Opinion
Criminal No. 02-10231-REK.
October 9, 2003
Memorandum and Order
I. Pending Matters
Pending for decision are the following matters and related filings: (1) Defendant's Memorandum of Law (filed February 19, 2003) (Docket No. 34).
(2) Government's Response to Defendant's Motion to Dismiss and the Accompanying Memorandum of Law (filed February 27, 2003) (Docket No. 35).
(3) Government's Motion In Limine (filed March 6, 2003) (Docket No. 37).
(4) Defendant's Supplemental Memorandum of Law (filed March 20, 2003) (Docket No. 41).
(5) Government's Response to Defendant's Supplemental Memorandum of Law (filed March 21, 2003) (Docket No. 42).
(6) Defendant's Response to Government's Response to Defendant's Supplemental Memorandum of Law (filed August 21, 2003) (Docket No. 50).
(7) Government's Motion to Strike Defendant's Response (filed August 22, 2003) (Docket No. 51).
II. Procedural and Factual Background
In counts 1 and 2 of the indictment (Docket No. 8), the defendant is charged with violating 18 U.S.C. § 922(g)(1), prohibiting possession of firearms by a person convicted of a predicate offense. In 1996, the defendant was convicted of violating MASS. GEN. L. ch. 90 § 24, operating under the influence of liquor, a misdemeanor punishable by up to two and a half years imprisonment. Government's Motion In Limine (Docket No. 37) at 2; Defendant's Memorandum of Law (Docket No. 34) ("Motion") at 1-2.
The defendant has filed a Memorandum of Law contending that the state conviction is not a predicate offense under § 922(g)(1). Motion at 2-3. The parties have treated this filing as a Motion to Dismiss Counts 1 and 2 of the Indictment. See, e.g., Government's Response to Defendant's Motion to Dismiss and the Accompanying Memorandum of Law (Docket No. 35) ("Response") at 4.
III. Disposition of the Pending Matters A. Government's Motion to Strike Defendant's Response
The Government asks that I strike Defendant's Response (Docket No. 50) as untimely. In the hearing on July 11, 2003, I ordered defendant to file a supplemental brief within one week. He did not file his supplemental brief until August 21.
Nonetheless, the Government has not been prejudiced by the delay, nor has the scheduling in this matter been affected by it. In the order below, I deny the Government's motion to strike.
B. Defendant's Motion to Dismiss
At the hearing on July 11, I noted that Massachusetts' 1999 refusal to renew defendant's firearms permit would have some bearing in this case. The defendant responded that he had transferred ownership of his firearms to his wife, who was duly licensed. He indicated that he would file a new submission providing evidence of the transfer. Defendant's Response to Government's Response to Defendant's Supplemental Memorandum of Law ("Evidentiary Submission") does not provide direct evidence of the transfer of ownership. It does, however, provide sufficient evidence that the defendant and his wife at least considered the firearms collection to be "jointly own[ed]." Evidentiary Submission at Exhibit B. Moreover, defendant's wife was duly licensed to own firearms. Id. at Exhibit D. Given this, I proceed to adjudicate the legal contentions argued in the briefs before me.
Counts 1 and 2 of the indictment (Docket No. 8) charge the defendant with violating 18 U.S.C. § 922(g)(1). That provision forbids
any person . . . who has been convicted in any court of . . . a crime punishable by imprisonment for a term exceeding one year . . . 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)(1) (1999 Supp. IV). In addition,
[a]ny 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) (1999 Supp. IV). The question before me turns on whether the defendant's 1996 conviction is cognizable under § 921(a)(20).
Section 921(a)(20) sets up a two-part test. As applied in this case, I must first determine whether the defendant's civil rights were restored. If so, I must further ascertain, under the "unless" clause, whether the "restoration of civil rights expressly provides that the [defendant] may not ship, transport, possess, or receive firearms." With respect to the first half of the test, the Government concedes that the defendant's civil rights were never revoked. Response at 1. Therefore, underUnited States v. Indelicato, 97 F.3d 627, 631 (1st Cir. 1996), his civil rights are to be treated as restored, and the first half of the test is satisfied. At issue here is the second half of the test, which, if met, would render the defendant's 1996 conviction a predicate offense under § 922(g)(1).
The Government contends that restrictions on the "restoration" of the defendant's civil rights may be found in Massachusetts law generally. Response at 2 (citing United States v. Sullivan, 98 F.3d 686, 689 (1st Cir. 1996)). Massachusetts forbids individuals who have been convicted of a misdemeanor carrying a maximum sentence of imprisonment for more than two years, such as the defendant, from obtaining a firearm license. Response at 2-3 (citing Mass. Gen. L. ch. 140 §§ 129B-129C). Since Massachusetts curtails the defendant's right to possess firearms, the Government contends that the second test is satisfied.
The defendant responds that, when he was convicted of the predicate misdemeanor in 1996, Massachusetts law did not, in fact, restrict his right to possess a firearm. The Massachusetts General Court amended Mass. Gen. L. ch. 140 § 129B in 1998, at that point restricting individuals in defendant's position from obtaining a firearm license. Defendant's Supplemental Memorandum of Law (Docket No. 41) ("Supplemental Memo") at 3-4. Defendant's license remained operative until it expired in 1999. Id. at 3, n. 1.
The defendant argues that I must determine whether his civil rights were restricted at the time of his original conviction in 1996. In support of this proposition, the defendant cites three cases: United States v. Hall, 28 F.3d 1066, 1068 (10th Cir. 1994); United States v. Cardwell, 967 F.2d 1349 (9th Cir. 1992); and United States v. Norman, 129 F.3d 1393 (10th Cir. 1997). Id. at 4. By contrast, the Government argues that I must look to Massachusetts law as it existed at the time the conduct underlying the current charges occurred. It defends this position by pointing to Melvin v. United States, 78 F.3d 327 (7th Cir. 1996) and United States v. Denis, 297 F.3d 25 (1st Cir. 2002). Response to Defendant's Supplemental Memorandum of Law (Docket No. 42) ("Supplemental Response") at 2-3. Other than Denis (which I conclude, below, is not on point), neither party has cited any relevant First Circuit precedent, nor have I discovered any.
I find the Tenth Circuit's reasoning in Norman persuasive, and conclude that I must examine state law at the time of the predicate offense, i.e., in 1996. In Norman, the Tenth Circuit confronted a situation where the defendant had been previously convicted of a felony in Colorado. Under state law, the defendant's civil rights were restored upon his release from prison. Some time after the defendant's release, Colorado amended its laws, making it illegal for a convicted felon to possess firearms. 129 F.3d at 1397. The court stated:
As the Ninth Circuit explained in United States v. Cardwell, 967 F.2d 1349 (9th Cir. 1992):
Section 921(a)(20) states that section 922(g)(1) applies if the pardon, expungement, or restoration of civil rights "expressly provides" that the defendant may not ship, transport, possess, or receive firearms. The plain meaning of this use of the present tense is that the courts must determine the effect of the pardon, expungement, or restoration of civil rights at the time it is granted and cannot consider whether the defendant's civil rights later were limited or expanded.
We agree with our sister circuits. Section 921(a)(20) requires us to look to the law which was in effect at the time that Norman's civil rights were restored, and then to determine whether that law "expressly provides" that he may not ship, transport, possess, or receive firearms. As noted, Colorado law did not expressly limit Norman's possession of firearms at the time his civil rights were restored. Therefore, notwithstanding any later limitation which may have been imposed, his 1976 conviction could not serve as a predicate offense under § 922(g)(1), and the district court erred in refusing to dismiss.Id. at 1397-98 (citations and footnotes omitted) (emphasis in original). I rule that the plain language of the statute requires me to examine state law as it existed at the time of the restoration of civil rights.
Here, in contrast with the circumstances of in Norman, no explicit restoration of civil rights was declared. The reasoning in Norman, however, remains applicable. Section 921(a)(20) requires me to determine whether the "restoration of civil rights expressly provides" for restrictions on the defendant's right to carry firearms. Indelicato requires me to treat the defendant's civil rights as having been "restored" by the fact that they were never taken away. 97 F.3d 631. I am therefore to determine whether the failure of Massachusetts to restrict the defendant's civil rights "expressly provides" for a restriction on the defendant's right to carry firearms. In order to make sense of this task, I must view Massachusetts' silence as an explicit decision not to restrict the civil rights of defendants. Viewed in this light, Massachusetts' restoration of defendant's civil rights occurred by virtue of the law as it existed when the defendant was convicted, i.e., in 1996. Since Massachusetts law, in 1996, did not restrict the defendant's right to possess firearms, the "unless" clause in § 921(a)(20) is not satisfied, and the conviction is not a predicate offense under § 922(g)(1).
Under the reasoning in Norman, which I have accepted, a contrary result would be anomalous. If a state restores a defendant's civil rights after having taken them away, then later amends its laws to restrict the defendant's right to possess firearms, courts are to look to the law at the time of the predicate offense to determine whether § 921(a)(20)'s "unless" clause is satisfied. 129 F.3d at 1397-98. It would make little sense if the result were different if a state never revoked the defendant's civil rights in the first place. See Indelicato, 97 F.3d at 630.
Nor are the cases the Government cites apposite. Citing Melvin v. United States, 78 F.3d 327 (7th Cir. 1996) and United States v. Denis, 297 F.3d 25 (1st Cir. 2002), the Government contends that a circuit split exists on the issue confronted by Norman, and that the First Circuit is likely to come to a conclusion at odds with that reached by the court in Norman. Supplemental Response at 3-4. Melvin, however, is not inconsistent withNorman or with my analysis. Central to the Melvin court's analysis was the fact that "Illinois never `restored' all of Melvin's civil rights within the meaning of the second sentence of section 921(a)(20)." 78 F.3d at 329. Here, no doubt exists that Massachusetts restored the defendant's civil rights. Nor isDenis relevant to my analysis. The defendant in Denis was prosecuted under 18 U.S.C. § 922(g)(9). 297 F.3d at 27. In this case, my conclusion is dictated by the language of § 921(a)(20), a section that is not implicated in Denis.
The Government's policy contention is unavailing. The Government contends that Massachusetts has determined that the defendant is not sufficiently trustworthy to carry a firearm. Supplemental Response at 4. But this argument begs the question: Which of Massachusetts' determinations am I to credit? In 1996, Massachusetts believed the defendant to be trustworthy; in 1998, it did not. As I explained earlier, § 921(a)(20) answers this question by reference to the time of the restoration of civil rights. Since Massachusetts considered the defendant trustworthy in 1996, his conviction at that time cannot serve as a predicate offense under § 922(g)(1).
ORDER
For the foregoing reasons, it is ORDERED:(1) Defendant's Motion to Dismiss Counts 1 and 2 of the Indictment (contained in Docket No. 34) is ALLOWED. Counts 1 and 2 of the indictment are dismissed.
(2) Government's Motion to Strike Defendant's Response (Docket No. 51) is DENIED.
(3) Since Government's Motion In Limine (Docket No. 37) relates to evidence pertaining to counts 1 and 2 of the indictment, that motion is DISMISSED as moot.
(4) A status and scheduling conference will be held on October 23, 2003 at 11:00 a.m.