U.S. v. Thomas

• Decision Date: 11 May 1993
• Docket Number: No. 92-8343,92-8343
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry David THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 206

991 F.2d 206

61 USLW 2736

UNITED STATES of America, Plaintiff-Appellee, v. Henry David THOMAS, Defendant-Appellant.

No. 92-8343.

United States Court of Appeals Fifth Circuit.

May 11, 1993.

Rehearing Denied June 8, 1993.

J. Rush Milam, III, Waco, TX (Court-appointed), for defendant-appellant.

Richard L. Durbin, Jr., Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, TX, Diane Kirstein, John A. Phinizy, Asst. U.S. Attys., Waco, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WIENER, BARKSDALE, and DEMOSS, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Henry David Thomas appeals his conviction of possession of firearms by a previously convicted felon under 18 U.S.C. § 922(g)(1). He asserts that because, under Texas law, his prior Texas felony conviction does not bar the firearms possession for which he was convicted in federal district court, his federal prosecution was barred by the exceptions to § 922(g)(1) created by 18 U.S.C. § 921(a)(20), the Firearms Owners' Protection Act of 1986 (FOPA). ¹ Disagreeing with Thomas's reasoning and finding no reversible error, we affirm.

I FACTS AND PROCEDURAL HISTORY

Thomas was originally indicted on one count of possession of a firearm by a convicted felon under § 922(g) in October 1991. That indictment was dismissed on Thomas's motion because his predicate state felony conviction had been set aside under Kansas law. ² In January 1992, Thomas was again indicted for violating § 922(g)--this time on four counts. ³ The predicate state felony conviction for this indictment was a 1959 Texas conviction for "felony theft," a non-violent felony in Texas.

Thomas argued to the district court, and he asserts on appeal, that the government could not properly prosecute him under § 922(g) because he had not lost the right to possess a firearm under Texas law as a result of his felony conviction. In Texas, possession of a firearm by a non-violent felon is not proscribed. Only a violent felon is prohibited from "possess[ing] a firearm away from the premises where he [or she] lives." ⁴ Thomas reasons that, as he is not prohibited from possessing a firearm under Texas law, his civil rights have been fully "restored" for the purposes of § 921(a)(20), and thus he is not subject to conviction under § 922(g).

The district court denied Thomas's motion to dismiss the indictment based on that argument, and the jury convicted him on all four counts. Thomas timely appealed.

II ANALYSIS

In his appeal, Thomas relies on two theories. His primary argument is that, as he was not prohibited from possessing a firearm under Texas law, he could not and did not violate § 922(g). He also asserts that his re-indictment under § 922(g) with four counts--as opposed to one in the original indictment--demonstrates prosecutorial vindictiveness, thereby violating his due process rights. We address these arguments in inverse order.

A. Prosecutorial Vindictiveness

The original indictment was dismissed because the prior conviction on which it was based--the Kansas conviction--had been set aside and thus was not available as a predicate offense under § 922(g). Thomas states that during the plea negotiations under the first indictment, the prosecutor had assured Thomas that if he would plead guilty to the one count of violating § 922(g), predicated on the Kansas felony conviction, ⁵ the government would not charge him with the other violations of which it had evidence. Thomas argues that because he asserted his right to be charged properly under § 922(g), the prosecutor vindictively raised the stakes in the second indictment. Thomas concedes that this claim was raised for the first time on appeal. As no manifest injustice will result from Thomas being charged additionally with federal firearms crimes he clearly committed, we reject his vindictiveness claim. ⁶

B. Texas Felons with Guns

The principal thrust of Thomas's insistence that he was wrongfully convicted under § 922(g) is that when the law of the state that obtained the predicate felony conviction does not proscribe possession of a firearm at the time and in the manner at issue, federal law does not criminalize such possession. Although this issue, which involves the interaction of states' laws with §§ 921(a)(20) and 922(g)(1), has been addressed by several other federal circuit courts, it is a matter of first impression in our court. And, as this question is purely a legal one, our review is plenary.

Under § 922(g)(1) it is unlawful for anyone "who has been convicted in any court of a crime punishable for a term exceeding one year ... [to] possess ... any firearm ... which has been shipped or transported in interstate commerce." ⁷ As our colleagues on the Fourth Circuit have accurately observed, however, "[t]he clarity of [§ 922(g)(1) ] is clouded by 18 U.S.C. § 921(a)(20)." ⁸ Section 921(a)(20) was added to the Federal Gun Control Act by FOPA in 1986 to give federal effect to state statutes that fully "restore" the civil rights of convicted felons when they are released from prison, or are granted a pardon, or have their convictions expunged. In effect, FOPA gave the states' statutes federal effect by allowing the state that obtained the conviction to determine eligibility of the felon to possess a firearm without violating federal law. ⁹

Since its enactment, § 921(a)(20) has been an integral element of the definition of "felony" or, more precisely, of the term "crime punishable by imprisonment for a term exceeding one year" found in § 922(g)(1). It provides:

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. ¹⁰

Thomas asserts that his civil rights have been "restored" under the Texas Penal Code because he is not prohibited by state law from possessing a firearm. Before addressing his claim, we shall analyze the rulings of the other circuit courts on this matter.

1. Background

The Fourth Circuit construed state law interaction with § 921(a)(20) in United States v. Essick ¹¹ and United States v. Etheridge. ¹² In Essick, that court reversed a conviction of possession of a firearm predicated on a North Carolina conviction. The court looked to North Carolina's prisoner release statute, which provided that upon the unconditional discharge of an inmate by the state department of corrections, the "rights of citizenship [that were] forfeited, shall [be] restored," and the "agency or court having jurisdiction over the person whose rights are restored ... [shall] automatically and immediately issue a certificate evidencing the restoration of such rights." ¹³ The Essick court held that the mandatory issuance of the certificate and the explicit restoration language of the statute "clearly restored the general citizenship rights of an ex-felon, and that such restoration included the limited right to possess firearms." ¹⁴ The court held that because the government had failed to prove that Essick's right to possess firearms under North Carolina law was limited--after five years North Carolina felons have the unlimited right to possess firearms--he could not be convicted under § 922(g).

By contrast, that same circuit court in Etheridge held that Virginia's statutes had not restored the rights of a convicted felon to possess a firearm. The court did not describe either the state statute or any certificate issued by the state specifically restoring the rights of released felons. We construe such silence to indicate that no general restoration of rights statute or certification provision existed in Virginia at the time. The Etheridge court noted that a procedure was contained in the Virginia Code under which a convicted felon might proceed affirmatively to seek restoration of his right to possess a firearm. ¹⁵ That procedure was not automatic, however, and Etheridge had not availed himself of it. For those reasons, among others, the court held that for purposes of § 921(a)(20) his civil rights had not been "restored" under Virginia law because his right to carry a firearm had not been restored; thus, his conviction under § 922(g)(1) was not obtained in error.

In United States v. Erwin, ¹⁶ the Seventh Circuit held that the applicable provisions in Illinois did not "restore" convicted felons' rights to possess firearms. The Illinois statutes contained only a negative option: Upon release from prison, a felons' rights would be restored automatically unless a particular authority proscribed restoration. As the state's firearms licensing authority did not authorize the licensing of guns to convicted felons, their rights were not in fact restored. The Erwin court held that possession of a firearm by a felon whose predicate conviction was obtained under Illinois law would be a violation of § 922(g)(1).

The Sixth Circuit addressed the restoration issue in United States v. Cassidy, and reversed the dismissal of a count under § 922(g)(1). The Cassidy court examined Ohio law, which mandated the issuance of a "Restoration Certificate" that "restored 'the rights and privileges forfeited by conviction; namely the right to serve on juries and hold offices of honor, trust, or profit.' " ¹⁷ Although the certificate "was silent concerning firearms," Ohio law specifically provided that convicted felons could not possess firearms. ¹⁸ The court analyzed which rights needed to be restored to a convicted felon for his or her "civil rights" to be considered restored for purposes of § 921(a)(20). ¹⁹ The court found that Cassidy's civil rights...