Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 94 CR 93--Larry J. McKinney, Judge.
Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.
DECIDED DECEMBER 14, 1995
Jeffrey D. Lee appeals his conviction for possession of a firearm in violation of 18 U.S.C. sec. 922(g). Lee raises three arguments on appeal. We affirm.
On June 8, 1994, a grand jury indicted Lee on one count of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g). That section provides, in relevant part:
It shall be unlawful for any person . . . 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.
Prior to trial, Lee stipulated that he had possessed a 12 gauge double barrel shotgun. Though the facts surrounding Lee's possession of the shotgun were not relevant at trial, the Presentence Investigation Report reveals that he used the shotgun to menace his girlfriend. Lee also stipulated that the shotgun had travelled in or affected interstate commerce. The only issue remaining for the district court was whether the defendant had been convicted of a prior felony. As to that issue, the indictment alleged that Lee had been convicted of a qualifying felony in Indiana in January 1988. Lee moved to dismiss the indictment, arguing that he was not forbidden from possessing a shotgun by virtue of language in 18 U.S.C. sec. 921(a)(20) that limits the reach of 18 U.S.C. sec. 922(g). Section 921 (a)(20) states:
What constitutes a conviction of [a crime punishable by imprisonment for a term exceeding one year] 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.
Lee argued that under Indiana law, his civil rights were restored automatically after he served his sentence for the 1988 conviction, and that he regained the right to possess a shotgun, as opposed to a handgun. The district court denied the motion to dismiss the indictment. Relying on United States v. McKinley, 23 F.3d 181, 183 (7th Cir. 1994), the district court found that Lee's civil rights had not been restored because Indiana had not enacted a general statute "substantially restoring a convicted felon's civil rights in order to exempt him from prosecution under sec. 922(g)." Additionally, the district court found that Lee's proffered distinction between a handgun and a shotgun was without merit, relying on United States v. Driscoll, 970 F.2d 1472, 1481 (6th Cir. 1992), cert. denied, 113 S. Ct. 1056 (1993).
On January 4, 1995, an Indiana state court expunged Lee's 1988 conviction. On January 9, 1995 the district court conducted Lee's bench trial. At trial, Lee argued that by virtue of the 1995 expungement he was not a "felon" for purposes of sec. 922(g). In particular, Lee stressed that the 1995 expungement was ab initio--i.e. as if he had never been convicted at all. Therefore, Lee argued, he was not a felon at the time of his sec. 922(g) violation in January 1994. The district court rejected this argument, finding that although the state conviction eventually was expunged, it still constituted a conviction which prevented Lee from possessing a firearm on January 15, 1994. The district court convicted Lee and sentenced him to 33 months imprisonment and three years of supervised release.
Lee challenges his conviction on three grounds. First, he argues that the district court erred in denying his motion to dismiss the indictment. Next, Lee argues that the January 1995 expungement of his 1988 conviction precluded his conviction for the 1994 shotgun possession. Finally, he argues that there ...