US v. Swanson, CR 90-AR-215-S.

• Decision Date: 14 December 1990
• Docket Number: No. CR 90-AR-215-S.,CR 90-AR-215-S.
• Citation: 753 F. Supp. 338
• Parties: UNITED STATES of America v. David SWANSON.
• Court: U.S. District Court — Northern District of Alabama

753 F. Supp. 338

UNITED STATES of America v. David SWANSON.

No. CR 90-AR-215-S.

United States District Court, N.D. Alabama, S.D.

December 14, 1990.

Frank W. Donaldson, U.S. Atty. and John C. Earnest, Jr., Asst. U.S. Atty., for the U.S.

Lawrence (Larry) Sheffield, Jr., Birmingham, Ala., for David Swanson.

MEMORANDUM OPINION

ACKER, District Judge.

The court has under consideration the motion of defendant, David Swanson, to dismiss the indictment in this case. On November 21, 1990, in a thoughtful opinion, the magistrate-judge recommended that the indictment be dismissed. On November 30, 1990, the United States filed an objection to the magistrate-judge's recommendation. Thereafter, on December 7, 1990, the court conducted a hearing at which it received evidence, including the testimony of H.D. Walton, director of resources and planning for the Board of Pardons and Paroles of the State of Alabama, after which Swanson submitted a final brief on the subject.

To this court the question presented is a close one. It involves a juxtaposition of Alabama and federal law, a fact which at first tempted this court to certify the questions of Alabama law to the Supreme Court of Alabama pursuant to Rule 18, Alabama Rules of Appellate Procedure. Upon reflection, however, and after this court heard evidence and studied the pertinent portions of the Alabama Constitution and the Alabama Code, the court no longer has any doubt about the law of Alabama as here applicable. The actual intent of the State of Alabama, as the issue of its intent may bear on the question here presented, is now clear. Therefore, the court no longer sees any need to bother the Supreme Court of Alabama. As will hereinafter appear, the court does see considerable need for the United States and the State of Alabama to bother the Eleventh Circuit and/or the Supreme Court of the United States.

Swanson is charged in Count I with possessing a Desert Eagle pistol on January 12, 1990, after having been convicted of manslaughter on January 6, 1970, a felony in Alabama. The grand jury charges that these acts, taken together, constitute a violation of 18 U.S.C. § 922(g)(1). Count II is identical to Count I except that the firearm alleged to have been possessed by Swanson is a Marlin rifle. Ala.Code § 13A-11-70(1) defines a pistol as any firearm with a barrel less than 12 inches in length. The length of the Marlin "rifle" is not set forth in the indictment. Count III is likewise identical to Count I except that the firearm there alleged to have been possessed is a Colt pistol.

On January 29, 1979, the Board of Pardons and Paroles of the State of Alabama executed and delivered to Swanson a piece of paper entitled "Certificate Granting Restoration of Civil and Political Rights". This paper recited that it was issued "in compliance with authority invested in the State Board of Pardons and Paroles by the Constitution and the laws of the State of Alabama to restore civil and political rights". The Constitution of Alabama, § 124, as amended, gives the legislature the power "to regulate the administration of pardons, paroles, remission of fines and forfeitures". Pursuant to this constitutional authority, the legislature in Ala.Code § 15-22-20 created the Board of Pardons and Paroles, but that Board was nowhere given the authority, either express or implied, to abrogate willy-nilly or to vary the terms of any statute designed to control the conduct of any person, pardoned or not. The instrument delivered to Swanson on January 29, 1979, purported to restore to him "all civil and political rights resulting from the above-stated conviction and any prior disqualifying convictions". The conviction therein referred to was a conviction which occurred on November 14, 1974, although Swanson had previously been convicted of manslaughter on January 6, 1970, as is charged in the instant indictment. This document of restoration was on a printed form routinely used by the Board in 1979 under generally understood guidelines after the expiration of a successful period of parole or probation. There is no evidence (1) that the Board failed to comply with the requirement of Ala.Code § 15-22-23 that the restoration of rights be made only after an open public hearing of the Board after notice; or (2) that the Board failed to comply with the requirement of Ala.Code § 15-22-25 that it not act on the application for restoration of rights "until a complete investigation of the prisoner's social and criminal record has been made by a parole officer and a written report thereof made a part of the prisoner's file"; or (3) that the Board failed to comply with any of the several other procedural requirements contained in Ala.Code § 15-22-36. Ala.Code § 15-22-38 provides that the "limitations and restrictions on the powers of the board or the members thereof shall be strictly construed". (emphasis supplied). Ala.Code § 15-22-40 provides that any "restoration of civil and political rights granted, ordered or made contrary to the provisions of this article shall be null and void and have no force or effect". (emphasis supplied).

In the instant case, the United States has graciously not attempted to collaterally attack the document of January 29, 1979, but the United States does take the position that on January 29, 1979, the Board of Pardons and Paroles lacked the authority to restore to Swanson the right to possess a pistol. Therefore, the United States contends that the document neither accomplished a complete restoration of every possible right enjoyed by other Alabama citizens, nor intended to accomplish it.

It is without question that Ala.Code § 15-22-40, above quoted, prohibits the Board from exceeding its strictly limited authority. In 1979, the Board could neither legislate nor act contrary to the legislation which created it and gave it a limited scope of operation.

On January 29, 1979, Ala.Code § 13A-11-72(a) provided, and still provides:

No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.

(emphasis supplied).

Prior to January 29, 1979, Alabama's courts had made quite clear that this code section cannot be obviated or avoided by any pardon or restoration of political and civil rights no matter how broad its terms. See Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), aff'd 267 Ala. 507, 103 So.2d 341 (1958), cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306 (1959). Furthermore, the crime of manslaughter, for which Swanson had been convicted in 1970, is a "crime of violence" under the law of Alabama, and if manslaughter were not a "crime of violence", Swanson's subsequent conviction of larceny in 1974 qualifies as a "crime of violence" under the law of Alabama. Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, writ denied, 291 Ala. 93, 278 So.2d 205 (1973).

In his attack on this indictment, Swanson relies primarily on United States v. Kolter, 849 F.2d 541 (11th Cir.1988), a case decided after a 1986 amendment of the federal statute which makes it a crime for a convicted felon to possess a firearm. This amendment redefined the term "crime punishable by imprisonment for a term exceeding one year", as follows:

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. In a conviction which has been expunged, or set aside or for which a person has been pardoned or has 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).

This court is bound by U.S. v. Kolter, which is a strong case in Swanson's favor. In Kolter, the Eleventh Circuit flatly held that a felon whose civil rights had been restored prior to 1986, when that restoration by its terms had not limited his right to bear arms, etc., etc., etc., was immunized by the 1986 amendment from any federal prosecution for possessing a firearm. On its face, this holding seems to cover Swanson's case like a blanket, and perhaps it does. However, there are severe problems with Kolter as the court considers its possible application to the instant case. There are several questions here present, not addressed in Kolter and which give this court considerable trouble. They will now be discussed by this court, but not necessarily in the order of their significance.

The First Problem.

The first distinction between Kolter and the instant case is that Mr. Kolter's conviction for possessing a gun was based on a prior felony conviction in Georgia and not in Alabama. For aught appearing, Georgia has no statutory equivalent to Alabama's § 13A-11-72 prohibiting a convicted felon from possessing a pistol, and no equivalent to Alabama's § 15-22-40 limiting the authority of those in charge of the pardoning process from restoring that right and providing that any grant beyond the express powers of the pardoning agency is null and void. As the district court said in U.S. v. Erwin, 723 F.Supp. 1285 (C.D.Ill.1989), on its way to an affirmance by the Seventh Circuit:

The only possible relevance Kolter could have here is by way of dicta, but in fact even that is absent. The restoration of rights in Kolter was apparently deliberately and affirmatively accomplished pursuant to the Youthful Offender Act, and apparently it included the state right to possess firearms and, of course, contained no express limitation upon possessing firearms.

723 F.Supp. 1294 (emphasis supplied).

In affirming the district court, the Seventh Circuit in U.S. v. Erwin, 902 F.2d 510 (7th Cir.1990), said:

Illinois does not wipe out the conviction for purposes of its recidivist laws. It also does not restore the right to own or carry guns.

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