United States v. Estrella ( 1997 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 96-1625

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    LAWRENCE ESTRELLA,

    Defendant, Appellant.

    ____________________

    ERRATA SHEET

    The opinion of this Court, issued on January 9, 1997, should be
    amended as follows:

    On cover sheet page, replace issue date of "January 9, 1996" with
    "January 9, 1997".












































    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 96-1625

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    LAWRENCE ESTRELLA,

    Defendant, Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF NEW HAMPSHIRE

    [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] ___________________

    ____________________

    Before

    Cyr, Boudin and Lynch,

    Circuit Judges. ______________

    ____________________

    Paul J. Haley, by Appointment of the Court, with whom Law Office _____________ __________
    of Paul J. Haley was on brief for appellant. ________________
    Peter E. Papps, First Assistant United States Attorney, with whom ______________
    Paul M. Gagnon, United States Attorney, was on brief for the United ______________
    States.


    ____________________

    January 9, 1997
    ____________________



















    BOUDIN, Circuit Judge. Lawrence Estrella was convicted _____________

    of being a "felon in possession" of a firearm in violation of

    18 U.S.C. 922(g)(1) and sentenced as an armed career

    criminal. Id. 924(e)(1). His appeal raises various ___

    issues, the most difficult being whether he is excepted from

    the felon-in-possession statute as one whose civil rights

    have been restored and whose right to firearms has not been

    significantly restricted under state law. Id. 921(a)(20). ___

    Estrella's long criminal record began in 1967 when he

    was 17 years old. Pertinently, in January 1977, he pled

    guilty in Massachusetts state court to assault and battery

    with a dangerous weapon (a motor vehicle) and received a

    prison sentence of 3 to 10 years. He escaped from custody on

    July 2, 1978, and proceeded to commit crimes in two different

    states for which he was convicted in 1980: armed robbery and

    armed assault in Massachusetts, and breaking and entering an

    occupied dwelling in Michigan.

    Estrella received a 10-to-15 year prison sentence for

    the Massachusetts armed robbery and assault, and a concurrent

    7-to-15 year prison term for the Michigan crime. On

    September 28, 1987, Estrella was released from Massachusetts

    state prison and placed on parole until the year 2003, later

    reduced to June 1, 1999. He moved to New Hampshire in 1990

    and his parole supervision was transferred to New Hampshire.





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    He now had three "violent felony" convictions on his record.

    18 U.S.C. 924(e)(1).

    On February 16, 1994, Estrella went to a federally

    licensed firearms dealership in Goffstown, New Hampshire, and

    purchased a .25 caliber semi-automatic pistol, allegedly as a

    gift for his wife. The owner of the dealership had received

    the gun from a distributor in Massachusetts. In the course

    of the purchase, Estrella completed an ATF Firearms

    Transaction Record, see 27 C.F.R. 178.124(c); on it he ___

    answered, inaccurately, that he had not been convicted of a

    crime punishable by a term exceeding one year.

    Having learned of the purchase from the local police

    chief in Estrella's town, agents of the Bureau of Alcohol,

    Tobacco and Firearms obtained a warrant to search Estrella's

    residence for firearms and related documents. A search of

    Estrella's home occurred on March 8, 1994. Estrella arrived

    during the search, and on being advised of the warrant,

    Estrella said he wanted to cooperate and signed a waiver of

    his Miranda rights. He then escorted the agents to his _______

    garage and showed them where the pistol was located.

    A federal grand jury indicted Estrella as a felon in

    possession, 18 U.S.C. 922(g)(1), and for making a false

    statement in the purchase of a firearm, id. 922(a)(6). ___

    Related New Hampshire state charges were dismissed and

    Estrella was tried in federal court in September 1995. The



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    jury convicted Estrella of violating section 922(g)(1), but

    deadlocked on the section 922(a)(6) count, which the

    government later abandoned. Because of his three violent-

    felony convictions, Estrella was sentenced to 216 months

    imprisonment. He now appeals.

    At the outset we reject, as an issue settled in this

    circuit, Estrella's argument that section 922(g) facially

    exceeds Congress' power under the Commerce Clause. United ______

    States v. Blais, 98 F.3d 647, 649 (1st Cir. 1996). ______ _____

    Estrella's "as-applied" challenge also fails, because the

    government offered evidence that the pistol he purchased had

    moved in interstate commerce. Our precedent also forecloses

    Estrella's cursory Tenth Amendment challenge to the federal

    firearm regulations. United States v. Minnick, 949 F.2d 8, _____________ _______

    10-11 (1st Cir. 1991), cert. denied, 503 U.S. 995 (1992). ____________

    The main question, which we consider de novo, is whether _______

    federal law prohibited Estrella from obtaining the pistol.

    18 U.S.C. 922(g)(1) makes it 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 or ammunition; or
    to receive any firearm or ammunition which has been
    shipped or transported in interstate or foreign
    commerce.

    But 18 U.S.C. 921(a)(20) excepts from the definition of
    conviction

    [a]ny conviction which has been expunged, or set
    aside or for which a person has been pardoned or
    has had civil rights restored . . . unless such


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    pardon, expungement, or restoration of civil rights
    expressly provides that the person may not ship,
    transport, possess, or receive firearms.

    But for this exception, Estrella fell within the main ban of

    section 922(g)(1); the troublesome issues are whether he had

    his civil rights restored and, if so, whether the "unless"

    clause applies in his case.

    We consider first whether Massachusetts, the

    jurisdiction of the "predicate offense," had restored

    Estrella's civil rights. (The government relied on

    Estrella's Michigan conviction only as a predicate offense

    for sentencing under section 924(e)(1), and not in his

    indictment for violating section 922(g)(1).) In this

    circuit, the civil rights that must be restored to trigger

    the exception are the rights to vote, to hold public office,

    and to serve on a jury. United States v. Caron, 77 F.3d 1, 2 _____________ _____

    (1st Cir.) (en banc), cert. denied, 116 S. Ct. 2569 (1996). _______ ____________

    This court has held that all three core civil rights

    must be restored for a person to avoid the prohibition of

    section 922(g). United States v. Indelicato, 97 F.3d 627, _____________ __________

    631 & n.3 (1st Cir. 1996). In Massachusetts, a convicted

    felon does not lose the right to vote. Mass. Gen. L. ch. 54,

    86, 103B. And Estrella was no longer incarcerated in

    February 1994, so he could now hold public office. Mass.

    Gen. L. ch. 279, 30. Nevertheless, the government argues





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    that Estrella's right to serve on a jury had not been

    sufficiently restored when he purchased the pistol.

    Massachusetts disqualifies from jury service any person

    who "has been convicted of a felony within the past seven

    years or is a defendant in pending felony case or is in the

    custody of a correctional institution." Mass. Gen. L. ch.

    234A, 4(7). Estrella's conviction in 1980 for the

    predicate offense, the armed assault and robbery, occurred

    more than seven years prior to his purchase of the gun in

    1994. The government claims, however, that in 1994 Estrella

    was still "in the custody of a correctional institution" by

    dint of his continuing parole status.

    The government cites federal decisions holding that

    parole constitutes "custody" for purposes such as federal

    habeas jurisdiction. E.g., United States v. Flynn, 49 F.3d ____ _____________ _____

    11, 14 (1st Cir. 1995) (citing cases). But "custody" has

    been defined broadly in this context for reasons peculiar to

    habeas corpus, Minnesota v. Murphy, 465 U.S. 420, 430 (1984); _________ ______

    and under section 921(a)(20), state law governs whether

    Estrella is barred from serving on juries. Beecham v. United _______ ______

    States, 511 U.S. 368 (1994). We have not found any ______

    Massachusetts decisions that decide whether a parolee is

    barred from service.

    While the term "custody" is elastic, it is doubtful that

    a paroled prisoner would normally be described as being in



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    the custody "of a correctional institution." Further, the

    Supreme Judicial Court has referred in passing to section

    4(7) as disqualifying prospective jurors on the grounds of

    "incarceration or conviction of a felony within the past _____________

    seven years." Commonwealth v. Tolentino, 663 N.E.2d 846, 849 ____________ _________

    n.3 (Mass. 1996) (emphasis added). Massachusetts also has a

    statutory definition of "correctional institution," defining

    it in physical terms and referring to its use "for the

    custody . . . of committed offenders and of such other

    persons as may be placed in custody therein . . . ." Mass.

    Gen. L. ch. 125, 1(d), (e).

    Despite these scraps of statute and precedent, some

    might think it odd that a felon still on parole should be

    seated on a jury. Still, circumstances vary, and the

    immediate issue is simply whether Massachusetts imposes an

    automatic ban. We think this is a matter that the state

    supreme court could probably decide either way, but--pending

    such clarification--our best assessment is that Massachusetts

    law does not automatically disqualify a parolee seven years

    after conviction.

    As a fall-back argument, the government says that even

    if Estrella could in theory serve on a jury, Massachusetts

    law so curtails the opportunity for any ex-felon to serve as

    a juror that this civil right has not been sufficiently

    restored to satisfy section 921(a)(20). By statute, a



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    Massachusetts trial judge can choose to remove from a jury

    panel a person convicted of any felony or other crime

    punishable by imprisonment of more than one year. Mass. Gen.

    L. ch. 234, 8. In Caron we left open the problem now _____

    posed. 77 F.3d at 6.

    We join other circuits in concluding that to meet the

    test of section 921(a)(20), each of the three core "civil

    rights" must be substantially, but not perfectly, restored.1

    In applying this test, we are guided by the rationale behind

    Congress' use of "civil rights restored" as a touchstone:

    the notion that by reinvesting a person with core civic

    responsibilities, the state vouches for the trustworthiness

    of that person to possess firearms (unless that right is

    withheld). Indelicato, 97 F.3d at 630. __________

    While regarding the matter as close, we think that the

    Massachusetts legislature has expressed the requisite, albeit

    unquantifiable, measure of confidence in ex-felons such as

    Estrella so far as concerns jury service. Our view rests not

    only on the language of section 8 but on what we take to be

    its philosophy. Almost a century ago, the Supreme Judicial

    Court said that:



    ____________________

    1E.g., United States v. Morrell, 61 F.3d 279, 280 (4th ____ _____________ _______
    Cir. 1995); United States v. Cassidy, 899 F.2d 543, 549 (6th _____________ _______
    Cir. 1990); United States v. McKinley, 23 F.3d 181, 183 (7th _____________ ________
    Cir. 1994); Presley v. United States, 851 F.2d 1052, 1053 _______ _____________
    (8th Cir. 1988).

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    in this commonwealth it is not the law that persons
    convicted of crime shall be permanently deprived of
    their civil rights. Our legislation, more humane
    and charitable than the law of early times,
    recognizes the possibility of repentance and
    reformation. . . . [T]here is nothing to prevent
    the board from putting upon the jury list the name
    of a former criminal, if they find him to be of
    good moral character and otherwise suitable.

    Commonwealth v. Wong Chung, 71 N.E. 292, 293 (Mass. 1904). ____________ __________

    The right of the trial judge to dismiss an ex-felon under

    section 8 appears to be a safeguard, allowing the trial judge to

    dismiss the ex-felon out of hand wherever his record, or the

    nature of the case, warrants that course; without this provision,

    a judge might have to give a particularized reason. Thus viewed,

    this qualification does not appear to detract from the Wong Chung __________

    view that in Massachusetts an ex-felon after seven years and

    release from jail is presumptively trusted to serve on a jury.

    Accord United States v. Caron, 941 F. Supp. 238, 246 (D. Mass. ______ _____________ _____

    1996).

    Construing a somewhat similar state restriction, two

    circuits have held that Michigan does not restore the civil

    rights of felons. United States v. Metzger, 3 F.3d 756, 759 (4th _____________ _______

    Cir. 1993), cert. denied, 114 S. Ct. 1374 (1994); United States ____________ _____________

    v. Driscoll, 970 F.2d 1472, 1478-79 (6th Cir. 1992), cert. ________ _____

    denied, 506 U.S. 1083 (1993). But Michigan court rules require ______

    automatic exclusion of felons as jurors whenever a party so

    moves, and also direct courts to excuse convicted felons sua ___

    sponte from jury panels in criminal cases, once that ground for ______



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    exclusion is established. Metzger, 3 F.3d at 759. Michigan law _______

    is thus more hostile to service by ex-felons than is the law of

    Massachusetts.

    Although all three of Estrella's core civil rights were

    restored by Massachusetts, his prior felony conviction still

    counts as a predicate offense if Massachusetts "expressly

    provide[d]" that he "may not ship, transport, possess, or receive

    firearms," 18 U.S.C. 921(a)(20), "firearm" being broadly

    defined to include inter alia handguns, shotguns and rifles. Id. __________ ___

    921(a)(3). Estrella objects that his parole papers nowhere

    expressly provide that he could not own firearms; but his civil

    rights were not restored by pardon, or by his parole papers, but

    by state statutes. And in such a situation, we look to

    Massachusetts law as a whole for the "express" restrictions.

    United States v. Sullivan, 98 F.3d 686, 689 (1st Cir. 1996). _____________ ________

    Some might think it perverse to look to Massachusetts

    firearms law when the purchase was made in New Hampshire. But

    the trigger for the federal ban is the Massachusetts conviction; _______

    and the ban is removed only if Massachusetts has shown the

    requisite confidence in the ex-felon by restoring civil rights

    without limiting firearms ownership. (New Hampshire, of course,

    is free to impose its own limitations on gun ownership within the

    state, but they do not control the federal ban one way or the

    other here.)





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    In Massachusetts, an ex-felon released from custody for

    more than five years can obtain a firearm identification card,

    Mass. Gen. L. ch. 140, 129B, which permits one to possess a

    handgun (any firearm with a barrel of less than 16 inches, or a

    short-barrel shotgun) in his residence or place of business and

    to possess a rifle or long-barrel shotgun anywhere. Id. ch. 269, ___

    10(a). But in Massachusetts a convicted felon cannot carry a

    handgun anywhere else, id. ch. 140, 125, 131, 131F; ch. 269, ___

    10(a); never can purchase, rent or lease a handgun, id. ch. ___

    140, 131A; and never can sell, rent or lease to another person

    any firearms, ch. 140, 122.

    In assessing this patchwork of restrictions, little help

    is provided by the federal statute's language--"may not ship,

    transport, possess, or receive firearms"--since this language

    does not tell us how much restriction is needed where some rights

    are permitted and others forbidden. The legislative history

    refers only to the "right to firearm ownership" as if it were

    indivisible. S. Rep. No. 583, 98th Cong., 2d Sess. 7 (1984).

    Possibly Congress never considered the case in which the ex-

    felon's right to own firearms was restricted in some ways but not

    others.

    Four of the circuits that have construed section

    921(a)(20) conclude that it does not protect the ex-felon if the

    state continues in any way to restrict significantly the ex-

    felon's right to "ship, transport, possess, or receive firearms."



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    Under this "all or nothing" approach, it does not matter whether

    the particular weapon possessed by the defendant was permitted or

    forbidden by state law. The Sixth and Tenth Circuits so construe

    the "exception to the exception," and the Seventh and Eighth come

    to about the same result by treating firearms privileges as one

    ofthecivil rightsthatmustbe restoredtotriggersection 921(a)(20).2

    By contrast, the Ninth Circuit makes the federal ban apply

    only if the ex-felon is found to possess a weapon that state law

    forbids to him. United States v. Dahms, 938 F.2d 131, 134-35 _____________ _____

    (9th Cir. 1991); see also United States v. Tomlinson, 67 F.3d ________ _____________ _________

    508, 513 (4th Cir. 1995); but see United States v. Clark, 993 _______ _____________ _____

    F.2d 402, 404-05 (4th Cir. 1993). Thus, if Estrella had bought a

    long-barreled shotgun, the federal ban would not here apply.

    This approach has patent virtues: it respects the state's own

    choice; it may provide better warning to the ex-felon if he __

    remains in his state of conviction; and it is probably easier for

    courts to administer in the first instance (by asking what state

    law permits as to this weapon). ____

    But the Ninth Circuit's approach is less persuasive as a

    reading of the statute. It strains the literal language of the

    "unless" proviso, see Driscoll, 970 F.2d at 1480-81; and while ___ ________

    the federal statute does in some measure defer to state law, it

    ____________________

    2Compare Driscoll, 970 F.2d at 1480, and United States _______ ________ _____________
    v. Burns, 934 F.2d 1157, 1160 (10th Cir. 1991), cert. denied, _____ ____________
    502 U.S. 1124 (1992), with United States v. Lee, 72 F.3d 55, ____ _____________ ___
    57-58 (7th Cir. 1995), and United States v. Ellis, 949 F.2d _____________ _____
    952, 955 (8th Cir. 1991).

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    does not give carte blanche to the states. Indelicato, 97 F.3d _____________ __________

    at 629-30. We have overridden literal language where it appeared

    inadvertent and undermined Congress' aim. Id. But requiring ___

    that the state permit the untrammeled possession of firearms is

    fully consistent with the trustworthiness rationale that

    underpins the "civil rights restored" provision itself.

    The Ninth Circuit approach might give some limited

    protection to a defendant who remains in the state of original

    conviction and who honestly relies on state law; but it is not

    clear that this is a common case, and (as we explain below) the

    statute does not require willfulness at all. As for ease of

    administration, Congress in drafting the statute certainly did

    not have this value high on its list, and the plurality approach

    of cases like Driscoll requires more work in the first case to ________

    assess the law of the state but less work in subsequent cases

    involving the same state.

    Under the plurality approach, which we choose to follow,

    we think that Massachusetts' ban on handgun possession by ex-

    felons outside the home or business is a substantial enough limit

    on firearms rights to preserve the federal ban. Other courts

    have taken the same view in assessing other state statutes.

    United States v. Wagner, 976 F.2d 354, 356 (7th Cir. 1992); ______________ ______

    Driscoll, 970 F.2d at 1481; Burns, 934 F.2d at 1160-61. In the ________ _____

    future, there might be close cases where, for example, some other





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    state's restriction is arguably de minimis; but an ordinary ___________

    Massachusetts felon will not be exempted from the federal ban.3

    Estrella raises several other claims of error concerning

    his conviction and sentence. He argues first that he lacked the

    requisite scienter because he believed that his civil rights had

    been restored. But this panel is bound by the earlier ruling in

    this circuit that under section 922(g), "the government need not

    prove that the defendant knowingly violated the law; rather, it

    only need prove . . . that the defendant knowingly possessed

    firearms." United States v. Smith, 940 F.2d 710, 713 (1st Cir. _____________ _____

    1991). Accord United States v. Capps, 77 F.3d 350, 352-53 (10th ______ _____________ _____

    Cir.), cert. denied, 116 S. Ct. 2568 (1996); Tomlinson, 67 F.3d ____________ _________

    at 513-14 n.9 (distinguishing Staples v. United States, 511 U.S. _______ _____________

    600 (1994)).

    A risk of injustice exists wherever a legislature makes

    criminal conduct that some may believe to be lawful. But the

    federal felon-in-possession statute does not impose a statutory

    minimum term, 18 U.S.C. 924(b), so long as the defendant is not

    a three-time violent felon, id. 924(e)(1). Even if a jury can ___

    be found to convict, sentencing judges are not likely to deal




    ____________________

    3Recently, the Ninth Circuit held that Massachusetts law
    does not restore the civil rights of ex-felons at all.
    United States v. Oman, 91 F.3d 1320 (9th Cir. 1996). The _____________ ____
    court's reasoning is different than ours, consistent in some
    respects and not in others, but its result for Massachusetts
    ex-felons is the same.

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    harshly with the defendant in the rare case of a truly innocent-

    minded violation.

    Estrella is not in this category. He was told when his

    parole supervision was transferred to New Hampshire that he could

    not possess firearms. Although his brief says that by February

    1994 the New Hampshire parole rules had lapsed, it appears that

    New Hampshire state law independently prohibited Estrella from

    possessing the pistol and there is some indication that Estrella

    was so warned. Further, Estrella's outright lie on the ATF form,

    denying that he had ever been convicted for a crime punishable by

    at least one year in prison, is not the act of an innocent man.

    Because a mistake of law was no defense, we need not

    discuss at length two other claims by Estrella: that the

    government should not have been allowed to introduce evidence of

    the New Hampshire parole rules and that defense counsel should

    have offered evidence that the rules had lapsed. Apparently, the

    government's evidence was offered without objection. It is

    enough that neither piece of evidence had much bearing upon the

    issues properly before the jury or was likely to alter the

    result.

    Next, Estrella says that the search warrant did not

    authorize entry into his garage. The warrant approved by the

    district court permitted the search of the "residence of Lawrence

    R. Estrella, . . . more particularly described as a blue cape-

    style house with a breezeway connecting a two-car garage and



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    located 450 feet uphill on Tiffany Hill Road . . . ." We agree

    with the district court that the common-sense meaning of the

    warrant was that the area to be searched included the garage.

    Accord United States v. Bonner, 808 F.2d 864, 868 (1st Cir. ______ ______________ ______

    1986), cert. denied, 481 U.S. 1006 (1987). ____________

    Finally, Estrella provides an outline, but little more, of

    several objections to his sentence. Although we could treat

    those arguments as abandoned, see United States v. St. Cyr, 977 ___ _____________ ________

    F.2d 698, 701 (1st Cir. 1992), the length of the mandatory

    sentence has led us to examine each argument on the merits, but

    none appears to have force. We see no reason to describe those

    outlined arguments, nor to advert further to several other claims

    of trial error that were amply developed in Estrella's brief but

    seem to us plainly hopeless.

    Affirmed. ________


























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