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U.S. v. ERWIN

October 24, 1989

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES RAY ERWIN, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

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.

But first, the facts.

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.

I. APPLICABLE STATUTES

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."

Provisions of both Titles IV and VII of the Omnibus Act were materially altered by the 1986 passage of the Firearms Owners Protection Act, Pub.L. 99-308, 100 Stat. 449. For one thing, § 104(b) of this later Act wholly repealed Title VII of the Omnibus Act, 18 U.S.C. app. §§ 1201-1203. An additional alteration relevant for our purposes is found in § 101 of the Firearms Owners' Protection Act. This section amended § 921(a)(20), defining "crime punishable by imprisonment for a term exceeding one year," by adding this language:

  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).

II. INTERPRETATION

(A) ...


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