UNITED STATES of America, Appellee, v. Samuel G. RAMOS, Defendant, Appellant.
No. 91-1702.
United States Court of Appeals, First Circuit.
Decided April 21, 1992.
961 F.2d 1003
Heard Dec. 6, 1991.
Finally, appellant Sullivan argues that although the district court committed error, it should be deemed to have been harmless. Only the Sixth Circuit has adopted this standard.7 Most other circuits—namely the Second, Fourth, Fifth, Ninth, Tenth, and Eleventh—agree that reversal is required, at least where an alternate juror actually participates in the jury deliberations without the consent of counsel. We concur. Being that the jury is a fundamental part of our justice system, waiver of the right to jury or to a variation in its constitution should not be taken lightly, and certainly not inferred except by express written agreement or a stipulation on the record by counsel. Thus, the grant of a new trial as to officer Sullivan is affirmed, and the denial of a new trial as to officer Breault is reversed.
Affirmed in part and reversed in part.
Richard M. Welsh, by Appointment of the Court, with whom Welsh & Mahoney, North Grafton, was on brief, for defendant, appellant.
Timothy Q. Feeley, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before CAMPBELL and TORRUELLA, Circuit Judges, and POLLAK,* Senior District Judge.
LEVIN H. CAMPBELL, Circuit Judge.
Samuel G. Ramos entered a conditional plea of guilty pursuant to an indictment charging him with five counts of possession of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of
FACTS
On November 1, 1990, a grand jury returned a five-count indictment charging that Samuel G. Ramos (Ramos), having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did, on five different occasions, knowingly possess firearms which had been shipped and transported in interstate commerce, in violation of
Prior to trial, both the government and Ramos filed motions for rulings of law directed to the issues referred to above. In a comprehensive memorandum, the district court ruled on these motions, finding against the defendant on both issues. The government then entered into a written agreement with Ramos for disposition of the case. It was agreed that Ramos would enter a conditional plea of guilty to all five counts of the indictment, reserving the right to have the court of appeals review the district court‘s rulings on the motions. The district court approved the agreement.
Ramos also agreed to a statement of undisputed facts for purposes of appellate review. This established, among other things, that on September 12, 1989, Ramos was convicted in Massachusetts of assault and battery under
* Of the Eastern District of Pennsylvania, sitting by designation.
I.
Ramos argues that the district court erred in ruling, under the agreed facts of this case, that the government need not prove that he knew he was violating
Ramos seems to agree in his brief that knowledge of the law is not an element nor would ignorance be a defense, but suggests that ignorance was germane to a defense of “entrapment by estoppel.” According to Ramos, in Smith we held that entrapment by estoppel has been held to apply when an official assures a defendant that certain conduct is legal, and the defendant reasonably relies on that advice and continues or initiates the conduct. Ramos’ claim of entrapment by estoppel is based on the following premises:
1. Both predicate convictions under Massachusetts law (for assault and battery and the violation of the protective order) were misdemeanors under Massachusetts law, resulting in no loss of civil rights beyond those necessarily surrendered while serving the sentence itself.
2. At the time of these state convictions and thereafter, Ramos possessed a valid Massachusetts state license to carry firearms. This license to carry was never suspended nor was it revoked by the issuing authority after he was convicted of the two misdemeanors, nor did Massachusetts law provide for the revocation or suspension of his license to carry as a result of these convictions.
3. At the time he purchased and received the firearms upon which the federal charges are based, the state license to carry was still valid and in effect.
Ramos argues that the prior issuance and continuation in effect of the state license after his state misdemeanor convictions, constituted an assurance by state officials that his purchase of firearms would be legal under federal as well as state law. Ramos contends that in the circumstances his present conviction under
In United States v. Smith, 940 F.2d at 714 we acknowledged that several circuits and the Supreme Court had recognized the concept of entrapment by estoppel under certain, relatively narrow circumstances. We need not, however, try to determine whether this case would fit within that concept. Ramos did not claim entrapment by estoppel prior to or in connection with, his conditional guilty plea under
We add that it is uncertain that Ramos could have successfully reserved the entrapment by estoppel defense in connection with a conditional plea. Necessary to that defense would be a showing that the defendant reasonably relied on the state‘s advice that his conduct was legal. The issue of reasonable reliance normally requires factual development at trial. See United States v. Smith, 940 F.2d at 715. If so—especially if a jury determination were called for—entrapment by estoppel would be hard to resolve by a pretrial motion as contemplated under
II.
Next, Ramos argues that by the times alleged in Counts Two through Five of the indictment [April 4, 1990 through October 9, 1990], his civil rights had been restored and the Commonwealth of Massachusetts expressly allowed him the right to possess firearms. As a consequence, under an exemption stated at
Ramos was charged with violating the following portion of
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
In United States v. Rumney, 867 F.2d 714 (1st Cir.), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989), we held that a conviction under
(1) that the accused is a convicted felon;
(2) who knowingly possessed a firearm;
(3) which was connected with interstate commerce.
Although Congress amended
However, our inquiry into this element of the offense does not end here, as
The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
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 had 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.
Section 921(a)(20) expressly provides for reference to “the law of the jurisdiction in which the proceedings were held,” i.e., here the law of Massachusetts, in order to determine what constitutes conviction of a predicate crime for purposes of
a) Restoration of Civil Rights
The only Massachusetts statute which purports to restore the civil rights of a convicted person operates solely in the context of juvenile convictions.
We read the plain language of
Our above reading comports with the plain words of the statute, which, relevantly, makes an exception only for a conviction for which civil rights were “restored.” The word “restore” means “to give back (as something lost or taken away).” Webster‘s Third New International Dictionary (1971). The point is not just that civil rights were never lost, but that, following conviction, such rights were affirmatively “restored.” There is no way to give “restored” its ordinary meaning and reach the result appellant seeks.6
This reading is also consistent with the rule of construction giving a common meaning to closely grouped terms. Here, the phrase “a conviction ... for which a person ... has had civil rights restored” is joined with three other actions—a pardon, the set-aside of a conviction, and the expungement of a conviction—which all require the taking of some affirmative step following a conviction. It is reasonable, in this context, to read “a conviction ... for which a person ... has had civil rights restored” to mean an analogous affirmative step to “restore” what the conviction originally took away.
This reading is strengthened by the final portion of
Appellant argues that because Massachusetts does not strip persons convicted of misdemeanors of any their civil rights, all persons so convicted are exempted under
We are aware that several other federal courts of appeals have arrived at outcomes arguably different from ours. See, e.g., United States v. Cassidy, 899 F.2d 543 (6th Cir.1990); United States v. Gómez, 911 F.2d 219 (9th Cir.1990); United States v. Dahms, 938 F.2d 131 (9th Cir.1991); United States v. Essick, 935 F.2d 28 (4th Cir. 1991).
All these cases, to a greater or lesser degree are factually different from the present, in that in every instance the state‘s “restoration” of civil rights can be said to have been manifested in a more positive fashion than here. For example, in Cassidy, perhaps the leading authority, defendant had received upon release from prison a “Restoration to Civil Rights” certificate from the Ohio Adult Parole Authority. The court found that the “restoration certificate” given to Cassidy constituted a restoration of civil rights under
Because of the enormous variety of state laws taking away and restoring particular rights to various classes of convicted persons, it is not easy to find a common theme. We have focused herein on the specifics of the instant case, leaving for another day other patterns of state or local law. To the extent the analysis in any of the foregoing cases is contrary to our own, we respectfully do not accept it.
The judgment of the district court is affirmed.
TORRUELLA, Circuit Judge (dissenting).
While I am glad to concur in part I of the majority opinion, I disagree with the opinion‘s interpretation of
It is clear from the language of the provision that when Congress enacted
It is apparent from its legislation that Massachusetts has made a clear determination that an individual like Ramos, who stands convicted of a misdemeanor under Massachusetts law, does not pose such a danger to himself or society to merit a suspension of his civil rights, including his right to carry a firearm. In fact, the statement of undisputed facts which accompanied Ramos’ guilty plea established that on May 12, 1988, Ramos was issued a license to carry firearms by the Commonwealth of Massachusetts, and that at the time of the purchase and receipt of each of the firearms described in Counts I-V of the indictment, defendant‘s license to carry was valid and in effect. To hold that because Ramos never had his civil rights taken away they could not have been restored and therefore he is a “felon in possession,” goes against the clear congressional intent to grant states the discretion to decide who can and cannot carry a firearm within that state. It also flies against all logic and common sense.
If Ramos never lost his civil rights it is beyond my understanding how the majority can say that he had to have his civil rights restored to avoid federal prosecution. This interpretation of “restored” goes against the “ordinary meaning” of the word. “Restored,” as the majority correctly states, is defined by Webster‘s Third New International Dictionary (1971) as follows: “to give back (as something lost or taken away).” If we assign “restored” its ordinary meaning, then we find that Ramos cannot have his civil rights “restored” because they were never lost or taken away.
As it stands now, this court would grant relief to an individual whose crime was serious enough to merit an initial suspension of civil rights, so that restoration is required, but deny relief to an individual whose crime was not considered serious enough by the particular state to merit a suspension of civil rights. This result is at best unfair, but more importantly it is inconsistent, and in contravention with the clear intent of
Congress has afforded states the discretion to decide who should have the privilege of carrying a firearm and who should not. Nowhere in the text of
[i]f a statute is ambiguous, this court must interpret it in favor of the criminal defendant. The rule is based both on fairness to individuals in providing adequate notice and the belief that legislatures and not courts are the appropriate bodies for defining criminal activity.
United States v. Stoner, 927 F.2d 45, 47 (1st Cir.1991) (citing United States v. Anzalone, 766 F.2d 676, 680-81 (1st Cir.1985)). Just as we cannot manufacture ambiguity in order to defeat the intent of a statute, Stoner, 927 F.2d at 47 (citation omitted), we also cannot ignore vagueness in order to defeat the claim of a defendant.
Clearly in this case Massachusetts meant for Ramos to have this privilege to bear arms. Thus, I believe that the civil rights restoration clause of
I disagree that this conclusion means, as the majority fears, that every convicted felon will have his/her civil rights “restored,” at least in part, when he/she is released from prison, probation or parole, making the exception so broad as to swallow
The intent of
It is no surprise that several other federal courts of appeals have arrived at outcomes arguably different from the majority‘s. See, e.g., Gómez, supra, 911 F.2d 219; United States v. Dahms, 938 F.2d 131 (9th Cir.1991); Essick, supra, 935 F.2d 28. I see no difference from the Massachusetts’ general legislation taking away the right of a convicted felon to carry a firearm, and the more general civil rights restoration statutes by other states.
As Massachusetts intended to permit Ramos to carry a weapon, and it was this intent by the state which Congress sought to protect through
I dissent.