                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2207
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Arlando Hill,                            *
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: December 14, 1999

                                Filed: April 10, 2000
                                    ___________

Before BEAM and HEANEY, Circuit Judges, and KYLE,1 District Judge.
                            ___________

HEANEY, Circuit Judge.



      Arlando Hill appeals the district court’s denial of his motion to dismiss an
indictment charging him with receiving a firearm shipped in interstate commerce while
under indictment, in violation of 18 U.S.C. § 922(n) (1999). We reverse.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
                                    I. Background

      Hill was indicted in June 1998 for receiving a firearm shipped in interstate
commerce while under indictment for a felony, in violation of 18 U.S.C. § 922(n). The
predicate for the federal prosecution was Hill's state prosecution in St. Louis City
Circuit Court for unlawful use of a weapon, in violation of Mo. Ann. Stat. § 571.030
(West Supp. 2000). Hill had pleaded guilty to the state charge, but the court suspended
the imposition of sentence.

       Hill moved to dismiss the federal charge, arguing he was no longer under
indictment because he had pleaded guilty to the state charge. Pursuant to 28 U.S.C. §
636(b), the magistrate recommended the district court grant the motion, concluding
Hill’s guilty plea answered the January 1998 weapons charge and extinguished the
indictment. The district court declined to dismiss the federal charge, stating, “In order
for a court to maintain jurisdiction and the authority to punish a defendant where
imposition of sentence is suspended, an indictment or some form of the original charge
against defendant must still be extant in some form.” The court subsequently found Hill
guilty of violating § 922(n) and sentenced him to twenty-four months imprisonment and
three years supervised release. Hill appeals.

                                    II. Discussion

      We review de novo the district court&s denial of Hill’s motion to dismiss the
federal charge. See United States v. Smith, 171 F.3d 617, 619 (8th Cir. 1999).

        Section 922(n) prohibits any person “under indictment” from receiving a firearm
shipped or transported in interstate commerce. “Indictment” is defined as “an
indictment or information in any court under which a crime punishable by imprisonment
for a term exceeding one year may be prosecuted.” See 18 U.S.C. § 921(a)(14). We
look to Missouri law to determine whether Hill was under indictment at the time of his

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arrest. See United States v. Chapman, 7 F.3d 66, 67-68 (5th Cir. 1993) (relying on
Texas law to determine whether defendant was “under indictment”).

       Under Missouri law, Hill’s suspended sentence is a “hybrid.” See State v.
Bachman, 675 S.W.2d 41, 44-45 (Mo. Ct. App. 1984). Following Hill's guilty plea, the
state criminal proceedings were held in abeyance; although the court suspended the
imposition of prison time, Hill was, as a probationer, subject to certain restraints on his
freedom. Meanwhile, the court retained jurisdiction to impose sentence if Hill violated
the terms of his probation. At the expiration of probation or upon its own order prior
to expiration, the court could fully discharge Hill from its jurisdiction without entering
a judgment of conviction. See id. at 45. The suspended sentence thus provides courts
with an alternative means of handling defendants worthy of lenient treatment by giving
them “a chance to clear their records by demonstrating their value to society through
compliance with conditions of probation under the guidance of the court.” Yale v. City
of Independence, 846 S.W.2d 193, 195 (Mo. 1993) (en banc). Missouri law mandates
closure of the official records of defendants who successfully complete their probation
while on a suspended sentence. See Mo. Ann. Stat. § 610.105 (West Supp. 2000).

      Hill’s suspended sentence prevented the government from indicting him as a
felon in possession under 18 U.S.C. § 922(g). See 18 U.S.C. § 921(a)(20)
(“conviction” under § 922(g) is determined by law of jurisdiction where proceedings
were held); United States v. Solomon, 826 F. Supp. 1221, 1223-24 (E.D. Mo. 1993).
The government urges that defendants like Hill who escape liability as “convicted”
felons under § 922(g) must not be allowed to evade prosecution under § 922(n), and
contends that the January 1998 weapons charge was not extinguished when Hill
pleaded guilty. We disagree.

       Under Missouri law, “[t]he primary purpose of an indictment or information is
to give general notice to the defendant of the charge against him.” State v. Higdon, 774
S.W.2d 498, 500 (Mo. Ct. App. 1989). The essence of the state-court indictment

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against Hill, then, was an allegation that he committed certain acts criminalized by
Missouri law. By entering a guilty plea, Hill admitted each allegation contained in the
indictment. See State v. Armstrong, 433 S.W.2d 270, 272 (Mo. 1968) (“A plea of
guilty is a confession of the truth of the facts stated in the information.”). Its primary
function satisfied, the indictment served no further purpose and was thus extinguished.

       We also respectfully disagree with the district court that the indictment survived
the guilty plea as a means of conferring continuing jurisdiction over Hill, necessary for
the court to impose a sentence of prison time in the event that Hill violated the terms
of his probation. Although the filing of a valid indictment is a prerequisite to the
court’s jurisdiction, see State ex rel. Morton v. Anderson, 804 S.W.2d 25, 27 (Mo.
1991) (en banc), Hill waived any objection to personal jurisdiction by appearing
without objection, see State v. Parkhust, 845 S.W.2d 31, 35 n.4 (Mo. 1992) (en banc).
Moreover, Mo. Ann. Stat. § 541.020 (West 1987) conferred upon the circuit court the
power to hear and resolve Hill’s felony case as well as the power to declare punishment
and render judgment. See Searcy v. State, 981 S.W.2d 597, 598-99 (Mo. Ct. App.
1998). It is therefore clear that the circuit court was not deprived of its authority to
impose a sentence of imprisonment upon Hill by virtue of the satisfaction of the
indictment.

                                    III. Conclusion

      We are aware our holding reveals a gap in the federal firearms laws. While we
appreciate the need to keep firearms from the hands of dangerous offenders, we cannot
rewrite Missouri law and hold that Hill was “under indictment” to save a prosecution
under § 922(n). This is a problem properly addressed by Congress or the Missouri
General Assembly.

      Accordingly, the judgment is reversed.


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BEAM, Circuit Judge, dissenting.

       As the court admits, this opinion creates a gap that will make it harder to "keep
firearms from the hands of dangerous offenders." Ante at 4. I think that the district
court's analysis of the law is tenable and would close the purported loophole perceived
by this criminal defendant. Thus, I would affirm the district court. Accordingly, I
dissent.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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