USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1625
UNITED STATES OF AMERICA,
Appellee,
v.
LAWRENCE ESTRELLA,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court, issued on January 9, 1997, should be
amended as follows:
On cover sheet page, replace issue date of "January 9, 1996" with
"January 9, 1997".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1625
UNITED STATES OF AMERICA,
Appellee,
v.
LAWRENCE ESTRELLA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
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Before
Cyr, Boudin and Lynch,
Circuit Judges.
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Paul J. Haley, by Appointment of the Court, with whom Law Office
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of Paul J. Haley was on brief for appellant.
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Peter E. Papps, First Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, was on brief for the United
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States.
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January 9, 1997
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BOUDIN, Circuit Judge. Lawrence Estrella was convicted
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of being a "felon in possession" of a firearm in violation of
18 U.S.C. 922(g)(1) and sentenced as an armed career
criminal. Id. 924(e)(1). His appeal raises various
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issues, the most difficult being whether he is excepted from
the felon-in-possession statute as one whose civil rights
have been restored and whose right to firearms has not been
significantly restricted under state law. Id. 921(a)(20).
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Estrella's long criminal record began in 1967 when he
was 17 years old. Pertinently, in January 1977, he pled
guilty in Massachusetts state court to assault and battery
with a dangerous weapon (a motor vehicle) and received a
prison sentence of 3 to 10 years. He escaped from custody on
July 2, 1978, and proceeded to commit crimes in two different
states for which he was convicted in 1980: armed robbery and
armed assault in Massachusetts, and breaking and entering an
occupied dwelling in Michigan.
Estrella received a 10-to-15 year prison sentence for
the Massachusetts armed robbery and assault, and a concurrent
7-to-15 year prison term for the Michigan crime. On
September 28, 1987, Estrella was released from Massachusetts
state prison and placed on parole until the year 2003, later
reduced to June 1, 1999. He moved to New Hampshire in 1990
and his parole supervision was transferred to New Hampshire.
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He now had three "violent felony" convictions on his record.
18 U.S.C. 924(e)(1).
On February 16, 1994, Estrella went to a federally
licensed firearms dealership in Goffstown, New Hampshire, and
purchased a .25 caliber semi-automatic pistol, allegedly as a
gift for his wife. The owner of the dealership had received
the gun from a distributor in Massachusetts. In the course
of the purchase, Estrella completed an ATF Firearms
Transaction Record, see 27 C.F.R. 178.124(c); on it he
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answered, inaccurately, that he had not been convicted of a
crime punishable by a term exceeding one year.
Having learned of the purchase from the local police
chief in Estrella's town, agents of the Bureau of Alcohol,
Tobacco and Firearms obtained a warrant to search Estrella's
residence for firearms and related documents. A search of
Estrella's home occurred on March 8, 1994. Estrella arrived
during the search, and on being advised of the warrant,
Estrella said he wanted to cooperate and signed a waiver of
his Miranda rights. He then escorted the agents to his
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garage and showed them where the pistol was located.
A federal grand jury indicted Estrella as a felon in
possession, 18 U.S.C. 922(g)(1), and for making a false
statement in the purchase of a firearm, id. 922(a)(6).
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Related New Hampshire state charges were dismissed and
Estrella was tried in federal court in September 1995. The
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jury convicted Estrella of violating section 922(g)(1), but
deadlocked on the section 922(a)(6) count, which the
government later abandoned. Because of his three violent-
felony convictions, Estrella was sentenced to 216 months
imprisonment. He now appeals.
At the outset we reject, as an issue settled in this
circuit, Estrella's argument that section 922(g) facially
exceeds Congress' power under the Commerce Clause. United
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States v. Blais, 98 F.3d 647, 649 (1st Cir. 1996).
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Estrella's "as-applied" challenge also fails, because the
government offered evidence that the pistol he purchased had
moved in interstate commerce. Our precedent also forecloses
Estrella's cursory Tenth Amendment challenge to the federal
firearm regulations. United States v. Minnick, 949 F.2d 8,
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10-11 (1st Cir. 1991), cert. denied, 503 U.S. 995 (1992).
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The main question, which we consider de novo, is whether
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federal law prohibited Estrella from obtaining the pistol.
18 U.S.C. 922(g)(1) makes it unlawful for
any person . . . who has been convicted in any
court of, a crime punishable by imprisonment for a
term exceeding one year . . . [to] possess in or
affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign
commerce.
But 18 U.S.C. 921(a)(20) excepts from the definition of
conviction
[a]ny conviction which has been expunged, or set
aside or for which a person has been pardoned or
has had civil rights restored . . . unless such
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pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship,
transport, possess, or receive firearms.
But for this exception, Estrella fell within the main ban of
section 922(g)(1); the troublesome issues are whether he had
his civil rights restored and, if so, whether the "unless"
clause applies in his case.
We consider first whether Massachusetts, the
jurisdiction of the "predicate offense," had restored
Estrella's civil rights. (The government relied on
Estrella's Michigan conviction only as a predicate offense
for sentencing under section 924(e)(1), and not in his
indictment for violating section 922(g)(1).) In this
circuit, the civil rights that must be restored to trigger
the exception are the rights to vote, to hold public office,
and to serve on a jury. United States v. Caron, 77 F.3d 1, 2
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(1st Cir.) (en banc), cert. denied, 116 S. Ct. 2569 (1996).
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This court has held that all three core civil rights
must be restored for a person to avoid the prohibition of
section 922(g). United States v. Indelicato, 97 F.3d 627,
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631 & n.3 (1st Cir. 1996). In Massachusetts, a convicted
felon does not lose the right to vote. Mass. Gen. L. ch. 54,
86, 103B. And Estrella was no longer incarcerated in
February 1994, so he could now hold public office. Mass.
Gen. L. ch. 279, 30. Nevertheless, the government argues
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that Estrella's right to serve on a jury had not been
sufficiently restored when he purchased the pistol.
Massachusetts disqualifies from jury service any person
who "has been convicted of a felony within the past seven
years or is a defendant in pending felony case or is in the
custody of a correctional institution." Mass. Gen. L. ch.
234A, 4(7). Estrella's conviction in 1980 for the
predicate offense, the armed assault and robbery, occurred
more than seven years prior to his purchase of the gun in
1994. The government claims, however, that in 1994 Estrella
was still "in the custody of a correctional institution" by
dint of his continuing parole status.
The government cites federal decisions holding that
parole constitutes "custody" for purposes such as federal
habeas jurisdiction. E.g., United States v. Flynn, 49 F.3d
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11, 14 (1st Cir. 1995) (citing cases). But "custody" has
been defined broadly in this context for reasons peculiar to
habeas corpus, Minnesota v. Murphy, 465 U.S. 420, 430 (1984);
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and under section 921(a)(20), state law governs whether
Estrella is barred from serving on juries. Beecham v. United
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States, 511 U.S. 368 (1994). We have not found any
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Massachusetts decisions that decide whether a parolee is
barred from service.
While the term "custody" is elastic, it is doubtful that
a paroled prisoner would normally be described as being in
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the custody "of a correctional institution." Further, the
Supreme Judicial Court has referred in passing to section
4(7) as disqualifying prospective jurors on the grounds of
"incarceration or conviction of a felony within the past
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seven years." Commonwealth v. Tolentino, 663 N.E.2d 846, 849
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n.3 (Mass. 1996) (emphasis added). Massachusetts also has a
statutory definition of "correctional institution," defining
it in physical terms and referring to its use "for the
custody . . . of committed offenders and of such other
persons as may be placed in custody therein . . . ." Mass.
Gen. L. ch. 125, 1(d), (e).
Despite these scraps of statute and precedent, some
might think it odd that a felon still on parole should be
seated on a jury. Still, circumstances vary, and the
immediate issue is simply whether Massachusetts imposes an
automatic ban. We think this is a matter that the state
supreme court could probably decide either way, but--pending
such clarification--our best assessment is that Massachusetts
law does not automatically disqualify a parolee seven years
after conviction.
As a fall-back argument, the government says that even
if Estrella could in theory serve on a jury, Massachusetts
law so curtails the opportunity for any ex-felon to serve as
a juror that this civil right has not been sufficiently
restored to satisfy section 921(a)(20). By statute, a
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Massachusetts trial judge can choose to remove from a jury
panel a person convicted of any felony or other crime
punishable by imprisonment of more than one year. Mass. Gen.
L. ch. 234, 8. In Caron we left open the problem now
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posed. 77 F.3d at 6.
We join other circuits in concluding that to meet the
test of section 921(a)(20), each of the three core "civil
rights" must be substantially, but not perfectly, restored.1
In applying this test, we are guided by the rationale behind
Congress' use of "civil rights restored" as a touchstone:
the notion that by reinvesting a person with core civic
responsibilities, the state vouches for the trustworthiness
of that person to possess firearms (unless that right is
withheld). Indelicato, 97 F.3d at 630.
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While regarding the matter as close, we think that the
Massachusetts legislature has expressed the requisite, albeit
unquantifiable, measure of confidence in ex-felons such as
Estrella so far as concerns jury service. Our view rests not
only on the language of section 8 but on what we take to be
its philosophy. Almost a century ago, the Supreme Judicial
Court said that:
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1E.g., United States v. Morrell, 61 F.3d 279, 280 (4th
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Cir. 1995); United States v. Cassidy, 899 F.2d 543, 549 (6th
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Cir. 1990); United States v. McKinley, 23 F.3d 181, 183 (7th
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Cir. 1994); Presley v. United States, 851 F.2d 1052, 1053
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(8th Cir. 1988).
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in this commonwealth it is not the law that persons
convicted of crime shall be permanently deprived of
their civil rights. Our legislation, more humane
and charitable than the law of early times,
recognizes the possibility of repentance and
reformation. . . . [T]here is nothing to prevent
the board from putting upon the jury list the name
of a former criminal, if they find him to be of
good moral character and otherwise suitable.
Commonwealth v. Wong Chung, 71 N.E. 292, 293 (Mass. 1904).
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The right of the trial judge to dismiss an ex-felon under
section 8 appears to be a safeguard, allowing the trial judge to
dismiss the ex-felon out of hand wherever his record, or the
nature of the case, warrants that course; without this provision,
a judge might have to give a particularized reason. Thus viewed,
this qualification does not appear to detract from the Wong Chung
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view that in Massachusetts an ex-felon after seven years and
release from jail is presumptively trusted to serve on a jury.
Accord United States v. Caron, 941 F. Supp. 238, 246 (D. Mass.
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1996).
Construing a somewhat similar state restriction, two
circuits have held that Michigan does not restore the civil
rights of felons. United States v. Metzger, 3 F.3d 756, 759 (4th
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Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994); United States
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v. Driscoll, 970 F.2d 1472, 1478-79 (6th Cir. 1992), cert.
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denied, 506 U.S. 1083 (1993). But Michigan court rules require
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automatic exclusion of felons as jurors whenever a party so
moves, and also direct courts to excuse convicted felons sua
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sponte from jury panels in criminal cases, once that ground for
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exclusion is established. Metzger, 3 F.3d at 759. Michigan law
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is thus more hostile to service by ex-felons than is the law of
Massachusetts.
Although all three of Estrella's core civil rights were
restored by Massachusetts, his prior felony conviction still
counts as a predicate offense if Massachusetts "expressly
provide[d]" that he "may not ship, transport, possess, or receive
firearms," 18 U.S.C. 921(a)(20), "firearm" being broadly
defined to include inter alia handguns, shotguns and rifles. Id.
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921(a)(3). Estrella objects that his parole papers nowhere
expressly provide that he could not own firearms; but his civil
rights were not restored by pardon, or by his parole papers, but
by state statutes. And in such a situation, we look to
Massachusetts law as a whole for the "express" restrictions.
United States v. Sullivan, 98 F.3d 686, 689 (1st Cir. 1996).
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Some might think it perverse to look to Massachusetts
firearms law when the purchase was made in New Hampshire. But
the trigger for the federal ban is the Massachusetts conviction;
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and the ban is removed only if Massachusetts has shown the
requisite confidence in the ex-felon by restoring civil rights
without limiting firearms ownership. (New Hampshire, of course,
is free to impose its own limitations on gun ownership within the
state, but they do not control the federal ban one way or the
other here.)
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In Massachusetts, an ex-felon released from custody for
more than five years can obtain a firearm identification card,
Mass. Gen. L. ch. 140, 129B, which permits one to possess a
handgun (any firearm with a barrel of less than 16 inches, or a
short-barrel shotgun) in his residence or place of business and
to possess a rifle or long-barrel shotgun anywhere. Id. ch. 269,
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10(a). But in Massachusetts a convicted felon cannot carry a
handgun anywhere else, id. ch. 140, 125, 131, 131F; ch. 269,
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10(a); never can purchase, rent or lease a handgun, id. ch.
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140, 131A; and never can sell, rent or lease to another person
any firearms, ch. 140, 122.
In assessing this patchwork of restrictions, little help
is provided by the federal statute's language--"may not ship,
transport, possess, or receive firearms"--since this language
does not tell us how much restriction is needed where some rights
are permitted and others forbidden. The legislative history
refers only to the "right to firearm ownership" as if it were
indivisible. S. Rep. No. 583, 98th Cong., 2d Sess. 7 (1984).
Possibly Congress never considered the case in which the ex-
felon's right to own firearms was restricted in some ways but not
others.
Four of the circuits that have construed section
921(a)(20) conclude that it does not protect the ex-felon if the
state continues in any way to restrict significantly the ex-
felon's right to "ship, transport, possess, or receive firearms."
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Under this "all or nothing" approach, it does not matter whether
the particular weapon possessed by the defendant was permitted or
forbidden by state law. The Sixth and Tenth Circuits so construe
the "exception to the exception," and the Seventh and Eighth come
to about the same result by treating firearms privileges as one
ofthecivil rightsthatmustbe restoredtotriggersection 921(a)(20).2
By contrast, the Ninth Circuit makes the federal ban apply
only if the ex-felon is found to possess a weapon that state law
forbids to him. United States v. Dahms, 938 F.2d 131, 134-35
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(9th Cir. 1991); see also United States v. Tomlinson, 67 F.3d
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508, 513 (4th Cir. 1995); but see United States v. Clark, 993
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F.2d 402, 404-05 (4th Cir. 1993). Thus, if Estrella had bought a
long-barreled shotgun, the federal ban would not here apply.
This approach has patent virtues: it respects the state's own
choice; it may provide better warning to the ex-felon if he
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remains in his state of conviction; and it is probably easier for
courts to administer in the first instance (by asking what state
law permits as to this weapon).
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But the Ninth Circuit's approach is less persuasive as a
reading of the statute. It strains the literal language of the
"unless" proviso, see Driscoll, 970 F.2d at 1480-81; and while
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the federal statute does in some measure defer to state law, it
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2Compare Driscoll, 970 F.2d at 1480, and United States
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v. Burns, 934 F.2d 1157, 1160 (10th Cir. 1991), cert. denied,
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502 U.S. 1124 (1992), with United States v. Lee, 72 F.3d 55,
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57-58 (7th Cir. 1995), and United States v. Ellis, 949 F.2d
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952, 955 (8th Cir. 1991).
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does not give carte blanche to the states. Indelicato, 97 F.3d
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at 629-30. We have overridden literal language where it appeared
inadvertent and undermined Congress' aim. Id. But requiring
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that the state permit the untrammeled possession of firearms is
fully consistent with the trustworthiness rationale that
underpins the "civil rights restored" provision itself.
The Ninth Circuit approach might give some limited
protection to a defendant who remains in the state of original
conviction and who honestly relies on state law; but it is not
clear that this is a common case, and (as we explain below) the
statute does not require willfulness at all. As for ease of
administration, Congress in drafting the statute certainly did
not have this value high on its list, and the plurality approach
of cases like Driscoll requires more work in the first case to
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assess the law of the state but less work in subsequent cases
involving the same state.
Under the plurality approach, which we choose to follow,
we think that Massachusetts' ban on handgun possession by ex-
felons outside the home or business is a substantial enough limit
on firearms rights to preserve the federal ban. Other courts
have taken the same view in assessing other state statutes.
United States v. Wagner, 976 F.2d 354, 356 (7th Cir. 1992);
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Driscoll, 970 F.2d at 1481; Burns, 934 F.2d at 1160-61. In the
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future, there might be close cases where, for example, some other
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state's restriction is arguably de minimis; but an ordinary
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Massachusetts felon will not be exempted from the federal ban.3
Estrella raises several other claims of error concerning
his conviction and sentence. He argues first that he lacked the
requisite scienter because he believed that his civil rights had
been restored. But this panel is bound by the earlier ruling in
this circuit that under section 922(g), "the government need not
prove that the defendant knowingly violated the law; rather, it
only need prove . . . that the defendant knowingly possessed
firearms." United States v. Smith, 940 F.2d 710, 713 (1st Cir.
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1991). Accord United States v. Capps, 77 F.3d 350, 352-53 (10th
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Cir.), cert. denied, 116 S. Ct. 2568 (1996); Tomlinson, 67 F.3d
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at 513-14 n.9 (distinguishing Staples v. United States, 511 U.S.
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600 (1994)).
A risk of injustice exists wherever a legislature makes
criminal conduct that some may believe to be lawful. But the
federal felon-in-possession statute does not impose a statutory
minimum term, 18 U.S.C. 924(b), so long as the defendant is not
a three-time violent felon, id. 924(e)(1). Even if a jury can
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be found to convict, sentencing judges are not likely to deal
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3Recently, the Ninth Circuit held that Massachusetts law
does not restore the civil rights of ex-felons at all.
United States v. Oman, 91 F.3d 1320 (9th Cir. 1996). The
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court's reasoning is different than ours, consistent in some
respects and not in others, but its result for Massachusetts
ex-felons is the same.
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harshly with the defendant in the rare case of a truly innocent-
minded violation.
Estrella is not in this category. He was told when his
parole supervision was transferred to New Hampshire that he could
not possess firearms. Although his brief says that by February
1994 the New Hampshire parole rules had lapsed, it appears that
New Hampshire state law independently prohibited Estrella from
possessing the pistol and there is some indication that Estrella
was so warned. Further, Estrella's outright lie on the ATF form,
denying that he had ever been convicted for a crime punishable by
at least one year in prison, is not the act of an innocent man.
Because a mistake of law was no defense, we need not
discuss at length two other claims by Estrella: that the
government should not have been allowed to introduce evidence of
the New Hampshire parole rules and that defense counsel should
have offered evidence that the rules had lapsed. Apparently, the
government's evidence was offered without objection. It is
enough that neither piece of evidence had much bearing upon the
issues properly before the jury or was likely to alter the
result.
Next, Estrella says that the search warrant did not
authorize entry into his garage. The warrant approved by the
district court permitted the search of the "residence of Lawrence
R. Estrella, . . . more particularly described as a blue cape-
style house with a breezeway connecting a two-car garage and
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located 450 feet uphill on Tiffany Hill Road . . . ." We agree
with the district court that the common-sense meaning of the
warrant was that the area to be searched included the garage.
Accord United States v. Bonner, 808 F.2d 864, 868 (1st Cir.
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1986), cert. denied, 481 U.S. 1006 (1987).
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Finally, Estrella provides an outline, but little more, of
several objections to his sentence. Although we could treat
those arguments as abandoned, see United States v. St. Cyr, 977
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F.2d 698, 701 (1st Cir. 1992), the length of the mandatory
sentence has led us to examine each argument on the merits, but
none appears to have force. We see no reason to describe those
outlined arguments, nor to advert further to several other claims
of trial error that were amply developed in Estrella's brief but
seem to us plainly hopeless.
Affirmed.
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