United States v. Indelicato

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1907

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL INDELICATO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Circuit Judge.

Aldrich, Senior Circuit Judge,

and Lynch, Circuit Judge.

James L. Sultan, by Appointment of the Court, with whom Rankin &

Sultan was on briefs for appellant.

Paula J. DeGiacomo, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the United

States.

October 15, 1996

BOUDIN, Circuit Judge. In the district court Michael

Indelicato pled guilty to various charges of possession and

distribution of cocaine, conspiracy to distribute cocaine,

wire fraud, and conspiracy to defraud the United States. 18

U.S.C. 371, 1343; 21 U.S.C. 841(a)(1), 846, 853. He

was tried on four related charges of possessing firearms and

ammunition, having previously been convicted of a crime

punishable by more than one year in prison. 18 U.S.C.

922(g)(1). In a jury-waived trial on stipulated facts, the

district court found Indelicato guilty on those counts as

well. United States v. Indelicato, 887 F. Supp. 23 (D. Mass.

1995). Indelicato now appeals from these firearms possession

convictions and from his sentence on the drug counts.

I.

The background facts are easily summarized. In 1993,

Indelicato pled guilty in Massachusetts state court to

assault and battery with a knife and carrying a dangerous

weapon (the knife). Mass. Gen. Laws ch. 265, 13A; ch. 269,

10(b). The state court ultimately sentenced him to a one-

year suspended sentence and $7,500 in restitution, which

Indelicato paid. Both offenses are misdemeanors under state

law but punishable by a maximum of two and one-half years in

prison.

On May 7, 1994, federal agents arrested Indelicato. The

agents searched his home and place of business and found four

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firearms (including an Uzi semiautomatic weapon) and numerous

forms of ammunition. The ensuing indictment charged

Indelicato, among other offenses, with 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 ship or

transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition . . . ."1

Indelicato stipulated that the interstate commerce

requirement was satisfied.

However, 18 U.S.C. 921(a)(20) excludes from this

category "[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 pardon, expungement,

or restoration of civil rights expressly provides that the

person may not ship, transport, possess, or receive

firearms." At trial, Indelicato argued that this exclusion

applied to him because Massachusetts never took away his

civil rights and because he suffered no restrictions on his

state firearms privileges.

The district court rejected Indelicato's argument, quite

properly relying upon United States v. Ramos, 961 F.2d 1003,

118 U.S.C. 921(a)(20)(B) excludes from this category
persons convicted of state misdemeanors punishable by a term
of imprisonment of two years or less. Because his state
crimes carried a larger maximum sentence, Indelicato did not
fall within this exception.

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1007-10 (1st Cir.), cert. denied, 506 U.S. 934 (1992), which

held that rights never taken away cannot have been

"restored." Long after the district court sentenced

Indelicato, this court (in February 1996) sitting en banc

announced its decision in United States v. Caron, 77 F.3d 1,

5-6 (1st Cir.) (en banc), cert. denied, 116 S. Ct. 2569

(1996), which overruled Ramos on a different issue and

explicitly reserved judgment on whether civil rights never

taken away could be "restored."

At Indelicato's sentencing in July 1995, the district

court imposed concurrent terms of 168 months imprisonment on

the cocaine counts (based primarily on the weight of the

drugs), 120 months on the firearms possession counts, and 60

months on the fraud counts, as well as supervised release,

fines, assessments and forfeitures.

II.

Our principal concern on this appeal is with the

firearms possession counts, which present an issue of law

that we review de novo. As originally enacted in 1968, 18

U.S.C. 922(g)(1) made criminal gun possession by anyone

previously convicted of a crime (the predicate offense)

punishable by more than one year of imprisonment, but the

statute allowed an exception for state misdemeanors

punishable by two years or less of imprisonment. 18 U.S.C.

921(a)(20). In 1983, the Supreme Court held that a predicate

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offense under section 922(g) is defined by federal law, and

that state expunctions of state convictions did not avoid the

ban of section 922(g)(1). Dickerson v. New Banner Institute,

Inc., 460 U.S. 103, 111-12, 115 (1983).

Congress reacted to Dickerson and like rulings by

enacting in 1986 the Firearms Owners' Protection Act, 100

Stat. 449, which in pertinent part amended section

921(a)(20)'s definition of predicate offenses. The

amendment, which remains in effect today, provides that state

law defines what constitutes a predicate "conviction" for

purposes of section 922(g)(1) and other provisions of the

statute. It also excludes convictions that have been

"expunged" or "set aside," or for which the person has been

"pardoned" or "has had civil rights restored." Congress has

provided no definition of "civil rights" or "restored."

The main issue for us is whether the "civil rights

restored" provision in section 921(a)(20) protects one who,

like Indelicato, never had his civil rights taken away at

all. It is common ground that misdemeanants in Massachusetts

do not lose the rights that we and most courts describe as

"civil rights" under the statute: the rights to vote, to

serve on a jury, and to hold public office. Caron, 77 F.3d

at 2. But the government argues, based on plain language,

that a defendant cannot have "restored" to him what the state

never took away.

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The issue is difficult because it pits the literal

language of the statute against Congress' perceived

rationale. Clearly the ordinary reading of the word

"restored" supports the government. This court so held in

Ramos, 961 F.2d at 1007-08, although over a strong dissent,

and the Second Circuit followed Ramos on this issue in

McGrath v. United States, 60 F.3d 1005, 1007 (2d Cir. 1995),

cert. denied, 116 S. Ct. 929 (1996). But there are two

different reasons why we are not inclined to treat the

literal language as precluding further inquiry, quite apart

from the determination of the en banc court in Caron treating

the present issue as an open one in this circuit. See Caron,

77 F.3d at 5-6.2

First, a ready explanation exists why Congress might

have used the term "restored" without intending to exclude

persons like Indelicato. The incidents that gave rise to the

amendment (in particular, Dickerson), and what Congress

thought to be the ordinary case, involved the deprivation of

civil rights and their subsequent restoration (e.g., by

pardon). Indeed, there is no indication in the legislative

history that Congress gave any attention to the rare case in

2Although we think that Caron frees us to treat the

issue as open despite Ramos, we have taken the precaution of

circulating this opinion in advance to all of the circuit's
active judges. This informal circulation does not preclude a
petition for rehearing or suggestion of en banc

reconsideration. See Trailer Marine Transport Corp. v. Rivera

Vazquez, 977 F.2d 1, 9 n.5 (1st Cir. 1992).

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which someone convicted of a serious crime would not lose one

or more of the three civil rights that have been used by most

courts as touchstones under this section.

Second, as explained later in this opinion, it is hard

to find any reason why Congress would have wished to adopt

the distinction now urged by the government. In United

States v. Cassidy, 899 F.2d 543, 549 n.13 (6th Cir. 1990),

the Sixth Circuit went so far as to say that there was "no

rational basis" for distinguishing between a criminal who

never lost his civil rights and one who had them taken away

and then restored by statute. As the Supreme Court has

reminded us, "[l]ooking beyond the naked text for guidance is

perfectly proper when the result it apparently decrees is

difficult to fathom or where it seems inconsistent with

Congress' intention . . . ." Public Citizen v. Department of

Justice, 491 U.S. 440, 455 (1989).

Where language is not conclusive, courts turn to

legislative history and purpose. Most broadly, it has been

suggested that Congress' main purpose in enacting

section 921(a)(20) was to let the states decide who may carry

guns. E.g., United States v. Bost, 87 F.3d 1333, 1334 (D.C.

Cir. 1996); Caron, 77 F.3d at 3; Ramos, 961 F.2d at 1011

(Torruella, J., dissenting). If so, it might follow that

Massachusetts--having declined to restrict the gun possession

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rights of misdemeanants like Indelicato--should have its

preference followed as a matter of course.

This is too sweeping a contention. Congress in 1986

deliberately gave the states much latitude to determine who

would fall under the ban of the federal statute; but it did

not give the states carte blanche as to the manner of making

this determination. Rather, Congress created a structure

that allows the state to make this decision only in

mechanically defined ways--such as by expungement or setting

aside of a conviction, pardon or restoration of civil rights.

For instance, if a state does not restore a felon's civil

rights but expressly allows him to possess firearms, the

felon may still be prosecuted under the federal statute.

United States v. Thomas, 991 F.2d 206, 214-15 (5th Cir.),

cert. denied, 510 U.S. 1014 (1993).

Although Congress did not specify which civil rights it

had in mind, the plurality view among the circuits--

explicitly adopted by this court in Caron--is that Congress

had in mind the core cluster of "citizen" rights that are

typically lost by felons and restored by pardons, namely, the

right to vote, to serve on a jury and to hold public office.

Caron, 77 F.3d at 2. Indeed, when the Senate debated the

amendment, Senator Sasser noted that under the federal

statute, convicted felons "lose most civil rights--to vote,

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hold office, and so on . . . ." 131 Cong. Rec. 18,182

(1985).

To key the federal statute to these civil rights makes

sense only on one assumption: that Congress thought of the

attribution of these rights as expressing "a state's judgment

that a particular person or class of persons is, despite a

prior conviction, sufficiently trustworthy to possess

firearms." McGrath, 60 F.3d at 1009. Accord United States

v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, 510

U.S. 919 (1993). This "trustworthiness" rationale is about

the best that we or anyone else has managed to explain

Congress' approach.

The tightest application of this rationale might suggest

that Congress intended to allow firearms possession only

where a state has made an individualized decision to restore

civil rights as, for example, by an individual pardon. But

the statute contains no explicit requirement of

individualized action. And this court in Caron, together

with most other circuits, see 77 F.3d at 2 n.1, 4, has

rejected such a requirement of individualized action.

If individualized action is not required, it is hard to

see why Congress would wish to distinguish between one whose

civil rights were never taken away (Indelicato) and one whose

civil rights were mechanically taken away and mechanically

restored. The government has supplied no such reason, nor

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has any court done so. The distinction could certainly

create an anomalous result in various situations, such as a

jurisdiction that did not deprive a misdemeanant of civil

rights but took away the rights of a felon and then restored

them by statute on the felon's completion of his prison term

and period of supervision.

The government's best argument, ad hominem but not

without force, is that Indelicato is a perfect example of the

kind of previously convicted criminal who ought to be barred

from possessing a firearm. Indelicato had earlier been

convicted of an assault with a knife; he was engaged in drug

operations; and his collection of weapons and ammunition

provided ample reason to think that he was a very dangerous

man. Yet because Massachusetts law does not deprive

Indelicato of his civil rights, Indelicato can do what a

federally convicted forger could not.

But the ad hominem argument is somewhat misleading.

Indelicato is already serving a very long federal sentence

for the drug offenses; and if civil rights were not deemed to

be "restored" to him, neither would they be restored to some

other misdemeanant in Massachusetts whose crime might be so

pacific that no one would think that it made any sense to

deprive him of the opportunity to possess a firearm. See,

e.g., Mass. Gen. Laws ch. 56, 50 (alteration of ballots).

Congress can fix the flaws in the present statute; we cannot

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do so without creating other flaws and the possibility of

some new injustice.

We recognize that our conclusion is contrary to two very

able opinions--our own circuit's earlier two-to-one decision

on this issue in Ramos and the Second Circuit's decision in

McGrath, relying directly upon Ramos. But Ramos' decision on

the point at issue drew some of its force from its other

holding that Congress had intended restoration to be an

individualized decision--a defensible position, but one now

rejected by Caron and most other circuits. As for McGrath,

it must be set against the contrary views of three other

circuits--the Fifth, Sixth and Tenth. Thomas, 991 F.2d at

212; Cassidy, 899 F.2d at 549 n.13; United States v. Hall, 20

F.3d 1066, 1069 (10th Cir. 1994). Ultimately, there can be

no perfect answer on a point that Congress did not consider.

The issue before us is unlikely to matter outside of a

very few states. Most states do take away from every felon

at least one of the three civil rights in question. Vermont

(the subject of McGrath) appears to be one of the very few

states where a felon does not lose at least one of these

rights upon conviction; and even Vermont preserves those

rights only for a felon who is not actually incarcerated,

McGrath, 60 F.3d at 1007 & n.2. And most circuits have held

that all three civil rights must be restored to avoid the

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federal ban.3 Thus, actual restoration is likely to be

required in most cases.

Conversely, misdemeanants are normally free of the

federal ban by virtue of a different exception in the federal

statute (see note 1, above) save where the misdemeanor is

punishable by more than two years in prison. This too is

unusual, the traditional distinction between felony and

misdemeanor being the potential for a sentence of more than

one year. W. LaFave & A. Scott, 1 Substantive Criminal Law

1.6, at 41 (1986). This does not preclude the possibility

that when Congress understands the implications of its

statute for a problem it did not foresee, it may prefer

another result.

We conclude, therefore, that Indelicato's civil rights,

to the extent that they were never taken away, should be

treated as "restored" for purposes of the federal statute.

Here, the government concedes that misdemeanants in

Massachusetts do not lose their civil rights. Accord Ramos,

961 F.2d at 1008. Nor are we concerned with the exception to

the exception--the "expressly provides" proviso at the end of

3United States v. Horodner, 91 F.3d 1317, 1319 (9th Cir.

1996); United States v. Flower, 29 F.3d 530, 536 (10th Cir.

1994), cert. denied, 115 S.Ct. 939 (1995); United States v.

Essig, 10 F.3d 968,, 976 (3d Cir. 1993); United States v.

Hassan El, 5 F.3d 726, 734 (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 see United States v. Dupaquier, 74 F.3d 615, 618 (5th

Cir. 1996).

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section 921(a)(20)--for the government also concedes that

Massachusetts does not restrict a misdemeanant's rights to

"ship, transport, possess, or receive firearms."

As this case illustrates all too well, the federal

statute, as now drafted, gives rise to a host of difficult

and obscure issues that Congress ought to resolve by

reexamining this statute. It is patent that Congress as a

whole did not appreciate the great variety and complexity of

state provisions that would have to be meshed with the new

federal statute or the odd results that would follow. One of

the senators made this very point, but only after the

amendment had passed. 132 Cong. Rec. 28,488 (1986)

(statement of Sen. Durenberger).

Yet, the proliferated case law, the conflicts, and the

utter waste of time incurred by courts and litigants are all

secondary reasons for revision. The main reason for Congress

to revisit the statute is that it does not do the job that

Congress expected it to do in reliably sorting out those who

present a special danger--and warrant special federal

restrictions on possession of firearms--from those who do

not. Wherever one chooses to draw the line (and the

conflicting policies are for Congress to balance), the

present line is too ragged and erratic to protect the public.

III.

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At sentencing in July 1995, Indelicato conceded that he

received about 35 kilograms of cocaine from Amilcar Antonio

Imbert, as supported by evidence from beeper records. He

disputed Imbert's testimony that Imbert had delivered cocaine

to Indelicato on many different occasions, including a ten-

kilogram transaction, and argued that the total amount of

cocaine that he purchased was less than 50 kilograms. The

district court concluded that the amount of drugs exceeded 50

kilograms, and sentenced Indelicato to 168 months

imprisonment on the drug counts, the minimum of the

applicable range for this quantity.

On appeal, Indelicato continues to dispute the quantity

of cocaine attributed to him. But a review of the record

indicates that the government presented enough evidence to

support the district court's finding (which need be only by a

preponderance) that Indelicato purchased more than 50

kilograms of cocaine from Imbert. Indelicato conceded 35

kilograms, although the more accurate estimate by the judge

of the sales recorded by beeper records was 36.25 kilograms.

Imbert also testified that he sold ten kilograms to

Indelicato on one occasion that would not have appeared in

the beeper records.

The question, then, is whether the district court had a

sufficient basis for finding an additional four kilograms not

represented in the beeper records. The court concluded,

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based on Imbert's testimony, that Imbert sold cocaine to

Indelicato several times each month for at least one-and-a-

half months prior to the beeper records and independent of

the ten-kilogram sale. Imbert also said that each sale

involved whole kilograms (or more) or large fractions of

kilograms. We think that these multiple deliveries of such

quantities over the course of six weeks provides a sufficient

basis for the conclusion that at least four more kilograms

should be attributed to Indelicato.

Credibility judgments at sentencing are the trial

judge's province, United States v. Webster, 54 F.3d 1, 5 (1st

Cir. 1995), and the fact that the district judge rejected

some of Imbert's testimony as not credible does not mean that

she could not credit other aspects of his testimony. Because

the district court's findings for sentencing were not clearly

erroneous, e.g., United States v. Wihbey, 75 F.3d 761, 776

(1st Cir. 1996), we affirm the drug quantity determination.

The defendant's convictions and sentence for violating

18 U.S.C. 922(g)(1) are vacated; his sentence on the drug

counts is affirmed; and the case is remanded for entry of a

modified judgment consistent with this opinion.

It is so ordered.

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