United States v. Howe

• Decision Date: 13 November 2014
• Docket Number: No. 2013–825,2013–825
• Citation: 106 A.3d 425,167 N.H. 143
• Parties: UNITED STATES of America v. Ryan HOWE
• Court: New Hampshire Supreme Court

167 N.H. 143

106 A.3d 425

UNITED STATES of America

v.Ryan HOWE

No. 2013–825

Supreme Court of New Hampshire.

Argued: June 26, 2014

Opinion Issued: November 13, 2014

John P. Kacavas, United States Attorney (Seth R. Aframe, Assistant United States Attorney, on the brief and orally), for the United States of America.

Behzad Mirhashem, assistant federal defender, of Boston, Massachusetts, and Jeffrey S. Levin, assistant federal defender, of Concord (Mr. Mirhashem and Mr. Levin on the brief, and Mr. Mirhashem orally), for the defendant.

Joseph A. Foster, attorney general (K. Allen Brooks, senior assistant attorney general, on the brief), for the State of New Hampshire, as amicus curiae.

David J. Widi, Jr., self-represented, by brief, as amicus curiae.

HICKS, J.

Pursuant to Supreme Court Rule 34, the United States Court of Appeals for the First Circuit (Lynch , C.J.) certified to us the following question:

Under sections 500–A:7–a(V) and 651:5 of the New Hampshire Revised Statutes and the undisputed facts of this case, is a felon whose conviction is eligible for annulment (that is, not categorically disqualified from jury service) but who has not applied for or received an annulment of that conviction qualified to sit as a juror?

We respond in the affirmative.

The First Circuit's order provides the following facts. The defendant, Ryan Howe, was indicted under federal law in August 2012 for possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1) (2012), based upon a prior state felony conviction. He moved to dismiss that count on the ground that he was not a felon under section 922(g)(1) pursuant to an exception provided in 18 U.S.C. § 921(a)(20). See 18 U.S.C. § 921(a)(20) (2012). Section 921(a)(20) provides, in part, that "[a]ny conviction which has been expunged, or set aside or for which a person ... has had civil rights restored shall not be considered a conviction for purposes of this chapter." Id. The First Circuit has held that "the civil rights that must be restored to trigger the exception [in section 921(a)(20) ] are the rights to vote, to hold public office, and to serve on a jury." United States v. Estrella, 104 F.3d 3, 5–6 (1st Cir.1997). The United States concedes that the defendant's rights to vote and to hold public office were restored by operation of state law before the date of the federal offense, September 15, 2011.

The parties disagree as to whether the defendant was eligible, as of September 15, 2011, to serve on a jury under our juror qualification statute. See RSA 500–A:7–a, V (2010) (amended 2014). RSA 500–A:7–a, V provides: "A juror shall not have been convicted of any felony which has not been annulled or which is not eligible for annulment under New Hampshire law." The United States District Court for the District of New Hampshire (DiClerico , J.) adopted the defendant's reading of RSA 500–A:7–a, V and dismissed the felon in possession charge. The United States appealed to the First Circuit, which certified to us the above question.

Responding to the certified question requires us to engage in statutory interpretation. "We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole." Town of Newbury v. N.H. Fish & Game Dep't, 165 N.H. 142, 144, 70 A.3d 461 (2013) (quotation omitted). "When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used." Id. (quotation omitted). "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. (quotation omitted). "We also interpret a statute in the context of the overall statutory scheme and not in isolation." Id. (quotation omitted). "Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme." State v. Guay, 164 N.H. 696, 700, 62 A.3d 831 (2013) (quotation omitted).

The United States, as well as both amici curiae, correctly note that RSA 500–A:7–a, V should be read in conjunction with the statute governing annulments, RSA 651:5 (Supp.2011) (amended 2012, 2013, 2014), as they are related in subject-matter. See Bradley v. City of Manchester, 141 N.H. 329, 334–35, 682 A.2d 1194 (1996) (noting that "all statutes upon the same subject-matter are to be considered in interpreting any one of them" (quotation omitted)).

The United States and the amici curiae, however, offer differing interpretations of how RSA 651:5's provisions tie into the structure of RSA 500–A:7–a, V.

RSA 651:5 sets forth both procedural prerequisites and categorical bars to obtaining annulments. Thus, for instance, RSA 651:5, III provides, in part, that "[e]xcept as provided in ... paragraphs V and VI," a person may petition for annulment when he or she: (1) "has completed all the terms and conditions of the sentence"; and (2) "has thereafter been convicted of no other crime," except for certain motor vehicle offenses, for the period of time thereafter specified for certain categories or levels of offense. RSA 651:5, III (Supp.2010). Paragraph IV provides that "[i]f a petition for annulment is denied, no further petition shall be brought more frequently than every 3 years thereafter." RSA 651:5, IV (2007). Paragraphs V and VI set forth a categorical bar to annulment for certain offenses. RSA 651:5, V (2007) (amended 2014), VI (2007). At the time of the defendant's alleged violation of 18 U.S.C. § 922(g)(1), paragraph V stated: "No petition shall be brought and no annulment granted in the case of any violent crime, of any crime of obstruction of justice, or of any offense for which the petitioner was sentenced to an extended term of imprisonment under RSA 651:6." RSA 651:5, V. The offenses constituting "violent crime[s]" for purpose of the annulment statute and the definition of the term "crime of obstruction of justice" are set forth in paragraphs XIII and XIV, respectively. RSA 651:5, XIII, XIV (2007). Paragraph VI applies "[i]f a person has been convicted of more than one offense" and provides, among other things, that "no petition for annulment shall be brought and no annulment granted ... [i]f annulment of any part of the record is barred under paragraph V." RSA 651:5, VI.

The United States contends that "the ‘which is not eligible for annulment under New Hampshire law’ clause [in RSA 507–A:7–a, V] bars from jury service those who may not participate in the annulment process because they do not satisfy the threshold [temporal] eligibility requirements." The State, on the other hand, reads the "not eligible" clause as referring to the categorical bar of RSA 651:5, V and VI, and considers the procedural requirements of RSA 651:5, I through IV to be subsumed within the "actually ... annulled" clause. Widi contends that the eligibility contemplated by RSA 500–A:7–a, V does not include the "the temporal requirements for petitioning for annulment."

We need not determine which, if any, of these proposed constructions are correct in order to answer the certified question. Whatever RSA 500–A:7–a, V means by "not eligible for annulment," the United States concedes that "there is no dispute that the defendant's conviction is eligible for annulment under New Hampshire law." Thus, the only question before us is: Given that the defendant, despite that undisputed eligibility, has not obtained annulment of his conviction, is he nevertheless qualified to serve as a juror?

The United States argues that "[t]he plain language of the juror qualification statute precludes from jury service a person with an unannulled felony conviction, even if the conviction is eligible for annulment under New Hampshire law." The United States focuses upon the statute's use of the term "or," which, it contends "indicates the disjunctive." It argues:

[T]he statute establishes a result—disqualification from jury service ("no juror shall")—and creates two conditions, either of which triggers the disqualification result. These conditions are: (1) the presence of a felony which has not been annulled "or" (2) the presence of a felony which is not eligible for annulment under New Hampshire law.

(Emphasis added.) Such a reading is consistent with our interpretation of other statutes written in the disjunctive. See, e.g., Unit Owners Assoc. of Summit Vista v. Miller, 141 N.H. 39, 45, 677 A.2d 138 (1996) (concluding that "the use of the disjunctive ‘or’ [in the damages provision of the Consumer Protection Act, see RSA 358–A:10 (2009) ] manifests a clear intent to award multiple damages for either knowing or willful acts"); Welts' Case, 136 N.H. 588, 591–92, 620 A.2d 1017 (1993) (noting that attorney professional conduct rule establishing misconduct where attorney's "conduct involve[d] dishonesty, fraud, deceit or misrepresentation," is disjunctive and concluding, therefore, that "[a] finding of misrepresentation alone constitutes misconduct" (quotation omitted)).

The defendant, on the other hand, argues for a construction of RSA 500A:7–a, V under which, "if a conviction has not been annulled, but is eligible for annulment under New Hampshire law, then that conviction does not disqualify a person from jury service." The defendant contends that "the statute excludes from jury service only persons with felony criminal convictions of a specified status. If a felony conviction has been annulled, the person is not disqualified. If a felony conviction is eligible for annulment, the person is not disqualified." In essence, the defendant's construction states the provision in positive form, dispensing with the double negative by deleting the successive "nots." He thereby concludes that a juror is qualified to serve if he "shall ... have been convicted of any felony which has ... been annulled or which is ... eligible for annulment under New Hampshire law." RSA 500–A:7–a, V.

The United States protests that "this...