United States v. Nazzaro

January 28, 1993
[Not for Publication]
United States Court of Appeals
For the First Circuit
No. 92-1448
UNITED STATES,
Appellee,
v.
ALEXANDER C. NAZZARO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
Before
Torruella, Circuit Judge,
Brown,* Senior Circuit Judge,
and Stahl, Circuit Judge.
Elliot M. Weinstein for appellant.
Sharen Litwin, Assistant United States Attorney, with whom A.
John Pappalardo, United States Attorney, was on brief for appellee.
*Of the Fifth Circuit, sitting by designation. Judge Brown heard oral
argument in this matter, and participated in the semble, but did not
participate in the drafting or the issuance of the panel's opinion.
The remaining two panelists therefore issue this opinion pursuant to
28 U.S.C. 46(d).
STAHL, Circuit Judge. Defendant-appellant Alexander
C. Nazzaro challenges his conviction for violating 18 U.S.C.
922(g)(1), which 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 .
. . " Although we affirm the conviction, we do so for
reasons different from those asserted by the district court.
I.
Prior Proceedings
The relevant facts of this case are undisputed. On
March 12, 1990, agents from the Federal Bureau of Alcohol,
Tobacco and Firearms (BATF), Massachusetts State Police and
Barnstable (Mass.) Police Department executed a federal
search warrant at the Hyannis home of defendant's mother,
where defendant resided. The search yielded five firearms.1
Nazzaro's subsequent indictment was predicated on the
following Massachusetts state court convictions, all of which
were punishable by imprisonment for more than one year:
1. Assault and battery; Chelsea District Court;
February 1977;
2. Rape and assault and battery with a dangerous
weapon; Suffolk Superior Court; December 1977;
1. The firearms at issue were two shotguns, two rifles and
one pistol.
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3. Assault and battery; Essex Superior Court;
October 1978.2
The case was submitted to a bench trial, prior to
which both sides stipulated to defendant's possession of the
five firearms listed in the indictment and to his prior
convictions. In addition, the parties stipulated that
Nazzaro, at the time of his arrest, possessed a valid
Massachusetts Firearms Identification Card (FID), by which
the Commonwealth authorized him to possess in his home the
firearms at issue. See Mass. Gen. L. ch. 140, 129B.3
Thus, the sole issue before the trial judge was the
efficacy of Nazzaro's defense, in which he sought refuge
2. Under Massachusetts law, only the December 1977, rape and
assault and battery with a dangerous weapon convictions--
number two, above--are considered felonies. See Mass. Gen.
L. ch. 265, 13A; Mass. Gen. L. ch. 274, 1. While the
other convictions are misdemeanors under Massachusetts law,
18 U.S.C. 921(a)(20)(B) provides that a state misdemeanor
is considered a "crime punishable by imprisonment for a term
exceeding one year" if it is punishable by more than two
years imprisonment. Under Massachusetts law, assault and
battery is punishable by a maximum term of two and one half
years, thus bringing the two state misdemeanors within the
purview of section 922(g)(1).
3. Nazzaro received his FID in October 1977, after his first
misdemeanor conviction, but prior to his felony convictions.
Under Mass. Gen. L. ch. 140, 129B, the misdemeanor
conviction had no legal effect on his ability to obtain the
FID, but it could have been revoked by the issuing authority-
-the Barnstable Police Department--after the felony
convictions. For reasons unknown, however, revocation never
occurred. In addition, the same statute prohibits a felon
from obtaining a FID within five years of conviction or
release from jail. There is no dispute that the five-year
firearm proscription had expired by the time of Nazzaro's
federal arrest and prosecution.
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under the portion of 18 U.S.C. 921(a)(20) which provides
that:
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.
Nazzaro argued that the provisions of Mass Gen. L. ch. 140,
129B which allow a convicted felon to obtain a FID five years
after conviction or release from jail, and thereby possess a
firearm at home, when taken in conjunction with his
possession of a valid FID and the failure of authorities to
revoke same, constituted a "restoration of civil rights"
within the meaning of 18 U.S.C. 921(a)(20), thus taking his
convictions for rape and assault and battery with a dangerous
weapons--the Massachusetts felonies-- outside the reach of
federal firearms law. The trial court disagreed, ruling that
because possession of a firearm is not a "civil right" in
Massachusetts, defendant's possession of the FID and right to
possess the firearms at issue cannot constitute a
"restoration of civil rights." United States v. Nazzaro, 778
F. Supp. 1, 2 (D. Mass. 1991).
II.
Discussion
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We review de novo the district court's ruling on
Nazzaro's status. United States v. Chambers, 964 F.2d 1250(1st Cir. 1992); See United States v. Haynes, 961 F.2d 50, 51
(4th Cir. 1992) (issue of whether defendant was a convicted
felon within the meaning of 18 U.S.C. 921(a)(20) and
922(g)(1) involves a purely legal determination). As noted
above, we affirm Nazzaro's conviction. A brief explanation
of our reasoning follows.
As appellant's counsel essentially conceded at oral
argument, a panel of this court recently--and explicitly--
blocked the way to Nazzaro's putative safe haven. In United
States v. Ramos, 961 F.2d 1003 (1st Cir.), cert. denied, 113
S. Ct. 364 (1992), we were presented with, as we are here, a
federal "felon-in-possession" defendant among whose predicate
crimes were those categorized as misdemeanors under
Massachusetts law. We concluded that
an individual convicted of a crime
categorized as a misdemeanor under
Massachusetts law, . . . does not
by law forfeit any civil rights.
Hence, the proper inquiry here is
whether an individual residing in a
jurisdiction which does not strip
him or her of any civil rights as a
collateral consequence of
conviction should be deemed, as
appellant urges, to have had his
civil rights "restored" for
purposes of 922(a)(1), after
having served his/her sentence.
Like the district court, we believe
the answer is no.
Id. at 1008.
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As appellant's counsel recognized, this case is on
all fours with Ramos vis-a-vis appellant's Massachusetts
misdemeanor convictions.4 Nazzaro, like Ramos, was stripped
of no civil rights as a result of his misdemeanor
convictions. Thus, according to Ramos, Nazzaro could not have
had any such rights "restored" within the meaning of 18
U.S.C. 921(a)(20). Bound as we are by prior panel
decisions so closely on point, Fournier v. Best Western
Treasure Island Resort, 962 F.2d 126, 127 (1st. Cir. 1992),
we find, pursuant to 18 U.S.C. 922(g)(1), that appellant's
prior misdemeanors are "crimes punishable by imprisonment for
aterm exceedingoneyear."Accordingly,hisconvictionisaffirmed.5
affirmed
4. We note that the potential legal effect of Nazzaro's
Massachusetts misdemeanor convictions was not extensively
argued before, nor relied on by, the trial court, and that we
rendered our decision in Ramos subsequent to those
proceedings. However, the parties stipulated to the
existence of those convictions, and where the key facts are
undisputed, we may affirm the district court by grouping
those facts "`along the [proper] matrix.'" Unites States v.
Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989) (quoting United
States v. Mora, 821 F.2d 860, 869 (1st Cir. 1987)), cert.
denied, 110 S. Ct. 1300 (1990). Thus, we rely on Ramos, as
explained more fully, infra, n. 5.
5. We choose here to rely on Ramos rather than the district
court's "civil rights" analysis for two reasons. First, as
illustrated above, Ramos is indistinguishable from the case
at bar, and thus provides the most direct resolution to the
issue on appeal. Second, we are not entirely comfortable
with the district court's analysis of the interplay between
18 U.S.C. 922(g)(1) and 18 U.S.C. 921(a)(20).
Our concern stems from the fact that no other court
that has examined this oft-contested issue has used the
criterion of whether the state considers firearm ownership to
be a civil right as a ratio decidendi. Instead, many courts
have used a dual inquiry, initially determining whether the
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felon's "political" civil rights--to vote, hold office, sit
on a jury, etc.--have been restored, and then examining
whether and to what extent such restoration curtails his
firearm privileges as a result of his felon status. See,
e.g., United States v. Driscoll, 970 F.2d 1472 (6th Cir.
1992), cert. denied, 61 U.S.L.W. 3498 (U.S. Jan. 13, 1993)
(No. 92-6132); United States v. Cardwell, 967 F.2d 1349 (9th
Cir. 1992); United States v. Dahms, 938 F.2d 131 (9th Cir.
1991); United States v. Traxel, 914 F.2d 119 (8th Cir. 1990);
United States v. Gomez, 911 F.2d 219 (9th Cir. 1990); United
States v. Cassidy, 899 F.2d 543 (6th Cir. 1990); United
States v. Coffman, 761 F. Supp. 1493 (D. Kan. 1991). This
method of analysis seems most consistent with the language of
section 921(a)(20) wherein the civil rights restoration does
not save a defendant if such restoration "expressly provides
that the person may not ship, transport, possess, or receive
firearms."
The district court relied on United States v. Erwin,
723 F. Supp. 1285 (C.D. Ill. 1989), aff'd, 902 F.2d 510 (7th
Cir.), cert. denied, 111 S. Ct. 161 (1991), which does
question whether firearm ownership itself is a civil right.
However, that court's affirmative answer was not the
determinative factor in its final decision.
Finally, we note that while Ramos held that some
affirmative state action is required to "restore" a felon's
civil rights, that case dealt with a Massachusetts
misdemeanant who never had any rights taken away. This
circuit has yet to decide what constitutes an affirmative
restoration, or what quantum of rights need be restored to
satisfy 18 U.S.C. 921(a)(20). Because we base our decision
today on Nazzaro's prior Massachusetts misdemeanors, we need
not address the impact of Nazzaro's prior Massachusetts
felonies.
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