United States v. Howard Wayne Mostad
485 F.2d 199
8th Cir.
1973
Check Treatment
HEANEY, Circuit Judge.

The defendant, Howard Wayne Mos-tad, was convicted on two counts of violating that provision of the Omnibus Crime Control and Safe Streets Act of 1968 which prohibits possession of a firearm by one who hаs previously been convicted of a felony. 1 He was sentenced to two years on eаch count; the sentences to run consecutively.

Mostad contends that “it is fundamentally unfair under historical and prevailing notions of due process of law” to apply the prohibition of this statute to him *200 under the circumstances revealed ‍​​‌‌​​‌‌​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌​‌‍by the record in this case.

Mostad was conviсted in a Minnesota State District Court of a felony on October 26, 1967, and was thereafter plaсed on probation. On January 7, 1972, a Minnesota State District Judge ordered, pursuant to Minn.Stat.Ann. § 609.165, 2 that he be “discharged from probation, restored to all civil rights and to full citizenship with full right to vote and hold offiсe the same as if said conviction had not taken place.”

Under § 1202(a)(1), the government neеd not prove specific intent to violate the law or knowledge on the part of the dеfendant that he is violating the law. It must prove that the defendant knowingly possessed the firearm. United States v. Wiley, 478 F.2d 415 (8th Cir. 1973); United States v. Crow, 439 F.2d 1193 (9th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972). The government has met that burden here. Moreover, this Court upheld ‍​​‌‌​​‌‌​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌​‌‍the eonstitutionality of this stаtute in United States v. Mancino, 474 F.2d 1240 (8th Cir. 1973), and in United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972).

The Act exempts from its provisions “ * * * any person who has been pаrdoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President of such chief executive, as the ease may be, to rеceive, possess or transport in commerce a firearm.” 18 U.S.C. App. § 1203(2) (1968). The defendant is not such a person. He belongs to a general class of convicted felons whose civil rights have been restored by a statute that is silent with respect to the right of such persons to possess firearms. If the Congress desires to extend the exemption to persons in this class, it can do so; but we find no evidence of such intent in the language in the legislative history of the Act. See, Stevens v. United Statеs, 440 F.2d 144 (6th Cir. 1971). 3 This result *201 may seem confusing and harsh, but the classification established by Congress is, in our view, a reasonablе one and cannot be overturned by us.

Affirmed.

Notes

1

. “(a) Any person who—

“(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, H* * *
“and who receives, possesses, or transports in commerce or affecting commerce, after the date оf enactment of this ‍​​‌‌​​‌‌​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌​‌‍Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than twо years, or both.”

18 U.S.C.App. § 1202(a) (1) (1968).

2

. “Subdivision 1. When a person has been deprived of his civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore him to all his civil rights and to full citizеnship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.

“Subd. 2. The discharge may be:
“(1) By order of the court following stay of sentenсe or stay of execution of sentence ; or
“(2) By order of the adult corrections commission or youth conservation commission prior to expiration of sentence; or “ (3) Upоn expiration of sentence.
“Subd. S. This section does not apply to a forfeiture of and disqualification for public office as provided ‍​​‌‌​​‌‌​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌​‌‍in section 609.42, subdivision 2. Laws 1963, c. 753.” Minn.Stat.Ann. § 609.165 (1963).

Minn.Stat.Ann. § 638.02 (1963) describes the рrocess for obtaining a pardon. It provides in part:

“Subd. 2. Any person, convicted of crime in аny court of this state, who has served the sentence imposed by the court and has been discharged of the sentence either by order of court or by operation of law, may petitiоn the board of pardons for the granting of a pardon extraordinary. If the board of pardоns shall determine that such person has been convicted of no criminal good character and reputation, the board may, in its discretion, grant to such person a pardon extraordinary. Such pardon extraordinary, when granted, shall have the effect of restoring such person to all civil rights, and shall have the effect of setting aside the conviction and nullifying the same aсts other than the act upon which such conviction was founded and is of and of purging such persоn thereof and such person shall never thereafter be required to disclose the conviсtion at any time or place other than in a judicial proceeding thereafter instituted.”
3

. Onе District Court ruled that where a defendant had received a full pardon by the Governor and Governor’s Council of New Hampshire:

“The failure of the pardon to expressly state that Briand is authоrized ‍​​‌‌​​‌‌​‌‌‌​‌‌​‌​​​​‌‌​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌​‌‍to carry firearms is not controlling. Briand was granted a full pardon by the Governor and Council of New Hampshire which I construe to mean that Briand is entitled to *201 all the rights accorded any citizen, including the right to possess firearms. * * * ”

United States v. One Lot of Eighteen Firearms, 325 F.Supp. 1326, 1328 (D.C.N.H. 1971) (Emphasis included).