U.S. v. Andaverde

• Decision Date: 24 August 1995
• Docket Number: No. 94-30321,94-30321
• Citation: 64 F.3d 1305
• Parties: 95 Cal. Daily Op. Serv. 6708, 95 Daily Journal D.A.R. 11,493 UNITED STATES of America, Plaintiff-Appellee, v. Gabriel Valdez ANDAVERDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1305

64 F.3d 1305

95 Cal. Daily Op. Serv. 6708, 95 Daily Journal

D.A.R. 11,493

UNITED STATES of America, Plaintiff-Appellee, v. Gabriel Valdez ANDAVERDE, Defendant-Appellant.

No. 94-30321.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 21, 1995.

Decided Aug. 24, 1995.

Stephen R. Hormel, Federal Defenders of Eastern Washington and Idaho, Spokane, WA, for defendant-appellant.

Gregory M. Shogren, Asst. U.S. Atty., Yakima, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before: NOONAN and HAWKINS, Circuit Judges, and RONALD S.W. LEW, ^* District Judge.

LEW, District Judge:

Gabriel Andaverde appeals from his criminal conviction for being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1) and for possessing a stolen firearm in violation of 18 U.S.C. Sec. 922(j). He contends that 18 U.S.C. Sec. 922(g)(1) violates the Fifth and Tenth Amendments, that several of his post-arrest statements were inadmissible, and that an insufficient interstate commerce nexus was shown at trial under 18 U.S.C. Sec. 922(j). We affirm the district court on all issues relating to his conviction under 18 U.S.C. Sec. 922(g), but, in light of this court's recent decision in United States v. Cruz, 50 F.3d 714 (9th Cir.1995), reverse as to his conviction under 18 U.S.C. Sec. 922(j).

I.

On January 31, 1991, Andaverde was convicted in state court of first degree burglary and was subsequently imprisoned. At the time of the events at issue here, he had been released and was on probation. Corrections Officer Spurgeon Keeth supervised Andaverde as part of his probation. Andaverde lived at his mother and step-father's home, where he had his own bedroom.

On October 27, 1993, police officers executing a search warrant ¹ searched the family home, finding a shotgun underneath Andaverde's bed in his bedroom. This shotgun had been taken from a neighbor's truck a few days before. After finding the gun, the police took Andaverde to the police station, where he was given a Miranda warning by Detective Julius Schenck. After advising Andaverde of each of his rights, Schenck asked him if he understood the right. Andaverde separately indicated that he understood each right, and he signed a written waiver form. Schenck questioned him for at most two hours and then walked Andaverde out to where Corrections Officer Keeth was waiting, directly outside of Schenck's office. Schenck told Keeth that Andaverde had been Mirandized, had made a statement, and that Keeth could now talk to Andaverde. ²

Without reinforming Andaverde of his rights, Keeth began questioning him about a possible probation violation for possessing a gun. Andaverde told Keeth that his brother had stolen the gun and brought it into the house, but that he did not know how it got underneath his bed.

Schenck testified that when Andaverde and Keeth began talking, he remained on the scene and listened to the questioning. ³ He heard Andaverde make the statement about his brother and the gun.

The next day, October 28, Keeth again questioned Andaverde at the jail, again without issuing a Miranda warning. During that interview, Andaverde initially denied knowing how the shotgun got under the bed. However, after Keeth expressed his disbelief, Andaverde admitted that he himself had put the gun under his bed.

On October 29, 1993, Andaverde indicated that he wanted to speak to Bureau of Alcohol, Tobacco, and Firearms ("ATF") Agent Robert Wyatt, who was meeting with Andaverde to fingerprint him. Before taking the statement, Wyatt advised Andaverde of his rights. Andaverde refused to sign a waiver form. However, he acknowledged that he understood his rights, and he subsequently made statements to Wyatt. The record is unclear as to whether those statements were made in response to questions by Wyatt, or were spontaneously offered by Andaverde. During this interview, Andaverde stated that he knew that the shotgun was under his bed. Subsequently, Andaverde refused to answer further questions.

At trial, the district court judge refused to dismiss the criminal indictment. Andaverde was subsequently convicted in federal court under 18 U.S.C. Sec. 922(g)(1) as a convicted felon in possession of a firearm, and under 18 U.S.C. Sec. 922(j) for storing or concealing a stolen firearm.

II.

The first count of the indictment was brought pursuant to 18 U.S.C. Sec. 922(g)(1), which prohibits convicted felons from possessing firearms. Andaverde contends that he was not a convicted felon subject to prosecution under that statute, and, additionally, that his prosecution violates the Fifth and Tenth Amendments. We apply de novo review to a denial of a motion to dismiss a criminal indictment on constitutional grounds. United States v. McDougherty, 920 F.2d 569, 571 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1119, 113 L.Ed.2d 227 (1991). We hold that the statute applies to Andaverde, and that his prosecution did not violate the Constitution.

Under 18 U.S.C. Sec. 922(g)(1), convicted felons are prohibited from possessing firearms. The statute 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 receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. Sec. 922(g)(1).

Courts determine what constitutes a conviction for the purposes of Sec. 922(g)(1) by looking to the law of the jurisdiction where the proceeding was held. 18 U.S.C. Sec. 921(a)(20). Section 921(a)(20) provides that:

Any conviction which has been expunged, or set aside or for which a person has civil rights restored shall not be considered a conviction for purposes of this chapter, unless such a pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

(emphasis added). Under this provision, enforcement of Sec. 922(g)(1) depends upon the felon's status under state law. Consequently, a federal court must look to state law in order to determine whether a convicted felon falls into the category of persons prohibited from possessing firearms.

Andaverde first argues that, because Washington state law did not prohibit him from possessing a shotgun, ⁴ he should be considered as having had his civil rights restored. Therefore, Andaverde contends, his conviction is not a conviction for Sec. 922(g)(1)'s purposes.

Andaverde is incorrect. In determining whether a felon continues to suffer a civil rights disability, the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office. United States v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 314, 126 L.Ed.2d 261 (1993); United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991). Andaverde contends that this restoration analysis should turn on whether state law restores the right to bear arms. Even if, in determining whether a felon's civil rights have been restored, the court should look to state law giving felons the right to bear arms, the restoration of this single right does not prevent prosecution under Sec. 922(g)(1). A restoration of rights must be "substantial," not merely de minimis. Meeks, 987 F.2d at 578; Dahms, 938 F.2d at 133. We held in Meeks that, under Missouri law which allowed convicted felons to vote and hold office, but which did not restore the right to serve on a jury, to hold office as a sheriff, or to be a highway patrol officer, the defendant had not had his civil rights "substantially restored" and thus could be prosecuted under Sec. 922(g)(1). Meeks, 987 F.2d at 578. In contrast, the Dahms court ruled that a defendant who had been restored the right to vote, hold public office, and serve on a jury had had his rights substantially restored within the meaning of Sec. 921(a)(20). Dahms, 938 F.2d at 134.

Under Washington state law, a felon's civil rights are restored in full when he completes the requirements of his sentence and is thereby discharged. Wash.Rev.Code Sec. 9.94A.220. However, until a felon is discharged, state law prevents him from serving on a jury, holding public office, and voting. Wash.Rev.Code Secs. 2.36.070(5) (Supp.1995), 29.65.010(3); Wash. Const. Art. 6, Sec. 3. There is no evidence in the record that Andaverde has been discharged. Andaverde thus substantially lacked civil rights when he was prosecuted under Sec. 922(g)(1). Cf. Dahms, 938 F.2d at 134. Therefore, the district court did not err in ruling that he could be prosecuted under that statute.

A.

Andaverde further contends that his conviction under Sec. 922(g)(1) violates the equal protection assurances contained in the Due Process Clause of the Fifth Amendment because Sec. 922(g)(1) differentiates between convicted felons who are on probation and those who are not.

This argument is unpersuasive. Congress could rationally conclude that convicted felons who have successfully completed their probation, and, presumptively, have been reintegrated into society may better be trusted with the right to possess firearms than convicted felons who have yet to prove themselves rehabilitated. Andaverde's equal protection claim must fail.

B.

Andaverde argues that his prosecution impermissibly interferes with state laws allowing felons to bear firearms, because that area of regulation was left to the states under Sec. 922(g)(1). We disagree. Section 922(g)(1) rests on state law governing convictions, not on state law regulating felons' possession of firearms. The section requires the courts to look at the state's definition of convictions, not at the state's substantive regulation of convicted felons. Congress may regulate possession of firearms without violating the Tenth Amendment. United States v. Tomlin, 454 F.2d 176, 176 (9th Cir.), cert. denied, 406...