USA v. Arkanakyak et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JESSE Y. ARNARIAK,
Defendant.
Case No. 3:12-cr-00099-SLG
ORDER RE SECTION 2255 PETITION
Currently before the Court is Defendant Jesse Y. Arnariak’s Amended Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal
Custody, filed on October 1, 2014 at Docket 110.1 	The motion has been fully briefed.
Oral argument was not requested and was not necessary to the Court’s determination.
DISCUSSION
On October 18, 2013, Arnariak pled guilty to Count 5 of the Indictment, a violation
of the Marine Mammal Protection Act, 16 U.S.C. § 1372(a)(4)(A), and Count 7, felon in
possession of a firearm, 18 U.S.C. § 922(g)(1).2 The predicate offense for Count 7 was
Arnariak’s 1989 conviction following a no contest plea in Alaska state court to assault in
1 Arnariak first brought this motion on July 26, 2014 at Docket 93. In its Order at Docket 103, the
Court ordered new counsel for Arnariak to file an amended § 2255 motion or a notice that no
amended motion would be filed.
2 See Docket 68 (Minute Entry for 10/18/13 Proposed Change of Plea Hearing); see also Docket
2 (Indictment).
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the third degree.3 	Arnariak seeks to vacate his conviction on Count 7 because he
allegedly received ineffective assistance of counsel with respect to the admissibility of his
prior state court conviction. Arnariak contends that his prior conviction would have been
inadmissible hearsay under the Federal Rules of Evidence because it resulted from a no
contest plea and, without evidence of the predicate felony, the Government would have
been unable to obtain a conviction on the felon in possession of a firearm count at trial.4
A criminal defendant has a right to the effective assistance of counsel under the
Sixth Amendment.5 	To succeed on an ineffective assistance of counsel claim, a
defendant must demonstrate (1) that counsel’s performance was deficient, i.e., “that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment,” and (2) “that the deficient performance prejudiced
the defense. 	This requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial.”6
Federal Rule of Evidence 801 provides that hearsay is a statement that “(1) the
declarant does not make while testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted in the statement.”7 Hearsay
is inadmissible unless a federal statute, the Federal Rules of Evidence, or rules of the
3 Docket 2 (Indictment) at 7-8.
4 Docket 113 (Mot. Mem.) at 6.
5 Strickland v. Washington, 466 U.S. 668, 684-86 (1984).
6 466 U.S. at 687.
7 Fed. R. Evid. 801(c).
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Supreme Court provide otherwise.8 	Federal Rule of Evidence 803(22) provides that
“evidence of a final judgment of conviction” is not excluded by the hearsay rule if “the
judgment was entered after a trial or guilty plea, but not a nolo contendere plea.”
Arnariak asserts that his conviction on Count 7 should be vacated and his sentence
adjusted accordingly because his trial counsel “did not advise [him] that [his] prior felony
conviction in Alaska state court was not admissible in the federal proceedings because
the state conviction was based on a plea of nolo contendere.”9 	Arnariak argues that
“[b]ecause the state prior [conviction] was not admissible, [he] could not have been
convicted of being a felon in possession of a firearm” and, had he been so advised, he
would not have pled guilty to that crime.10 Arnariak bases his argument on the assertion
that the “admissibility of judgments of prior convictions is governed by Rule 803(22) [and
that rule] explicitly precludes the admission of judgments of conviction based on nolo
contendere or no contest pleas when that judgment is admitted to prove an essential
fact.”11
The Government asserts that Arnariak’s conviction would have been admissible
under the felon in possession of a firearm statute pursuant to which Arnariak pled guilty,
which provides that “[w]hat constitutes a conviction of such a crime (felon in possession)
shall be determined in accordance with the law of the jurisdiction in which the proceedings
8 Fed. R. Evid. 802.
9 Docket 110 (Mot.) at 4, 13.
10 Docket 110 (Mot.) at 4.
11 Docket 113 (Mot. Mem.) at 14.
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were held.”12 	The Government asserts that Alaska case law demonstrates that a nolo
contendere plea “holds the same operative effect as that of a guilty plea.”13 	The
Government devotes several pages of its opposition to asserting that it need only to have
proven that Arnariak had “a qualifying prior conviction, not that he committed the acts
underlying that conviction,” but the Government does not tie this argument back to
Arnariak’s specific hearsay objection.14 Finally, the Government asserts that Arnariak’s
plea is admissible under the public records exception to the hearsay rule.15
In his reply, Arnariak responds to the Government’s arguments that under Alaska
law a conviction based on a nolo contendere plea has the same effect as a conviction
based on a guilty plea. 	He asserts that the cases relied upon by the Government all
address 	collateral 	estoppel 	and 	are 	therefore 	inapplicable 	because 	they 	concern
relitigation of an issue rather than admissibility of hearsay.16 Arnariak also asserts that
even if the collateral estoppel doctrine in Alaska has evolved over time to apply to
convictions based on no contest pleas, that evolution does not apply to Arnariak’s 1989
no contest plea and resultant conviction.17 Finally, Arnariak argues that the public records
hearsay exception in Rule 803(8) could not have been used to admit his nolo contendere
plea, relying on the Ninth Circuit’s holding in United States v. Nguyen, in which the court
12 18 U.S.C. § 921(a)(2).
13 Docket 118 (Opp’n) at 2.
14 Docket 118 (Opp’n) at 10.
15 Docket 118 (Opp’n) at 14; see also Fed. R. Evid. 803(8).
16 Docket 119 (Reply) at 2-5.
17 Docket 119 (Reply) at 5-8.
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stated that “[a]ll judgments of conviction may be said to be public records, but the
exemption under Rule 803(8) cannot be deemed to cover such judgments because it
would make Rule 803(22) superfluous.”18
The admissibility of a prior plea or conviction and the effect of Rule 803(22) has
been discussed by only a surprisingly few number of courts. The Third Circuit has held
that a nolo contendere conviction is admissible despite Rule 803(22) because it “was not
introduced for the purposes of establishing any of the facts related to the underlying
conviction.”19 	Other 	courts 	have 	followed 	the 	Third 	Circuit’s 	holding 	and 	have
distinguished between “a nolo contendere plea and [a] conviction that resulted from a
nolo contendere plea. . . . 	[T]he Federal Rules's prohibition of the admission of nolo
contendere pleas does not automatically apply to convictions based on nolo contendere
pleas.”20 	In United States v. Anderson, the Ninth Circuit held, without discussing a
hearsay objection, that a nolo contendere plea under California law was “equivalent to a
guilty plea” for purposes of a conviction under Section 922(g)(1).21
Upon careful consideration, the Court concludes that a prior conviction based on
a no contest plea that is sought to be introduced solely to prove that the defendant has a
prior felony conviction is not hearsay as defined in Evidence Rule 801 because the
18 Docket 119 (Reply) at 8-9 (quoting 465 F.3d 1128, 1132 (9th Cir. 2006)).
19 United States v. Adedoyin, 369 F.3d 337 (3rd Cir. 2004) (discussing admission of a prior
conviction in connection with a charge of attempting to enter the United States unlawfully by
willfully concealing the prior felony conviction).
20 United States v. Bazzi, No. 13-20893, 2014 WL 2095359, at *2 (E. D. Mich. May 20, 2014; see
also United States v. Drapeau, No. CR 14-30073, 2014 WL 5089926 (D. S.D. Oct. 9, 2014).
21 625 F.3d 1219 (9th Cir. 2010).
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conviction has an independent legal significance in a § 922(g) felon in possession
prosecution. 	Nonhearsay statements include statements the making of which have a
substantive legal significance. 	In West Coast Truck Lines, Inc. v. Arcata Community
Recycling Center, Inc., the Ninth Circuit observed that “it is well established that
statements which themselves affect the legal rights of the parties are not considered
hearsay under the Federal Rules of Evidence.”22 The Ninth Circuit emphasized that point
in United States v. Bellucci, where it held that a certificate of insurance was nonhearsay,
because “[l]ike a written contract that memorializes the fact of a legal agreement, the
certificate memorializes the fact of the legal relationship of the insurer and insured. Such
a written statement, which itself ‘affects the legal rights of the parties or is a circumstance
bearing on conduct affecting their rights,’ falls outside the definition of hearsay.”23 United
States v. Boulware applied this concept to a civil judgment, holding that “a prior judgment
is not hearsay . . . to the extent that it is offered as legally operative verbal conduct that
determined the rights and duties of the parties.”24
A record of Arnariak’s prior conviction is similarly a document that falls outside the
definition of hearsay because it is a statement that affects the legal rights of the parties
when the Government seeks to introduce it solely to show the fact of a prior conviction.
Accordingly, the Court finds that the performance of Arnariak’s counsel in this matter was
not deficient. 	Having determined as such, the Court will not consider whether Arnariak
22 846 F.2d 1239, 1246, n.5 (9th Cir. 1988).
23 995 F.2d 157, 161 (9th Cir. 1993) (quoting Fed. R. Evid. 801(c) adv. com. note).
24 384 F.3d 794, 806 (9th Cir. 2004).
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was prejudiced by his lawyer’s performance.
CONCLUSION
Based on the foregoing, IT IS ORDERED that Defendant Jesse Y. Arnariak’s
motions at Dockets 93 and 110 are DENIED.
DATED this 3 rd day of June, 2015.
/s/ Sharon L. Gleason
United States District Judge
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