United States v. Kolter

849 F.2d 541, 1988 WL 63979
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 13, 1988
DocketNos. 87-8011, 87-8366
StatusPublished
Cited by41 cases

This text of 849 F.2d 541 (United States v. Kolter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kolter, 849 F.2d 541, 1988 WL 63979 (11th Cir. 1988).

Opinion

CLARK, Circuit Judge:

Mark Von Kolter appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C.App. § 1202(a)(1). Between the time Kolter was indicted and tried, Congress enacted legislation that redefined the term “convicted felon.” Because we find that the new act applies to Kolter and that he was not a “convicted felon” on the date of his trial, we reverse his conviction.

In 1973, Kolter pleaded guilty in state court to burglary and was sentenced under the provisions of the Georgia Youthful Offender Act of 1972. In 1976, the State Board of Pardons and Paroles unqualifiedly restored all the civil and political rights [543]*543Kolter had lost as a result of the burglary offense.

In July 1985, police officers found firearms and ammunition in a house where they believed Kolter resided. Kolter was indicted in September 1986 for the federal offense of possession of a firearm by a convicted felon, the underlying felony being his 1973 burglary conviction.

On November 19, 1986, the day Kolter’s trial commenced, Kolter moved to dismiss his indictment on the ground that effective November 15, Congress had redefined “convicted felon” and that the restoration of his civil rights removed him from the class of persons who could be prosecuted under the federal firearms law. The court denied the motion and Kolter was convicted on November 20.

Kolter now appeals the denial of his motion to dismiss and maintains the redefinition of “convicted felon” should have been applied to his case. The government responds that Kolter was a convicted felon when he possessed the firearms as well as when he was indicted, and therefore, under circuit precedent, the new law does not apply to him. Kolter challenges the sufficiency of the evidence as well. Because we hold his indictment should have been dismissed, we do not reach this issue.

Originally, the federal firearms laws encompassed two separate statutes, 18 U.S.C. App. § 1202 and 18 U.S.C. § 922. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Section 1202(a) proscribed the receipt, possession, or transportation of a firearm by a convicted felon. Section 922(g), (h), proscribed the shipping, transportation, or receipt of a firearm by. a convicted felon. Under Supreme Court precedent, “convicted felon” was defined according to federal law. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983).

On May 19, 1986, Congress enacted the Firearms Owners’ Protection Act, which modified the law in two ways significant to this case. First, effective November 15, 1986, it repealed § 1202(a), the statute under which Kolter was convicted, and amended § 922(g) to include the § 1202(a) possession offense. 18 U.S.C. § 921 note (Supp.1987); see 18 U.S.C. § 922(g) (Supp. 1987). Second, Congress rejected the Dickerson rule by inserting the following language:

What constitutes a conviction ... shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had 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 subsection also became effective November 15, 1986. 18 U.S.C. § 921 note (Supp.1987).

Under Dickerson, the restoration of Kolter’s civil rights would not bar his federal conviction as it did not alter the historical fact of his state felony conviction. Under federal law prior to the amendment he would be a “convicted felon.” See Dickerson v. New Banner Institute, Inc., 460 U.S. at 114-15, 103 S.Ct. at 992-93. However, under § 921(a)(20), Kolter would not be a “convicted felon” as the restoration of his civil rights was not qualified by a firearms restriction.

The precise issue we must decide is whether § 921(a)(20) applied to Kolter, since he was tried and convicted after its effective date even though he committed the charged offense and was indicted when Dickerson was the law. The general rule is that a new statute should apply to cases pending on the date of its enactment unless manifest injustice would result or there is a statutory directive or legislative history to the contrary. Bradley v. School Board of Richmond, 416 U.S. 696, 711-14, 94 S.Ct. 2006, 2016-17, 40 L.Ed.2d 476 (1974); United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985); Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (Former 5th Cir. Unit A 1982); Corpus v. Estelle, 605 F.2d 175, 180 (5th Cir. [544]*5441979), cert. denied, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980).

The government contends we should find Congress intended the redefinition of “convicted felon” contained in § 921(a)(20) not to apply based on the general saving statute, 1 U.S.C. § 109. Section 109 reads as follows:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing Act shall so expressly provide____

1 U.S.C. § 109 (emphasis added). We agree with the government that § 109 applies to this case insofar as prosecutions under § 1202(a), the statute under which Kolter was convicted, are saved even though § 1202(a) has been repealed. See United States v. Gourley, 835 F.2d 249, 250 n. 1 (10th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 1741, 100 L.Ed.2d 204 (1988); United States v. Springfield, 829 F.2d 860, 865 (9th Cir.1987).1 However, in enacting § 921(a)(20), Congress did not repeal a statute — it changed the rule announced in Dickerson v.

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Bluebook (online)
849 F.2d 541, 1988 WL 63979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kolter-ca11-1988.