U.S. v. Swanson

• Decision Date: 22 November 1991
• Docket Number: No. 91-7056,91-7056
• Citation: 947 F.2d 914
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David SWANSON, Defendant-Appellee. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 914

947 F.2d 914

UNITED STATES of America, Plaintiff-Appellant, v. David SWANSON, Defendant-Appellee.

No. 91-7056

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

Nov. 22, 1991.

Frank W. Donaldson, U.S. Atty. and John C. Earnest, Jr., Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellant.

Lawrence B. Sheffield, Jr. and John A. Lentine, Sheffield, Sheffield, Sheffield & Lentine, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and CLARK, Senior Circuit Judge.

CLARK, Senior Circuit Judge:

The district court dismissed the indictment against appellant Swanson pursuant to 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 921(a)(20). We affirm.

I. FACTS

Appellant was charged in a three-count indictment with violation of 18 U.S.C. § 922(g)(1), which provides 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." The charges were predicated exclusively on a manslaughter in the first degree conviction in Jefferson County, Alabama on January 6, 1970. The manslaughter conviction was a crime punishable by imprisonment for a term exceeding one year.

18 U.S.C. § 921(a)(20), however, limits section 922(g)'s application to crimes punishable by terms exceeding one year. In defining "a crime punishable by imprisonment for a term exceeding one year," section 921(a)(20) provides:

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. ¹

On January 29, 1979, appellant Swanson received a "Certificate Granting Restoration of Civil and Political Rights" from the State Board of Pardons and Paroles of Alabama (hereinafter "the Board") in connection with a petit larceny conviction in Jefferson County on November 15, 1974. The certificate acknowledged that the defendant's conduct merited his restoration of civil and political rights and expressly ordered

that the loss of all civil and political rights resulting from the above stated conviction and any prior disqualifying convictions be and they are hereby restored.

Consistent with this language, then, "the loss of all civil rights resulting from" Swanson's "prior disqualifying conviction" of January 6, 1970, i.e., the manslaughter conviction which is the exclusive predicate for the section 922(g) charges in the instant indictment, were restored by the Board's certificate. The certificate contains no express restriction or limitation on appellant's firearms privileges. And, while the government contends that it is the policy of the Board to inform each individual, at the outset of his probation, that he may not possess firearms, it acknowledges that there is no evidence that Swanson, in fact, had notice of such restriction or notice that after restoration of his civil rights, such restriction still applied. ²

Appellee, in his "Motion to Dismiss Indictment," argued that without an express provision in the restoration certificate restricting his firearms privileges, as required by section 921(a)(20), the conviction which became the basis of his indictment is not a "crime punishable by imprisonment for a term exceeding one year," nor is it a "conviction" pursuant to section 922(g)(1). On this basis, appellee asserted, the indictment should be dismissed. The magistrate and the district court agreed, 753 F.Supp. 338, albeit reluctantly, and this appeal followed.

II. DISCUSSION

On these facts 18 U.S.C. § 922(g)'s prohibition on possession of firearms applies only to an individual who has been convicted "of a crime punishable by imprisonment for a term exceeding one year." Under the express language of 18 U.S.C. § 921(a)(20), "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" punishable by imprisonment for a term exceeding one year unless such "restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." It is undisputed that Swanson's restoration certificate restored, without any express limitation, "all civil and political rights." It also is undisputed that the restoration of "all political and civil rights" applied to the January 6, 1970 conviction, as a "prior disqualifying conviction," which is the basis for Swanson's indictment under section 922(g). From this, it follows that if a conviction for which political and civil rights have been restored is not a conviction for purposes of section 922(g), then Swanson's January 6, 1970 conviction cannot be the basis for indictment under section 922(g) for possession of a firearm. The indictment should be dismissed.

This holding is consistent with this court's opinion in United States v. Kolter. ³ Kolter involved a defendant who, in 1973, was convicted of burglary and sentenced under the Georgia Youthful Offender Act. In 1976, the State Board of Pardons and Paroles restored, without express restriction, "all the civil and political rights Kolter had lost as a result of the burglary offense." ⁴ In 1976, Kolter was indicted under the predecessor statute to section 922(g)'s firearm possession prohibition, 18 U.S.C.App. § 1202(a)(1), for possession of a firearm by a convicted felon. ⁵ The underlying felony conviction on which the indictment was predicated was the 1973 Georgia burglary conviction for which Kolter's civil rights had been restored. Kolter moved to dismiss his indictment, arguing that effective November 15, 1986, "Congress had redefined 'convicted felon' and that the restoration of his civil rights removed him from the class of persons who could be prosecuted under the federal firearms law." ⁶ The district court denied the motion, and Kolter was convicted on November 20, 1986.

After determining that section 921(a)(20), in its present version, applied to Kolter's case as one pending on November 15, 1986, the effective date of the legislation inserting the language of subsection (a)(20), we addressed the substantive merits of Kolter's challenge to his conviction under section 1202(a)(1). "[[U]nder § 921(a)(20), Kolter would not be a 'convicted felon' as the restoration of civil rights was not qualified by a firearms restriction." ⁷ On this basis, the court reversed Kolter's conviction for possession of a firearm by a convicted felon.

The thrust of the government's argument, in seeking to distinguish Kolter and to avoid the express terms of section 921(a)(20), is that the Alabama State Board of Pardons and Paroles, acting pursuant to the authority granted it by the Alabama legislature, restored to Swanson only those "civil and political rights" which it was empowered to restore. ⁸ Thus, the restoration was full and without reservation insofar as the Board had authority: to restore the right to vote, to sit on a jury, and to hold elective office. The Board could not, the government argues, restore the right to possess a pistol, for purposes of state law, or a firearm, for purposes of federal law. Moreover, appellant argues, the restoration of federal firearms rights to violent felons would directly contradict Congress's purposes in enacting section 921(a)(20) and the Gun Control Act, which is to prohibit receipt, possession, transportation, and shipment of firearms by felons and other classes of particularly dangerous individuals.

In support of its argument that the Board did not have authority under Alabama law to restore to Swanson his right to possess firearms, the government argues:

An examination of relevant State of Alabama law regarding disabilities of restoration shows that the state never intended to erase Swanson's violent felony convictions. Section 13A-11-72(a) Code of Alabama 1975, provides as follows:

"No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control."

Section 13A-11-70(2) defines manslaughter and assault with intent to murder as "crimes of violence." There are no exceptions to this prohibition and neither an unlimited restoration of political and civil rights nor a full pardon affects this disability. ⁹

In 1958, the Alabama Supreme Court, in Mason v. State, ¹⁰ apparently agreed with the government's assertion. In considering the effect of a pardon of a second degree murder conviction, the Alabama Court of Appeals held that the state prohibition against possession of a pistol is in no way vitiated by a pardon. "A pardon cannot wipe out the historical fact of the conviction.... and it involves forgiveness, and not forgetfulness." ¹¹ In examining the predecessor statute to section 13A-11-72, the court stated that the prohibition "evinces a clear intention on the part of the legislature to protect the citizens of this state from the actions of that class of persons, who by their past acts, have shown themselves unsuitable and unfit to own and possess pistols." ¹² The Alabama Supreme Court affirmed. ¹³

On May 17, 1991, after briefs were filed in this case, the Alabama Supreme Court expressly rejected its decision in Mason. ¹⁴ In Alabama ex rel. Sokira v. Burr, the question presented was...