The opinion of the court was delivered by: Richard Mills, District Judge:
A novel question of statutory interpretation.
Defendant was found guilty by a jury in this Court of the federal
offense of possession of a firearm by a person convicted of a crime
punishable by imprisonment for a term exceeding one year.
18 U.S.C. § 922(g). Such crimes, however, are determined — in
part — according to the law of the state in which the conviction was
obtained, and do not include those cases in which a person's civil rights
have been restored, unless the restoration of civil rights expressly
excludes possession of firearms. 18 U.S.C. § 921(a)(20). Defendant
was previously convicted of several felonies in Illinois, but he has
completed serving his sentence for those crimes, and under Illinois law
all "civil rights" are restored automatically upon completion of the
sentence. Ill.Rev.Stat. ch. 38, ¶ 1005-5-5 (1989).
Defendant therefore argues that the underlying Illinois offense does
not constitute a "crime punishable by imprisonment for a term exceeding
one year" within the meaning of the federal statute, and therefore his
conviction for violating that statute cannot stand.
The bottom line: Defendant's post-trial motion must be denied.
The indictment in this case charges that Defendant has been convicted
of five previous felonies. Four convictions, one in 1968 and three in
1974, were for burglaries committed in various counties in Illinois. The
fifth conviction was for an aggravated battery committed in Illinois in
1968. The indictment here further alleges that on or about May 10, 1987,
Defendant knowingly possessed a firearm which had traveled in interstate
commerce. The facts giving rise to this indictment stem from an
altercation involving Defendant which occurred in May of 1987. At trial,
the Government introduced evidence that Defendant had entered the
residence of one Ronald B. Mabe on the night in question and threatened
him and his family with a handgun. Following a three day trial, the jury
found Defendant guilty of violating 18 U.S.C. § 922(g) and subject to
the enhanced penalty provisions of § 924(e).
Thereafter, Defendant renewed a motion for a judgment of acquittal and
to preclude enhancement of penalty which had first been made at the close
of the Government's case. This Court reserved ruling on these motions
pending completion of research by the U.S. Attorney concerning the
treatment by other states of convicted felons' restoration of civil
rights. That research has now been completed, Defendant has responded to
the Government's research memorandum, and two hearings have been held.
The motion is thus ripe for ruling.
The motion before the Court involves the interplay of various federal
and Illinois statutory provisions. These statutes shall be set out here
for later reference.
Section 922(g) of Title 18 of the United States Code states that "[i]t
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 . . . possess in or affecting commerce, any firearm or
ammunition." Prior to 1986, the only means of relieving such a disability
was to petition the Secretary of the Treasury pursuant to § 925(c);
this provision is still extant, and in pertinent part provides that
the Secretary may grant such relief if it is
established to his satisfaction that the circumstances
regarding the conviction, and the applicant's record
and reputation, are such that the applicant will not
be likely to act in a manner dangerous to public
safety and that the granting of the relief would not
be contrary to the public interest.
These two provisions — § 922(g) and § 925(c) — were
enacted as portions of Title IV of the Omnibus Crime Control and Safe
Streets Act of 1968, 82 Stat. 226 (hereinafter referred to as Omnibus
Act). Contemporaneously enacted was Title VII of that Act, which became
codified at 18 U.S.C. app. §§ 1201-1203. This Title overlapped to a
degree with provisions of Title IV; it too, for instance, made it illegal
for one who has been convicted by a court of the United States or of a
State or any political subdivision thereof of a felony . . . [to
receive, possess, or transport] in commerce or affecting commerce . . .
any firearm, 18 U.S.C. app. § 1202(a), and "felony" was similarly
defined as "any offense punishable by imprisonment for a term exceeding
one year." In contrast to the provisions of Title IV, however, Title VII
provided a separate means for securing relief from the disability
created; section 1203(2) expressly exempted from Title VII's reach "any
person who has been pardoned by the President of the United States or the
chief executive of a State and has expressly been authorized by the
President or such chief executive, as the case may be, to receive,
possess, or transport in commerce a firearm."
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.
Defendant has latched onto the amended § 921(a)(20) in an attempt
to avoid his present federal conviction. Although he admits to having
been convicted in Illinois courts on several occasions, he argues that
these are not "convictions" within the meaning of § 921(a)(20)
because Illinois has restored his civil rights following those
convictions. Defendant premises this argument on Ill.Rev.Stat. ch. 38,
¶ 1005-5-5 (1989), which states in part:
(a) Conviction and disposition shall not entail the
loss by the defendant of any civil rights, except
under this Section and Sections 29-6 and 29-10 of The
Election Code, as now or hereafter amended.
(b) A person convicted of a felony shall be ineligible
to hold an office created by the Constitution of this
State until the completion of his sentence.
(c) A person sentenced to imprisonment shall lose his
right to vote until released from imprisonment.
(d) On completion of sentence of imprisonment or on a
petition of a person not sentenced to imprisonment,
all license rights and privileges granted under
authority of this State which have been revoked or
suspended because of a conviction of an offense shall
be restored unless the authority having jurisdiction
of such license rights finds after investigation and
hearing that restoration is not in the public
interest. . . .
Notwithstanding ¶ 1005-5-5, another statute, ch. 38, ¶ 24-1.1
of the Illinois Revised Statutes, makes it
unlawful for a person to knowingly possess . . . any
firearm or any firearm ammunition if the person has
been convicted of a felony under the laws of this
State or any other jurisdiction. This Section shall
not apply if the person has been granted relief by the
Director of the Department of State Police pursuant to
[Ill. Rev.Stat. ch. 38, ¶ 83-10].
This provision became effective in 1984, pursuant to P.A. 83-1056, and
therefore was in effect during the time period alleged in the present
indictment. A previous disqualification was found at ¶ 24-3.1(a)(3),
which made illegal the possession of firearms by any person who "has been
convicted of a felony under the laws of this or any other jurisdiction
within 5 years from release from the penitentiary or within 5 years of
conviction if penitentiary sentence has not been imposed."
Finally, Defendant notes that at the time of the firearm possession
alleged in this indictment he possessed a Firearm Owners' Identification
(FOID) card issued by the Illinois Department of State Police, and the
FOID card was taken away only after the firearm possession alleged in
this indictment. It is also notable, however, that Defendant apparently
has never either applied for or been granted relief from his Illinois
firearm disability pursuant to ch. 38, ¶ 83-10; further, the Act
which established the procedures for obtaining a FOID card also provides
that "[n]othing in this Act shall make lawful the acquisition or
possession of firearms or firearm ammunition which is otherwise prohibited
by law." Ill.Rev.Stat. ch. 38, ¶ 83-13 (1989).