U.S. v. Driscoll

• Decision Date: 02 September 1992
• Docket Number: No. 91-1583,91-1583
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald DRISCOLL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1472

970 F.2d 1472

UNITED STATES of America, Plaintiff-Appellee, v. Ronald DRISCOLL, Defendant-Appellant.

No. 91-1583.

United States Court of Appeals, Sixth Circuit.

Argued March 17, 1992.

Decided July 16, 1992.

Rehearing and Rehearing En Banc

Denied Sept. 2, 1992.

Jennifer Mulhern Granholm, Christopher P. Yates (argued & briefed), Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Paul Borman (argued), Sanford Plotkin, Federal Public Defender, Federal Public Defenders Office, Andrew Patton (briefed), Detroit, Mich., for defendant-appellant.

Before: JONES, BOGGS, and NORRIS, Circuit Judges.

BOGGS, Circuit Judge.

Ronald Driscoll challenges his convictions for being a felon in possession of a firearm and for possessing an unregistered weapon. He raises several issues, the most serious of which involves the question of whether Michigan law fully restores a felon's civil rights upon his release from prison. We determine that Mr. Driscoll's rights were not fully restored. We thus register our disagreement with United States v. Dahms, 938 F.2d 131 (9th Cir.1991) and United States v. Gilliam, 778 F.Supp. 935 (E.D.Mich.1991), appeal argued, Mar. 23, 1992 (No. 91-2417), and rule in accord with United States v. Butler, 788 F.Supp. 944 (E.D.Mich.1991). We also reject Mr. Driscoll's other contentions of error, and affirm his conviction.

I

On December 7, 1989, two Detroit police officers were on routine patrol in a marked scout car. As they approached an alley at Longview and Gunston, one of them saw Ronald Driscoll standing on the south side of the alley, holding a shotgun in his left hand. The policemen also saw Mr. Driscoll's cousin, Terry Driscoll, standing on the alley's north side. The officers later stated that as the scout car approached the Driscolls, Ronald Driscoll started running and threw the shotgun to the ground. They also saw Terry Driscoll flee the alley, and said that he took a .32-caliber blue steel revolver from his waistband and tossed it away. The officers chased the Driscolls into an apartment building next to the alley and arrested them. When the shotgun was ultimately introduced into evidence, it was identified as a Stevens shotgun model 770, and was loaded with one 16-gauge shotgun shell. The shotgun's stock was broken and it had no visible serial number. Its barrel was 15.25 inches long, making it a sawed-off shotgun under the definition in 26 U.S.C. § 5845(a)(1). According to 26 U.S.C. § 5841, such guns must be registered.

On June 4, 1990, a federal grand jury indicted Ronald Driscoll on two counts. The indictment charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and with possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). Ronald Driscoll was tried with Terry Driscoll, who was indicted on similar charges. At trial, Ronald Driscoll moved for disclosure and inspection of the police officers' personnel files, arguing that he needed this information to attack their credibility; the district court denied this motion. The parties stipulated that Ronald Driscoll had previously been convicted of a felony, that the shotgun had been shipped or transported in interstate commerce, and that the National Firearms Registration and Transfer Record gave no indication that the shotgun was registered to Mr. Driscoll.

Mr. Driscoll testified that on the night he was arrested, he left work and decided to visit a female cousin on the east side of Detroit. While at her apartment, he heard a loud banging on the back door. He became scared and left, but eight to ten police officers ordered him to freeze and took him back into the apartment. They searched the apartment, and told him to keep his head down. Mr. Driscoll further testified that he had never seen the shotgun until the police questioned him about it at the apartment.

At the end of all testimony, Mr. Driscoll moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29; the court denied this motion. He also requested a judgment in his favor on the grounds that the shotgun could not be readily restored to shoot and thus did not fall within the definition of a firearm given in 26 U.S.C. § 5845. The court rejected this argument, emphasizing that the gun's current state did not mean that it was inoperable before Mr. Driscoll threw it away. The court also refused to instruct the jury "that a gun must be serviceable, or readily made serviceable, or operable in order to be a firearm under the statute."

During closing argument, the prosecuting attorney emphasized that the police officers had to prepare reports on the crime soon after it occurred. On the other hand, he noted, "Terry Driscoll had all this time up until now to come up with this story. He--he didn't have to make a statement; he didn't have to write anything down at that time. He's had all this time to come up with this story." The prosecutor then asked "why would [the officers] risk a 19-year career with the Police Department, and a 5-year career with the Police Department, by coming in and telling you a bald-faced lie ...?" The prosecutor argued that the defendants had an obvious motive to lie: "They're both convicted felons, they don't want to be convicted again; that's what their motivation is.... [T]heir last, best hope in order to avoid a conviction is to--is for you to believe their story; that's their last, best hope." On January 24, 1991, the jury convicted Ronald Driscoll on both counts. On May 7, 1991, the district court sentenced Mr. Driscoll to two concurrent 21-month prison terms and imposed a $3,000 fine. This timely appeal followed.

II

Mr. Driscoll was convicted for violating 18 U.S.C. § 922(g)(1), which forbids "any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" from possessing "any firearm or ammunition." Mr. Driscoll admits that he was convicted of larceny in Michigan in 1987. However, he contends that because his sentence had ended prior to his arrest, he no longer fell within the prohibition of § 922(g)(1). He cites 18 U.S.C. § 921(a)(20), which states that

What constitutes a conviction ... shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any 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 for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Thus, Mr. Driscoll cannot be convicted under § 922(g)(1) if his civil rights had been restored at the time of his alleged crime, and no legal restrictions had been placed on his ability to possess firearms. In order to determine whether Mr. Driscoll's rights were restored upon the completion of his sentence, we must turn to Michigan law.

A

Several courts have addressed the issue of whether Michigan felons have their civil rights restored upon the completion of their sentence. However, these cases provide only limited guidance, as they are inconsistent both in their reasoning and their results. Mr. Driscoll relies primarily upon United States v. Dahms, 938 F.2d 131 (9th Cir.1991), which involved a defendant who was convicted of a felony in Michigan state court. Six years after being released from parole, he committed a crime in Montana while carrying two shotguns, and was convicted of violating 18 U.S.C. § 922(g)(1). Like Mr. Driscoll, the defendant argued that he could not be convicted because Michigan had restored his civil rights. The Ninth Circuit agreed and reversed his conviction.

The Dahms court ruled that "[w]e must look to the whole of state law to determine whether his civil rights were restored," 938 F.2d at 133, see United States v. Gomez, 911 F.2d 219, 220 (9th Cir.1990), and that "[t]he restoration must be more than de minimis." 938 F.2d at 133. Furthermore, the restoration "must be substantial, but need not be complete." Ibid. In reaching these conclusions, the Dahms court relied heavily upon this court's decision in United States v. Cassidy, 899 F.2d 543 (6th Cir.1990). The court also quoted the following passage from Cassidy to determine what civil rights were to be restored: "Congress intended to encompass those rights accorded to an individual by virtue of his citizenship in a particular state. These rights include the right to vote, the right to seek and hold public office and the right to serve on a jury." 899 F.2d at 549 (footnote omitted).

The Dahms court next found that Michigan had restored each of these rights to the defendant. For the right to vote, it cited Mich.Comp.Laws Ann. § 168.758b:

A person who, in a court of this or another state or in a federal court, has been legally convicted and sentenced for a crime for which the penalty imposed is confinement in jail or prison shall not vote, offer to vote, attempt to vote, or be permitted to vote at an election while confined.

(emphasis added). Next, the Dahms court referred to the following passage concerning the right to hold office:

If any candidate for any public office at any election in this state shall be convicted of a felony, as defined in this act, the election of such candidate, if he has been elected, shall be void; and if he shall enter into the office for which he was elected, an information in the nature of a quo warranto to oust him from such office may be filed in the supreme court or the proper circuit court.

Mich.Comp.Laws Ann. § 168.938. See also Matter of Callanan, 419 Mich. 376, 355 N.W.2d 69 (1984). Finally, Michigan law provides that "[t]o qualify as a juror a person shall ... [n]ot be under sentence for a felony at the time of jury selection." Mich.Comp.Laws Ann. § 600.1307a(1)(e) (emphasis added). The Ninth Circuit held that while these statutes denied certain rights to...