United States v. Estrella

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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