            United States Court of Appeals
                        For the First Circuit

No. 12-2321

                      UNITED STATES OF AMERICA,

                              Appellant,

                                  v.

                              RYAN HOWE,

                         Defendant, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE

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



                                Before

                         Lynch, Chief Judge,
                        Selya, Circuit Judge,
                    and Hillman,* District Judge.



     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellant.
     Behzad Mirhashem, with whom Jeffrey S. Levin was on brief, for
appellee.



                          November 15, 2013




     *
         Of the District of Massachusetts, sitting by designation.
              LYNCH, Chief Judge.   The question raised is whether the

district judge correctly dismissed one count of a 2012 federal

indictment against Ryan Howe. That in turn hinges on whether Howe,

convicted in 1995 of a felony, had his civil right to sit on a jury

restored as a matter of New Hampshire state law.                   The state

statutes involved, though, have not yet been construed and are far

from clear, and their construction will be determinative in this

case.    Qualification for jury service is a core concern of the

state and its judiciary.        We think the best course is to certify

the statutory interpretation question to the New Hampshire Supreme

Court.    See N.H. Sup. Ct. R. 34.

                                        I.

              The defendant, Ryan Howe, was indicted in August 2012 for

possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1),

based on his prior predicate conviction of a state felony.                   He

moved    to   dismiss   this   count,    arguing   that   he   could   not   be

classified as a felon under § 922(g)(1) due to the exceptions

listed in 18 U.S.C. § 921(a)(20).            Section 921(a)(20) provides:

"[a]ny conviction which has been expunged, or set aside or for

which a person . . . has had his civil rights restored shall not be

considered a conviction for purposes of this chapter . . . ."            This

court has held that "the civil rights that must be restored to

trigger the exception [in § 921(a)(20)] are the rights to vote, to

hold public office, and to serve on a jury."              United States v.


                                    -2-
Estrella, 104 F.3d 3, 5-6 (1st Cir. 1997). The government concedes

that Howe's right to vote and right to hold public office were

restored before the date of the charged offense.

          Howe argues that he was eligible to serve on a jury under

New Hampshire's juror eligibility statutes as of September 15,

2011, the date of the federal crime.   The prosecution argues that

he was not. The district court adopted Howe's reading, as a matter

of law, and dismissed the felon in possession charge.1    See United

States v. Howe, No. 12-cr-101-01-JD, 2012 WL 4757891, at *2-3

(D.N.H. Oct. 4, 2012). The government appealed. We now certify to

the New Hampshire Supreme Court the question of law of whether

Howe's right to serve on a New Hampshire jury was restored as of

September 15, 2011 under sections 500-A:7-a and 651:5 of the New

Hampshire Revised Statutes.   The facts are undisputed.

                                II.

          The New Hampshire Supreme Court will accept certified

questions of law from a federal court "if there are involved in any

proceeding before it questions of law of this State which may be

determinative of the cause then pending in the certifying court and

as to which it appears to the certifying court there is no

controlling precedent in the decisions of this court."    N.H. Sup.

Ct. R. 34.   This case meets those requirements; whether Howe's



     1
       He is also charged with one count of possession of an
unregistered firearm, which is not at issue in this appeal.

                                -3-
right to serve on a jury had been restored is determinative of

whether this court must affirm the dismissal of the federal charge.

The New Hampshire Supreme Court has not previously construed the

state's juror qualification and annulment statutes with respect to

the qualification law's annulment-of-prior-felonies provisions, and

the answer to the question presented here is far from clear.

Federalism concerns also motivate us to certify the question best

left to the New Hampshire high court to resolve.

            The New Hampshire statute governing Qualifications of

Jurors provides: "A juror shall not have been convicted of any

felony which has not been annulled or which is not eligible for

annulment   under   New    Hampshire    law."     N.H.   Rev.   Stat.   Ann.

§   500-A:7-a(V).    The    process    for   annulment   is   set   forth   at

section 651:5 of the New Hampshire Revised Statutes.            It requires

felons seeking an annulment to file a petition with a court and

sets forth standards for the allowance of such a petition.              Howe

was eligible for annulment under New Hampshire law beginning five

years from the date of his release from incarceration, see N.H.

Rev. Stat. Ann. § 651:5(III)(d), but he had not petitioned for

annulment before the date of the alleged offense.             The question,

then, is whether a felon who is eligible for annulment but who has

not received an annulment may serve on a New Hampshire jury.

            The parties offered competing interpretations of the New

Hampshire statutes, and our view is that there are other possible


                                      -4-
interpretations as well. Howe argues that section 500-A:7-a should

be interpreted to make a felon eligible to serve on a jury if (1)

he had received an annulment, or (2) he were eligible to petition

for an annulment, regardless of whether he had received it.                      The

prosecution argues that section 500-A:7-a should be interpreted to

be consistent with section 651:52 and to make a felon ineligible as

long as (1) his conviction was not eligible to be annulled, or (2)

his conviction had not been annulled, even if it was eligible for

annulment.

              We    look    to   "the   method    and     approach"      for   legal

interpretation announced by the state's highest court.                    Cahoon v.

Shelton, 647 F.3d 18, 22 (1st Cir. 2011).                Using those methods, we

find no controlling precedent on this question.

                                        III.

A.            Statutory Text

              A court interpreting New Hampshire law must "first look

to the language of the statute itself, and, if possible, construe

that language according to its plain and ordinary meaning."                    State

v. Dor, 75 A.3d 1125, 1127 (N.H. 2013).             When construing statutory

text, New Hampshire follows the widely accepted rule that "all of

the   words    of    a     statute   must   be   given    effect   and    that   the


      2
       The relationship between the two statutes that concern
annulment of convictions, one entitled Qualifications of Jurors,
section 500-A:7-a, and the other entitled Annulment of Criminal
Records, section 651:5, may be part of the interpretive task.


                                        -5-
legislature is presumed not to have used superfluous or redundant

words."   State v. Guay, 62 A.3d 831, 835 (N.H. 2013) (quoting

Pennelli v. Town of Pelham, 807 A.2d 1256, 1258 (N.H. 2002))

(internal quotation mark omitted).

          The parties' competing interpretations each run the risk

of rendering some words redundant.     On one hand, as the district

court noted, the government's reading could arguably make the

"which is not eligible" clause redundant.    The argument goes that

any felony "which is not eligible" for annulment would fall into

the category of felonies that "ha[ve] not been annulled."       So,

under the government's reading, the statute could have been, but

was not, written as "A juror shall not have been convicted of any

felony which has not been annulled under New Hampshire law."    The

government argues in response that the clauses are not redundant

because they implicitly distinguish between convictions that are

flatly ineligible for annulment and those that are eligible for

annulment but have not yet been annulled.     Without the "which is

not eligible" clause, the government argues, the statute would be

ambiguous as to whether felons with convictions ineligible for

annulment could serve on juries.       It is also possible that the

"which is not eligible" clause is only partially redundant under

the government's reading, insofar as it could be intended as a

catch-all to prohibit jury service by individuals with felonies

that were improperly annulled.


                                 -6-
             On the other hand, Howe's interpretation has a similar

flaw, as it arguably makes the "has not been annulled" clause

redundant.     Since a felony that was actually annulled would have

been eligible for annulment, Howe's reading would allow the statute

to have been written, although it was not, as "A juror shall not

have been convicted of any felony which is not eligible for

annulment."        Howe's reading also reverses the logic of the text,

effectively        inverting     its     two     disjunctive     disqualifiers     (a

prospective juror is disqualified if he has a felony that "has not

been annulled" or "is not eligible for annulment") to become

disjunctive qualifiers (a prospective juror is qualified if he has

a felony that "has been annulled" or "is eligible for annulment").

This reading would be in tension with the New Hampshire Supreme

Court's command not to "add language that the legislature did not

see fit to include."       Dor, 75 A.3d at 1127.

             We also note the statutes' interpretation may affect New

Hampshire residents who are otherwise eligible jurors but who have

felony   convictions,          whether    annulled      or     not,   from   another

jurisdiction.

B.           Legislative History

             The    legislative        history    --   which    may   be   used   when

multiple reasonable interpretations of a statute exist, see State

v. Lathrop, 58 A.3d 670, 673 (N.H. 2012) -- does not appear to

resolve the matter.            Howe points to isolated statements in the


                                          -7-
legislative history, especially one by the study committee that

evaluated an early draft of what became the juror eligibility law

at issue here.      But the statements were not made before the full

legislative body and concerned an earlier draft of the statute with

different language than the version ultimately enacted.                      Cf.

Hooksett Conservation Comm'n v. Hooksett Zoning Bd. of Adjustment,

816   A.2d   948,   952   (N.H.   2003)    (declining   to   rely   solely    on

legislative     history    when   the     legislative   history     fails     to

"provide[] sufficient guidance to determine the legislature's

intent").

C.           Administrative Interpretation

             In some instances, New Hampshire courts consider the

administrative practice of the bodies implementing relevant laws.

See In re Westwick, 546 A.2d 1051, 1053 (N.H. 1988) ("[W]here a

statute is of doubtful meaning, the long-standing practical and

plausible interpretation applied by the agency responsible for its

implementation, without any interference by the legislature, is

evidence that the administrative construction conforms to the

legislative intent." (quoting State Emps.' Ass'n v. State, 503 A.2d

829, 832 (N.H. 1986)) (internal quotation marks omitted)).                   We

would be hesitant to give such an administrative interpretation

much weight given the textual difficulties noted.             Further, it is

the New Hampshire Supreme Court which is in charge of the judicial

system, and it has not spoken.


                                     -8-
                 Howe, after argument,3 provided a copy of the form that

was issued by The Jury Center of the New Hampshire Superior Court

to use to evaluate juror eligibility.                In a portion reserved for

court use, that form states next to a check box: "All of the

convictions are eligible for an annulment under New Hampshire law.

The juror is qualified for jury service."                    Howe reads that as

supporting his position.          However, we have not been provided with

any basis for the conclusion that the Center is entitled to any

deference in its administrative interpretation of the laws.                    Cf.

Hamby       v.   Adams,   376   A.2d   519,    521   (N.H.   1977)   (noting   the

importance of "administrative discretion" in evaluating weight of

administrative practice). And, more importantly, an administrative

practice that runs counter to the text of the law does not merit

deference.        See In re Westwick, 546 A.2d at 1055.

                                         IV.

                 In conclusion, certifying the question in this case is

proper not just because the legal issues are not decided by New

Hampshire case law but also because they deal with strong state

interests. Cf. Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real

Estate Info. Servs., 608 F.3d 110, 119 (1st Cir. 2010) (noting the

importance of "strong federalism interests"); Globe Newspaper Co.


        3
       Counsel for Howe has also represented that he was told by a
clerk of the New Hampshire District Court in Merrimack County that
the courts follow his interpretation.         But the evidentiary
shortcomings of that claim, which is not supported by an affidavit,
are obvious.

                                         -9-
v. Beacon Hill Architectural Comm'n, 40 F.3d 18, 24 (1st Cir. 1994)

(noting that issues "of peculiarly state and local concern" are

well-suited for certification).           Determining the balance between

the possible New Hampshire legislative policy goals as to who may

be qualified as a juror is a task better suited to the state high

court.   Cf. Acadia Ins. Co. v. McNeil, 116 F.3d 599, 605 (1st Cir.

1997) (certifying question to New Hampshire Supreme Court in part

"because the public policy arguments cut both ways").

                                     V.

           We certify the following question to the New Hampshire

Supreme Court:

           Under sections 500-A:7-a(V) and 651:5 of the
           New Hampshire Revised Statutes and the
           undisputed facts of this case, is a felon
           whose conviction is eligible for annulment
           (that is, not categorically disqualified from
           jury service) but who has not applied for or
           received an annulment of that conviction
           qualified to sit as a juror?

We would also welcome any other comments on relevant points of

state law that the New Hampshire Supreme Court should wish to

share.

           The clerk of this court is instructed to transmit to the

New Hampshire Supreme Court, under the official seal of this court,

a copy of the certified question and our opinion in this case,

along    with   copies   of   the   parties'     briefs,   appendix,   and

supplemental filings under Rule 28(j) of the Federal Rules of

Appellate Procedure.     We retain jurisdiction over this appeal.

           So ordered.

                                    -10-
