ORAL ARGUMENT NOT YET SCHEDULED



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



_________________________________________________________________



NO.

_________________________________________________________________







BRIEF OF APPELLANT





_________________________________________________________________







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxxxx, Defendant-Appellant.





_________________________________________________________________





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



_________________________________________________________________









A.J. KRAMER

FEDERAL PUBLIC DEFENDER



Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202)208-7500









District Court

Cr. No. 93-272

CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES



Pursuant to D.C. Circuit Rule 28(a)(1), appellant hereby states as follows:

A. Parties and Amici: The parties below and in this court are the defendant-appellant, Michael xxxxxxxx, and the plaintiff-appellee, the United States of America. There are no intervenors or amici, either in the district court or this court.

B. Rulings Under Review: In this appeal defendant challenges the decision of the district court, the Honorable Norma Holloway Johnson, denying defendant's motion to dismiss the first count of the indictment. There is no official citation to this ruling.

C. Related Cases: This case has not been before this court or any other court previously, and appellant is not aware of any related case.

TABLE OF CONTENTS





TABLE OF AUTHORITIES iii



ISSUE PRESENTED vi



STATUTES AND REGULATIONS vii



JURISDICTION 1



STATEMENT OF THE CASE 1



A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below 1



B. Introduction 2



C. Statement of Facts 2



1. The Visit to the White House 2



2. The Motions 4



a.) The Suppression Motion 4



b.) The Felon-in-Possession Motion 5



SUMMARY OF THE ARGUMENT 8



ARGUMENT 9



THE TRIAL COURT ERRED WHEN IT DENIED MR. xxxxxxxx'S MOTION TO DISMISS COUNT ONE OF THE INDICTMENT WHEN THE STATE OF OHIO ISSUED HIM A CERTIFICATE RESTORING HIS CIVIL RIGHTS AND THE CERTIFICATE CONTAINED NO RESTRICTION OF FIREARMS POSSESSION 9



A. Standard of Review 9



B. Discussion 9



1. Introduction 9



2. The Plain Language Rule 10



3. Courts that Look at State Statutes as well as the Certificate 15



4. The Eighth Circuit 19



C. This Court Should Follow the Plain Language Rule 21



D. The Rule of Lenity Also Compels the Plain Language Rule 24



E. Even If This Court Interprets "Expressly Provides" to Include All "Corners" of Ohio's Penal Statutes, Mr. xxxxxxxx Still Had No Disability for Carrying Firearms 25



CONCLUSION 26



CERTIFICATE OF LENGTH 26



CERTIFICATE OF SERVICE 27







TABLE OF AUTHORITIES





CASES



Barnhill v. Johnson,

112 S. Ct. 1386 (1992) 26



Beecham v. United States,

114 S. Ct. 1669 (1994) 25



Caminetti v. United States,

242 U.S. 470 (1917) 26



Connecticut National Bank v. Germain,

112 S. Ct. 1146 (1993) . . . . . . . . . . . . . . . . . . 26



Crandon v. United States,

494 U.S. 152 (1990) 27



Davis v. United States,

972 F.2d 227 (8th Cir. 1992),

cert. denied, 113 S. Ct. 1360 (1993) 23



Dickerson v. New Banner Institute, Inc.,

460 U.S. 103 (1983) 9, 16



Liparota v. United States,

471 U.S. 419 (1985) 27, 29



Rewis v. United States,

401 U.S. 808 (1971) 27



Thrall v. Wolfe,

503 F.2d 313 (7th Cir. 1974),

cert. denied, 420 U.S. 972 (1975) 10, 11



United States v. Anderson,

59 F.3d 1323 (D.C. Cir. 1995) (en banc) 27



United States v. Batchelder,

442 U.S. 114 (1979) 9



United States v. Burns,

934 F.2d 1157 (10th Cir. 1991),

cert.denied, 502 U.S. 1124 (1992) 17, 22



United States v. Caron,

64 F.3d 713 (1st Cir. 1995) 17



United States v. Cassidy,

899 F.2d 543 (6th Cir. 1990) 17, 18, 19, 22, 28



United States v. Edwards,

946 F.2d 1347 (8th Cir. 1991) 11, 27



*United States v. Erwin,

902 F.2d 510 (7th Cir.),

cert. denied, 498 U.S. 859 (1990) 12



*United States v. Glaser,

14 F.3d 1213 (7th Cir. 1994) 12, 13, 24, 27



*United States v. Herron,

45 F.3d 340 (9th Cir. 1995) 11, 14, 15



United States v. Hoslett,

998 F.2d 648 (9th Cir. 1993) 24



United States v. James,

861 F. Supp. 151 (D. D.C. 1994) 26



United States v. Kolter,

849 F.2d 541 (11th Cir. 1988) 9, 15



United States v. McBryde,

938 F.2d 533 (4th Cir. 1991) . . . . . . . . . . . . . . 21



United States v. McLean,

904 F.2d 216 (4th Cir.),

cert. denied, 498 U.S. 875 (1990) 17, 21



United States v. Ramos,

961 F.2d 1003 (1st Cir.),

cert. denied, 113 S. Ct. 364 (1992) 11, 12, 16, 17



*United States v. Swanson,

947 F.2d 914 (11th Cir. 1991) 12, 15



*United States v. Thomas,

991 F.2d 206 (5th Cir.),

cert. denied, 114 S. Ct. 607 (1993) 12, 14



United States v. Traxel,

914 F.2d 119 (8th Cir. 1990) 22



United States v. Wind,

986 F.2d 1248 (8th Cir. 1993) 23, 24



United States v. Wishnefsky

7 F.3d 254 (D.C. Cir. 1993) 9





STATUTES AND RULES





18 U.S.C. 921 passim



18 U.S.C. 922 passim



18 U.S.C. App. 1202 9, 10



18 U.S.C. 3231 1



28 U.S.C. 1291 1



Fed. R. Crim. P. 4(b) . . . . . . . . . . . . . . . . . . . . 1



Fed. R. Crim. P. 11(a)(2) 2



6 D.C. Code 2311(a) 1



6 D.C. Code 2361 2



Ohio Rev. Code Ann. 2923.13(A)(2) (Page's 1993) 6





MISCELLANEOUS





S. Rep. No. 97-476, 97th Cong.,

2d Sess. (1982) 18



S. Rep. 98-583, 98th Cong.,

2d Sess. at 7 & n.17 (1984) 11, 20



The Random House Dictionary 467 (rev. ed. 1975) 24



U.S.S.G. 5K2 . . . . . . . . . . . . . . . . . . . . . . . . 7



ISSUE PRESENTED





WHETHER THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO DISMISS THE COUNT OF THE INDICTMENT CHARGING A VIOLATION OF 18 U.S.C.  922(g)(1), WHEN THE STATE OF OHIO HAD ISSUED HIM A CERTIFICATE RESTORING HIS CIVIL RIGHTS AND WHEN THE CERTIFICATE CONTAINED NO RESTRICTION PROHIBITING POSSESSION OF A FIREARM, THUS EXEMPTING DEFENDANT FROM PROSECUTION PURSUANT TO 18 U.S.C.  921(a)(20).



STATUTES AND REGULATIONS



The relevant statutes and regulations are reproduced in the addendum to this brief.



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



_________________________________________________________________



NO. 95-3089

_________________________________________________________________





BRIEF OF APPELLANT



_________________________________________________________________





UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



MICHAEL T. xxxxxxxx, Defendant-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________________________________





JURISDICTION



The district court had jurisdiction over the case pursuant to 18 U.S.C. 3231. The notice of appeal having been filed within the ten-day period of Fed. R. Crim. P. 4(b), this court has jurisdiction pursuant to 28 U.S.C.  1291.



STATEMENT OF THE CASE



A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below



On July 6, 1993, the defendant-appellant, Michael T. xxxxxxxx, was charged in a three-count indictment. Count One charged unlawful possession of a firearm by a convicted felon, 18 U.S.C. 922(g)(1); Count Two charged possession of an unregistered firearm, 6 D.C. Code 2311(a); and Count Three charged possession of unregistered ammunition, 6 D.C. Code 2361 (APP 1). (1)

On February 23, 1995, the district court held a hearing on defendant's motions to suppress and to dismiss the first count of the indictment. The district court denied both motions. On February 28, 1995, defendant pleaded guilty to Count One of the indictment, reserving, under Fed. R. Crim. P. 11(a)(2), the right to appeal the denial of the motions. On July 6, 1995, the district court sentenced defendant to a 42-month term of imprisonment, to be followed by 3 years of supervised release, and a $50 special assessment (ST 29-30). Defendant has been incarcerated since April 8, 1994.

B. Introduction

The sole issue on appeal is the district court's denial of defendant's motion to dismiss the felon-in-possession count. Defendant pleaded guilty to this count, reserving his right to appeal the decision. The issue concerns the effect of the restoration of defendant's civil rights after serving the sentence for the offense alleged as the predicate felony in the present case.

C. Statement of Facts

1. The Visit to the White House

On June 11, 1993, the defendant drove his pickup truck to the vehicle inspection area at the southwest gate of the White House (MT 21). When Secret Service Officer James Adenhart asked the defendant why he was there, defendant responded that he was there to see the President and that defendant had a list of people who had committed treason (MT 23). Adenhart asked defendant for identification, and he produced a driver's license (MT 24). Adenhart went and checked the computer and found that defendant had no appointment to see the President (MT 25).

The pickup was old and battered and looked like the defendant had been living in it (MT 25). When Adenhart returned to tell defendant he did not have an appointment to see the President, Adenhart asked defendant if he had any weapons (MT 25). Defendant said he had a rifle behind the seat of the pickup, and gave permission to look in the truck (MT 26). The rifle was found behind the seat, just as defendant had indicated (MT 27).

Defendant was then arrested and read his rights by another Secret Service officer (MT 50). After being asked, defendant stated he understood his rights and was willing to answer questions (MT 51). The defendant was very cooperative the entire time (MT 30, 53). Following the arrest, defendant was interviewed by Secret Service agents in an office at the northwest gate of the White House (MT 64). Defendant told the agents he had come from his home in North Carolina the day before and wanted to speak to the President to file charges of high treason (MT 66). The gun, which defendant stated belonged to his father, was for protection because defendant in the past had been shot at by KGB agents (MT 71). Defendant believed he had been asked by former President Nixon to get information to go on a mission for the current President (MT 72-73). Defendant was awaiting a sign from angels to come forward with the information (MT 74). Defendant did not come to the District of Columbia to hurt anyone and was not aware of the gun laws in the District (MT 74).

2. The Motions

a.) The Suppression Motion

Defendant filed a motion to dismiss Count One of the indictment, and a motion to suppress the evidence and his statements. The court held a hearing on the suppression motion and heard arguments on the motion to dismiss. At the hearing, the government presented testimony of the Secret Service personnel recounting the facts described above.

Defendant presented the testimony of a clinical psychologist, who found that defendant was seriously mentally ill with a paranoid disorder (MT 81). In fact, defendant had been found incompetent to stand trial, and had to be forcibly medicated at the Federal Correctional Institute at Butner, North Carolina before he was able to comprehend the proceedings in the present case (MT 82). On the medication, defendant was still mentally ill but reasonably restored to competence, while without medication his illness ran rampant (MT 83).

The district court denied the motion to suppress the gun and defendant's initial statements at the scene, but granted the motion to suppress defendant's statements made at the later interview (MT 117). These rulings are not at issue in this appeal.

b.) The Felon-in-Possession Motion

What is at issue in this appeal is the district court's denial of the motion to dismiss the felon-in-possession count. The prior conviction alleged in the indictment was a 1976 Ohio conviction for kidnapping. The parties filed with the district court several memoranda concerning the issue (APP 3-35).

After serving the sentence for the Ohio conviction, defendant in 1981 was paroled to North Carolina, where he had lived. In July 1982, a certificate entitled "Restoration to Civil Rights" was issued by Ohio to defendant. This certificate stated:

Having served the maximum sentence for the offense for which you were convicted, and under the authority of Sections 2961.01 and 2967.16 of the Revised Code of Ohio, the Ohio Adult Parole Authority hereby RESTORES you to the rights and privileges forfeited by your conviction; namely the right to serve on juries and to hold office of honor, trust, or profit.



With this RESTORATION go the best wishes of the Ohio Adult Parole Authority.



The certificate contained no mention of firearms. (2)

Defendant argued to the district court that because his civil rights had been restored, he could not be convicted of a violation of 18 U.S.C.  922(g)(1), in light of 18 U.S.C.  921(a)(20). Section 922(g)(1) prohibits possession of a firearm in or affecting commerce, or receipt of a firearm which has been transported or shipped in interstate commerce by anyone

(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.



An exclusion from the prohibition of  922(g)(1) for certain offenders is contained in  921(a)(20), which provides, in pertinent part:

Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Defendant's contention before the district court was simple. Because his civil rights were restored by a certificate and the certificate contained no mention of firearms possession, defendant came within the  921(a)(20) exclusion. The government contended that because an Ohio statute, Ohio Rev. Code. Ann. 2923.13(A)(2) (Page's 1993), prohibited defendant from possessing a firearm, regardless of the certificate, that defendant was still subject to  922(g)(1). Defendant contended that the certificate alone was the appropriate reference, while the government contended that the district court had to consider all of Ohio state law. Both sides recognized that there was a split in the circuits on this issue.

The district court, without giving any reasons, indicated its intention to deny the motion (MT 15; APP 50). After the district court denied the majority of the suppression motion, the defendant indicated that a conditional plea had been arranged (MT 117). On February 28, 1995, the district court, without any reasoning or analysis, formally denied the motion to dismiss Count One (PT 2; APP 52). Defendant then entered a conditional guilty plea, reserving his right to appeal the denial of the dismissal motion (PT 3, 22; APP 54).

On July 6, 1995, the district court sentenced defendant to forty-two months in prison, to be followed by three years of supervised release (ST 29-30). The term of imprisonment was a nine-month downward departure from the bottom of the guidelines range that the district court had determined was applicable to the case. The district court based its departure on defendant's diminished mental capacity under U.S.S.G.  5K2.13 (ST 29; APP 57-60). Defendant filed a timely notice of appeal on July 14, 1995 (APP 61).

SUMMARY OF THE ARGUMENT

Section 921(a)(20) clearly states that:

Any conviction which has been expunged, or set aside or for which a person had been pardoned or has civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

(Emphasis added). Based on the statute's plain language, if a certificate restoring a person's civil rights does not contain an express prohibition or limitation on firearms possession, the recipient of such a document does not come within the ambit of  922(g)(1). There is no reason to look at state statutory law if the certificate does not contain such a prohibition.

Several circuits have followed the plain language of  921(a)(20), holding that if the certificate restoring a defendant's civil rights does not contain an express prohibition of firearms possession, a defendant cannot be convicted of a  922(g)(1) violation. Other circuits have looked beyond the plain language of the statute, and claimed to have found a legislative intent that, even if the certificate does not contain an express prohibition on firearms possession, state statutes are also considered in determining whether a state prohibits firearms possession, making a defendant subject to 922(g)(1).

This court should follow the plain language of 921(a)(20) for several reasons. First, the statute is plain and unambiguous. Second, the legislative history does not support a different interpretation of the statute. Third, even if the statutory language is ambiguous, the statute must be interpreted in accordance with the rule of lenity. The district court's refusal to dismiss the first count of the indictment should therefore be reversed.

ARGUMENT





THE TRIAL COURT ERRED WHEN IT DENIED MR. xxxxxxxx'S MOTION TO DISMISS COUNT ONE OF THE INDICTMENT WHEN THE STATE OF OHIO ISSUED HIM A CERTIFICATE RESTORING HIS CIVIL RIGHTS AND THE CERTIFICATE CONTAINED NO RESTRICTION OF FIREARMS POSSESSION

 

A. Standard of Review

The argument in this case presents a question of statutory interpretation, which is reviewed de novo. United States v. Wishnefsky, 7 F.3d 254, 256 (D.C. Cir. 1993).

B. Discussion

1. The Statutes

The current  922(g) and 921(a)(20) were enacted as part of the 1986 Firearms Owners Protection Act. In United States v. Kolter, 849 F.2d 541, 543 (11th Cir. 1988), the court summarized the background of the Act:

Originally, the federal firearms laws encompassed two separate statutes, 18 U.S.C. App.  1202 and 18 U.S.C.  922. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Section 1202(a) proscribed the receipt, possession or transportation of a firearm by a convicted felon. Section 922(g), (h), proscribed the shipping, transportation, or receipt of a firearm by a convicted felon. Under Supreme Court precedent, "convicted felon" was defined according to federal law. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983).



On May 19, 1986, Congress enacted the Firearms Owners' Protection Act, which modified the law in two ways significant to this case. First, effective November 15, 1986, it repealed  1202(a), the statute under which Kolter was convicted, and amended  922(g) to include the  1202(a) possession offense. 18 U.S.C.  921 note (Supp. 1987); see 18 U.S.c.  922(g) (Supp. 1987). Second, Congress rejected the Dickerson rule by inserting the following language:

What constitutes a conviction ... shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.18 U.S.C.  921(a)(20). This subsection also became effective November 15, 1986. 18 U.S.C.  921 note (Supp. 1987).The last sentence of  921(a)(20) was added specifically in response to the decision of the Seventh Circuit in Thrall v. Wolfe, 503 F.2d 318 (7th Cir. 1974), cert. denied, 420 U.S. 972 (1975):

Finally, S. 914 would exclude from such convictions any for which the person has received a pardon, civil rights restoration, or expungement of the record. Existing law incorporates a similar provision with respect to pardons in 18 U.S.C. app. 1202, relating to possession of firearms, but through oversight does not include any conforming provision in 18 U.S.C. 922, dealing with their purchase or receipt. This oversight, which resulted in a ruling that a state pardon does not permit a pardoned citizen to receive or purchase a firearm, despite the express provision in the pardon that he may possess it,17 would be corrected. In the event that the official granting the pardon, restoration of rights, or expungement of record does not intend that it restore the right to firearm ownership, this provision honors that intent as expressly provided in the order or pardon.



17Thrall v. Wolfe, 503 F.2d 318 (7th Cir. 1974), cert. denied, 420 U.S. 972 (1975).



S. Rep. 98-583, 98th Cong., 2d sess., at 7 & n.17 (1984). In United States v. Ramos, 961 F.2d 1003 (1st Cir.), cert. denied, 113 S. Ct. 364 (1992), the court stated:

As the government points out, a desire to overrule the effects of Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975) figured prominently in the legislative rationale for enacting 921 (a)(20), with its language specifically validating state pardons, expungements and restorations of civil rights. See 1982 Senate Committee on the Judiciary Report, No. 97-476, p. 18; 1984 Senate Committee on the Judiciary Report, No. 98-583, p. 7. In Thrall, notwithstanding the governor's granting to Thrall, individually, of what was called a "Full Pardon and Restoration of all Civil Rights" with express right to receive, possess or transport firearms, the federal court upheld the refusal by federal authorities to license him as a dealer and manufacturer of firearms. Id. References in the legislative history show that Congress's intent in enacting  921(a)(20) was to make it clear that states would henceforth have the ability to wipe the slate clean in respect to particular convictions by issuing pardons and by other similar individualized and affirmative procedures such as expungement or restoration of rights.



Thus, the last sentence of  921(a)(20), which is at issue in the present case, "was drafted to correct [the] problem" the opinion in Thrall v. Wolfe created. United States v. Edwards, 946 F.2d 1347, 1349 (8th Cir. 1991).

2. The Plain Language Rule

Several circuits look only to the express language of the restoration certificate in determining whether a prior conviction is excluded under  921 (a)(20). See, e.g. United States v. Herron, 45 F.3d 340, 342-43 (9th Cir. 1995); United States v. Glaser, 14 F.3d 1213, 1218-19 (7th Cir. 1994); United States v. Thomas, 991 F.2d 206, 213-14 (5th Cir.), cert. denied, 114 S. Ct. 607 (1993); United States v. Ramos, 961 F.2d at 1006-1008; United States v. Swanson, 947 F.2d 914, 918-19 (11th Cir. 1991); United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir.), cert. denied, 498 U.S. 859 (1990). These courts all refuse to look beyond the face of the certificate and do not consider state statutory provisions that might prohibit firearms possession.

In Erwin, the Seventh Circuit first addressed  921(a)(20) in a situation where the restoration of civil rights was not by certificate, but automatically by statute. 902 F.2d at 512. The court described the portion of  921(a)(20) relevant to the present case:

The second sentence of  921(a)(20) is an anti-mousetrapping rule. If the state sends the felon a piece of paper implying that he is no longer "convicted" and that all 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. A state must tell the felon point blank that weapons are not kosher. The final sentence of  921(a)(20) can not logically mean that the state may dole out an apparently-unconditional restoration of rights yet be silent so long as any musty statute withholds the right to carry guns. Then the state never would need to say a peep about guns; the statute would self-destruct. It must mean, therefore, that the state sometimes must tell the felon that under state law he is not entitled to carry guns, else  922(g) does not apply.



Id. at 512-13.

In United States v. Glaser, 14 F.3d 1213 (7th Cir. 1994), the Seventh Circuit was faced with a defendant who, upon his release from prison in Minnesota, had been given a certificate restoring his rights, which stated that he was

restored to all civil rights and to full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.



Id. at 1215. The certificate also contained a note:



Be advised that this certificate does not relieve you of the disabilities imposed by the Federal Gun Control Act.



Id. Minnesota statutes prohibited the possession of pistols by people convicted within the last ten years. Id.

The Glaser court followed the reasoning of Erwin, explaining:

when the restoration of civil rights occurs entirely by virtue of the statute books, other enacted statutes constitute express restrictions on the scope of the restoration. Things are different, we explained, when a state sends the former prisoner a document informing him that his civil rights have been restored-unless, in the language of the statute, "such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms" (emphasis added). . . .

Id. The court found a problem with the note about the Federal Gun Control Act, because there was no such Act. Id. Looking at the plain language of  921(a)(20), the court held that "the final sentence of  921(a)(20) instructs us to look, not at the contents of the state's statute books but at the contents of the document." Id. at 1218. Thus, despite the state statute limiting firearms possession and the note on the certificate, the court held that the defendant could not be convicted of a  922(g)(1) violation, concluding

We stop with the text of the statute. Federal law asks whether the state's advice is explicit; Minnesota's was not.Id. at 1219.

The Fifth Circuit also adopted the holding of Erwin, in United States v. Thomas, 991 F.2d at 213. The court stated:

in the case of an affirmative or active restoration (with certificate) we shall cleave to the reasoning of the Seventh Circuit in its Erwin opinion, for we agree that "[i]f the state sends the felon a piece of paper [or certificate] implying that he is no longer "convicted" and that all his civil rights have been restored, a reservation in the corner of the state's penal code can not be the basis of a federal prosecution. A state must tell the felon that [firearms] are not kosher."

991 F.2d at 213 (quoting Erwin, 902 F.2d at 512-13). The Fifth Circuit expressed the same concerns about fair notice that bothered the Seventh Circuit. 991 F.2d at 212-13.

The Ninth Circuit recently addressed the  921(a)(20) issue, in United States v. Herron, 45 F.3d 340 (9th Cir. 1995). In Herron, a Washington state prisoner received a certificate upon completion of his parole that stated, "the defendant's civil rights lost by operation of the law upon conviction [are] HEREBY RESTORED." Id. at 341 n.1. The Ninth Circuit decided to adopt the plain language rule:

We follow the Fifth and Seventh Circuits. We cannot reconcile the Sixth Circuit's position with the language of the statute, particularly the word "such." By that word, Congress tells us what to read in order to determine whether the felon's civil rights restoration made an exception for firearms. The words "expressly provides" tell us what to look for. This plain, literal interpretation comports better with fairness than the alternative approach, by requiring the state to give the felon fair notice if his restoration of civil rights makes an exception for firearms.Id. at 343.

In United States v. Swanson, 947 F.2d 914, 919 (11th Cir. 1991), the Eleventh Circuit apparently adopted the plain language rule, stating: (3)

section 921(a)(20) provides that although any conviction for which a person "has had civil rights restored shall not be considered a conviction for purposes of this chapter," such exception does not apply if the restoration of civil rights "expressly provides that the person may not ship, transport, possess, or receive firearms." In this case, a previously convicted felon cannot be indicted under section 922(g)(1) for possessing a firearm, not because the district court or this court ignored congressional intent or the intent of the Alabama legislature and the Board, but because the state restored to him all civil rights, and the certificate restoring civil rights was not expressly limited in the manner contemplated and provided by Congress.

The Eleventh Circuit had also earlier indicated its reliance on the plain language of  921(a)(20), in United States v. Kolter, 849 F.2d at 543:

Under Dickerson, the restoration of Kolter's civil rights would not bar his federal conviction as it did not alter the historical fact of his state felony conviction. Under federal law prior to the amendment he would be a "convicted felon." See Dickerson v. New Banner Institute, Inc., 460 U.S. at 114-15, 103 S.Ct. at 992-93. However, under  921 (a)(20), Kolter would not be a "convicted felon" as the restoration of his civil rights was not qualified by a firearms restriction.

The First Circuit, in United States v. Ramos, 961 F.2d at 1007-10, has also indicated its adherence to the plain language of  921(a)(20) and its disagreement with Cassidy. The court explained:

We read the plain language of 921(a)(20) and 922(g)(1), as well as the legislative history, to prohibit and punish firearm possession by persons formerly convicted of serious crimes, subject to a narrow exemption for convicted persons whom a state has later taken affirmative measures to release from the significant consequences of having been convicted. The exemption by its terms applies solely to persons who, following conviction, have been pardoned, or had their convictions expunged or set aside, or who have had their civil rights restored. Exempted persons, therefore, are convicted individuals whom state authorities have later decided to relieve from all or certain of the customary adverse consequences associated, in that jurisdiction, with their convictions. In cases where such state-declared post-conviction rehabilitation has occurred, Congress has concluded that the convicted persons would once more be eligible to carry and ship firearms, free from federal penalty. Only if the state pardon, expungement, or restoration of civil rights has expressly provided that the person may not ship, transport, possess, or receive firearms, will the convictions still count for purposes of  922(g).Id. at 1007 (emphasis in original). (4)

The court further stated that when a restoration of civil rights is grantedit makes sense thereafter not to take the prior conviction into account for "felon in possession" purposes unless officials providing the pardon or expungement, or restoring the civil rights, have at the very same time announced their wish to restrict the right to possess firearms in the future.Id. at 1009 (emphasis in original).

3. Courts that Look at State Statutes as well as the Certificate

At least three circuits have held that the plain language of  921(a)(20) is not dispositive in determining its applicability but that state statutes prohibiting firearms possession must be considered in conjunction with a certificate. See United States v. Burns, 934 F.2d 1157, 1159-60 (10th Cir. 1991), cert. denied, 502 U.S. 1124 (1992); United States v. McLean, 904 F.2d 216 (4th Cir.), cert. denied, 498 U.S. 875 (1990); United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990).

Like the present case, Cassidy involved an Ohio predicate conviction. The certificate received by the defendant in Cassidy was identical to the one in the present case. 899 F.2d at 544. As an initial matter, the court in Cassidy determined that the Ohio certificate did effect a restoration of civil rights for purposes of  921(a)(20). Id. at 550.

In finding, however, that the whole of state law, not just the certificate, had to be considered in determining the applicability of  921(a)(20), the court reviewed the legislative history. Upon examination, the legislative history cited by the Cassidy court not only fails to support the holding in Cassidy, but in fact supports the plain language interpretation of  921(a)(20). The Cassidy court relied primarily upon two segments from S. Rep. No. 97-476, 97th Cong., 2d Sess. (1982), explaining the exception language in  921(a)(20). 899 F.2d at 547-48. The first excerpt was:

The original language of S. 1030 provided that a person barred from gun ownership by a conviction would be relieved from that bar if he received a pardon or restoration of civil rights. The amended bill adds the exception that this will not apply if the pardon or restoration expressly provides that the recipient may not own firearms. This allows flexibility should such a pardon or restoration be based upon considerations not relating to fitness to own a firearm.

S. Rep. at 12. The court in Cassidy stated that the last sentence of this quote "suggests that legislators had in mind the simple example where an ex-convict is handed a pardon or expunction order by a state official." 899 F.2d at 548. The language from the Senate Report says no such thing and, in any event, the last sentence can only be read in conjunction with the sentence immediately preceding it. That makes clear that the restoration itself must expressly provide that the person may not possess firearms, and the onus is on the state to follow this procedure if it wishes to exclude from  921(a)(20) offenders who have had their civil rights restored.

The Cassidy court further relied on a lengthy quote from page 18 of the Senate Report, which ends with the sentence:

In the event that the official granting the pardon, restoration of rights or expungement of record does not desire it to restore the right to firearm ownership, this provision is rendered inapplicable where the order or pardon expressly provides that the person may not possess firearms.

The Cassidy court found that this "explanation reinforces our conclusion that a primary concern of Congress was that 'convicted felon status' be determined with reference to state law." 899 F.2d at 548. While that is true, the above quote again makes it clear that the state, if it issues a restoration of rights, must explicitly provide in the order that a person may not possess firearms, or  921(a)(20) will apply.

The Cassidy court inferred from this legislative history that:

A narrow interpretation requiring that we look only to the document, if any, evidencing a restoration of rights, would frustrate the intent of Congress that we look to the whole of state law, including state law concerning a convicted felon's firearms privileges.Id. at 548. This inference is directly contrary to the two explicit statements in the legislative history that the order itself, not state statutes, must contain the express prohibition. Perhaps most important, the Cassidy opinion overlooks the statement in S. Rep. 98-583 at 7, that "[i]n the event that the official granting the ... restoration of rights ... does not intend that it restore the right to firearm ownership, this provision honors that intent as expressly provided in the order." Thus, the holding of Cassidy conflicts with both the plain language of the statute and the legislative history.

The court in Cassidy, id. at 548-49, also quoted the concerns of Senator Durenberger that because Minnesota automatically restored felons' civil rights upon completion of their sentence, all felons in Minnesota, and other states that automatically restored civil rights, would come within  921(a)(20). Senator Durenberger sought a delay in the effective date of the statute. Id. at 548.

There are several flaws in the Cassidy court's reliance on Senator Durenberger's concerns. Minnesota could have simply included a firearms restriction on the discharge certificate, if the state so desired. That would have taken care of the problem. (5)

The effective date of the bill was not delayed, showing that Congress as a whole did not share the concerns of Senator Durenberger. Nor was  921(a)(20) amended in any way in response to the statement.

In the end, the Cassidy court pointed to nothing in the legislative history to support its holding. The court's claim that its result was the intent of Congress is without any basis, and as discussed above, the legislative history actually supports the plain language interpretation. Furthermore, the Cassidy opinion does not deal with the word "such" in  921(a)(20), and renders the word meaningless.

The Fourth Circuit, in United States v. McLean, 904 F.2d 216, 218 (4th Cir. 1990), agreed with the Sixth Circuit's Cassidy holding. The court in McLean engaged in no further analysis, but just adopted Cassidy as the proper approach. Id. The adoption of Cassidy's holding in McLean appeared unnecessary because the certificate received by the defendant in McLean contained an express statement that under then-existing federal law the restoration of civil rights did not "entitle you to own, possess, receive, buy, or otherwise acquire firearms of any description." Id. at 217-18. Nevertheless, the court chose not to base its decision on the certificate, but to adopt the Cassidy rationale. Id. at 218. (6)

The Tenth Circuit, in United States v. Burns, 934 F.2d 1157, 1159-60 (10th Cir. 1991), also followed Cassidy. The defendant in Burns had received a certificate restoring his civil rights, but a state statute prohibited him from possessing firearms. Like the Fourth Circuit in McLean, the Tenth Circuit in Burns adopted Cassidy without any real analysis.

4. The Eighth Circuit

The Eighth Circuit's jurisprudence on  921(a)(20) is internally contradictory, even within the individual opinions themselves. It started in United States v. Traxel, 914 F.2d 119 (8th Cir. 1990). The court in Traxel first emphasized that  921(a)(20) requires a prohibition on firearms possession to be stated in the certificate restoring civil rights. Id. at 123. Minnesota had a statute that required such a prohibition in the certificate of discharge. Id. at 121 n.4. The court then, however, went on to hold, contrary to every other circuit, that the "right to possess firearms is the civil right with which section 921(a)(20) is concerned." Id. at 124. (7)

Thus, if a state statute prohibited firearms possession, a defendant's civil rights would not have been restored, apparently regardless of what the certificate stated. Id. This latter holding is circular in reasoning and seemingly contradicts the earlier discussion in Traxel that the certificate itself must state the prohibition on firearms possession.

The Eighth Circuit followed the portion of Traxel regarding restoration of civil rights in Davis v. United States, 972 F.2d 227, 230-31 (8th Cir. 1992), cert. denied, 113 S. Ct. 1360 (1993), although the entire discussion was dicta, because the court had determined that  921(a)(20) was inapplicable to the case before it, which was not a  922(g) prosecution. Id. at 229-30. The court first repeated the holding in Traxel that the civil right with which  921(a)(20) is concerned is the right to possess firearms. 972 F.2d at 230-31. The court also went on to adopt the reasoning of Cassidy, McLean, and Burns, that the whole law of the state must be examined, not just the discharge certificate. 972 F.2d at 231. This apparently conflicted with the emphasis in Traxel that the certificate must explicitly state the prohibition.

The third case decided by the Eighth Circuit is United States v. Wind, 986 F.2d 1248 (8th Cir. 1993). In Wind, the defendant's Minnesota discharge certificate did not "expressly exclude from the restoration of civil rights the right to possess firearms," which was "apparently an oversight." Id. at 1252. The court held that because "the discharge did not contain any express limitation of the right to possess firearms," the prior conviction could not be considered pursuant to  921(a)(20). Id. The court so held despite its acknowledgement that in Traxel it had stated that the Minnesota statute requiring the exclusion in the discharge certificate "appeared to be exactly the sort of express limitation on the right to possess firearms which Congress contemplated in enacting the 1986 amendments defining conviction in terms of state law." 986 F.2d at 1251. (8)

The Wind holding is thus in accord with the plain language interpretation.

C. This Court Should Follow the Plain Language Construction

This Court should adopt the plain language construction for three reasons: 1.) the language of the statute is clear and unambiguous; 2.) the plain language interpretation is in accord with the legislative history; and 3.) the rule of lenity compels the plain language interpretation.

As discussed above,  921(a)(20) is clear on its face. The statute does not say "unless some other law of the jurisdiction prohibits possession of a firearm." The statute states unambiguously that for a prior state conviction to be treated as a conviction for purposes of  922(g)(1) "such restoration," in the present case the certificate, must "expressly provide" that a person may not possess firearms. "Express" means "clearly indicated, explicit." United States v. Hoslett, 998 F.2d 648, 661 (9th Cir. 1993) (Kozinski, J., dissenting in part) (quoting The Random House Dictionary 467 (rev. ed. 1975)). In other words, the limitation must be clear, plain, and unmistakable. Therefore, for any limitation on the right to possess firearms, the restoration certificate cannot be silent and must spell out the specific restriction.

The Supreme Court recently considered whether under  921(a)(20) state law or federal law governed restoration of rights questions involving prior federal convictions. Beecham v. United States, 114 S. Ct. 1669 (1994). The Court determined that the plain meaning of  921(a)(20) was that only the law of the convicting jurisdiction could determine whether a prior conviction was a conviction for purposes of  921(a)(20), and thus federal law controlled prior federal convictions. Id. at 1671. In reaching this result, the Court concluded:

But our task is not the hopeless one of ascertaining what the legislators who passed the law would have decided had they reconvened to consider petitioners' particular case. Rather, it is to determine whether the language the legislators actually enacted has a plain, unambiguous meaning. In this case, we believe it does.

Id. at 1672. The Court found the statute in Beecham to be unambiguous, thus there was no need to resort to the rule of lenity. Id.

The Cassidy, McLean, and Burns courts justified their decisions by claiming that the legislative history of  921(a)(20) supported their expansive interpretations. As discussed above, the legislative history does not in fact support these interpretations of the statute. In any event, this approach is mistaken because once the text of the statute is clear, there is no need to examine its legislative history. As the court explained in United States v. James, 861 F. Supp. 151, 153 (D. D.C. 1994):

In construing the effect of the foregoing statutory language, the Court need go no further than applying the "plain meaning" rule. Where courts are attempting to construct the meaning of a statute, the Supreme Court has said that "the meaning of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, ... the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917). The Supreme Court continued, saying that "[w]here the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion." Id.

The Supreme Court has explained:

We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: "judicial inquiry is complete."

Connecticut National Bank v. Germain, 112 S. Ct. 1146, 1149 (1993) (citations omitted) (quoting, Rubin v. United States, 449 U.S. 424, 430 (1981)). The courts should not resort to legislative history unless there is statutory ambiguity. Barnhill v. Johnson, 112 S. Ct. 1386, 1391 (1992).

Because  921(a)(20) plainly requires an express firearm restriction on the certificate, the Cassidy decision is flawed for having considered its legislative history. This court should follow the rule stated by the Seventh Circuit, "[w]e stop with text of the statute. Federal law asks whether the advice is explicit; [Ohio's] was not." Glaser, 14 F.3d at 1219.

By rejecting the plain language of  921(a)(20), Cassidy and its progeny violate notions of fundamental fairness. The supposed justifications offered in Cassidy do not warrant an interpretation contrary to clear statutory language. "Because construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies support a construction of a statute broader than that clearly warranted by the text." Crandon v. United States, 494 U.S. 152, 160 (1990). The Cassidy line of cases means that people who have had their civil rights restored cannot rely upon  921(a)(20).

D. The Rule of Lenity Also Compels the Plain Language Construction



Section 921(a)(20) is plain on its face. If, however, state statutes are also to be considered in the application of  921(a)(20), then "at a very minimum," the statute is ambiguous and the "rule of lenity must, therefore, govern application of the statute." United States v. Anderson, 59 F.3d 1323, 1333 (D.C. Cir. 1995) (en banc).

The rule provides that "'ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.'" Liparota v. United States, 471 U.S. 419, 427 (1985) (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)). The application of the rule provides fair warning of what conduct is criminal. Id. As the court stated in United States v. Edwards, 946 F.2d at 1350:

yet in the final instance we must remember that even if section 921(a)(20) could be read as the government argues, it would be, at most, ambiguous, and we would therefore be obliged to resolve the ambiguity in favor of the accused.



Interestingly, the court in Cassidy, 899 F.2d at 548, although claiming that it was "unclear whether Congress intended that a court look only to the document, if any," that restored civil rights, did not mention the rule of lenity. Given that the court in Cassidy gleaned Congressional intent where none actually existed, the present case is a classic example of a situation where the rule of lenity should be applied. This is especially so where defendant was paroled to North Carolina and received a certificate from Ohio telling him his civil rights were restored.



CONCLUSION

For the foregoing reasons, defendant respectfully requests this Court vacate his conditional plea and sentence, and order dismissal of Count One of the indictment.

Respectfully submitted,



A.J. KRAMER

FEDERAL PUBLIC DEFENDER

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500



Counsel for Appellant









CERTIFICATE OF LENGTH



I HEREBY CERTIFY that the foregoing brief for appellant, Michael xxxxxxxx, does not exceed the number of words permitted by Circuit Rule 28(d).



A. J. Kramer

Federal Public Defender









CERTIFICATE OF SERVICE



I HEREBY CERTIFY that two copies of the foregoing Brief of Appellant and one copy of the Appendix have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Chief, Appellate Division, Room 10-435, 555 Fourth Street, N.W., Washington, D.C. 20001, this _______ day of October, 1995.





A. J. Kramer

Federal Public Defender

1. "APP" refers to the appendix filed with this brief. The transcripts are referred to by the following designations: "MT" refers to the motions hearing transcript of February 23, 1995; "PT" refers to the plea transcript of February 28, 1995; and "ST" refers to the sentencing transcript of July 6, 1995.

2. Defendant was unable to produce the actual certificate he received in 1982. Defendant provided various declarations to show that he had received the certificate. At the motions hearing the government conceded that defendant had received the certificate and that its language was the same as that received in another case (MT 8-9; APP 43-44). A copy of the certificate from the case, which the government conceded was identical to that received by defendant, appears at page 27 of the appendix filed with this brief. For the court's convenience, a copy of the certificate also appears in the addendum to this brief.

3. Swanson may be distinguishable from the other cases using the plain language test. The court in Swanson determined that the state restoration of civil rights also relieved the defendant from being prohibited to possess a firearm under Alabama law. Id. at 918. Thus, Swanson is different from the other cases adopting the plain language rule, in that the state statute in Swanson prohibiting gun possession was held to be inapplicable.

4. On September 21, 1995, the First Circuit decided in United States v. Caron, 64 F.3d 713 (1st Cir. 1995) to give en banc consideration to the question:



May a felony conviction, either in the absence of state deprivation of the rights of the convicted felon or after restoration of some or all of those rights by operation of state law, without any individualized determination, be counted for purposes of the Armed Career Criminal Act, 18 U.S.C.A.  921(a)(20) (which provides in substance that felonies for which the felon's civil rights have been restored are not to be considered in determining eligibility for sentence enhancement), or similarly worded statutes?

5. Indeed, as discussed below, Minnesota did enact a statute requiring that such a prohibition appear on discharge certificates, showing how easy it was to deal with Senator Durenberger's concerns.

6. The Fourth Circuit took this analysis a step further in a situation where a defendant had received a certificate stating that all his rights of citizenship were automatically restored "with the exception of the right to own, possess, receive, buy or otherwise acquire firearms of any description." United States v. McBryde, 938 F.2d 533, 535 (4th Cir. 1991). The certificate in McBryde was issued before the enactment of  921(a)(20). Id. The state statutes in McBryde did not prohibit firearms possession. Id. Despite the specific language in the certificate, the court found that the enactment of  921(a)(20) required reversal of the conviction in light of the fact that state law did not otherwise prohibit firearms possession. This seemingly turns  921(a)(20) on its head.

7. The Sixth Circuit in Cassidy explicitly rejected the notion that there can be a restoration of state firearms "rights," because "there is no individual right to possess a firearm." 899 F.2d at 549 n.12.

8. Two of the three judges concurred in Wind, citing Davis for authority that the whole law of the state must be examined. Id. at 1252. They claimed, however, that rifles, as opposed to pistols, were not prohibited under state law. They could only reach this result by apparently ignoring the language quoted in the text that Traxel held that the law providing for the exclusion in the certificate is itself a disability on firearms possession. The Seventh Circuit, in United States v. Glaser, 14 F.3d at 1217 n.2, characterized the Wind result as: "Two members of the panel in Wind not only joined Judge McMillan's opinion for the court but also filed a concurring opinion contradicting that opinion."