US v. Flower
| Decision Date | 24 November 1993 |
| Docket Number | No. 93-CR-019A.,93-CR-019A. |
| Citation | 838 F. Supp. 544 |
| Parties | UNITED STATES of America, Plaintiff, v. Grove Lawrence FLOWER, a/k/a Lawrence Flower, Defendant. |
| Court | U.S. District Court — District of Utah |
Mark K. Vincent, Asst. U.S. Atty. for Utah, Salt Lake City, UT, for plaintiff.
Robert B. Breeze, Salt Lake City, UT, for defendant.
ORDER DENYING DEFENDANT'S MOTION FOR RELEASE PENDING APPEAL
Defendant Grove Lawrence Flower ("Flower") was convicted after a jury trial of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g).1 The court sentenced Flower to thirty (30) months in prison followed by a three-year term of supervised release. Flower now petitions the court under Federal Rule of Appellate Procedure 9(b) and 18 U.S.C. § 3143(b) to stay execution of the sentence pending an appeal to the Tenth Circuit Court of Appeals.
Having reviewed the memorandum filed by defense counsel Robert Breeze in support of the motion, and the opposition memorandum of Assistant United States Attorney Mark K. Vincent, and being aware of the facts presented and the legal arguments made at trial, the court finds that defendant will not likely prevail on appeal. Accordingly, defendant's motion must be denied under 18 U.S.C. § 3143(b).
On September 14, 1992, agents of the Utah Department of Corrections, Adult Probation and Parole, began an investigation into alleged misconduct of parolee Kevin Kelley, who resided in the home of Flower. During a visit to Kelley at the Flower house, the parole agents discovered in plain view a set of weight scales and marijuana residue in a bedroom. Also, the agents discovered a locked gun safe in the bedroom closet, again in plain view.
Shortly after the agents' discovery, Flower arrived at the house and was questioned by the agents on the front lawn. At that time, the agents found marijuana in Flower's lunch pail. Flower was asked by the agents if they could look into the locked gun safe found in Flower's bedroom. Flower consented, and the agents opened the safe. Inside the safe was a Savage Model 110 .243 caliber rifle, a Raven Model P25 .25 caliber pistol, and a small quantity of illegal drugs. Flower was then arrested and transported to the Salt Lake County Jail.
Because of Flower's prior state felony convictions of burglary, the United States Attorney obtained an indictment against Flower for illegal possession of the firearms in the safe.2 Flower was then tried and convicted of the offense.
During the course of the firearms trial, Flower took the position that the government needed to prove as part of its case, under 18 U.S.C. § 922(g), that Flower's prior Utah felony convictions had not been expunged or pardoned by the State or Utah or that Flower had not otherwise had his civil rights restored. Flower based his argument on 18 U.S.C. § 921(a)(20) which specifies that "a crime punishable by imprisonment for a term exceeding one year," a prerequisite for a § 922(g) conviction, does not include "any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored." The government disagreed with Flower on who had the burden of going forward on evidence as to pardon, expungement, or the restoration of civil rights.
After taking argument, and reviewing the law, this court ruled in favor of the government. The court determined that the present "status" of Flower's prior convictions was a defense available to Flower. The court held that if Flower wanted to present evidence of pardon, expungement or restoration of civil rights he might do so. Flower did not present any evidence of pardon or expungement. As for a claim of a restoration of civil rights, Flowers relied upon Utah law to the effect that citizens, including convicted felons, had the right to possess firearms for purposes of hunting.3 The matter was then submitted to a jury who found Flower guilty as charged.
Before a person convicted of a federal crime may be released pending appeal of that conviction, he must show four factors: (1) that he is not likely to flee; (2) that he is not a danger to the community; (3) that the appeal is not for purposes of delay; and (4) that the appeal raises a substantial question of law or fact likely to result in reversal or an order significantly modifying the sentence imposed. See 18 U.S.C. § 3143(b); United States v. Affleck, 765 F.2d 944 (10th Cir. 1985).
The court does not believe that Flower poses a danger to the community or is likely to flee if released. However, the court does not believe that a substantial question of law or fact exists that could lead to reversal of Flower's conviction. In United States v. Affleck, 765 F.2d 944 (1985), the Tenth Circuit Court of Appeals stated that for a "substantial question of law or fact" to exist under 18 U.S.C. § 3143(b) the issue "must be a `close' question or one that very well could be decided the other way." Id. at 952, quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985).
Contrary to Flower's arguments, the Tenth Circuit has held that the only elements that the government must prove to obtain a conviction under 18 U.S.C. § 922(g) are:
United States v. Shunk, 881 F.2d 917, 921 (10th Cir.1989).
The Tenth Circuit has never required the government to prove, as a fourth element, the continuing validity of the prior conviction, or whether or not defendant has had his civil rights fully restored. Instead, a defendant can present evidence of pardon, expungement or restoration of civil rights to attack the sufficiency of the government's proof of the first element of conviction. This is similar to the reasoning of the Fourth Circuit Court of Appeals which recently ruled that:
the lack of a restoration of civil rights and the right to possess a firearm is not an element of the offense stated in § 922(g). It is simply a component of the definition of the element that the accused has "been convicted in any court of a crime punishable by imprisonment exceeding one year."
United States v. Clark, 993 F.2d 402, 406 (4th Cir.1993). See also United States v. Reedy, 990 F.2d 167 (4th Cir.), cert. denied ___ U.S. ___, 114 S.Ct. 210, 126 L.Ed.2d 166 (1993).
In Utah there is no statute or other legal authority automatically restoring the civil rights to convicted felons.4 Consequently, this case, which is predicated, on prior Utah felony convictions, is different from the case of United States v. Essick, 935 F.2d 28 (4th Cir.1991), the primary case cited by Flower in support of placing an affirmative duty on the government to prove a lack of restoration of civil rights to a defendant as part of the government's case in chief under 18 U.S.C. § 922(g).
In Essick the underlying felony conviction upon which the government was basing its § 922(g) prosecution was prosecuted under the laws of North Carolina. Those laws provided that five years after completion of sentence, a convicted felon automatically has his or her civil rights restored to him or her, including the right to possess a firearm. Because of North Carolina's statutory scheme, the Fourth Circuit Court of Appeals held that the government, as part of its burden of proof, had to show that the convicted felon's civil rights had not been restored. Compare with United States v. Clark, 993 F.2d 402, 406 (4th Cir.1993).
Flower attempts to bring himself into line with the Essick facts by arguing that Utah Consti. Art. 1, § 6, as amended in 1984, guaranteeing the individual right to bear arms, and Utah Code Ann. § 76-10-512 (1990), giving felons the right to possess firearms, restored his civil rights as contemplated by 18 U.S.C. § 921(a)(20). This court disagrees.
Utah Consti. Art. 1, § 6, as amended in 1984, does not apply to the predicate convictions of Flower which occurred in 1981 and 1983. As noted by the Utah Supreme Court in Utah v. Wacek, 703 P.2d 296 (Utah 1985), a state constitutional examination of a Utah felon's right to bear arms must be determined based upon the constitutional provision in effect at the time of the felon's arrest. As Flower acknowledges, the Utah State constitutional provision on the right to bear arms, in effect for 1982 and 1983, only guaranteed a "collective" right to bear arms, as opposed to an "individual" right to bear arms. Under that provision there is no question that Flower does not have a Utah constitutional right to possess firearms. See Id.; Utah v. Beorchia, 530 P.2d 813 (Utah 1974).5
As for Flower's reliance on Utah Code Ann. § 76-10-512,6 the court finds that the statute does not automatically "restore" civil rights as contemplated by 18 U.S.C. § 921(a)(20). As noted by the Tenth Circuit Court of Appeals, to determine if an ex-felon has had his or her civil rights restored the court must look to the "whole of state law" and not merely at a single statute. See United States v. Burns, 934 F.2d 1157, 1159 (10th Cir.1991). Further, more than a deminimis restoration of civil rights is required to take a...
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U.S. v. Flower, 93-4146
...Judge. * EBEL, Circuit Judge. Defendant-Appellant Grove Lawrence Flower appeals his conviction of possession of a firearm by a felon, 838 F.Supp. 544, in violation of 18 U.S.C. Sec. 922(g)(1). 18 U.S.C. Sec. 921(a)(20) defines what prior felony convictions may be used as predicate convictio......