U.S. v. Geyler

• Decision Date: 13 May 1991
• Docket Number: No. 89-10162,89-10162
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Theodore Albert GEYLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1330

932 F.2d 1330

UNITED STATES of America, Plaintiff-Appellee, v. Theodore Albert GEYLER, Defendant-Appellant.

No. 89-10162.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 17, 1990.

Decided May 13, 1991.

Robert J. Hirsh, Brian I. Rademacher, Hirsh, Sherick & Murphy, Tucson, Ariz., for defendant-appellant.

Gary Clifford Korn, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before LIVELY, ^* FLETCHER and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Theodore Albert Geyler appeals his conviction for possession of firearms by a convicted felon on the ground that the conviction which served as the predicate offense is not a "conviction" within the meaning of the federal firearms statute. We reverse.

I.

In 1977, Geyler was convicted in federal district court of the offense of misprision of a felony, which carries an authorized punishment of imprisonment for a term exceeding one year. See 18 U.S.C. Sec. 4. As a result, he lost his civil rights under Arizona law. See Ariz.Rev.Stat.Ann. Sec. 13-904. Geyler received an absolute discharge from imprisonment by the end of 1979. Upon his absolute discharge, Arizona law granted him an automatic restoration of civil rights. See id. Sec. 13-912 (1978). ¹

In 1987, several firearms were seized from Geyler's house. The parties stipulated that four of the firearms had travelled in interstate commerce and that Geyler knew of their presence in his house. He was charged in a two-count indictment with possession of firearms by a convicted felon, in violation of 18 U.S.C. Secs. 922(g)(1), 924(a), and possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. Secs. 5845(e), 5861(d), 5871. The district court convicted him on the first count but not on the second.

Geyler argues that the district court erred in finding him guilty of violating the statute which prohibits possession of firearms by a convicted felon. That statute 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 ship or transport any firearm or ammunition in interstate or foreign commerce." 18 U.S.C. Sec. 922(g)(1). The term "crime punishable by imprisonment for a term exceeding one year" is defined in relevant part as follows:

What constitutes a conviction of [a crime punishable by imprisonment for a term exceeding one year] 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.

18 U.S.C. Sec. 921(a)(20).

According to Geyler, because Arizona law restored his civil rights upon his absolute discharge from imprisonment on the misprision of a felony offense, that offense no longer qualifies as a "conviction" pursuant to Sec. 921(a)(20). The government responds that in light of the first sentence of Sec. 921(a)(20), which refers to the law of the prosecuting jurisdiction, only action taken by the federal government, and not action taken by the states, can serve to nullify the effect of a prior federal felony conviction. We review questions of statutory interpretation de novo. United States v. Valencia-Roldan, 893 F.2d 1080, 1082 (9th Cir.1990).

II.

The plain language of Sec. 921(a)(20) provides that for purposes of prohibitions relating to the possession of firearms, any conviction shall be considered a non-conviction in the event of an expungement or a setting aside of the conviction or a pardon or a restoration of civil rights. The use of the connector "or" makes clear that each method is a distinct and independent procedure. Here we are concerned solely with the restoration of civil rights--a procedure that differs from the others both in its primary goal and in its jurisdictional reach.

The purpose of an expungement, a setting aside of a conviction, and a pardon is to nullify the conviction itself. ² In the case of a restoration of civil rights, however, the sole objective is to restore the individual's rights, and the conviction is not affected--except, of course, in the rare case such as the present one, in which a separate statute provides that nullification of the conviction for a particular purpose shall be a consequence of a restoration of rights. ³ The specific reference in Sec. 921(a)(20) to the restoration procedure indicates that Congress intended to recognize that independent process as a separate basis for treating a conviction as a non-conviction. ⁴ Moreover, the inclusion in the statute of the restoration procedure could not have been accidental. The procedure is widely used, and Congress was certainly aware of it. See Special Project, The Collateral Consequences of a Criminal Conviction Y23 Vand.L.Rev. 929, 1143 (1970) [hereinafter Special Project] (all fifty states have provisions for the restoration of civil rights).

As a distinct and independent procedure, the restoration of civil rights is governed by jurisdictional rules that differ from those applicable to the other forms of relief. Both state and federal law contain provisions for the other three procedures: expungement, setting aside of a conviction, and pardon. There is no jurisdictional overlap with respect to these provisions; for example, the President has no authority to punish state felons, and the governors have no authority to pardon federal felons. See generally Special Project, supra, at 1143-47. For these methods of nullifying a conviction, only state actions can nullify state convictions and only federal actions can nullify federal convictions.

The restoration of civil rights, however, is an entirely different matter. State law deprives felons, both state and federal, of their civil rights initially. See, e.g., Ariz.Rev.Stat.Ann. Sec. 13-904 (1989) ("A conviction for a felony suspends the following civil rights of the person sentenced...."). ⁵ And only the states provide a procedure whereby following completion of a felon's sentence his conviction remains intact but his civil rights may be restored. Unlike any of the other procedures listed in Sec. 921(a)(20), a state's restoration of civil rights is available to all felons. See, e.g., Ariz.Rev.Stat. Sec. 13-912 (1978).

Because there is no federal procedure for restoring civil rights to a federal felon, Congress could not have expected that the federal government would perform this function. The reference in Sec. 921(a)(20) to the restoration of civil rights must be to the state procedure.

Conceivably, when enacting the federal firearms laws, Congress could have limited the benefits of a state's restoration of rights to state felons only. The plain language of the statute, however, makes it evident that Congress did not do so. Pursuant to Sec. 921(a)(20), "[a]ny conviction " shall be nullified as a predicate offense in the event of a restoration of civil rights. If the government were correct that a state restoration of rights cannot nullify a federal conviction for purposes of the firearms laws, it would then not be true that "[a]ny conviction ... for which a person ... has had civil rights restored shall not be considered a conviction for purposes of this chapter...." (Emphasis added.) Instead, the statutory clause would apply only to state convictions, not to "any" conviction.

The only reading of Sec. 921(a)(20) that gives full meaning to its plain language is that any conviction effectively becomes a non-conviction if a felon's civil rights are restored--i.e., if a state has restored the felon's rights. See United States v. Dangdee, 616 F.2d 1118 (9th Cir.1980) (the phrase "any passport" in 18 U.S.C. Sec. 1543 refers to passports issued by foreign governments as well as those issued by the United States); United States v. Wilson, 591 F.2d 546 (9th Cir.1979) (the phrase "any official" in 18 U.S.C. Sec. 3612 refers to state as well as federal officials). Thus, according to the plain language, a federal felon whose civil rights are restored pursuant to state law, like a state felon whose rights are so restored, is no longer considered as having been "convicted" for purposes of the federal firearms laws.

The United States District Court for the District of Minnesota reached the same conclusion when it recently confronted the identical issue. In holding that a state's restoration of the civil rights of a federal felon removed the federal felony conviction as a predicate offense for the federal firearms laws, the court observed:

It is the state, not the federal government, that defines and restores a person's civil rights, even in relationship to the federal government. The United States Constitution does not bar convicts from holding federal office. The right to vote, even in federal elections, is set by the states. The electors of both senators and representatives are determined by state law. U.S. Const. art. 1, Sec. 2, cl. 1; U.S. Const. amend. 17. The right of a former convict to serve on federal juries depends on whether state law has restored civil rights. 28 U.S.C. Sec. 1865(b)(5); United States v. Hefner, 842 F.2d 731 (4th Cir.1988).

United States v. Edwards, 745 F.Supp. 1477, 1479 (D.Minn.1990). The court concluded, "While the law of the jurisdiction where the proceeding is held determines what is a conviction and whether it has been set aside, expunged, or subject to a pardon, the law of the state where a person is a citizen governs that person's civil rights." Id. ⁶

In this case, the meaning of the statutory language is clear. "Any conviction ... for which a person ... has had civil rights restored" means precisely that. Pursuant...