U.S. v. Herron, 93-30427
| Decision Date | 19 January 1995 |
| Docket Number | No. 93-30427,93-30427 |
| Citation | 45 F.3d 340 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Danny S. HERRON, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Leonard E. Bailey, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellant.
Gerald R. Smith, Federal Public Defender, Spokane, WA, for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Washington.
Before: ALARCON, BEEZER and KLEINFELD, Circuit Judges.
We construe the restoration of civil rights provision in the felon in possession of a firearm statute, 18 U.S.C. Sec. 922(g)(1).
Herron was convicted of second degree burglary in the Superior Court of the State of Washington, sentenced to serve a year and a day, and eventually discharged. Upon completion of his parole, he received a "Certificate and Order of Discharge." The printed form said that the civil rights lost by reason of his conviction were restored. 1 The document did not say anything about firearms.
Herron had the .22 caliber semiautomatic pistol which was the subject of his federal indictment, as well as other guns, in a gun cabinet in his living room. Police noticed the guns while in his home on another matter and advised federal authorities. The Bureau of Alcohol, Tobacco and Firearms obtained a search warrant, observed the guns, obtained admissions of possession, and charged Herron with "felon in possession." 18 U.S.C. Sec. 922(g)(1) (1988).
Herron successfully moved to dismiss the indictment. The district court dismissed it because Herron's civil rights had been restored, so under the federal statute he was not to be deemed convicted of the requisite crime. The United States appeals the dismissal. We review this issue of statutory interpretation de novo, United States v. Schiffbauer, 956 F.2d 201, 202 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 274, 121 L.Ed.2d 202 (1992), and affirm.
The federal statute under which Herron was indicted generally makes it a felony for a person previously convicted in any court of a felony to possess a gun:
(g) 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. Sec. 922(g).
The element put at issue by Herron's motion to dismiss was whether, because his civil rights had been restored, he had been "convicted ... of [ ] a crime punishable by imprisonment for a term exceeding one year." This is a term of art in the statute. Its definition makes an exception for persons whose civil rights were restored, but there is an exception to the exception:
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 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) (1988) (emphasis added). Herron's civil rights were restored by the certificate. That means he could not be guilty of the crime unless the exception to the exception, "unless such ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms," applied. It does not. The document restoring Herron's civil rights is quoted in full above, and does not expressly provide for firearms restrictions. That should be the end of the case.
The government argues that despite the document purporting to restore Herron's civil rights, they were not "substantially" restored, so the statutory provision does not apply to him. The government did not make this argument in district court, but we entertain it on appeal in this case because "the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991).
Different states have different procedures for restoring civil rights to people convicted of felonies. In some, civil rights are automatically restored by operation of law. In others, they are restored by certificates or orders. If the state restores civil rights by operation of law, the United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991) (citation omitted). The government argues that Herron's civil rights were not substantially restored, because of a former Washington restriction on jury service, Wash.Rev.Code Ann. Sec. 4.44.160 (West 1988) (), and a restriction in some circumstances from holding public office. Wash.Rev.Code Ann. Sec. 9.92.120 (West 1988) ().
This argument has no applicability to Herron for two reasons. First, it is factually irrelevant. Herron was not in public office when he committed his burglary, nor did he serve on a jury before the statutory restriction was repealed in 1992. Second, the federal statute makes these state statutory qualifications irrelevant as a matter of law. The federal statute tells us what to read to look for qualifications on a felon's restoration of civil rights. Congress has told us to read "such ... restoration." Herron's restoration is his certificate. The certificate does not contain the gun restriction denoted in the federal statute, or any other qualifications which would make the restoration less than substantial.
One must "look to the whole of state law," United States v. Gomez, 911 F.2d 219, 220 (9th Cir.1990), to determine if the restoration is substantial, only where the restoration is by operation of law rather than by certificate or order. The government argues that the "look to the whole of state law" language in Gomez means that the certificate will not protect him from the federal conviction, if other provisions in state law limit the felon's right to possess firearms. There is a provision in Washington law which does limit Herron's right to possess firearms. He cannot possess a "short firearm or pistol" under state law because he was previously convicted of a "crime of violence." Wash.Rev.Code Ann. Sec. 9.41.040(1) (West 1988). 2
The government cites Gomez for the proposition that we should look to the whole of state law for limitations on the restoration of civil rights, even where an unqualified certificate purports to restore them fully. This reading would raise a Due Process concern. It would imply that even if the state told the felon that his civil rights were fully restored, the federal government could convict on the basis that the state misinformed him. The government's argument depends on quoting Gomez out of context instead of analyzing its holding. The language about looking to the whole of state law was used in the context of rejecting the government's argument that only a certificate could restore civil rights, and restoration by operation of law would not suffice. The language of a decision is used to explain why the particular result follows from the concrete facts of the case, and must be read with reference to the dispute before the court in that case. Karl N. Llewellyn, The Bramble Bush 36 (1930). Mining decisions for quotations out of context does not amount to an argument. Gomez does not...
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...for purposes of enhancing his sentence under 18 U.S.C. §§ 924(e) because of his 1989 Certificate. He argues that under United States v. Herron, 45 F.3d 340 (9th Cir. 1995), whether his right to possess firearms or ammunition was restored in 1989 is controlled by the express provisions of th......
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U.S. v. Qualls, 95-50378.
...The word "such" tells us "what to read to look for qualifications on a felon's restoration of civil rights." United States v. Herron, 45 F.3d 340, 342 (9th Cir.1995). We are to look to the state certificate if there is one, and to state law if the restoration is by operation of law. See id.......
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...under 18 U.S.C. § 922(g)(1). Qualls' appeal involves questions of statutory interpretation which we review de novo. United States v. Herron, 45 F.3d 340, 341 (9th Cir.1995). A Qualls first argues that his prior state conviction is a misdemeanor for purposes of 18 U.S.C. § 922(g)(1). Section......