U.S. v. Indelicato

• Decision Date: 04 September 1996
• Docket Number: No. 95-1907,95-1907
• Citation: 97 F.3d 627
• Parties: UNITED STATES of America, Appellee, v. Michael INDELICATO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 627

97 F.3d 627

UNITED STATES of America, Appellee, v. Michael INDELICATO, Defendant, Appellant.

No. 95-1907.

United States Court of Appeals, First Circuit.

Heard Sept. 4, 1996.

Decided Oct. 15, 1996.

James L. Sultan, Boston, MA by Appointment of the Court, with whom Rankin & Sultan was on briefs, for defendant, appellant.

Paula J. DeGiacomo, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for the United States.

Before BOUDIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and LYNCH, Circuit Judge.

BOUDIN, Circuit Judge.

In the district court Michael Indelicato pled guilty to various charges of possession and distribution of cocaine, conspiracy to distribute cocaine, wire fraud, and conspiracy to defraud the United States. 18 U.S.C. §§ 371, 1343; 21 U.S.C. §§ 841(a)(1), 846, 853. He was tried on four related charges of possessing firearms and ammunition, having previously been convicted of a crime punishable by more than one year in prison. 18 U.S.C. § 922(g)(1). In a jury-waived trial on stipulated facts, the district court found Indelicato guilty on those counts as well. United States v. Indelicato, 887 F.Supp. 23 (D.Mass.1995). Indelicato now appeals from these firearms possession convictions and from his sentence on the drug counts.

I.

The background facts are easily summarized. In 1993, Indelicato pled guilty in Massachusetts state court to assault and battery with a knife and carrying a dangerous weapon (the knife). Mass. Gen. Laws ch. 265, § 13A; ch. 269, § 10(b). The state court ultimately sentenced him to a one-year suspended sentence and $7,500 in restitution, which Indelicato paid. Both offenses are misdemeanors under state law but punishable by a maximum of two and one-half years in prison.

On May 7, 1994, federal agents arrested Indelicato. The agents searched his home and place of business and found four firearms (including an Uzi semiautomatic weapon) and numerous forms of ammunition. The ensuing indictment charged Indelicato, among other offenses, with violating 18 U.S.C. § 922(g)(1), which 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 in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition...." ¹ Indelicato stipulated that the interstate commerce requirement was satisfied.

However, 18 U.S.C. § 921(a)(20) excludes from this category "[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." At trial, Indelicato argued that this exclusion applied to him because Massachusetts never took away his civil rights and because he suffered no restrictions on his state firearms privileges.

The district court rejected Indelicato's argument, quite properly relying upon United States v. Ramos, 961 F.2d 1003, 1007-10 (1st Cir.), cert. denied, 506 U.S. 934, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992), which held that rights never taken away cannot have been "restored." Long after the district court sentenced Indelicato, this court (in February 1996) sitting en banc announced its decision in United States v. Caron, 77 F.3d 1, 5-6 (1st Cir.) (en banc ), cert. denied, --- U.S. ----, 116 S.Ct. 2569, 135 L.Ed.2d 1085 (1996), which overruled Ramos on a different issue and explicitly reserved judgment on whether civil rights never taken away could be "restored."

At Indelicato's sentencing in July 1995, the district court imposed concurrent terms of 168 months imprisonment on the cocaine counts (based primarily on the weight of the drugs), 120 months on the firearms possession counts, and 60 months on the fraud counts, as well as supervised release, fines, assessments and forfeitures.

II.

Our principal concern on this appeal is with the firearms possession counts, which present an issue of law that we review de novo. As originally enacted in 1968, 18 U.S.C. § 922(g)(1) made criminal gun possession by anyone previously convicted of a crime (the predicate offense) punishable by more than one year of imprisonment, but the statute allowed an exception for state misdemeanors punishable by two years or less of imprisonment. 18 U.S.C. § 921(a)(20). In 1983, the Supreme Court held that a predicate offense under section 922(g) is defined by federal law, and that state expunctions of state convictions did not avoid the ban of section 922(g)(1). Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 115, 103 S.Ct. 986, 991-92, 993, 74 L.Ed.2d 845 (1983).

Congress reacted to Dickerson and like rulings by enacting in 1986 the Firearms Owners' Protection Act, 100 Stat. 449, which in pertinent part amended section 921(a)(20)'s definition of predicate offenses. The amendment, which remains in effect today, provides that state law defines what constitutes a predicate "conviction" for purposes of section 922(g)(1) and other provisions of the statute. It also excludes convictions that have been "expunged" or "set aside," or for which the person has been "pardoned" or "has had civil rights restored." Congress has provided no definition of "civil rights" or "restored."

The main issue for us is whether the "civil rights restored" provision in section 921(a)(20) protects one who, like Indelicato, never had his civil rights taken away at all. It is common ground that misdemeanants in Massachusetts do not lose the rights that we and most courts describe as "civil rights" under the statute: the rights to vote, to serve on a jury, and to hold public office. Caron, 77 F.3d at 2. But the government argues, based on plain language, that a defendant cannot have "restored" to him what the state never took away.

The issue is difficult because it pits the literal language of the statute against Congress' perceived rationale. Clearly the ordinary reading of the word "restored" supports the government. This court so held in Ramos, 961 F.2d at 1007-08, although over a strong dissent, and the Second Circuit followed Ramos on this issue in McGrath v. United States, 60 F.3d 1005, 1007 (2d Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996). But there are two different reasons why we are not inclined to treat the literal language as precluding further inquiry, quite apart from the determination of the en banc court in Caron treating the present issue as an open one in this circuit. See Caron, 77 F.3d at 5-6. ²

First, a ready explanation exists why Congress might have used the term "restored" without intending to exclude persons like Indelicato. The incidents that gave rise to the amendment (in particular, Dickerson ), and what Congress thought to be the ordinary case, involved the deprivation of civil rights and their subsequent restoration (e.g., by pardon). Indeed, there is no indication in the legislative history that Congress gave any attention to the rare case in which someone convicted of a serious crime would not lose one or more of the three civil rights that have been used by most courts as touchstones under this section.

Second, as explained later in this opinion, it is hard to find any reason why Congress would have wished to adopt the distinction now urged by the government. In United States v. Cassidy, 899 F.2d 543, 549 n. 13 (6th Cir.1990), the Sixth Circuit went so far as to say that there was "no rational basis" for distinguishing between a criminal who never lost his civil rights and one who had them taken away and then restored by statute. As the Supreme Court has reminded us, "[l]ooking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention...." Public Citizen v. Department of Justice, 491 U.S. 440, 455, 109 S.Ct. 2558, 2567, 105 L.Ed.2d 377 (1989).

Where language is not conclusive, courts turn to legislative history and purpose. Most broadly, it has been suggested that Congress' main purpose in enacting section 921(a)(20) was to let the states decide who may carry guns. E.g., United States v. Bost, 87 F.3d 1333, 1334 (D.C.Cir.1996); Caron, 77 F.3d at 3; Ramos, 961 F.2d at 1011 (Torruella, J., dissenting). If so, it might follow that Massachusetts--having declined to restrict the gun possession rights of misdemeanants like Indelicato--should have its preference followed as a matter of course.

This is too sweeping a contention. Congress in 1986 deliberately gave the states much latitude to determine who would fall under the ban of the federal statute; but it did not give the states carte blanche as to the manner of making this determination. Rather, Congress created a structure that allows the state to make this decision only in mechanically defined ways--such as by expungement or setting aside of a conviction, pardon or restoration of civil rights. For instance, if a state does not restore a felon's civil rights but expressly allows him to possess firearms, the felon may still be prosecuted under the federal statute. United States v. Thomas, 991 F.2d 206, 214-15 (5th Cir.), cert. denied, 510 U.S. 1014, 114 S.Ct. 607, 126 L.Ed.2d 572 (1993).

Although Congress did not specify which civil rights it had in mind, the plurality view among the circuits--explicitly adopted by this court in Caron--is that Congress had in mind the core cluster of "citizen" rights that are typically lost by felons and restored by pardons, namely, the right to vote, to serve on a jury and to hold public office. Caron, 77 F.3d at 2. Indeed, when the Senate debated the amendment, Senator Sasser noted that under the federal statute, convicted felons "lose most civil rights--to vote, hold office, and so on...." 131 Cong. Rec. 18,182 (1985).

To key the federal stat...