U.S. v. Allen

• Decision Date: 25 October 1982
• Docket Number: No. 81-1656X,81-1656X
• Citation: 699 F.2d 453
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard W. ALLEN, aka Leonard Andrews, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 453

699 F.2d 453

UNITED STATES of America, Plaintiff-Appellee, v. Leonard W. ALLEN, aka Leonard Andrews, Defendant-Appellant.

No. 81-1656X.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1982.

Decided Oct. 25, 1982.

Rehearing Denied Oct. 25, 1982.

Donald M. Re, Weitzman, Fidler & Re, Los Angeles, Cal., for defendant-appellant.

William J. Landers, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, WALLACE, and PREGERSON, Circuit Judges.

WALLACE, Circuit Judge:

Allen appeals his conviction for possession of a firearm by one who has previously been convicted of a felony in violation of 18 U.S.C.App. Sec. 1202(a). He contends that reversal is required because two state statutes exempt him from application of section 1202(a). He also argues that the district judge erred in denying his motions to suppress evidence and to dismiss the indictment for vindictive prosecution. We affirm.

I

Allen, using the name Leonard Andrews, ordered firearm parts from a Detroit dealer who was under investigation by the Bureau of Alcohol, Tobacco and Firearms (ATF). The dealer provided ATF with a list of six names and addresses of persons in California who apparently had ordered firearm parts. ATF special agents Paur and Pinkstaff contacted Allen, one of those named, at his place of business in Canoga Park, California. Allen identified himself as Leonard Andrews and displayed a California driver's license in that name. Without giving Allen any Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), agent Paur asked him about the parts and Allen admitted that he ordered parts for an Ingram MAC-11.38 caliber firearm. He told Paur that the weapon had accidentally started firing automatically and he wanted the parts to restore it to semi-automatic capacity. When agent Pinkstaff asked Allen to see the firearm, he stated that it was at his home. According to Paur's testimony, when he and Pinkstaff spoke to Allen their sole purpose was to obtain information to provide to the ATF Detroit office. They did not intend to arrest or detain Allen, nor did they believe they had any basis to do so since they believed Allen's explanation that the firearm accidentally began to fire automatically.

Sometime later ATF agent Royer showed Paur a photograph on a California driver's license in the name of Leonard Allen. Paur recognized the picture on the license to be that of the individual who had identified himself as Leonard Andrews. Royer informed Paur that Allen had a prior criminal record. Until then, Paur was unaware of Allen's previous criminal conviction.

Subsequently, special agent Royer and others executed a federal search warrant at Allen's residence. While Royer advised those present that they were not under arrest and were free to leave, the government has conceded that Allen was in custody for purposes of Miranda. However, no Miranda warnings were given. Allen was asked which weapons were his, and he accompanied agents through the house and pointed out the weapons in the den that belonged to him. The parties dispute whether Allen asked the agents to be careful of three commemorative rifles in his den before or after the questioning began.

Allen filed several pretrial motions. In his motion to suppress, he argued that the statements made to the ATF agents when they first contacted him were involuntary and in violation of Miranda. He argued, therefore, that the statements should be suppressed and, as a result, there was no probable cause for the search warrant. The district court denied the motion, concluding that Miranda warnings were not required because there had been no arrest. On the same basis, Allen also sought to suppress the statements he made during the execution of the warrant. The government resisted suppression only of Allen's statement requesting the agents to be careful of his commemorative rifles. As to that issue, the district court denied the motion, finding that the statement was made before any questions were asked.

After the district court denied Allen's motion to strike references to his prior conviction and his motion to dismiss for vindictive prosecution, the trial proceeded before the district judge. It was stipulated that Allen was the same individual who was convicted of larceny and store breaking in North Carolina, that Royer would testify that pursuant to the search warrant, a Winchester, Model 94, 130-30 caliber rifle was taken from a gun cabinet in Allen's residence, that this rifle was a National Rifle Association Commemorative issue, that the rifle was test-fired and found to be operative, that it had been manufactured outside of California, and that Allen made the statement which the district court had ruled admissible.

II

Allen argues that his 1964 North Carolina felony conviction cannot be used as a predicate offense for a violation of 18 U.S.C.App. Sec. 1202(a), which provides in part:

Any person who--

(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony,

* * *

and who receives, possesses, or transports in commerce or affecting commerce ... any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

Under id. Sec. 1203(2), persons who have been "pardoned" and have been "expressly authorized ... to receive, possess or transport ... a firearm" by the chief executive of a state are exempt from liability under section 1202(a).

Although Allen has not received a pardon from the governor of North Carolina, nor an express authorization to carry firearms, he argues that under the statutory scheme of North Carolina he has been given the functional equivalent of such a pardon and authorization. He relies on two state statutes. Section 13-1 of the North Carolina General Statutes provides that anyone convicted of a crime and whose rights of citizenship are forfeited, shall have their rights restored upon unconditional discharge after service of the sentence imposed. Section 14-415.1 provides that it shall be unlawful for a person convicted of certain crimes to possess a firearm only for a period of five years after the discharge from his sentence. N.C.Gen.Stat. Sec. 14-415.1. The five years have passed for Allen. Read in conjunction, Allen argues that he has been given what is tantamount to the pardon and express authorization to carry firearms required by section 1203(2). We disagree.

In United States v. Potts, 528 F.2d 883, 885 (9th Cir. 1975) (en banc), we held that a felony conviction expunged by a state statute could be used as a predicate offense when the state statute specifically provided that the prior conviction could be pleaded and proved in a subsequent prosecution for another offense. Allen argues that this case does not fall within our Potts decision. The defendant in Potts claimed that since his conviction was completely erased from his record, he was no longer a person who had been convicted of a felony for purposes of section 1202(a)(1). Id. at 884; see also United States v. Herrell, 588 F.2d 711, 713 (9th Cir.), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1978). Allen, on the other hand, does not argue that the effect of North Carolina General Statute 13-1 (restoration of citizenship) is to eliminate a prior state conviction as the basis for a federal conviction for possession of a firearm by a convicted felon. He argues that section 13-1 and section 14-415.1 operate as a pardon for purposes of 18 U.S.C.App. Sec. 1203(2). We agree that Potts does not directly answer the question whether these North Carolina statutes satisfy the requirements of section 1203(2).

The issue before us is the extent to which state statutory law is relevant to the scope of the exemption provided by section 1203(2). See United States v. Potts, supra, 528 F.2d at 887 (Sneed, J., concurring). Issues of statutory construction "must begin with the language of the statute itself.... Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Bread Political Action Comm. v. FEC, 455 U.S. 577, ----, 102 S.Ct. 1235, 1237-38, 71 L.Ed.2d 432 (1982) (citations omitted). We find it significant that section 1203(2) makes no express or implied reference to such state statutes. Rather, this section specifically exempts persons who have been "pardoned" by the chief executive of a state, in this case the governor of North Carolina, and who have been "expressly authorized" by such chief executive to receive, possess, or transport in commerce a firearm. We conclude that Allen is not such a person. Allen has presented us with no controlling authority or legislative history demonstrating that when Congress used the words "pardoned by ... the chief executive of a State," it meant anything other than an actual pardon by the governor or other chief executive. We have not been directed to any legislative history indicating that Congress intended a statutory grant of clemency or restoration of rights by a state legislature to function as the equivalent of a gubernatorial pardon for purposes of section 1203(2). Allen belongs to that class of convicted felons whose civil rights have been restored by general statute, rather than individually by the governor's pardon. If Congress had desired to extend the exemption to persons in this class, it could easily have done so.

We need not reach the question whether Allen has complied with section 1203(2)'s second requirement of an express authorization from the pardoning executive to carry firearms. See United States v. Sutton, 521 F.2d 1385, 1389 (7th Cir. 1975). Both requirements must be met in order for Allen to avail himself of the section 1203(2) exemption. As he has failed to demonstrate he was pardoned, it is immaterial...