US v. Hammonds, Cr. No. 91-CR-80130-DT.
| Decision Date | 28 February 1992 |
| Docket Number | Cr. No. 91-CR-80130-DT. |
| Citation | 786 F. Supp. 650 |
| Parties | UNITED STATES of America, Plaintiff, v. Deondre HAMMONDS, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Kenneth Chadwell, U.S. Atty., Detroit, Mich., for U.S.
Miriam Seifer, Federal Defenders Office, Detroit, Mich., for defendant.
This criminal action is presently before the Court on Defendant Deondre Hammonds' Motion to Dismiss his one-count indictment for failure to state a crime. Hammonds contends that, based upon recent federal decisions construing the interplay between federal and state firearms laws, his 1984 Michigan state court conviction for "larceny from the person" cannot be used as a basis for charging him as a felon-in-possession of an firearm in violation of 18 U.S.C. § 922, which is the only crime charged in the indictment.
The Government filed a Response and Brief in Opposition to Hammonds' Motion on November 15, 1991, to which Response Defendant replied on November 21, 1991. The parties' attorneys then presented oral arguments on Defendant's Motion at a hearing held on December 5, 1991. Following the hearing, Defendant submitted to the Court a "Post Oral Argument Memorandum" in further support of his arguments for dismissal of his Indictment.
The Court has reviewed and considered all of the Briefs submitted by Defendant and by the Government, and having further considered the December 5, 1991 oral arguments of counsel, the Court is now prepared to rule on Defendant's Motion. This Opinion and Order sets forth that ruling.
On March 12, 1991, the Grand Jury issued a one-count indictment against Defendant Deondre Hammonds. The indictment charges that on February 8, 1991, Hammonds — who previously had been convicted of a felony punishable by a term of imprisonment of more than one year — was in possession of a 12-gauge pump-action shotgun in violation of 18 U.S.C. § 922(g)(1).
As indicated in the indictment, Hammonds had been previously convicted of a felony.
On May 10, 1984, Hammonds was convicted in Detroit Recorder's Court for "larceny from the person", which under Michigan law, is a felony punishable by a term of imprisonment of up to ten years. On that same date, May 10, 1984, Hammonds was sentenced by the state court to two years probation. As part of that two-year sentence of probation, Hammonds was ordered confined for 60 days in the Detroit House of Corrections.
On May 8, 1986, the Recorder's Court sentencing judge entered an "Order of Probation Discharge", terminating Defendant's probation, discharging him from probation supervision, and closing the case.
On February 8, 1991 — four years and nine months after Hammonds was discharged from his probation sentence — Wayne County Sheriff Deputies and Federal Alcohol, Tobacco and Firearm Agents executed a state search warrant at 14432 Young Street, Detroit, Michigan. Deondre Hammonds resided at that address at the time of the search. During the search, the Agents seized a Maverick Arms 12-gauge pump-action shotgun from the living room closet of the Young Street house. Hammonds was questioned and gave a statement with respect to the shotgun. Apparently, as a result of Hammonds' statement,1 ATF Agent Donald Dawkins swore out a complaint charging Hammonds with being a felon-in-possession of a firearm in violation of 18 U.S.C. § 922, and on March 12, 1991, the Grand Jury indicted Hammonds.
Hammonds now moves to dismiss his indictment arguing that under the Sixth Circuit's decision in United States v. Cassidy, 899 F.2d 543 (6th Cir.1990), the Ninth Circuit's decision in United States v. Dahms, 938 F.2d 131 (9th Cir.1991), and the recent decision of District Judge Paul Gadola in United States v. Gilliam, 778 F.Supp. 935 (E.D.Mich.1991), he is not a "person who has been convicted of a crime punishable by imprisonment for a term exceeding one year" within the meaning of 18 U.S.C. §§ 921(a)(20) and 922(g)(1), because, he contends, that by virtue of his having been discharged from the sentence of probation for his state court conviction, his "civil rights" have been restored.
18 U.S.C. § 922(g)(1) — the statute under which Defendant Hammonds is charged — provides as follows:
18 U.S.C. § 921 provides definitions for the terms used in the federal firearms statutes, including Section 922. 18 U.S.C. § 921(a)(20) defines the terms "convicted ... of a crime punishable by imprisonment for a term exceeding one year". That subsection provides, in pertinent part:
18 U.S.C. § 921(a)(20) (emphasis added).
The "what constitutes a conviction" provisions of Section 921(a)(20)(B) were added in 1986. Prior to the enactment of the Federal Firearms Owners Protection Act of 1986 ("FOPA"), (which amended the pertinent provisions of the federal firearms statute under which Hammonds was indicted), 18 U.S.C. § 921(a)(20) only provided as follows:
The term "crime punishable by imprisonment for a term exceeding one year" shall not include (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices as the Secretary may by regulation designate, or (B) any State offenses (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
As indicated supra, the Sixth Circuit authority relied upon by Hammonds in support of his Motion to Dismiss Indictment is United States v. Cassidy, 899 F.2d 543 (6th Cir.1990).
In that case, the defendant had been convicted in Ohio in September 1983 of marijuana trafficking, a crime which, pursuant to Ohio law, is punishable by a prison term in excess of one year. Following his conviction, Cassidy was sentenced to imprisonment. He was released from prison in June 1984, at which time he received from the Ohio Adult Parole Authority a "Restoration to Civil Rights" certificate which restored "the rights and privileges forfeited by his conviction; namely the right to serve on juries and to hold office of honor, trust or profit."
In January 1989, Cassidy was indicated by a federal grand jury in connection with two separate incidents involving possession of a firearm arms, in violation of 18 U.S.C. § 922(g)(1).
The District Court for the Southern District of Ohio dismissed the indictment because it determined that the Restoration Certificate given to Cassidy upon his release from prison constituted a "restoration of civil rights" under section 921(a)(20). The district court held that since the Restoration Certificate did not expressly limit Cassidy's firearms privileges, Cassidy was not a "convicted felon" under Ohio law and the federal firearms statutes.
The Sixth Circuit reversed the district court's dismissal of Cassidy's indictment. Although the appellate court found that there had been a "restoration of civil rights" in Cassidy's case because after his release from prison, Cassidy's right to vote was restored by statute2 and his rights to serve on a jury and to seek and hold public office were restored to him by virtue of the express language of the Restoration Certificate, it also found that notwithstanding the restoration of those rights, Ohio Revised Code § 2923.13 expressly precluded Cassidy, as a person who had previously been convicted of a drug trafficking offense, from possessing a firearm.3 Thus, the Court of Appeals determined that under the provisions of 18 U.S.C. § 921(a)(20), Cassidy was a person who had been convicted of a "crime punishable by imprisonment for a term exceeding one year".
In reaching its conclusion, the Cassidy court examined the legislative history of the Firearms Owners' Protection Act of 1986, which added the "what constitutes a conviction" and "restoration of civil rights" provisions to 18 U.S.C. § 921(a)(20). These provisions had their genesis in a bill entitled the "Federal Firearms Law Reform Act of 1979", which was introduced in the Senate by Senator McClure on October 5, 1979 as Senate Bill ...
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