U.S. v. Cassidy

• Citation: 899 F.2d 543
• Decision Date: 30 March 1990
• Docket Number: No. 89-3372,89-3372
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Calvin CASSIDY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 543

899 F.2d 543

UNITED STATES of America, Plaintiff-Appellant, v. Calvin CASSIDY, Defendant-Appellee.

No. 89-3372.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 14, 1989.

Decided March 30, 1990.

John M. DiPuccio, David J. Horne (argued), Office of the U.S. Atty., Cincinnati, Ohio, for U.S.

Hugh D. Holbrock, Timothy R. Evans (argued), Holbrock & Jonson, Hamilton, Ohio, for Calvin Cassidy.

Before KRUPANSKY and RYAN, Circuit Judges; and CHURCHILL, Senior District Judge. ^*

CHURCHILL, Senior District Judge.

The government appeals the district court's dismissal of a three-count indictment charging Calvin Cassidy with (1) felon in possession of a firearm in violation of repealed 18 U.S.C.App. Sec. 1202(a)(1), (2) felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1) and (3) making false statements to a dealer with respect to a fact material to the lawfulness of the sale of a firearm in violation of 18 U.S.C. Sec. 922(a)(6). For the reasons that follow, we reverse.

I.

On September 29, 1983, Defendant Calvin Cassidy was convicted in the State of Ohio of trafficking in marijuana, a crime punishable by a prison term in excess of one year. Cassidy was released from prison on June 29, 1984 and received a "Restoration to Civil Rights" certificate (the "Restoration Certificate") from the Ohio Adult Parole Authority which restored "the rights and privileges forfeited by [his] conviction; namely the right to serve on juries and to hold office of honor, trust, or profit."

On January 18, 1989, Cassidy was indicted by a federal grand jury in connection with two separate incidents involving possession of a firearm. Count I charged that on or about March 29, 1986, Cassidy, being a person convicted of a "crime punishable by imprisonment for a term exceeding one year," ¹ knowingly possessed, in commerce and affecting commerce, a firearm in violation of 18 U.S.C.App. Sec. 1202(a)(1). Count II charged that on or about January 3, 1987, Cassidy, being a "convicted felon," knowingly received a firearm which had been shipped in interstate commerce in violation of 18 U.S.C. Sec. 922(g)(1) and Sec. 924(a)(1)(B). ² Count III charged that on or about January 3, 1987, Cassidy knowingly made a false statement to a firearms dealer in connection with the acquisition of a firearm likely to deceive such dealer with respect to the lawfulness of the sale of a firearm in violation of 18 U.S.C. Sec. 922(a)(6) and Sec. 924(a)(1)(B).

During the period between the acts forming the basis for the charge in Count I and the acts supporting the violations alleged in Counts II and III, Congress enacted the Firearm Owners Protection Act. ³ Effective November 15, 1986, FOPA repealed section 1202(a) and amended section 922(g) to include the section 1202(a) possession offense. ⁴ FOPA also defined the phrase "crime punishable by imprisonment for a term exceeding one year." See 18 U.S.C. Sec. 921(a)(20).

The district court found that the Restoration Certificate given to Cassidy upon his release from prison constituted a "restoration of civil rights" for purposes of section 921(a)(20). The district court held that since the Restoration Certificate did not expressly limit Cassidy's firearms privileges, ⁵ Cassidy did not fall within the statutory definition of "convicted felon," thus requiring dismissal of Counts II and III. The district court also held that the new definition of "convicted felon" applied to prosecutions under the repealed section 1202(a)(1), thus requiring dismissal of Count I.

II.

This appeal presents us with a novel question of statutory interpretation concerning the definition of the term "crime punishable by imprisonment for a term exceeding one year" set forth at 18 U.S.C. Sec. 921(a)(20). "Statutory interpretation is a question of law which this Court reviews de novo." In re Vause, 886 F.2d 794, 798 (6th Cir.1989). Our objective when construing a federal statute is to ascertain the intent of Congress. See id.

The first step in our inquiry is to analyze the language of the statute. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). The pertinent language reads as follows:

The term "crime punishable by imprisonment for a term exceeding one year" does not include--

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

What constitutes a conviction of such a crime 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. Sec. 921(a)(20) (emphasis added).

The mandate of Congress expressed in the second sentence of the definition is plain. We must look to the law of the state in which a defendant was tried in order to determine whether the defendant was convicted of a "crime punishable by imprisonment for a term exceeding one year." Cassidy does not contest the fact that he was convicted in the State of Ohio of a crime punishable by imprisonment for a term exceeding one year under Ohio law, nor does he contend that he falls within one of the exclusions listed in subparagraphs (A) and (B). Cassidy argues that the Restoration Certificate effected a restoration of his civil rights as contemplated by the third sentence of section 921(a)(20).

The effect of the third sentence of the definition is to exempt a person from federal firearms disabilities, notwithstanding a felony conviction, if such person has "had civil rights restored ... unless such ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." Id. It was the unmistakable intent of Congress to eliminate the disabling effect of a felony conviction when the state of conviction has made certain determinations, embodied in state law, regarding a released felon's civil rights and firearms privileges.

Considering the definition as a whole, it is clear that Congress intended that courts refer to state law to determine whether an individual should be subject to federal firearms disabilities by virtue of a criminal conviction. If state law has restored civil rights to a felon, without expressly limiting the felon's firearms privileges, that felon is not subject to federal firearms disabilities. This is the clear and unambiguous intent of Congress as expressed in section 921(a)(20).

The answers to two questions, however, that arise when we attempt to apply section 921(a)(20) to the facts and state law in this case, are not clear from the face of the definition. First, it is not clear which civil rights must be restored to constitute a "restoration of civil rights." Second, it is unclear whether Congress intended that a court look only to the document, if any, tendered to a felon upon release to determine whether his civil rights have been restored and whether there is an express limitation upon his firearms privileges. It is axiomatic that if we must look to the whole of state law in order to determine whether a felon's civil rights have been restored, as opposed to looking only to an order or certificate, we must also look to the whole of state law in order to determine if his firearms privileges have been expressly restricted.

III.

A.

In order to answer these questions, we must turn to the legislative history of FOPA in general and of section 921(a)(20) in particular. See Vause, 886 F.2d at 801. The first version of FOPA was introduced in the fall of 1979. ⁶ It was introduced in response to perceived deficiencies in existing law concerning firearms ⁷ and enforcement abuses by the Treasury Department's Bureau of Alcohol, Tobacco and Firearms ("BATF"). ⁸ Congress was also concerned about the emphasis and direction of the BATF's enforcement of the Gun Control Act of 1968. ⁹ Congress desired to direct the enforcement efforts of the BATF away from what Congress viewed as unintentional and technical violations of the Gun Control Act toward what Congress perceived as more "serious, intentional criminals." ¹⁰ One of the perceived problems with existing law was the judicial interpretation of "crime punishable by imprisonment for a term exceeding one year."

In Dickerson v. New Banner Institute, Inc., the Supreme Court held that this phrase should be interpreted with reference to federal, not state, law. 460 U.S. 103, 111-112, 103 S.Ct. 986, 991-992, 74 L.Ed.2d 845 (1983). The Supreme Court, holding that the expunction of a state conviction did not nullify the conviction for purposes of the federal firearms statutes, pointed out the difficulty of enforcing a rule that made firearm disabilities dependent upon state statutes that vary widely from state to state. Id. at 120-121, 103 S.Ct. at 995-996. Despite this warning, Congress expressly overruled Dickerson by making "convicted felon" status dependent upon state law. See United States v. Kolter, 849 F.2d 541, 543 (11th Cir.1988).

In S. 1862, persons were to be subject to firearms disabilities if they had been "convicted in any court of a disabling crime." See 125 Cong.Rec. 27,38 3. The bill defined "disabling crime" as

a violation of chapters 5, 7, 12, 35, 37, 39, 42, 49, 51, 55, 68, 77, 81, 84, 95, 96, 99, 102, 103, 105, 113, 115, and 117 of title 18, attempts at violations of the aforementioned chapters, or any similar crime punishable in a court, except a State offense classified by the law of a State as a misdemeanor and punishable by a...