U.S. v. Bost, 95-3089

• Decision Date: 28 June 1996
• Docket Number: No. 95-3089,95-3089
• Parties: UNITED STATES of America, Appellee, v. Michael T. BOST, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1333

87 F.3d 1333

318 U.S.App.D.C. 324

UNITED STATES of America, Appellee, v. Michael T. BOST, Appellant.

No. 95-3089.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 25, 1996.

Decided June 28, 1996.

A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs, for appellant. Amy Seidman, Key Gardens, NY, entered an appearance.

Leanne Shaltis, Assistant United States Attorney, argued the cause, for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, and J. Patrick Rowan, Assistant United States Attorneys, were on the brief.

Before SILBERMAN, BUCKLEY, and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

Concurring opinion filed by Circuit Judge SILBERMAN.

BUCKLEY, Circuit Judge:

Appellant Michael T. Bost entered a conditional guilty plea to a charge of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), the federal "felon-in-possession" law. On appeal, Bost argues that because his civil rights had been restored by a certificate and a statute that did not restrict his right to possess a gun, he cannot be convicted of that crime. We agree.

I. BACKGROUND

On June 11, 1993, Bost drove his pick-up truck to the White House and asked to see the President. After ascertaining that Bost had no appointment, the Secret Service officer on duty asked Bost if he had any weapons. When he replied that he had a rifle in his truck, Bost was arrested; subsequently, on July 6, 1993, he was charged in a three-count indictment. The only issue in this appeal involves Count One, which charged Bost with violating the felon-in-possession statute.

The predicate felony upon which Count One is based is an Ohio conviction for kidnaping. In 1981, after serving the sentence for that offense, Bost was paroled to his home in North Carolina. In July 1982, the State of Ohio issued Bost a certificate entitled "Restoration to Civil Rights," which states, in pertinent part:

Having served the maximum sentence for the offense for which you were convicted, and under the authority of Sections 2961.01 and 2967.16 of the Revised Code of Ohio, the Ohio Adult Parole Authority hereby RESTORES you to the rights and privileges forfeited by your conviction; namely the right to serve on juries and to hold office of honor, trust, or profit.

Appendix at 27. Bost's right to vote was restored automatically by statute.

In a motion to dismiss the felon-in-possession charge, Bost argued that because the Ohio certificate that had restored his civil rights placed no restrictions on his right to possess a firearm, he could not be convicted for a violation of 18 U.S.C. § 922(g)(1), citing section 921(a)(20), which defines the felony convictions that are subject to section 922(g). After a hearing on February 23, 1995, the district court denied the motion. On February 28, Bost pleaded guilty to Count One, reserving under Rule 11(a)(2) of the Federal Rules of Criminal Procedure his right to appeal the denial of his motion. Counts Two and Three were dismissed pursuant to the plea agreement. Bost was sentenced to forty-two months in prison, followed by three years of supervised release. This appeal followed.

II. DISCUSSION

In 1986, Congress enacted the Firearms Owners' Protection Act ("Act"). 18 U.S.C. § 926A et seq. (Supp. IV 1986). The Act had the effect of revising and consolidating two preexisting felon-in-possession statutes that had overlapping provisions. See 18 U.S.C. § 921 & note (Supp. IV 1986). The new statute provides, in pertinent part:

It shall be unlawful for any person--

(1) 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.

18 U.S.C. § 922(g) (1994). The phrase "crime punishable by imprisonment for a term exceeding one year" is defined in such a manner as to exclude certain categories of individuals from prosecution under section 922(g). The issue before us is whether Bost falls within that exclusion.

The relevant language of the definitional section reads as follows:

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

18 U.S.C. § 921(a)(20). As the Senate Committee Report expressly recognized, see S.Rep. No. 583, 98th Cong., 2d Sess. 7 n.16 (1984), the effect of this provision is to allow a state to determine who will be subject to federal prosecution under the Act. It is generally agreed that the "civil rights" referred to in section 921(a)(20) are the rights to vote, to hold elective office, and to serve on a jury. United States v. Caron, 77 F.3d 1, 2 (1st Cir.1996); see also United States v. Cassidy, 899 F.2d 543, 549 (6th Cir.1990); United States v. Thomas, 991 F.2d 206, 212-13 (5th Cir.1993). States have adopted a "wide variety of practices" for restoring these civil rights. Caron, 77 F.3d at 2-3; McGrath v. United States, 60 F.3d 1005, 1008 (2d Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996). Some states restore civil rights by statute; others authorize officials to issue certificates of restoration to felons after a specified period; still others "restore rights in a piecemeal fashion" by a combination of statutes or by certificate and statute. See Caron, 77 F.3d at 3. In this case, Ohio restored Bost's civil rights in part by statute and in part by the issuance of a certificate.

The issue before us is whether, under the definition in section 921(a)(20), a defendant may be considered a convicted felon, for purposes of section 922(g), if the law in the state of conviction prohibits felons from shipping, transporting, possessing, or receiving firearms even though the statute or the procedure that restores the felon's civil rights is silent on the subject.

In cases where felons have been advised by certificate that their civil rights have been restored, our sister circuits are divided over whether courts may look beyond those certificates in order to determine whether the restoration "expressly" limited the recipient's rights with respect to firearms. Some circuits hold that section 921(a)(20) limits the inquiry to the language of the certificate. See, e.g., United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994) (where formal notice of restoration is provided, section 921(a)(20) requires courts "to look, not at the contents of the state's statute books but at the contents of the document"); Thomas, 991 F.2d at 213 (same); United States v. Herron, 45 F.3d 340, 343 (9th Cir.1995) (same). Other circuits hold that the "whole of state law" must be reviewed in order to determine whether a felon's firearms privileges are restricted. See, e.g., Cassidy, 899 F.2d at 549 (if civil rights restored by operation of state law "with or without a certificate or order documenting the event, we must look to the whole of state law ... to determine whether the 'convicted felon' is entitled to ... exercise [firearms] privileges"); United States v. McLean, 904 F.2d 216, 218 (4th Cir.1990) (eschewing reliance on language of restoration certificate and following Cassidy); United States v. Burns, 934 F.2d 1157, 1160-61 (10th Cir.1991) (looking to "whole of state law" to find firearms restrictions).

The Government urges us to adopt the latter circuits' "look to the whole of state law" approach, which, it maintains, is consistent with congressional intent as expressed in legislative history. Because an Ohio statute prohibits convicted felons from possessing firearms, the Government contends that its law, viewed as a whole, requires a finding that Bost is not exempt from prosecution under section 922(g). That approach, however, is inconsistent with the plain directive of section 921(a)(20).

In construing a statute, courts "must presume that a legislature says in a statute what it means and means in a statute what it says." Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 252-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992). In order to determine whether the restoration of a felon's civil rights will exempt him from federal restrictions on the rights to ship, transport, possess, or receive firearms, we are instructed by section 921(a)(20) to see whether "such .... restoration ... expressly" restricts such rights. In Cassidy, the Sixth Circuit looked beyond that language and concluded, from an examination of the section's legislative history, that

[i]t would frustrate the intent of Congress ... to focus solely upon the document transferred to the convict upon release. The intent of Congress was to give effect to state reforms with respect to the status of an ex-convict. A narrow interpretation requiring that we look only to the document, if any, evidencing a restoration of rights, would frustrate the intent of Congress that we look to the whole of state law, including state law concerning a convicted felon's firearms privileges.

899 F.2d at 548. A resort to legislative history is uncalled for, however, because the section's instructions are clear. See Burlington N. R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859-60, 95 L.Ed.2d 404 (1987) (when language of statute is unambiguous, review of legislative history is unnecessary).

We reject Cassidy's holding that, in applying the section, a court must look to the "whole of state law." As the Ninth Circuit stated, in a case in which all of a felon's...