U.S. v. Caron, Criminal No. 94-10040-WGY.

• Decision Date: 12 September 1996
• Docket Number: Criminal No. 94-10040-WGY.
• Citation: 941 F.Supp. 238
• Parties: UNITED STATES of America v. Gerald R. CARON.
• Court: U.S. District Court — District of Massachusetts

941 F.Supp. 238

UNITED STATES of America v. Gerald R. CARON.

Criminal No. 94-10040-WGY.

United States District Court, D. Massachusetts.

September 12, 1996.

COPYRIGHT MATERIAL OMITTED

Owen S. Walker, Federal Defender Office, Boston, MA, for defendant.

Brian T. Kelly, United States Attorney's Office, Strike Force Division, Criminal, Boston, MA, for U.S.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. PROCEDURAL BACKGROUND

On February 10, 1994, Gerald R. Caron ("Caron") was indicted in this Court for various violations of 18 U.S.C. § 922(g)(1), all stemming from his status as a federally-defined "felon" in possession of firearms. At his trial¹ the jury found Caron guilty of four counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).² After conviction, this Court sentenced Caron to 262 months in a federal penitentiary pursuant to the Firearms Owners' Protection Act, Pub.L. No. 99-308, § 104(a)(4), 100 stat. 449, 456 (1986) (codified as amended at 18 U.S.C. § 924[e]), one of the myriad variations of the popular "three strikes and you're out" policy.³ In United States v. Caron, 64 F.3d 713, 715 (1st Cir.1995) (Caron I), the United States Court of Appeals for the First Circuit affirmed this conviction, but granted a limited rehearing en banc, Caron I, 64 F.3d at 719, to consider whether certain of Caron's prior felony convictions properly could be counted as predicate crimes for the purpose of sentencing him as an Armed Career Criminal in view of the third sentence of 18 U.S.C. § 921(a)(20)⁴ which provides specifically that:

[a]ny 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 ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

18 U.S.C. § 921(a)(20) (emphasis added).

In United States v. Caron, 77 F.3d 1 (1st Cir.) (Caron II) cert. denied, ___ U.S. ___, 116 S.Ct. 2569, 135 L.Ed.2d 1085 (1996), the First Circuit sitting en banc reversed its earlier decision in United States v. Ramos, 961 F.2d 1003 (1st Cir.1992), and held that civil rights may be restored within the meaning of section 921(a)(20) by laws of general or automatic application rather than by "focused, individualized, affirmative action." Caron II, 77 F.3d at 2 (citing Ramos, 961 F.2d at 1009).⁵ The First Circuit also held that "the fact that one civil right was never lost did not prevent an individual from `having had civil rights restored'" within the meaning of section 921(a)(20), id., and remanded the case to this Court for resentencing in accordance with its opinion.

Caron II does not purport to answer all the questions that necessarily arise upon the resentencing. Specifically, the First Circuit instructed this Court to determine (1) whether Caron's right to sit on a Massachusetts jury had not been sufficiently restored, or (2) whether Massachusetts law contains an express provision against ex-felons possessing firearms, id. at 6,⁶ such that Caron ought still be sentenced as an armed career criminal, i.e. pursuant to 18 U.S.C. § 924(e)(1). The parties have briefed these issues and the Court has heard argument thereon. The government continues staunchly to maintain that Massachusetts statutes do not completely restore a felon's civil right to serve on a jury and, in any event, expressly restrict their right to possess firearms.⁷ Government's Resentencing Memorandum at 2.

II. ANALYSIS OF MASSACHUSETTS LAW

A. Restoration of Caron's Right to Sit on a Jury in Massachusetts

Although the First Circuit's holding in Caron II is dispositive of the general issue of how state and federal law may affect the restoration of Caron's civil rights with respect to his Massachusetts convictions, the specific issue of whether his right to serve on a jury has been fully restored is one of Massachusetts law, as section 921(a)(20) expressly provides, "[w]hat constitutes a conviction ... shall be determined in accordance with the law of the jurisdiction in which the proceedings were held." Beecham v. United States, 511 U.S. 368, ___, 114 S.Ct. 1669, 1670, 128 L.Ed.2d 383 (1994) (referring to this clause as "the choice-of-law clause"); see Caron II, 77 F.3d at 6; United States v. Cassidy, 899 F.2d 543, 545-46 (6th Cir.1990) (construing 18 U.S.C. § 921[a][20] and holding that Congress clearly "intended that courts refer to state law to determine whether an individual should be subject to federal firearms disabilities by virtue of a criminal conviction"). As noted by the First Circuit in Caron II, civil rights, as referred to within the meaning of section 921(a)(20), comprise the right to vote, the right to seek and hold public office, and the right to serve on a jury. See Caron II, 77 F.3d at 2 (citing Cassidy, 899 F.2d at 549).

In the Commonwealth, a convicted felon's right to vote is guaranteed by law and can never be taken away. See Mass.Gen.Laws Ann. ch. 54, §§ 86, 103B (West 1991); see also Cepulonis v. Secretary of the Commonwealth, 389 Mass. 930, 937-38, 452 N.E.2d 1137 (1983). Convicted felons do, however, lose their right to hold public office, but only during the period of their incarceration. See Mass.Gen.Laws Ann. ch. 279, § 30 (West 1981). Neither of these first two civil rights is at issue, since they do not apply to Caron: he never lost his right to vote, and he regained his right to seek and hold public office following his release from prison.⁸

The status of the third right, the right to serve on a jury, is less clear. In Massachusetts, a felon is disqualified from service as a juror until seven years have passed since the conviction. Mass.Gen.Laws Ann. ch. 234A § 4(7) (West 1986) (grounds for disqualification from juror service). On its face, chapter 234A appears to be a "law of general or automatic application" as referred to by the First Circuit in Caron II, 77 F.3d at 2, since it allows for the passive restoration of the right to serve on a jury after the seven year time period has elapsed. Thus, this civil right is restored without any "affirmative, individualized" state action. Caron II, of course, reversed Ramos, 961 F.2d at 1009 (holding that "individualized official judgment" is necessary as evidence of the state's "renewed trust" in the individual in order to restore a felon's civil rights under 18 U.S.C. § 921[a][20]).

The Court takes judicial notice of the judicial procedures of the Commonwealth to implement Mass.Gen.L. ch. 234A, § 4(7). Fed.R.Evid. 201. The juror questionnaire propounded by the Commonwealth's Jury Commissioner asks whether one has been convicted of a felony.⁹ Where there is an affirmative response, the Office of the Jury Commissioner checks the date of conviction and, for seven years thereafter, deletes the individual from the roster of individuals summoned for service to the various courthouses of the Commonwealth. Thereafter, however, the individual's response to the questionnaire is forwarded for service along with those of all other eligible jurors.

Under Mass.Gen.L. ch. 234, § 8, however, a justice may relieve a person who has been convicted of any felony from a jury panel solely on the basis of the prior felony conviction.

If a person whose name has been so placed in the jury box has been convicted on any felony, ... or is found by the justice holding court to be unqualified or unfit to serve as a juror, he may be relieved by said justice from sitting in any case, or his name ordered by the justice to be stricken from the jury list.

Mass.Gen.Laws Ann. ch. 234, § 8 (West 1986) (emphasis added). Under Massachusetts law, therefore, justices of the Commonwealth may, but are not required to, exclude individuals with criminal records from the venire based on their criminal records. See, e.g., Commonwealth v. Amazeen, 375 Mass. 73, 82-83, 375 N.E.2d 693 (1978) (holding that the trial court did not err in excusing a juror previously sentenced to six months in jail); Commonwealth v. Martin, 357 Mass. 190, 191, 257 N.E.2d 444 (1970) (holding that trial justice's dismissal of six veniremen without examination on the basis of their prior criminal records did not deprive defendant of a fair jury); but see Commonwealth v. Wong Chung, 186 Mass. 231, 234, 71 N.E. 292 (1904) (holding that a record of conviction of a crime does not necessarily disqualify one from serving as a juror and noting "it is not the law that persons convicted of a crime shall be permanently deprived of their civil rights").

The convergence of these two statutes establishes the following peculiar situation: a convicted felon as to whom the requisite amount of time since conviction has passed and who is otherwise qualified to serve as a juror may nonetheless be stripped of his civil right to sit on a jury — a right which had been restored to him automatically by act of law — by the justice holding court, acting pursuant to powers granted by statute. Because of the power granted to trial justices pursuant to section 8 of chapter 234, what exists in this Commonwealth is not the full restoration of a felon's civil right to sit on a jury but — to borrow a term from the law of real property — merely a civil right to sit on a jury subject to defeasance.

Addressing Caron's impaired right to serve on a jury, the government — predictably — contends that since felons like Caron can never fully regain their right to sit on a jury in Massachusetts, they can not have complete restoration of their civil rights within the meaning of 18 U.S.C. § 921(a)(20).¹⁰ The government asserts that "an impaired right to serve on a jury indicates that a felon's rights have not been restored." Government's Resentencing Memorandum at 9. As support for this latter assertion, the government relies upon "numerous" decisions throughout the country. See United States v. Essig, 10 F.3d 968, 975-76 (3rd Cir.1993), reh'g denied, ...