*1 SILER, Cirсuit Before MARTIN DOWD, Judge.** Judges; and District ** * Dowd, Jr., originally David D. issued as an "un- The Honorable This decision Judge District of for the Northern States District published decision” on December filed Ohio, sitting by designation. *2 ship, transport, and office, jury, on a serve PER CURIAM. Id. a firearm. receive possess, or Tinker, was Defendant, Robert law, person a However, “[ujnder federal intent to dis- with possession of convicted felon, and convicted as a treated is either containing cocaine base a substance tribute any fire carrying from prohibited thus 1”) (“count 841(а)(1) and 21 U.S.C. § though he arms, she] treated as [or or is revolv- a .38 caliber of possession unlawful record, thus allowed to and had a clean rifle under .22 caliber er and United States legal firearms.” carry all 2”). issues are The (“count § (6th Cir. 1480-81 stat- indictment (1) of count whether: has demоnstrated 1992). “Michigan [not] defendant; (2) the charge against a valid ed felons to in its convicted trust sufficient crack powder of treatment disparate listed in prohibitions exempt them violates purposes sentencing for cocaine re to “the state’s Duе 922(g)(1).” Id. erro- court (3) district process; due trustwor defendant’s for” to vouch fusal crimes. of other admitted evidence neously protection of thiness, “the cannot claim he herein, judg- stated reasons For the 1481-82. 921(a)(20).” Id. at 18 U.S.C. § is AFFIRMED. the district ment of stated Therefore, 2 of the indiсtment Count defendant. charge against a valid ANALYSIS powder and treatment Disparate of stated a indictment 1.Count of sentencing pur- cocaine crack against charge valid defendant. is constitutional. poses indict 2 of the count to Pursuant treating cо argues Defendant of unlawful convicted ment, defendant the same to 100 times equal as caine base under 18 and rifle a revolver possession purposes vi sentencing amount cocaine that Michi contends He 922(g)(1). U.S.C. § equal protection. process olates due before his civil restored gan law challenges are merit- These constitutional the indict charged in possession date of Williams, 962 F.2d States less. United U.S.C. citing ment. Cir.1992); States 1218, 1227-28 legally he was argues that he 921(a)(20), Cir.1991). Pickett, that date. firearms possess to entitled sufficiently rational to “Congress’s act was ... shall pro a conviction due constitutes substantive What meet the demands 841(b) with in accordance Moreover, 21 U.S.C. be determined Id. cess.” proceed in which Sentencing jurisdiction Guidel and the United ... Any conviction held. crack as the gram of ings ines,1 were treat one which cocaine, ... had has do grams which of 100 equivalent a convic Williams, considered be shall equal protection. restored violate ... restoration ..., “every unless such circuit (joining tion 1227-28 F.2d at person may issue”). provides expressly has addressed which or receive possess, not ... properly admit- district court 3. The must 921(a)(20). This exclusion 18 U.S.C. § crimes. other ted the evidence of of state of the “whole light analyzed to refer to a trial, agreed to counsel Prior 899 F.2d law.” United incidеnt.” a “traffic shooting drive-by as Cir.1990). Accordingly, we that when Nagy testified trial, Officer At Michigan law entitled to whether must look a car regarding he defendant public interviewed vote, and hold seek defendant implement its directives.... power to the Therefore, Sentenсing Commission [TJhe us ... question congressional before directive the sole implemented only Congress apply by applying the "100 to by when statute the decision whether set forth States, v. United In Mistretta constitutional. 1 ratio”.... to 1 ratio” is "100 Buckner, 714] 102 L.Ed.2d S.Ct. U.S. 361 [109 Supreme constitutional (1989), Court held delegation to the Commission Congress's 1974). a re Subsequent events make could him if he chase, asked defendant necessary justifiable. a car trunk. Id. lease both rifle a .22 caliber remove fabrication, recent theory of Pursuing a Here, opened up Gemmato the mat Officer defendant asked counsel defense *3 Nagy’s police that Officer by asking the fact Officer Gemmato whether about ter Then, .22 rifle. the not mention report did police report mentioned the Nagy’s Officer Agent Gemmato: asked prosecutor the Reece, 614 rifle. v. .22 Cf. police told that had Tinker (10th Cir.1980). “[I]f 1259, This court F.2d 1262 a .22 he had caliber he thought that officer rulings an abuse evidentiary reviews trunk, have related that would in his rifle standard. United States of discretion He answered: incident?” alleged to the Cir.1990), 1026, (6th 1029 F.2d Levy, 904 allegеd inci- The “No, would not have. it — 974, U.S. -, denied, 111 S.Ct. cert. gold driver stated that the dent (1991). defendant’s As 112 L.Ed.2d Tinker, firing was Nissan, alleged to Mr. theory drive-by the recent fabrication made out the window.” handgun originally an shooting relevant than more response the objected to counsel Dеfense court did not abuse ticipated, the district mistrial, stating the that moved for and releasing in the Government its discretion agreement and testimony counsels’ violated agreement. Id. from the charges.” dis- The to the “extrinsic was Moreover, myriad safeguards “given the dе- objection and the court overruled trict trial, taking a fair provided to assure motion, stating: the mistrial nied falli- reality of human into the account could have been statement [T]hat no participants, there can be bility of the evidence, the truth not for into entered trial, error-free, perfect an thing such as that went policeman to of it but guaran- and ... the Constitution does in parked Nissan he when saw home v. Has- tee such a trial.” United States gave ample proba- him it. That front of 508-09, 1974, 499, 103 S.Ct. 461 U.S. ting, he everything that to do ble (1983). 1980, L.Ed.2d did_ stipulа- you elicited [H]ow record know_ must consider the whole trial ..., I But don’t tion, I don’t at errors. ignore Id. harmless totally harm- any there’s think harm — at S.Ct. less. its Thus, released the Government it 1, agents testified Regarding count agreement. pretrial drugs to the proximity defendant’s about to Genеrally, parties are entitled home, house in his and defendant’s found pretrial agreements. United rely on had observed defen that he mate testified (1st F.2d Laboy, 909 oc cocaine numerous selling crack dant However, dis in its “substantial purchased cocaine crack casions and cretion,” may release the district 2, agents dis Regarding count defendant. (cit agreement. pretrial from a Id. parties shells and a .38 spent caliber covered five Jackson, 621 F.2d ing States v. revolver, in wrapped a bandan .38 caliber dеcision Cir.1980). Normally, this na, and a box automobile in defendant’s (1) defendant upon: “whether depends .22 caliber ammunition and .38 caliber the breach notice of reasonable had Moreover, in bedroom. rifle defendant’s (2) “the balance between agreеment”; that he testified defendant’s housemate the reason prejudice and for potential a .38 cali carrying defendant had observed Nonetheless, the release.” Id. “[d]e- him seen numerous times ber revolver notice and the spite the lack reasonable it under and hide wrap it a bandanna in there be some prejudice potential evi light of this car. of his dashboard requested the reason where cases in guilt, any error of defendant’s dence out ... will agreement from an release crimes was of оther admitting the evidence weigh all other factors.” harmless. Scanland, Cir. CONCLUSION Although the Driscoll Cir.1990)). majority reasons, court AFFIRMS this For these Michigan law automati- acknowledged that and sentence.
defendant’s
right
to vote and
cally restores a felon’s
office, it concluded that
public
hold
to
Jr.,
Judge,
MARTIN,
Circuit
F.
BOYCE
to
law does not restore
Michigan
concurring.
id. at
1478. As a
See
jury.
serve on
only
case
this
judgment
in the
I concur
result,
that the de-
majority
concluded
in Unit-
the decision
I believe
because
prohibitions
subject
fendant
ed States
922(g)(1) because
18 U.S.C. §.
ex-
panel.
write
Cir.1992),
binds
rights to
substantially restore civil
does not
the Driscoll
*4
disagreement with
my
press
Id. at
agree
felon.
a convicted
to restore
Michigan law fails
holding that
Driscoll, 970
in
Judge Jones’ dissent
with
comple-
after the
a felon
rights of
civil
the
persuаsively
in
dem-
which he
F.2d at
Because
imprisonment.
of a term of
tion
substantially
Michigan law
onstrates
subject to the
Driscoll, defendants
are
of
after
rights of a felon
the
the civil
restores
922(g)(1)
18 U.S.C.
of
penalties
§
severe
ends.
imprisonment
of
term
of their
restoration
dеspite the substantial
me,
To
Michigan law.
rights under
civil
deprive a
Michigan law does not
convict-
unfair.
patently
a result
such
completed his sentence of
who has
ed felon
Tinker was convicted
Although
on a
the
jury.
his
to serve
pro-
922(g)(1), which
violating 18 U.S.C.
in Driscoll
interprеts
the Michi-
majority
§
has
convicted
who
been
“any person
divesting
hibits
a convicted
gan
Rules as
Court
im-
punishable by
a crime
of
any
in
court
juror,
as a
the
of the
felon
serve
exceeding
year”
one
term
prisonment for a
support that
simply
Rules
do not
Michigan
or am-
any firearm
“possessing]
interpretation as it relates to convictions
Nonetheless,
munition.”
Michigan Rule of
922(g)(1).
Court
under §
921(a)(20)
provides,
also
§
parties may
2.511(D) provides,
chal-
“[t]he
such a
a conviction of
constitutes
What
grounds that
lenge jurors for cause” on the
in accordance
be determined
crime shall
felony.
of a
has
convicted
person
the
been
in
jurisdiction
the
which
with the
of
added).
2.511(D)
There-
(emphasis
M.C.R.
A
held.
conviction
were
proceedings
the
fore,
party in a civil suit
neither
chal-
“[i]f
had civil
person ... has
a
for which
presence on
person’s
the
lenges a convicted
a
considered
shall not be
rights restored
jury.”
person may serve on the
jury, that
chapter,
purposes of this
conviction
Driscoll,
(Jones, J.,
F.2d at 1487
dis-
970
rights
of civil
such restoration
unless
must excuse
senting). Although the court
person may
the
provides
expressly
challenged for cause based
juror
a
who is
receive
transport, possess, or
ship,
2.511(D), one
provisions of Rule
on the
challenge
make a
before
party must first
Tink-
Therefore, Michigаn law restored
if
See id.
juror.
must excuse the
the court
from im-
after his release
Lamar,
rights
Mich.App.
er’s civil
People v.
See also
right to
not restrict
his
prisonment
did
(1986).
More-
N.W.2d
arms,
his
bear
over,
felony
a
does not affect
conviction of
Cassidy,
States
is invalid. See United
qualifications to serve on
jury
a
if
one’s
Cir.1990).
phasis requirement of something less than
sion rights, as of civil restoration
absolute clarity in great explаins with Judge Jones America, UNITED STATES also demonstrates His dissent dissent. his Plaintiff-Appellant, substantially restores Michigan law imprison- their to felons after civil ends. ment EIGHTY- THOUSAND FIFTY-THREE IN UNITED STATES DOLLARS TWO restores a con- Michigan law Given $53,082.00, Defendant-Ap CURRENCY, upon release civil person’s victed pellee, pаrt of the second imprisonment, the of wheth- a determination requires inquiry Dixon, Brunson; Gregory W. Willie such a expressly prohibits Michigan er Claimants-Appellees. pos- transporting, shipping, No. 91-2335. 1475. Id. at sessing, receiving or 921(a)(20). Because 18 U.S.C. also See Appeals, Court occurred prior criminal conviction Tinker’s Circuit. Sixth instant eight years before than more Sept. Argued his Submitted offense, not restrict Michigan law does Mich.Comp.Laws arms. See bear 7, 1993. Decided Jan. Tinker’s 28.422. Rehearing En Banc Rehearing and invalid be- March Denied restores substantially Michigan law felon, it does rights to a convicted arms. Tinker’s bear restrict con- addition, strongly urge en banc sub- Michigan law of whether sideration convict- rights to a
stantially restores civil split exists on A defined
ed felon. well