United States v. Nazzaro

• Court: Court of Appeals for the First Circuit
• Decided: January 29, 1993
• Docket: 92-1448
• Status: Published

Opinion

USCA1 Opinion

January 28, 1993
                                [Not for Publication]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 92-1448

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                ALEXANDER C. NAZZARO,
                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Walter Jay Skinner, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________
                            Brown,* Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________
                                 ____________________

            Elliot M. Weinstein for appellant.
            ___________________
            Sharen  Litwin, Assistant  United States  Attorney, with  whom  A.
            ______________                                                  __
        John Pappalardo, United States Attorney, was on brief for appellee.
        _______________
                                 ____________________

____________________

        _____________________
        *Of the Fifth Circuit, sitting by designation.  Judge Brown heard oral
        argument in this  matter, and participated in the  semble, but did not
        participate  in the drafting or  the issuance of  the panel's opinion.
        The remaining two panelists  therefore issue this opinion pursuant  to
        28 U.S.C.   46(d).

STAHL, Circuit Judge.   Defendant-appellant Alexander
                           _____________

            C. Nazzaro challenges his  conviction for violating 18 U.S.C.

               922(g)(1), which 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 .

            . .  "   Although  we affirm  the conviction,  we  do so  for

            reasons different from those asserted by the district court.

                                          I.
                                          I.

                                  Prior Proceedings
                                  Prior Proceedings
                                  _________________

                    The relevant facts  of this case are undisputed.   On

            March 12,  1990, agents from  the Federal Bureau  of Alcohol,

            Tobacco and  Firearms (BATF), Massachusetts State  Police and

            Barnstable  (Mass.)  Police  Department  executed  a  federal

            search  warrant at  the Hyannis  home of  defendant's mother,

            where defendant resided. The search yielded five firearms.1

                    Nazzaro's subsequent indictment was predicated on the

            following Massachusetts state court convictions, all of which

            were punishable by imprisonment for more than one year:

                    1.   Assault  and  battery;  Chelsea District  Court;
                    February 1977;

                    2.   Rape  and assault  and battery with  a dangerous
                    weapon; Suffolk Superior Court; December 1977;

____________________

            1.  The firearms at  issue were two shotguns, two  rifles and
            one pistol.

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                                          2

3.   Assault  and  battery;  Essex   Superior  Court;
            October      1978.2

                      The  case was submitted to  a bench trial, prior to

            which both sides stipulated  to defendant's possession of the

            five  firearms listed  in  the indictment  and  to his  prior

            convictions.    In  addition,  the  parties  stipulated  that

            Nazzaro, at  the  time  of  his  arrest,  possessed  a  valid

            Massachusetts  Firearms Identification  Card (FID),  by which

            the Commonwealth authorized  him to possess  in his home  the

            firearms at issue.  See Mass. Gen. L. ch. 140,   129B.3
                                ___

                    Thus,  the sole issue before the  trial judge was the

            efficacy  of Nazzaro's  defense,  in which  he sought  refuge

____________________

            2.  Under Massachusetts law, only the December 1977, rape and
            assault  and battery  with a  dangerous weapon  convictions--
            number two,  above--are considered felonies.   See Mass. Gen.
                                                           ___
            L. ch.  265,   13A; Mass.  Gen. L. ch.  274,   1.   While the
            other convictions  are misdemeanors under  Massachusetts law,
            18 U.S.C.    921(a)(20)(B) provides that  a state misdemeanor
            is considered a  "crime punishable by imprisonment for a term
            exceeding  one year"  if it  is punishable  by more  than two
            years  imprisonment.   Under Massachusetts  law, assault  and
            battery is punishable  by a maximum term of two  and one half
            years, thus  bringing the  two state misdemeanors  within the
            purview of section 922(g)(1).

            3.  Nazzaro received his FID in October 1977, after his first
            misdemeanor conviction, but prior to his  felony convictions.
            Under  Mass.  Gen.  L.  ch.  140,     129B,  the  misdemeanor
            conviction had no legal  effect on his ability to  obtain the
            FID, but it could have been revoked by the issuing authority-
            -the   Barnstable   Police   Department--after   the   felony
            convictions. For  reasons unknown, however,  revocation never
            occurred.   In addition, the  same statute prohibits  a felon
            from  obtaining  a FID  within  five years  of  conviction or
            release  from jail.  There  is no dispute  that the five-year
            firearm  proscription had  expired by  the time  of Nazzaro's
            federal arrest and prosecution.

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                                          3

under the portion  of 18 U.S.C.    921(a)(20) which  provides

            that:

                         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.

            Nazzaro argued that the provisions of Mass Gen. L. ch. 140,  

            129B which allow a convicted felon to obtain a FID five years

            after  conviction or release from jail, and thereby possess a

            firearm  at   home,  when  taken  in   conjunction  with  his

            possession of a valid  FID and the failure of  authorities to

            revoke  same, constituted  a  "restoration  of civil  rights"

            within the meaning of 18 U.S.C.   921(a)(20), thus taking his

            convictions for rape and assault and battery with a dangerous

            weapons--the  Massachusetts felonies--  outside the  reach of

            federal firearms law.  The trial court disagreed, ruling that

            because possession of  a firearm  is not a  "civil right"  in

            Massachusetts, defendant's possession of the FID and right to

            possess   the  firearms   at   issue   cannot  constitute   a

            "restoration of civil rights."  United States v. Nazzaro, 778
                                            _____________    _______

            F. Supp. 1, 2 (D. Mass. 1991).

                                         II.
                                         II.

                                      Discussion
                                      Discussion
                                      __________

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                                          4

We  review de  novo  the district  court's ruling  on
                               __  ____

            Nazzaro's status.   United States v. Chambers, 964  F.2d 1250
                                _____________    ________

            (1st Cir. 1992); See United States v. Haynes, 961 F.2d 50, 51
                             ___ _____________    ______

            (4th Cir.  1992) (issue of whether defendant  was a convicted

            felon  within the  meaning  of 18  U.S.C.     921(a)(20)  and

            922(g)(1) involves  a purely legal determination).   As noted

            above, we  affirm Nazzaro's conviction.   A brief explanation

            of our reasoning follows.

                    As appellant's  counsel essentially conceded  at oral

            argument, a  panel of this  court recently--and  explicitly--

            blocked the way  to Nazzaro's putative safe haven.  In United
                                                                   ______

            States  v. Ramos, 961 F.2d 1003 (1st Cir.), cert. denied, 113
            ______     _____                            _____ ______

            S. Ct. 364 (1992), we were presented with, as we  are here, a

            federal "felon-in-possession" defendant among whose predicate

            crimes   were  those   categorized   as  misdemeanors   under

            Massachusetts law.  We concluded that

                         an individual convicted of  a crime
                         categorized as  a misdemeanor under
                         Massachusetts law,  . . .  does not
                         by  law  forfeit any  civil rights.
                         Hence, the proper  inquiry here  is
                         whether an individual residing in a
                         jurisdiction  which does  not strip
                         him or her of any civil rights as a
                         collateral      consequence      of
                         conviction  should  be  deemed,  as
                         appellant  urges,  to have  had his
                         civil    rights   "restored"    for
                         purposes  of      922(a)(1),  after
                         having  served  his/her   sentence.
                         Like the district court, we believe
                         the answer is no.

            Id. at 1008.
            ___

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                                          5

As appellant's counsel  recognized, this  case is  on

            all  fours  with  Ramos  vis-a-vis  appellant's Massachusetts
                              _____

            misdemeanor convictions.4  Nazzaro, like Ramos, was  stripped

            of  no  civil   rights  as  a   result  of  his   misdemeanor

            convictions. Thus, according to Ramos, Nazzaro could not have
                                            _____

            had  any such  rights  "restored" within  the  meaning of  18

            U.S.C.    921(a)(20).    Bound  as  we  are  by  prior  panel

            decisions  so  closely on  point,  Fournier  v. Best  Western
                                               ________     _____________

            Treasure Island Resort, 962  F.2d 126, 127 (1st. Cir.  1992),
            ______________________

            we find, pursuant to 18 U.S.C.    922(g)(1), that appellant's

            prior misdemeanors are "crimes punishable by imprisonment for

            aterm exceedingoneyear."Accordingly,hisconvictionisaffirmed.5
                                                               affirmed

____________________

            4.  We  note that  the  potential legal  effect of  Nazzaro's
            Massachusetts  misdemeanor  convictions  was not  extensively
            argued before, nor relied on by, the trial court, and that we
            rendered   our  decision   in  Ramos   subsequent  to   those
                                           _____
            proceedings.    However,   the  parties  stipulated   to  the
            existence of those  convictions, and where the key  facts are
            undisputed,  we may  affirm  the district  court by  grouping
            those facts  "`along the [proper] matrix.'"  Unites States v.
                                                         _____________
            Nivica, 887 F.2d 1110, 1127  (1st Cir. 1989) (quoting  United
            ______                                        _______  ______
            States v. Mora,  821 F.2d  860, 869 (1st  Cir. 1987)),  cert.
            ______    ____                                          _____
            denied,  110 S. Ct.  1300 (1990). Thus, we  rely on Ramos, as
            ______                                              _____
            explained more fully, infra, n. 5.
                                  _____

            5.  We  choose here to rely on Ramos rather than the district
                                           _____
            court's "civil rights"  analysis for two reasons.   First, as
            illustrated above,  Ramos is indistinguishable from  the case
                                _____
            at bar, and thus  provides the most direct resolution  to the
            issue  on appeal.   Second, we  are not  entirely comfortable
            with the  district court's analysis of  the interplay between
            18 U.S.C.   922(g)(1) and 18 U.S.C.   921(a)(20). 
                    Our concern stems  from the fact that  no other court
            that  has  examined this  oft-contested  issue  has used  the
            criterion of whether the state considers firearm ownership to
            be  a civil right as a ratio decidendi.  Instead, many courts
                                   _____ _________
            have used  a dual inquiry, initially  determining whether the

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____________________

            felon's "political" civil rights--to  vote, hold office,  sit
            on  a  jury, etc.--have  been  restored,  and then  examining
            whether  and to  what  extent such  restoration curtails  his
            firearm  privileges as  a  result of  his felon  status. See,
                                                                     ___
            e.g.,  United States  v. Driscoll,  970  F.2d 1472  (6th Cir.
            ____   _____________     ________
            1992), cert. denied,  61 U.S.L.W. 3498  (U.S. Jan. 13,  1993)
                   _____ ______
            (No. 92-6132); United States v.  Cardwell, 967 F.2d 1349 (9th
                           _____________     ________
            Cir.  1992); United States v.  Dahms, 938 F.2d  131 (9th Cir.
                         _____________     _____
            1991); United States v. Traxel, 914 F.2d 119 (8th Cir. 1990);
                   _____________    ______
            United  States v. Gomez, 911 F.2d 219 (9th Cir. 1990); United
            ______________    _____                                ______
            States  v. Cassidy,  899  F.2d 543  (6th  Cir. 1990);  United
            ______     _______                                     ______
            States v. Coffman,  761 F.  Supp. 1493 (D.  Kan. 1991).  This
            ______    _______
            method of analysis seems most consistent with the language of
            section 921(a)(20) wherein the civil  rights restoration does
            not save a defendant  if such restoration "expressly provides
            that the person may not  ship, transport, possess, or receive
            firearms."
                    The district court relied  on United States v. Erwin,
                                                  _____________    _____
            723 F. Supp. 1285 (C.D. Ill. 1989), aff'd,  902 F.2d 510 (7th
                                                _____
            Cir.),  cert.  denied, 111  S.  Ct.  161 (1991),  which  does
                    _____  ______
            question whether  firearm ownership itself is  a civil right.
            However,  that  court's  affirmative   answer  was  not   the
            determinative factor in its final decision.
                    Finally,  we note  that  while Ramos  held that  some
                                                   _____
            affirmative state  action is required to  "restore" a felon's
            civil   rights,  that   case  dealt   with  a   Massachusetts
            misdemeanant  who  never had  any  rights taken  away.   This
            circuit  has yet  to decide  what constitutes  an affirmative
            restoration, or  what quantum of  rights need be  restored to
            satisfy 18 U.S.C.   921(a)(20). Because  we base our decision
            today on Nazzaro's prior  Massachusetts misdemeanors, we need
            not  address  the  impact  of  Nazzaro's  prior Massachusetts
            felonies. 

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