Thrall v. Wolfe, 73-1539

• Decision Date: 23 August 1974
• Docket Number: No. 73-1539,73-1539
• Citation: 503 F.2d 313
• Parties: Wallace F. THRALL, Plaintiff-Appellee, v. Cecil M. WOLFE, Regional Commissioner, Internal Revenue Service, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 313

503 F.2d 313

Wallace F. THRALL, Plaintiff-Appellee, v. Cecil M. WOLFE, Regional Commissioner, Internal Revenue

Service, et al., Defendants-Appellants.

No. 73-1539.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 1974.

Decided Aug. 23, 1974.

David J. Cannon, U.S. Atty., Milwaukee, Wis., Irving Jaffe, Acting Asst. Atty. Gen., and Michael Kimmel, Atty., Dept. of Justice, Washington, D.C., for defendants-appellants.

Charles C. Victor, Marinette, Wis., for plaintiff-appellee.

Before FAIRCHILD and CUMMINGS, Circuit Judges, and JAMESON, ^* Senior District Judge.

FAIRCHILD, Circuit Judge.

Plaintiff Thrall brought this action for review of a decision by the Internal Revenue Service denying his application for a license as a dealer and manufacturer of firearms. Defendants are the IRS Regional Commissioner and the Secretary of the Treasury. The district court denied defendants' motion for summary judgment. Thrall v. Wolfe, 352 F.Supp. 1074 (E.D.Wis., 1972). Subsequently, the court granted plaintiff's cross motion, and ordered the Secretary to reconsider the license application without regard to plaintiff's prior felony conviction. We reverse.

Plaintiff constructs replica antique guns and repairs modern hunting weapons. Incidentally to that business, he applied under 18 U.S.C. 923 ¹ for a license as a dealer and manufacturer of firearms. Plaintiff, however, had been convicted in 1942 by a Montana state court of assault in the first degree (a felony) and sentenced to 5 years in prison. This offense involved the use of a loaded pistol. Section 922(g) prohibits any person convicted of a crime punishable by more than one year's imprisonment from shipping or transporting any firearm or ammunition in interstate commerce. Section 922(h) prohibits such person from receiving any firearm or ammunition which has been so transported. Section 923(d)(1)(B), in turn, bars issuance of a firearms dealer license to one so prohibited under 922(g) and (h). On this basis the I.R.S. denied plaintiff's application.

Plaintiff then obtained a pardon for his 1942 offense from the governor of Montana. The pardon provided: 'I do hereby grant Wallace M. Thrall Full Pardon and Restoration of all Civil Rights lost by reason of the above conviction, and the right to receive, possess, or transport in commerce a firearm.' ² Accordingly, plaintiff renewed his license application, and a hearing was held. The hearing examiner concluded that a state governor's pardon did not remove the disabilities which 922 imposes. The Assistant Regional Director of the Internal Revenue Service agreed, and again refused to issue the license. Plaintiff then sought judicial review in the district court under 18 U.S.C. 923(f)(3).

I.

Plaintiff asserts that a federal agency may not premise denial of a license on a pardoned state conviction. He argues that a pardon blots out guilt and, thus, that defendants must disregard the earlier offense.

The Supreme Court, construing Article II, 2 of the Constitution, the presidential power to pardon federal offenders, stated in Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380, 18 L.Ed. 366 (1866):

'A pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.' ³

Subsequent authorities have questioned the import of the broad language quoted above and considered it unnecessary to the Court's holding. See Richards v. United States, 89 U.S.App.D.C. 354, 192 F.2d 602, 607 (1951), cert. denied, 342 U.S. 946, 72 S.Ct. 560, 96 L.Ed. 703 (1952), reh. denied, 343 U.S. 921, 72 S.Ct. 676, 96 L.Ed. 1334. Williston, Does A Pardon Blot Out Guilt?, 28 Harv.L.Rev. 647 (1915). Richards held that a general pardon of all prior federal offenses for those serving in the armed forces during World War II did not preclude use of a pardoned conviction for impeachment purposes at a later federal trial.

Whatever the efficacy of a presidential pardon in removing the federal consequences of conviction, the issue here is the impact of a state pardon on a federal disability. In considering the effects in one sovereignty of pardons granted by another, the federal courts have exercised caution. In United States ex rel. Palermo v. Smith, 17 F.2d 534, 535 (2d Cir. 1927), the Second Circuit refused to treat an Italian pardon for crimes committed in Italy as blotting out guilt for purposes of United States immigration law. Similarly, the Supreme Court has declined to require the states to accord the same consequences to a federal pardon as Garland suggests the federal government must. In Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914), the Court held that, despite a presidential pardon, New York could consider a prior federal conviction in applying its second offender statute. The Court noted that:

'The issue is a narrow one and involves not the determination of the operation and effect of a pardon within the jurisdiction of the sovereignty granting it, but simply requires it to be decided how far a pardon granted as to an offense committed against the United States operates, so to speak, extraterritorially as a limitation upon the states, excluding them from considering the conviction of a prior and pardoned offense against the United States in a prosecution for a subsequent state offense.' 233 U.S. at 57, 34 S.Ct. at 577.

The Court concluded, noting that the action of the state did not constitute punishment for the pardoned offense, that the federal pardon exerted no such 'extraterritorial' effect. Conversely, these cases suggest that there is nothing inherent in a state pardon which compels the federal government to disregard the pardoned offense.

In his complaint, plaintiff characterizes the refusal to license him as a failure to give full faith and credit to the Montana pardon. Article IV, 1 of the Constitution, concerning 'public acts, records, and judicial proceedings,' speaks only to the states. By statute federal courts must also accord full faith and credit to state legislative acts and judicial records and proceedings. 28 U.S.C. 1738. However, it is open to question whether the full faith and credit clause extends to requiring a state court to treat a sister state's pardons as eradicating guilt for the purpose here involved, even if the issuing state gives them that effect. Compare People v. Dutton, 9 Cal.2d 505, 71 P.2d 218, appeal dismissed 302 U.S. 656, 58 S.Ct. 365, 82 L.Ed. 508 (1937); Groseclose v. Plummer, 106 F.2d 311, 313 (9th Cir. 1939), cert. denied, 308 U.S. 614, 60 S.Ct. 264, 84 L.Ed. 513, with People v. Terry, 61 Cal.2d 137, 37 Cal.Rptr. 605, 390 P.2d 381, 388-389, cert. denied, 379 U.S. 866, 85 S.Ct. 132, 13 L.Ed.2d 68 (1964). In any event, the Supreme Court has indicated that the choice of law requirements which Article IV, 1 imposes depend on an analysis of the policies underlying conflicting laws. See generally Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212 (1951).

We conclude that, in imposing on convicted felons an otherwise appropriate disqualification from regulated activity, ^** Congress has the power to accord a state pardon differing effects in differing contexts, depending on its objectives in creating the disqualification. Neither the inherent nature of a pardon nor full faith and credit require that a state pardon automatically relieve federal disabilities. / 4/

II.

The remaining issue is whether, in enacting Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, Congress intended that one holding a state pardon no longer be regarded as convicted within the meaning of 922(g) and (h). We cannot conclude that Congress desired a gubernatorial pardon to have this effect.

Section 925(c) provides:

'A person who has been convicted of a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed . . . by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding conviction, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.' ⁵

It is unlikely that Congress intended, in effect, to confer an even broader power on the 50 state governors, free of the standards and limitations placed on the Treasury Secretary. If a state pardon were an alternative to relief under 925(c), the exception for crimes involving a firearm would have little vitality. Further, Congress would have to have assumed that a state pardoning authority would always make a satisfactory investigation of the individual's record and reputation to determine his propensity for future violence. Regarding the parallel provision ⁶ for relief from the prohibition in 18 U.S.C. 842(i) against a felon's transporting explosives, it has been observed:

'Since Congress intended this determination to be made to the satisfaction of the Secretary, whose discretion is guided by federal policy, the scheme intended by Congress is disrupted if a state, guided by state policies, may make the determination to nullify a conviction for purposes of 842(i).' United States v. Hoctor, 487 F.2d 270, 274 (9th Cir. 1973) (dissenting opinion). ⁷

We have considered whether another section of Title IV, 927, evinces an intention to give effect to state pardons. That provision states:

'No provision of this chapter shall be construed as indicating an intent on the part of Congress to occupy the field in which such provision operates to the exclusion...