U.S. v. Estrella

• Citation: 104 F.3d 3
• Decision Date: 05 November 1996
• Docket Number: No. 96-1625,96-1625
• Parties: UNITED STATES of America, Appellee, v. Lawrence ESTRELLA, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 3

104 F.3d 3

UNITED STATES of America, Appellee, v. Lawrence ESTRELLA, Defendant, Appellant.

No. 96-1625.

United States Court of Appeals, First Circuit.

Heard Nov. 5, 1996.

Decided Jan. 9, 1997.

Paul J. Haley, Hillsboro, NH by Appointment of the Court, with whom Law Office of Paul J. Haley was on brief for appellant.

Peter E. Papps, First Assistant United States Attorney, Concord, NH, with whom Paul M. Gagnon, United States Attorney, was on brief for the United States.

Before CYR, BOUDIN and LYNCH, Circuit Judges.

BOUDIN, Circuit Judge.

Lawrence Estrella was convicted of being a "felon in possession" of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced as an armed career criminal. Id. § 924(e)(1). His appeal raises various issues, the most difficult being whether he is excepted from the felon-in-possession statute as one whose civil rights have been restored and whose right to firearms has not been significantly restricted under state law. Id. § 921(a)(20).

Estrella's long criminal record began in 1967 when he was 17 years old. Pertinently, in January 1977, he pled guilty in Massachusetts state court to assault and battery with a dangerous weapon (a motor vehicle) and received a prison sentence of 3 to 10 years. He escaped from custody on July 2, 1978 and proceeded to commit crimes in two different states for which he was convicted in 1980: armed robbery and armed assault in Massachusetts, and breaking and entering an occupied dwelling in Michigan.

Estrella received a 10-to-15 year prison sentence for the Massachusetts armed robbery and assault, and a concurrent 7-to-15 year prison term for the Michigan crime. On September 28, 1987, Estrella was released from Massachusetts state prison and placed on parole until the year 2003, later reduced to June 1, 1999. He moved to New Hampshire in 1990 and his parole supervision was transferred to New Hampshire. He now had three "violent felony" convictions on his record. 18 U.S.C. § 924(e)(1).

On February 16, 1994, Estrella went to a federally licensed firearms dealership in Goffstown, New Hampshire, and purchased a .25 caliber semi-automatic pistol, allegedly as a gift for his wife. The owner of the dealership had received the gun from a distributor in Massachusetts. In the course of the purchase, Estrella completed an ATF Firearms Transaction Record, see 27 C.F.R. § 178.124(c); on it he answered, inaccurately, that he had not been convicted of a crime punishable by a term exceeding one year.

Having learned of the purchase from the local police chief in Estrella's town, agents of the Bureau of Alcohol, Tobacco and Firearms obtained a warrant to search Estrella's residence for firearms and related documents. A search of Estrella's home occurred on March 8, 1994. Estrella arrived during the search, and on being advised of the warrant, Estrella said he wanted to cooperate and signed a waiver of his Miranda rights. He then escorted the agents to his garage and showed them where the pistol was located.

A federal grand jury indicted Estrella as a felon in possession, 18 U.S.C. § 922(g)(1), and for making a false statement in the purchase of a firearm, id. § 922(a)(6). Related New Hampshire state charges were dismissed and Estrella was tried in federal court in September 1995. The jury convicted Estrella of violating section 922(g)(1), but deadlocked on the section 922(a)(6) count, which the government later abandoned. Because of his three violent-felony convictions, Estrella was sentenced to 216 months imprisonment. He now appeals.

At the outset we reject, as an issue settled in this circuit, Estrella's argument that section 922(g) facially exceeds Congress' power under the Commerce Clause. United States v. Blais, 98 F.3d 647, 649 (1st Cir.1996). Estrella's "as-applied" challenge also fails, because the government offered evidence that the pistol he purchased had moved in interstate commerce. Our precedent also forecloses Estrella's cursory Tenth Amendment challenge to the federal firearm regulations. United States v. Minnick, 949 F.2d 8, 10-11 (1st Cir.1991), cert. denied, 503 U.S. 995, 112 S.Ct. 1698, 118 L.Ed.2d 408 (1992).

The main question, which we consider de novo, is whether federal law prohibited Estrella from obtaining the pistol. 18 U.S.C. § 922(g)(1) makes it unlawful for

any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... [to] 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.

But 18 U.S.C. § 921(a)(20) excepts from the definition of conviction

[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

But for this exception, Estrella fell within the main ban of section 922(g)(1); the troublesome issues are whether he had his civil rights restored and, if so, whether the "unless" clause applies in his case.

We consider first whether Massachusetts, the jurisdiction of the "predicate offense," had restored Estrella's civil rights. (The government relied on Estrella's Michigan conviction only as a predicate offense for sentencing under section 924(e)(1), and not in his indictment for violating section 922(g)(1).) In this circuit, the civil rights that must be restored to trigger the exception are the rights to vote, to hold public office, and to serve on a jury. United States v. Caron, 77 F.3d 1, 2 (1st Cir.) (en banc), cert. denied, --- U.S. ----, 116 S.Ct. 2569, 135 L.Ed.2d 1085 (1996).

This court has held that all three core civil rights must be restored for a person to avoid the prohibition of section 922(g). United States v. Indelicato, 97 F.3d 627, 631 & n. 3 (1st Cir.1996). In Massachusetts, a convicted felon does not lose the right to vote. Mass.Gen.L. ch. 54, §§ 86, 103B. And Estrella was no longer incarcerated in February 1994, so he could now hold public office. Mass.Gen.L. ch. 279, § 30. Nevertheless, the government argues that Estrella's right to serve on a jury had not been sufficiently restored when he purchased the pistol.

Massachusetts disqualifies from jury service any person who "has been convicted of a felony within the past seven years or is a defendant in pending felony case or is in the custody of a correctional institution." Mass.Gen.L. ch. 234A, § 4(7). Estrella's conviction in 1980 for the predicate offense, the armed assault and robbery, occurred more than seven years prior to his purchase of the gun in 1994. The government claims, however, that in 1994 Estrella was still "in the custody of a correctional institution" by dint of his continuing parole status.

The government cites federal decisions holding that parole constitutes "custody" for purposes such as federal habeas jurisdiction. E.g., United States v. Flynn, 49 F.3d 11, 14 (1st Cir.1995) (citing cases). But "custody" has been defined broadly in this context for reasons peculiar to habeas corpus, Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1143-44, 79 L.Ed.2d 409 (1984); and under section 921(a)(20), state law governs whether Estrella is barred from serving on juries. Beecham v. United States, 511 U.S. 368, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994). We have not found any Massachusetts decisions that decide whether a parolee is barred from service.

While the term "custody" is elastic, it is doubtful that a paroled prisoner would normally be described as being in the custody "of a correctional institution." Further, the Supreme Judicial Court has referred in passing to section 4(7) as disqualifying prospective jurors on the grounds of "incarceration or conviction of a felony within the past seven years." Commonwealth v. Tolentino, 422 Mass. 515, 663 N.E.2d 846, 849 n. 3 (1996) (emphasis added). Massachusetts also has a statutory definition of "correctional institution," defining it in physical terms and referring to its use "for the custody ... of committed offenders and of such other persons as may be placed in custody therein...." Mass.Gen.L. ch. 125, §§ 1(d), (e).

Despite these scraps of statute and precedent, some might think it odd that a felon still on parole should be seated on a jury. Still, circumstances vary, and the immediate issue is simply whether Massachusetts imposes an automatic ban. We think this is a matter that the state supreme court could probably decide either way, but--pending such clarification--our best assessment is that Massachusetts law does not automatically disqualify a parolee seven years after conviction.

As a fall-back argument, the government says that even if Estrella could in theory serve on a jury, Massachusetts law so curtails the opportunity for any ex-felon to serve as a juror that this civil right has not been sufficiently restored to satisfy section 921(a)(20). By statute, a Massachusetts trial judge can choose to remove from a jury panel a person convicted of any felony or other crime punishable by imprisonment of more than one year. Mass.Gen.L. ch. 234, § 8. In Caron we left open the problem now posed. 77 F.3d at 6.

We join other circuits in concluding that to meet the test of section 921(a)(20), each of the three core "civil rights" must be substantially, but not perfectly, restored. ¹ In applying this test, we are guided by the rationale behind Congress' use of "civil rights restored" as a touchstone: the notion that by reinvesting a person with core civic responsibilities, the state vouches for the trustworthiness of that person to possess firearms (unless that right is withheld). Indelicato, 97 F.3d at 630.

While regarding the matter as close, we think that the Massachusetts legislature has expressed the requisite, albeit unquantifiable, measure of confidence in...