s decision, we may affirm on

any ground supported by the record. Smith v. Block, 784 F.2d

993, 996 n. 4 (9th Cir. 1986). 

III. DISCUSSION

A. Expungement 

[1] The parties do not dispute that Jennings had a previous

MCDV conviction. Persons who have had MCDV convictions

are prohibited by 18 U.S.C. § 922(g)(9) from, among other

things, transporting, shipping, possessing, or receiving firearms. Persons so prohibited and the companies they have the

power to direct or control do not qualify for an FFL. 18

U.S.C. § 923(d)(1)(B). 

[2] The parties disagree as to whether Jennings’ MCDV

conviction has been “expunged.” Jennings maintains his conviction was indeed “expunged” and, therefore, B.L. Jennings

is not prohibited from having an FFL. For purposes of 18

U.S.C. § 922(g)(9), a person shall not be considered to have

been convicted of an MCDV if 

JENNINGS v. MUKASEY 16573
the conviction has been expunged or set aside, or is

an offense for which the person has been pardoned

or has had civil rights restored (if the law of the

applicable jurisdiction provides for the loss of civil

rights under such an offense) unless the pardon,

expungement, or restoration of civil rights expressly

provides that person may not ship, transport, possess,

or receive firearms. 

18 U.S.C. § 921(a)(33)(B)(ii). 

The government contends that Jennings did not receive an

“expungement” as that term is used in 18 U.S.C.

§ 921(a)(33)(B)(ii), regardless of whether or not he obtained

relief under California Penal Code section 1203.4 or section

1203.4a. 

1. Section 1203.4

The September 23, 1999 State court “Order Expunging

[Jennings’ MCDV] Conviction Nunc Pro Tunc to October 18,

1987” states that “the petitioner is eligible for relief as provided in California Penal Code Section 1203.4.” Section

1203.4, however, does not provide the extent of relief Jennings contends he received. 

Although “a number of courts have used forms of the word

‘expunge’ to describe the relief” under section 1203.4, “the

statute does not in fact produce such a dramatic result.” People v. Frawley, 82 Cal. App. 4th 784, 790-91 (Cal. Ct. App.

2000) (citations omitted). In Frawley, the defendant sustained

a felony conviction in the early 1990s. That conviction was

dismissed under section 1203.4 in August 1997. In 1999,

Frawley was charged with, among other things, possession of

ammunition and a firearm by an ex-felon. Id. at 787. Frawley

moved to dismiss on the ground that his prior conviction had

been expunged under section 1203.4. The California Court of

Appeals rejected that argument:

16574 JENNINGS v. MUKASEY
Section 1203.4 does not, properly speaking, “expunge” the prior conviction. The statute does not

purport to render the conviction a legal nullity.

Instead, it provides that, except as elsewhere stated,

the defendant is “released from all penalties and disabilities resulting from the offense.” The limitations

on this relief are numerous and substantial, including

other statutes declaring that an order under 1203.4 is

ineffectual to avoid specified consequences of a

prior conviction. Furthermore, by the statute’s own

terms, an order under section 1203.4 “does not

relieve” the ex-offender of “the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for

public office [or] for licensure by any state or local

agency . . . .” (§ 1203.4, subd. (a).) 

Indeed, section 1203.4 contains a sweeping limitation on the relief it offers, stating that “in any subsequent prosecution of the defendant for any other

offense, the prior conviction may be pleaded and

proved and shall have the same effect as if probation

had not been granted or the accusation or information dismissed.” This provision alone precludes any

notion that the term “expungement” accurately

describes the relief allowed by the statute. 

Id. at 791-92 (citations omitted; alterations in original); see

also United States v. Hayden, 255 F.3d 768, 771 (9th Cir.

2001) (defining expunge as “ ‘to erase or [to] destroy,’ and an

‘expungement of record’ [as] ‘[t]he removal of a conviction

. . . from a person’s criminal record’ ” and holding California

Penal Code section 1203.4 does not meet definition of

expungement for purposes of Federal Sentencing Guidelines)

(first and third alterations in original) (quoting BLACK’S LAW

DICTIONARY 603 (7th ed. 1999)). 

We analyzed the effect of section 1203.4 relief in the GCA

context in United States v. Andrino, 497 F.2d 1103 (9th Cir.

JENNINGS v. MUKASEY 16575
1974). There, Andrino had received section 1203.4 relief for

a felony conviction in California. Id. at 1106. After his section

1203.4 relief, Andrino bought firearms in Arizona and certified on Firearms Transaction Records that he had not been

convicted of any crime punishable by a term of imprisonment

exceeding one year. Thereafter, Andrino was charged with

making a false statement in connection with the purchase of

firearms. Id. at 1105. 

[3] Andrino argued that he had been relieved from his prior

conviction under section 1203.4. Id. at 1106. After examining

California law and noting that California’s legislature had

amended section 1203.4 to provide that a dismissal under that

section did not permit a person to possess a firearm, we

rejected Andrino’s argument. Id. at 1107. We stated, “the California legislature, by specific enactment, has negated the very

theory under California law by which Andrino seeks to demonstrate the absence” of his underlying conviction. Id.

Accordingly, we held that Andrino remained convicted for

GCA purposes even though he had received relief under section 1203.4. Id.; accord United States v. Tankersley, 269 F.

Supp. 2d 1178, 1188 (D. Neb. 2003) (stating that “even had

defendant sought and obtained a withdrawal of guilty plea and

a section 1203.4 dismissal of her 1998 burglary conviction,

the 1998 burglary remains a prior felony which may be

pleaded and proved” for purposes of 18 U.S.C. § 922(g)(1)).

[4] In the present case, as in Andrino, although Jennings

obtained relief under section 1203.4 by the 1999 State court

order, that relief did not expunge his conviction for purposes

of 18 U.S.C. § 922(g)(9). 

2. Section 1203.4a

Despite the fact that the 1999 court order provides that section 1203.4 was the basis for Jennings’ relief, Jennings contends he actually received relief under section 1203.4a. As the

district court stated, however, “they have failed to present any

16576 JENNINGS v. MUKASEY
evidence that Petitioners sought relief under § 1203.4a as

opposed to § 1203.4(a).” Indeed, in the 1999 order, the Superior Court in San Bernardino county granted relief to Jennings

under subsection (a) of section 1203.4. For simplicity purposes, we refer to section 1203.4 instead of its subsection

1203.4(a). Relief was not granted under section 1203.4a. 

Nevertheless, during the pendency of this appeal, on

December 8, 2005, Jennings filed in the Superior Court of

California, County of San Bernardino, a “[Proposed] Notice

of Motion and Motion to Correct Typographical Error in

Order Expunging Conviction Nunc Pro Tunc to October 18,

1987.” Jennings also filed a supporting Memorandum of

Points and Authorities, his declaration, and a “[Proposed]

Corrected Order Expunging Conviction Nunc Pro Tunc to

October 18, 1987.” Jennings’ December 8, 2005 motion and

supporting documents claimed that the September 23, 1999

order granting Jennings’ request for relief under California

Penal Code section 1203.4 contained a “typographical error”

and that the 1999 order should have granted relief under section 1203.4a. The San Bernardino County Superior Court

granted this request and issued an order in December 2005

that replaces references to section 1203.4 in the 1999 order

with references to section 1203.4a. 

Jennings then moved this court, on or about December 29,

2005, to supplement the record in this appeal with the December 2005 State court order, take judicial notice of that order,

amend the briefing schedule, and allow him to file an

amended opening brief and supplemental excerpt of record.

The appellees filed their response on January 11, 2006,

opposing the motion. 

[5] We deny Jennings’ motion. The December 2005 State

court order is not relevant to this judicial proceeding, which

is a review of the district court’s affirmance of the ATF’s

March 2003 final decision to revoke Jennings’ firearm

license. The general rule is “that agency actions are to be

JENNINGS v. MUKASEY 16577
judged on the agency record alone, without discovery.” Public

Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982).

Although certain circumstances warrant supplementation,

none is applicable here. Id. at 793-94 (stating that a court is

justified in expanding the record of an agency when it is necessary to explain administrative action, when the agency has

relied upon documents or materials not in the record, when

supplementation is necessary to explain technical terms, or

when a claim of agency bad faith is made). Although Jennings

may wish to file a new application for an FFL and argue the

significance of the December 2005 order, he may not use in

this appeal the December 2005 order to challenge the validity

of the agency’s March 2003 decision.2

3. Laskie’s “anti-mousetrapping” rule

[6] Jennings also argues he is not a convicted person under

18 U.S.C. § 921(a)(33)(B)(ii) because the 1999 State court

expungement order does not specifically limit his ability to

possess firearms. In this way, Jennings attempts to align himself with the defendant in United States v. Laskie, 258 F.3d

1047 (9th Cir. 2001). In Laskie, however, the defendant was

subject to a broader “Discharge Order” and a different statutory scheme. Id. at 1049-50. Laskie’s “Discharge Order”

expressly purported to restore all of his civil rights. Id. at

1049. Because of this, the Laskie Court applied “an antimousetrapping rule. If the state sends the felon a piece of

paper implying that he is no longer ‘convicted’ and that all

2Moreover, it appears that by the December 2005 order Jennings may

have obtained relief to which he is not entitled. For example, Jennings represented to the Superior Court, “There is no explanation other than a typographical error which would explain the entry of relief under Section

1203.4(a) rather than 1203.4a.” This is not the case. In fact, section 1203.4

is precisely the relief Jennings requested and appears to be the only relief

for which Jennings was eligible. Section 1203.4a applies to a “nonprobationed misdemeanant.” (emphasis added). Jennings was on probation for

two years. As a result, it seems likely Jennings could not have received

relief under section 1203.4a. 

16578 JENNINGS v. MUKASEY
civil rights have been restored, a reservation in a corner of the

state’s penal code can not be the basis of a federal prosecution.” Id. at 1049-50. By contrast, Jennings’ 1999 expungement order is much narrower and does not purport to restore

his civil rights. In fact, it is qualified and notes that he must

disclose his conviction in certain circumstances. Accordingly,

unlike Laskie, he has not been “released from all penalties

and disabilities resulting from the offense or crime of which

he has been convicted.” Id. at 1050. 

In addition, the Nevada statute under which Laskie was

granted relief served to “set aside” Laskie’s judgment of conviction, which the Nevada Supreme Court analogized to the

“pardon power.” Id. (quoting Creps v. State, 581 P.2d 842,

846 n. 5 (Nev. 1978)). California Penal Code sections 1203.4

and 1203.4a, on the other hand, do not provide such broad

relief. Indeed, they specifically provide that a conviction such

as Jennings received may be used in any subsequent prosecution and that persons may still be prosecuted under State firearms laws. Because of this, Jennings was not “mousetrapped”

as was Laskie, and he cannot take advantage of Laskie’s antimousetrapping rule. 

B. 18 U.S.C. § 924(a)

[7] Jennings’ final argument is that the district court erred

when it refused to determine whether he violated 18 U.S.C.

§ 924(a) by failing to disclose his conviction in the 1998 FFL

renewal application. We disagree. Because the district court

had already determined that Jennings was prohibited from

possessing firearms by 18 U.S.C. § 922(g)(9), there was no

reason to determine whether Jennings made a false statement

regarding his conviction. 

AFFIRMED. 

JENNINGS v. MUKASEY 16579