
USCA1 Opinion

	




                            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.                                         -2-                                         -2-            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                                         -3-                                         -3-            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                                         -4-                                         -4-                 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                                         -5-                                         -5-            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                                         -6-                                         -6-            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                                         -7-                                         -7-            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).                                         -8-                                         -8-                 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          ______                                         -9-                                         -9-          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.)                                            -10-                                         -10-                 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."                                         -11-                                         -11-          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).                                         -12-                                         -12-          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                                         -13-                                         -13-          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.                                         -14-                                         -14-          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                                         -15-                                         -15-          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.                 ________                                         -16-                                         -16-
