Appeal from the United States District Court for the Eastern District of Wisconsin. 72 C 413 MYRON L. GORDON, Judge.
Fairchild and Cummings, Circuit Judges, and Jameson, Senior District Judge.*fn*
FAIRCHILD, Circuit Judge.
Plaintiff Thrall brought this action for review of a decision by the Internal Revenue Service denying his application for a license as a dealer and manufacturer of firearms. Defendants are the IRS Regional Commissioner and the Secretary of the Treasury. The district court denied defendants' motion for summary judgment. Thrall v. Wolfe, 352 F. Supp. 1074 (E.D. Wis., 1972). Subsequently, the court granted plaintiff's cross motion, and ordered the Secretary to reconsider the license application without regard to plaintiff's prior felony conviction. We reverse.
Plaintiff constructs replica antique guns and repairs modern hunting weapons. Incidentally to that business, he applied under 18 U.S.C. § 923*fn1 for a license as a dealer and manufacturer of firearms. Plaintiff, however, had been convicted in 1942 by a Montana state court of assault in the first degree (a felony) and sentenced to 5 years in prison. This offense involved the use of a loaded pistol. Section 922(g) prohibits any person convicted of a crime punishable by more than one year's imprisonment from shipping or transporting any firearm or ammunition in interstate commerce. Section 922(h) prohibits such person from receiving any firearm or ammunition which has been so transported. Section 923(d)(1)(B), in turn, bars issuance of a firearms dealer license to one so prohibited under § 922(g) and (h). On this basis the IRS denied plaintiff's application.
Plaintiff then obtained a pardon for his 1942 offense from the governor of Montana. The pardon provided: "I do hereby grant Wallace M. Thrall Full Pardon and Restoration of all Civil Rights lost by reason of the above conviction, and the right to receive, possess, or transport in commerce a firearm."*fn2 Accordingly, plaintiff renewed his license application, and a hearing was held. The hearing examiner concluded that a state governor's pardon did not remove the disabilities which § 922 imposes. The Assistant Regional Director of the Internal Revenue Service agreed, and again refused to issue the license. Plaintiff then sought judicial review in the district court under 18 U.S.C. § 923(f)(3).
Plaintiff asserts that a federal agency may not premise denial of a license on a pardoned state conviction. He argues that a pardon blots out guilt and, thus, that defendants must disregard the earlier offense.
The Supreme Court, construing Article II, § 2 of the Constitution, the presidential power to pardon federal offenders, stated in Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380, 18 L. Ed. 366 (1866):
"A pardon reaches both the punishment prescribed for the offense and the guilt of the offender and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense."*fn3
Subsequent authorities have questioned the import of the broad language quoted above and considered it unnecessary to the Court's holding. See Richards v. United States, 89 U.S. App. D.C. 354, 192 F.2d 602, 607 (D.C. Cir., 1951), cert. denied, 342 U.S. 946, 96 L. Ed. 703, 72 S. Ct. 560 (1952), reh. denied, 343 U.S. 921, 72 S. Ct. 676, 96 L. Ed. 1334; Williston, Does A Pardon Blot Out Guilt?, 28 Harv. L. Rev. 647 (1915). Richards held that a general pardon of all prior federal offenses for those serving in the armed forces during World War II did not preclude use of a pardoned conviction for impeachment purposes at a later federal trial.
Whatever the efficacy of a presidential pardon in removing the federal consequences of conviction, the issue here is the impact of a state pardon on a federal disability. In considering the effects in one sovereignty of pardons granted by another, the federal courts have exercised caution. In United States ex rel. Palermo v. Smith, 17 F.2d 534, 535 (2d Cir. 1927), the second circuit refused to treat an Italian pardon for crimes committed in Italy as blotting out guilt for purposes of U.S. immigration law. Similarly, the Supreme Court has declined to require the states to accord the same consequences to a federal pardon as Garland suggests the federal government must. In Carlesi v. New York, 233 U.S. 51, 58 L. Ed. 843, 34 S. Ct. 576 (1914), the Court held that, despite a presidential pardon, New York could consider a prior federal conviction in applying its second offender statute. The Court noted that:
"The issue is a narrow one and involves not the determination of the operation and effect of a pardon within the jurisdiction of the sovereignty granting it, but simply requires it to be decided how far a pardon granted as to an offense committed against the United States operates, so to speak, extraterritorially as a limitation upon the states, excluding them from considering the conviction of a prior and pardoned offense against the United States in a prosecution for a subsequent state offense." 233 U.S. at 57.
The Court concluded, noting that the action of the state did not constitute punishment for the pardoned offense, that the federal pardon exerted no such "extraterritorial" effect. Conversely, these cases suggest that there is nothing inherent in a state pardon ...