UNITED STATES of America, Plaintiff-Appellee, v. Richard R. GLASER, Defendant-Appellant.
No. 93-1680.
United States Court of Appeals, Seventh Circuit.
Decided Jan. 26, 1994.
15 F.3d 1213
Argued Nov. 17, 1993.
Under
Upon review of the record, we fail to observe the alleged plain error. Contrary to Starnes‘s claim that he was entrapped into buying the three kilograms of cocaine, the evidence clearly demonstrates that he was predisposed to commit the criminal act of buying (possessing) cocaine from Jenich with intent to distribute it. The FBI‘s videotape captured Starnes accepting possession of the three kilograms of coke (and even recorded him asking for a fourth kilogram). The audio tapes made shortly before the February 15th drug transaction with Jenich recorded Starnes reminiscing about past drug dealing exploits and fantasizing about future coke transactions he hoped to conduct. Together, the video and audio tapes demonstrated that Starnes was prepared and eager to buy (possess) the three kilograms of cocaine. He had been buying, selling, and using the drug for more than a decade, and was caught red-handed buying three kilograms of the drug. In light of the overwhelming and uncontradicted evidence that Starnes was predisposed to purchase the coke from Jenich, we hold Starnes‘s conviction for possession of cocaine with intent to distribute did not result in a miscarriage of justice. We agree with the trial court‘s statement that “the evidence is about as weak as it can be on entrapment here.” Accordingly, we affirm Starnes‘s conviction for possession with intent to distribute three kilograms of cocaine.
For the foregoing reasons, Starnes‘s conviction for conspiring to possess with intent to distribute cocaine as well as his two convictions for possessing with intent to distribute cocaine are
AFFIRMED.
John W. Vaudreuil, Asst. U.S. Atty., Madison, WI (argued), for U.S.
Robert A. Christensen, Madison, WI (argued), for Richard R. Glaser.
Before PELL, CUDAHY, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
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. 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.
Minnesota routinely restores the civil rights of felons on the way out the jailhouse door. Glaser contends that he therefore lacks the three convictions necessary to support the 15-year penalty.
The notice rule is designed not for statutes that return the right to vote and cut hair but for communications that seem to have broader import. If, for example, the governor issues a pardon that by virtue of state law does not restore the right to carry guns, then unless the state tells the felon this the federal government will not treat him as convicted. The second sentence of
§ 921(a)(20) is an anti-mouse-trapping rule. If the state sends the felon a piece of paper implying that he is no longer “convicted” and that all civil rights have been restored, a reservation in a corner of the state‘s penal code can not be the basis of a federal prosecution. A state must tell the felon point blank that weapons are not kosher. The final sentence of§ 921(a)(20) cannot logically mean that the state may dole out an apparently-unconditional restoration of rights yet be silent so long as any musty statute withholds the right to carry guns. Then the state never would need to say a peep about guns; the statute would self-destruct. It must mean, therefore, that the state sometimes must tell the felon that under state law he is not entitled to carry guns, else§ 922(g) does not apply.
902 F.2d at 512 (emphasis in original).
Three of Glaser‘s burglary sentences, imposed in 1983 and served concurrently, expired in 1986. On releasing him, Minnesota gave Glaser this certificate, preprinted except for the underlined personal details, which were typed in:
This is to certify that Richard Raymond Glaser, who was on the 20th day of May, 1983, sentenced to the Commissioner of Corrections by the District Court of Washington; Washington County, has completed such sentence and is hereby discharged this 17th day of June, 1986; and that pursuant to Minnesota Statutes, Section 609.165 the said Richard Raymond Glaser is hereby restored to all civil rights and to full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.
*NOTE: Be advised that this certificate does not relieve you of the disabilities imposed by the Federal Gun Control Act.
The information was not altogether accurate. Although the certificate tracks the language of
Glaser returned to his profession. Soon he was back in prison. Between his release in 1986 and his new conviction in 1988, Minnesota amended
Glaser‘s argument is straightforward. Each time Minnesota let him go, the state tendered a certificate restoring his civil rights. Neither certificate “expressly provides that [he] may not ship, transport, possess, or receive firearms.”
Nothing the eighth circuit decides is “binding” on district courts outside its territory. Opinions “bind” only within a vertical hierarchy. A district court in Wisconsin must follow our decisions, but it owes no more than respectful consideration to the views of other circuits. Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir.1987). On questions of state law, any conflict between the views of the state‘s highest court and those of a federal court must be resolved in favor of the state‘s understanding of its law. Cf. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). The passage we have quoted from Moon was not, however, an interpretation of state law. Whether a particular statement in the statute books or a certificate satisfies the “unless” clause of
Traxel, the eighth circuit‘s first encounter with the interaction between
This explicit notice to Davis of his continuing disabilities under the Federal Gun Control Act (1) makes this case significantly different from United States v. Traxel, 914 F.2d 119 (8th Cir.1990), in which it does not appear that any such notice was given to Traxel; and (2) makes it unnecessary for us to consider the application of
§ 921(a)(20) to the circumstances of this case in the absence of such notice.
936 F.2d at 357 n. 6. What happens when Minnesota passes out a certificate missing this note? United States v. Wind, 986 F.2d
But we are not the eighth circuit, and we do not agree with Davis. Neither does the fourth circuit. United States v. McBryde, 938 F.2d 533 (4th Cir.1991) (even express notice that federal law bars possession of firearms does not satisfy the last sentence of
When Minnesota printed the certificate, the note would have been informative. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), held that whether a state conviction counts for purposes of
The “note” in the 1986 certificate might serve an additional function, one important even today. Two courts of appeals have concluded that restoration of rights under state law bars the use of prior federal convictions in prosecutions under
Some courts have concluded that the omission of express language from pardons and certificates restoring civil rights does not matter, that the presence of such restrictions in the state‘s penal code is enough. E.g., United States v. Cassidy, 899 F.2d 543, 549 n. 5 (6th Cir.1990); United States v. McLean, 904 F.2d 216, 218 (4th Cir.1990). Erwin expressed grave doubts about this approach, a sentiment in which we have the company of the first and fifth circuits. United States v. Ramos, 961 F.2d 1003, 1006-08 (1st Cir.1992); United States v. Thomas, 991 F.2d 206, 210-13 (5th Cir.1993). Cases such as Cassidy and McLean slight the difference between statutes and personal notices. A person who contends that state statutes have restored all of his civil rights comes under the penultimate sentence of
Roehl calls “arguable” the proposition, taken up by the prosecutor in this case, that “the restoration of civil rights intended under
Glaser twice received papers telling him that he had been “restored to all civil rights
REVERSED.
PELL, Circuit Judge, dissenting.
Although I regard the majority opinion well reasoned and scholarly, I am unable to agree with the result it has reached, and therefore respectfully dissent.
Glaser, although still in his early thirties, spent a goodly proportion of his twenties in the toils of the law in Minnesota. As the majority opinion observed of his penchant “Glaser returned to his profession. Soon he was back in prison.”
It appears to me that it is sufficient for disposition of this appeal by looking only at his first go around with imprisonment. While he served one continuous term, it was because he was serving three sentences concurrently. This by the nature of such was for separate convictions on three counts of felony burglary, each being a separate crime of violence pursuant to Minnesota statute
On June 17, 1986, Minnesota discharged Glaser from his 1983 burglary convictions. This certificate specifically stated: “*NOTE: Be advised that this certificate does not relieve you of the disabilities imposed by the Federal Gun Control Act.” By this language, Minnesota told Glaser “point blank that weapons are not kosher.” Erwin, 902 F.2d at 513. This identical notice language was approved in United States v. Davis, 936 F.2d 352 (8th Cir.1991):
Thus not only were Davis‘s full civil rights with respect to firearms not restored, but also he was given explicit notice of that fact in a manner that we believe sufficient to satisfy the ‘unless’ clause of
§ 921(a)(20) . By flagging Davis‘s continuing disabilities under the Federal Gun Control Act, the letter made it plain that the restoration of his civil rights by the state of Minnesota was less than complete and did not include the right to ‘ship, transport, possess, or receive firearms.’ This is all the ‘unless’ clause of§ 921(a)(20) requires.
Given this explicit notice, the Eight Circuit counted the burglary conviction for which discharge had been given as one of the three predicate convictions for the application of
It is to be noted that the Eight Circuit was unaware of the point made in the majority opinion that there is no “Federal Gun Control Act.” Even if there is no statute with that exact name tag, we are here dealing with federal statutes which expressly are concerned with gun control. What should have been clear to Glaser was at least as to guns there was a notification that his slate was less than clean. It would be stretching imagination beyond the breaking point to
I agree with the majority opinion that the Eighth Circuit was not “binding” on a district court in the Seventh Circuit. Yet it being from a federal court which includes the state of Minnesota, its opinions on state laws involved in federal cases is entitled to substantial respect just as we would expect similar respect to be accorded in other circuits to a decision of this circuit on Wisconsin law involved in a federal case before us.
While, of course, I do not rest my dissent on the following observation, I find in this case very little reason for thinking in the case of Glaser that he would have been deterred from following his “profession” if this restoration to civil rights document had spelled out in painful detail that under no circumstances was he to have any traffic with guns.
FRANK H. EASTERBROOK
UNITED STATES CIRCUIT JUDGE