U.S. v. Jones

• Decision Date: 24 May 1993
• Docket Number: No. 92-5820,92-5820
• Citation: 993 F.2d 1131
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kirby Lee JONES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1131

993 F.2d 1131

UNITED STATES of America, Plaintiff-Appellant, v. Kirby Lee JONES, Defendant-Appellee.

No. 92-5820.

United States Court of Appeals Fourth Circuit.

Argued April 2, 1993.

Decided May 24, 1993.

David J. Horne, Sr. Atty., Office of the Asst. Chief Counsel, Bureau of Alcohol, Tobacco & Firearms, Cincinnati, OH, argued (William A. Kolibash, U.S. Atty., and Lisa A. Grimes, Asst. U.S. Atty., Wheeling, WV, on brief), for appellant.

R. Russell Stobbs, Weston, WV, argued for appellee.

Before HALL and LUTTIG, Circuit Judges, and HILTON, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

K.K. HALL, Circuit Judge:

The United States appeals an order dismissing an indictment against Kirby Lee Jones. The indictment charged Jones with two counts of violating federal firearms laws. We reverse.

I

On March 3, 1992, Jones was indicted in the Northern District of West Virginia on one count of being an ex-felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of making a false statement in connection with the purchase of a firearm, in violation of 18 U.S.C. § 922(a)(6) and 924(a)(1)(B). The indictment alleged that Jones had previously been convicted of the following felonies: (1) breaking and entering in 1969; (2) interstate transportation of a stolen motor vehicle in 1971; and (3) forgery in 1978. The stolen car conviction occurred in the United States District Court for the Southern District of Ohio. The other convictions were in the state courts of West Virginia.

The government concedes that the state convictions cannot serve as predicate felonies under 18 U.S.C. § 921(a)(20) because West Virginia restored Jones' civil rights upon the completion of the forgery sentence in 1982. See United States v. Haynes, 961 F.2d 50 (4th Cir.1992). The government contended, however, that the federal conviction remained a viable predicate conviction under the federal firearms act. The magistrate judge ¹ recommended adoption of the position of the Eighth and Ninth Circuits that a state's restoration of rights scheme has the effect of eliminating even a prior federal conviction as a predicate conviction under § 922(g)(1). ² The district court adopted the recommendation and dismissed the indictment. The government appeals.

II

It is a federal offense for some ex-felons to possess firearms: "It shall be 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...." 18 U.S.C. § 922(g)(1). What qualifies as a "crime punishable by imprisonment for a term exceeding one year," or "predicate conviction," however, is subject to a number of statutory exceptions. Two of these exceptions have existed since 1968: (1) any prior conviction based on a violation of laws regulating business practices (18 U.S.C. § 921(a)(20(A)); and (2) any prior state conviction for an offense that is classified as a misdemeanor by the state (18 U.S.C. § 921(a)(20)(B)). ³ These relatively straightforward provisions have generated little caselaw. See, e.g., United States v. Meldish, 722 F.2d 26 (2d Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1597, 80 L.Ed.2d 128 (1984) (holding that a prior conviction for falsifying a customs declaration is not an offense relating to business practices within the meaning of § 921(a)(20)(B)).

In 1986, the Firearm Owners' Protection Act ⁴ refined the definition of predicate conviction 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, possess, or receive firearms.

This final provision of § 921(a)(20) [hereinafter, the "amendment"], particularly the term "has had civil rights restored," has engendered a growing body of caselaw. This amendment is the focus of this case.

We have dealt with this amendment on a number of occasions, but always from the perspective of a predicate state conviction. See, e.g., United States v. McLean, 904 F.2d 216 (4th Cir.), cert. denied, 498 U.S. 875, 111 S.Ct. 203, 112 L.Ed.2d 164 (1990). The purported predicate conviction in Jones' case, however, is a 1979 conviction in the federal district court of Ohio. The Eighth and Ninth Circuits have recently held that a state's restoration of rights scheme can negate even a prior federal conviction for the purposes of 18 U.S.C. § 922(g)(1) and § 921(a)(20). United States v. Geyler, 932 F.2d 1330 (9th Cir.1991); United States v. Edwards, 946 F.2d 1347 (8th Cir.1991). Our interpretation of the statute leads us to the opposite conclusion.

III

In view of the circuit-split that will be created by our judgment, perhaps our first task should be to explain why we reject the analyses and holdings of our sister circuits. For clarity's sake, inasmuch as both Geyler and Edwards come to the same conclusion by the same route, we will limit our discussion to the earlier-decided and more extensive opinion of the Ninth Circuit.

The linchpin of Geyler ⁵ (although it is not acknowledged as such) is that the second sentence of the amendment should be considered apart from the first--"[t]he two sentences ... pertain to two entirely different sets of circumstances." Geyler, 932 F.2d at 1334-35. In support of this segregation, the court characterizes the first sentence as merely setting forth the seemingly unremarkable proposition that "federal law determines the existence of a federal conviction, and state law determines the existence of a state conviction." Id. at 1334. Contrary to the "wishful suggestion" of the government, the court described the second sentence as an "unrelated reference" to the effect of post-conviction events. Id. at 1334-35. ⁶

Having reduced the scope of its inquiry to a single sentence, the court purports to find that the term at issue--"any conviction ... for which a person ... has had civil rights restored...."--is decipherable through examination of the plain meaning of the words alone. The analysis proceeds along the following lines: (1) although both the states and the federal government provide for pardons, expungements and setting aside convictions, only states provide procedures for restoring civil rights to persons who have completed felony sentences; (2) "Congress could not have expected that the federal government would perform this [restoration] function...."; (3) Congress could have limited the benefits of rights restoration to state felons only; (4) the second sentence refers to "any conviction;" (5) therefore, the reference to the restoration of civil rights must be to the state procedure.

This analysis does not strike us as one based solely on plain meaning. The first departure from a plain meaning analysis is the court's assumption that the Congress "was certainly aware" of the lack of a federal restoration procedure. "Restoration of civil rights" is, at the very least, a term that can admit of several legitimate interpretations. It is, for example, at least arguable that the federal procedure embodied in 18 U.S.C. § 925(c) is a rights-restoration scheme; indeed, it is the ultimate restoration for firearm purposes. ⁷ Another possibility is that the term applies only to situations in which "some state action granted a convicted felon a specific pardon, expungement or restoration of rights, such as a Restoration of Civil Rights Certificate ..." (United States v. Hammonds, 786 F.Supp. 650, 662 (E.D.Mich.1992) (emphasis in original)), rather than restorations by operation of law. See also United States v. Ramos, 961 F.2d 1003, 1008 (1st Cir.1992) (interpreting restoration of rights to require "some affirmative step after conviction."). In any event, as soon as the court in Geyler strayed outside the text of the statute to assume congressional knowledge on a subject that is outside the ken of most persons, the plain meaning analysis was compromised.

In a footnote, the Geyler court concedes that there are some civil rights lost by virtue of a federal felony conviction that "presumably the state cannot restore." Id. at 1334 n. 6. What the court does not say is that these civil rights could presumably be restored by the federal government; that the federal government did not have in place a restoration procedure in 1986 does not preclude the possibility that one would be established sometime thereafter.

The upshot of all this is that the Ninth Circuit's "plain language" interpretation of the amendment misses the forest for the trees. "[I]n expounding a statute, we [are] not ... guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989) (internal citation omitted) (quoted in Geyler, 932 F.2d at 1337 (Fletcher, J. dissenting)). Once it is determined that the words of the amendment itself do not readily admit of a single interpretation, we must place it in some larger context.

IV

"Statutes, including penal enactments are not inert exercises in literary composition. They are instruments of government, and in construing them the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down." United States v. Shirey, 359 U.S. 255, 260-61, 79 S.Ct. 746, 749, 3 L.Ed.2d 789 (1959) (internal quotation omitted). Subsection 921(a)(20) has a single purpose--to define a term used elsewhere in the Act, i.e. "a crime punishable by imprisonment for a term exceeding one...