U.S. v. Flower, 93-4146

• Decision Date: 07 July 1994
• Docket Number: No. 93-4146,93-4146
• Citation: 29 F.3d 530
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grove Lawrence FLOWER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 530

29 F.3d 530

UNITED STATES of America, Plaintiff-Appellee, v. Grove Lawrence FLOWER, Defendant-Appellant.

No. 93-4146.

United States Court of Appeals Tenth Circuit.

July 7, 1994.

Robert Breeze, Salt Lake City, UT, for defendant/appellant.

Stewart C. Walz, Asst. U.S. Atty., Salt Lake City, UT (Scott M. Matheson, Jr., U.S. Atty., and Mark K. Vincent, Sp. Asst. U.S. Atty., with him on the brief), for plaintiff/appellee.

Before BRORBY and EBEL, Circuit Judges, and COOK, Sr. District Judge. ^*

EBEL, Circuit Judge.

Defendant-Appellant Grove Lawrence Flower appeals his conviction of possession of a firearm by a felon, 838 F.Supp. 544, in violation of 18 U.S.C. Sec. 922(g)(1). 18 U.S.C. Sec. 921(a)(20) defines what prior felony convictions may be used as predicate convictions for a Sec. 922(g)(1) offense, and Sec. 921(a)(20) states that a prior felony should not be used if it has been expunged or set aside or if the defendant has been pardoned or had his civil rights restored with regard to such conviction. Flower argues that the government failed to prove that his prior convictions were not expunged or set aside and that he has not been pardoned or had his civil rights restored as to such convictions. Thus, Flower asserts that the government failed to prove an essential element of a Sec. 922(g)(1) offense.

Whether a prior conviction meets the definition of Sec. 921(a)(20), and is therefore properly admitted in a Sec. 922(g)(1) case, is an ultimate legal determination to be decided by the trial judge. Here, the record is clear that Flower has not had his civil rights restored for the predicate convictions. Additionally, Flower failed to raise adequately an issue as to whether such predicate convictions had been set aside or expunged or that he had been pardoned. Hence, we find no error in the district court's decision to allow evidence of his prior convictions to be introduced for the purpose of satisfying the government's burden under Sec. 922(g)(1). Accordingly, we affirm.

BACKGROUND

In September 1992, Flower was found guilty of being a felon in possession of a pistol and a rifle, in violation of 18 U.S.C. Sec. 922(g)(1). Section 922(g)(1) states, in relevant part, that:

It shall be unlawful for 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.

A crime punishable for a term exceeding one year is defined in 18 U.S.C. Sec. 921(a)(20). ¹ The definition expressly does not include "[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." Id. Whether a prior conviction constitutes a predicate conviction under Sec. 921(a)(20) is determined according to the law of the jurisdiction in which the predicate conviction occurred. Beecham v. United States, --- U.S. ----, ----, 114 S.Ct. 1669, 1670, 128 L.Ed.2d 383 (1994).

Flower's prior felony convictions included two third-degree felonies: nondwelling burglaries committed in Utah in 1981 and 1983. In pretrial motions, Flower presented several reasons why his prior felony convictions should not be used as predicate convictions under Sec. 922(g)(1). First, Flower proffered Utah Code Sec. 76-10-512 for the proposition that felons can possess guns for hunting. ² Flower also argued that a 1984 amendment to Article 1, Section 6 of the Utah Constitution ³ gives individuals in Utah the right to keep and bear arms and that this amendment applies to felons and non-felons. Finally, Flower asserted that Utah does not deprive felons of the rights to vote and hold public office, although he acknowledged that they are precluded from serving on juries. Record on Appeal, Vol. V at 10; Utah Code Ann. Sec. 78-46-7(2) ("A person who has been convicted of a felony is not competent to serve as a juror."). All of these arguments, of course, go to whether Flower's civil rights have been restored with regard to his prior felony convictions. Although Flower argued that the government had the burden of proving a negative--proving that his civil rights had not been restored--the district court treated this as a matter of an affirmative defense and imposed upon Flower the burden of proving that his civil rights had been restored. Thus, the district court denied Flower's motion for a judgment of acquittal based upon the government's failure to prove that his prior convictions had not been expunged or set aside, that he had not been pardoned, and that his civil rights had not been restored. The district court denied the motion and ruled that Flower bore the burden of proving the status of his prior convictions. Flower was convicted and sentenced to thirty months incarceration and three years supervised release.

DISCUSSION

We review de novo the district court's legal conclusion that the Sec. 921(a)(20) exceptions, as applied to Sec. 922(g)(1), ⁴ constitute affirmative defenses. See United States v. Burns, 934 F.2d 1157, 1159 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1246, 117 L.Ed.2d 478 (1992).

The government argues that our decision in United States v. Shunk, 881 F.2d 917 (10th Cir.1989), decided the issues in this case because in Shunk, we listed the elements the government must prove in a Sec. 922(g)(1) case as follows:

(1) The defendant was convicted of a felony;

(2) Thereafter the defendant knowingly possessed a firearm; and

(3) The defendant's possession of the firearm was in or affecting commerce.

Id. at 921. Because Shunk "stipulated to the existence of the first element," we did not elaborate or discuss in depth what constitutes a predicate felony conviction in Sec. 922(g)(1) cases. Id. Shunk holds that the government must prove that the defendant was convicted of a felony; however, it does not describe the role that the Sec. 921(a)(20) definition plays in the analysis or who must initially raise the issue of the predicate conviction's continuing vitality. These are issues of first impression in this circuit. ⁵

Nothing in the plain language of Secs. 922(g)(1) or 921(a)(20) suggests that the Sec. 921(a)(20) definition constitutes an affirmative defense. In fact, the title to 18 U.S.C. Sec. 921 is "Definitions." The beginning of Sec. 921(a)(20) states that "[t]he term 'crime punishable by imprisonment for a term exceeding one year' does not include...." Section 921(a)(20)'s effect is narrowly to delineate which prior convictions properly may be used in a Sec. 922(g)(1) case as predicate convictions. As such, Sec. 921(a)(20) is simply a legal definition that defines "conviction for a term exceeding one year." Our approach to treat Sec. 921(a)(20) as a legal definition is consistent with the approach taken, at least implicitly, by several other courts. See United States v. Owens, 15 F.3d 995, 997 (11th Cir.1994) (a prior felony conviction for violation of Sec. 922(g)(1) is defined by Sec. 921(a)(20)); United States v. Frushon, 10 F.3d 663, 665-66 (9th Cir.1993) (referring to Sec. 921(a)(20) as a definitional phrase), cert. denied, --- U.S. ----, 114 S.Ct. 2175, 128 L.Ed.2d 895 (1994); Martin v. United States, 989 F.2d 271, 273 (8th Cir.) (interpreting the amended definition of conviction for purposes of Sec. 922), cert. denied, --- U.S. ----, 114 S.Ct. 475, 126 L.Ed.2d 426 (1993); United States v. Cassidy, 899 F.2d 543, 545 (6th Cir.1990) (interpreting the "definition of the term 'crime punishable by a term exceeding one year' set forth at 18 U.S.C. Sec. 921(a)(20)"). ⁶

Our approach is also consistent with the Supreme Court's discussion in Beecham interpreting Sec. 921(a)(20)'s choice of law provision. The Beecham Court stated:

The choice-of-law clause [of Sec. 921(a)(20) ] defines the rule for determining "[w]hat constitutes a conviction." The exemption clause says that a conviction for which a person has had civil rights restored "shall not be considered a conviction." Asking whether a person has had civil rights restored is thus just one step in determining whether something should "be considered a conviction."

....

... The exemption clause does not simply say that a person whose civil rights have been restored is exempted from Sec. 922(g)'s firearms disqualification. It says that the person's conviction "shall not be considered a conviction." The effect of postconviction events is therefore, under the statutory scheme, just one element of the question of what constitutes a conviction.

....

... [W]e recognize that in enacting the choice-of-law clause, legislators may have been simply responding to our decision in Dickerson v. New Banner Institute, Inc., 460 U.S. 103 [103 S.Ct. 986, 74 L.Ed.2d 845] (1983), which held that federal law rather than state law controls the definition of what constitutes a conviction, not setting forth a choice-of-law principle for the restoration of civil rights following a conviction.

Beecham, --- U.S. at ---- - ----, 114 S.Ct. at 1671-72 (internal citations omitted). ⁷

Because Sec. 921(a)(20) is definitional, it is the trial judge's responsibility to determine as a matter of law whether a prior conviction is admissible in a Sec. 922(g)(1) case. Any motions, arguments, or factual presentations related to this issue should therefore be heard and considered outside the presence of the jury. The judge's ultimate decision to admit, or not to admit, a prior conviction as a predicate crime under Sec. 922(g)(1) may rest upon a factual evidentiary showing; just as many other substantive legal questions rest upon factual showings. See Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547, 99...