U.S. v. Tait

• Decision Date: 04 February 2000
• Docket Number: No. 99-11825,99-11825
• Citation: 202 F.3d 1320
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellant, v. Wiley Block TAIT, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1320

202 F.3d 1320 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellant, v. Wiley Block TAIT, Defendant-Appellee.

No. 99-11825

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Feb. 4, 2000.

Appeal from the United States District Court for the Southern District of Alabama. (No. 99-00012-CR-CB), Charles R. Butler, Jr., Chief Judge.

Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

WILSON, Circuit Judge:

A federal grand jury returned a two-count indictment against Wiley Block Tait in January, 1999. The indictments arose from a 1997 incident wherein Tait possessed a pistol. Count One charged Tait with being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). Count Two charged Tait with possessing a firearm in a gun-free school zone in violation of 18 U.S.C. 922(q)(2)(A).

Tait filed a motion to dismiss both counts, claiming that exceptions to both 922(g)(1) and 922(q)(2)(A) made his possession of the pistol legal. The district court granted Tait's motion to dismiss both counts, based on the court's interpretation and application of relevant statutes. The government appeals the district court's dismissal. This court reviews de novo dismissals based on statutory interpretation. Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1139 (11th Cir.1992).

We affirm.

BACKGROUND

At the time of Tait's alleged violations, Tait had three prior felony convictions in the state of Michigan: a 1958 conviction for the crime of Utter & Publish; a 1962 conviction for Attempted Larceny from a Motor Vehicle; and a 1968 conviction for Enter Without Breaking. Each conviction was punishable by imprisonment for a term exceeding one year. In March, 1997, the Escambia County, Alabama Sheriff's Department issued Tait a pistol license. On November 3, 1997, the Atmore, Alabama Police Department arrested Tait after he allegedly placed a fully-loaded gun against a student's neck while on Escambia County High School property. The two-count indictment against Tait followed.

DISCUSSION

Count One: Violation of 922(g)(1)

The grand jury's first count against Tait charges a violation of 18 U.S.C. 922(g)(1). This section 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 a firearm in or affecting commerce or to receive a firearm which has been shipped or transported in interstate commerce. 18 U.S.C. 922(g)(1). Tait's felony record, consisting of three separate crimes each punishable by more than one year imprisonment, brings him within the ambit of the 922(g)(1) prohibition against possessing firearms. However, 922(g)(1) has a pertinent exception. Section 921(a)(20) provides:

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. 921(a)(20).

The first sentence of 921(a)(20) makes clear that Michigan law-the state of Tait's convictions-dictates whether Tait's felonies constitute convictions under 922(g)(1). The second sentence of 921(a)(20) provides the exception to 922(g)(1): a conviction will not count as a conviction for purposes of 922(g)(1) if, inter alia, the state of conviction (Michigan) restores civil rights to the person previously convicted. Tait argues that he did not violate 922(g)(1) because his civil rights were restored under Michigan law.

The district court determined that Michigan does restore civil rights to persons previously convicted, and that Tait's civil rights were so restored. The district court was without the benefit of a recent Sixth Circuit case, Hampton v. United States, 191 F.3d 695 (6th Cir.1999) when it rendered its decision in this case.¹ Hampton unequivocally confirms the district court's conclusion that Michigan restores all civil rights to convicted felons. The Hampton court determined that Michigan restores civil rights by operation of law (as opposed to granting certificates or otherwise memorializing the restoration). See id. at 702. Hampton relied on United States v Bolton, 32 F.Supp.2d 461 (S.D.Texas 1999), in reaching its decision. The Bolton court held:

[T]his Court finds that Michigan law provides for the automatic reinstatement of all civil rights of convicted felons following release from custody and completion of probation. Thus, once [the defendant] completed his sentence ..., all or essentially all of [his] civil rights-namely, his right to vote, to hold public office, and to serve on a jury-were "restored automatically by the force of the very [Michigan] laws that suspend[ed] them."

United States v. Bolton, 32 F.Supp.2d at 465 (quoting United States v. Dahms, 938 F.2d 131, 134 (9th Cir.1991)).

Thus, under Hampton, Tait's civil rights were restored. This conclusion does not, however, automatically qualify Tait for the exemption in 921(a)(20). Section 921(a)(20) contains an "unless" clause: the restoration of civil rights exempts a convicted felon from the prohibition against possessing a firearm "unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms." 18 U.S.C. 921(a)(20). The Supreme Court discussed this "unless" clause at length in Caron v. United States, 524 U.S. 308, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998). Caron involved a Massachusetts statute which prohibited felons from possessing handguns, but which did not prohibit felons from possessing rifles. The issue in Caron was whether the state prohibition against felons possessing some weapons, but not all, triggered the unless clause. See id. at 2011. The Court held that the prohibition did trigger the unless clause. The Court essentially held the unless clause is "all-or-nothing;" either state law triggers the clause by banning felons from possessing some firearms, or state law does not trigger the clause because the state does not ban felons from possessing any firearms. See id. Since Massachusetts had deemed felons unfit to possess some weapons, the statutory unless clause had been triggered (and therefore felons in Massachusetts do not qualify for the 921(a)(20) exception). If Massachusetts had remained silent on the issue, the unless clause would not have been triggered.

Michigan, like Massachusetts, grants restoration of civil rights by operation of law. As such, Tait received no written restoration of civil rights which could have expressed any limitations on those rights. Rather, these limitations would also be found in Michigan law. The government contends that section 750.224f of the Michigan Code provides the limitation in Tait's case. The section prohibits persons convicted of "specified felonies" from possessing firearms.² Mich. Comp. Laws 750.224f (1999). A "specified felony" is a felony in which:

An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Mich. Comp. Laws 750.224f(6)(i).

The government contends that one of Tait's crimes, Attempted Larceny from a Motor Vehicle, should be considered a specified felony.³ The district court found that Tait's attempted larceny from a motor vehicle conviction did not qualify as a specified felony. Whether attempted larceny from a motor vehicle is a specified felony turns on whether the crime involves a substantial risk of physical force, or the use, attempted use, or threatened use of physical force as an element of the crime. The district court, finding no Michigan law which defines physical force, determined that "a logical interpretation of the larceny from motor vehicles statute would be that physical force is not required."⁴ Absent an element of physical force, larceny from motor vehicles would not be a specified felony. Consequently, the conviction would not trigger the unless clause under Caron, and the restoration of Tait's civil rights would qualify for the 921(a)(20) exception. Therefore, we hold that Tait's civil rights were unreservedly restored to him by operation of Michigan law, and Tait was not subject to prosecution under 18 U.S.C. 922(g)(1). The district court properly dismissed Count One of the indictment against Tait.

Count Two: Violation of 922(q)(2)(A)

The grand jury's second count against Tait charges him with a violation of 18 U.S.C. 922(q)(2)(A) (the "Gun-Free School Zone Act"). The section states, "It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. 922(q)(2)(A). Tait was on high school property, an obvious "school zone," at the time of his alleged criminal conduct. However, as with 922(g)(1), an exception to the firearms prohibition of 922(q)(2)(A) applies. Section 922(q)(2)(B)(ii) provides:

Subparagraph (A) does not apply to the possession of a firearm ... if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license....

18 U.S.C. 922(q)(2)(B)(ii).

The Gun-Free...