                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2170
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota
Bret L. Keeney,                          *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: December 12, 2000

                                   Filed: February 26, 2001
                                    ___________

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and LAUGHREY,1
      District Judge.
                            ___________

McMILLIAN, Circuit Judge.

      The United States of America ("the government") appeals a final decision
entered in the United States District Court for the District of North Dakota dismissing
the indictment charging Bret L. Keeney with firearms violations, 18 U.S.C.
§§ 922(a)(6), 922(g)(9). See United States v. Keeney, No. C1-00-008 (D.N.D. Apr. 5,
2000) (memorandum and order granting motion to dismiss).            For reversal, the

      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri, sitting by designation.
government argues that the district court misconstrued the so-called civil rights
restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii) in reaching its decision to
dismiss Keeney's indictment. For the reasons stated below, we reverse the district
court's decision to dismiss Keeney's indictment and remand this matter to the district
court for further proceedings consistent with this opinion.

       Jurisdiction in the district court was proper based on 18 U.S.C. § 3231.
Jurisdiction in this court is proper based on 18 U.S.C. § 3731. The government's
notice of appeal was timely filed pursuant to Fed. R. App. P. 4(b).

                                     Background

      In 1998, Keeney was convicted in state court of the misdemeanor crime of
domestic violence, which conviction resulted from an assault committed against a
former live-in girlfriend. Keeney was sentenced to a term of imprisonment followed
by probation. The state court also suspended his firearms privileges pursuant to N.D.
Cent. Code § 12.1-32-07 during the period of his incarceration and probation. Keeney
was released from probation on March 29, 1999.2

       The North Dakota Criminal Code, N.D. Cent. Code § 12.1-32-07, requires that
"[t]he court shall provide as an explicit condition of every probation that the defendant
may not possess a firearm, destructive device, or other dangerous weapon while
defendant is on probation."3


      2
       According to the district court, Keeney was incarcerated from November 13,
1996, to March 3, 1997, and he was on probation from March 29, 1997, to
March 29, 1999. See United States v. Keeney, No. C1-00-008, slip op. at 2 & n.1
(D.N.D. Apr. 5, 2000) (memorandum and order).
      3
          The North Dakota Criminal Code further states:


                                          -2-
        On September 9, 1999, the Bureau of Alcohol, Tobacco and Firearms ("BATF")
executed a search warrant on Keeney's residence and found a nine millimeter handgun.
Keeney was charged in a two-count indictment with violations of 18 U.S.C. § 922(a)
(6) and § 922(g)(9).4 Section 922(a)(6) prohibits any person from knowingly making
false or fictitious statements in connection with the acquisition or attempted acquisition
of a firearm. Section 922(g)(9) prohibits persons convicted of a misdemeanor crime
of domestic violence from possessing a firearm.5 Both offenses were predicated on

      1. A person who has been convicted anywhere for a felony involving
      violence or intimidation, as defined in chapters 12.1-16 through 12.1-
      25, is prohibited from owning a firearm or having one in possession or
      under control from the date of conviction and continuing for a period of
      ten years after the date of conviction or release from incarceration or
      probation, whichever is later.

       2. A person who has been convicted of any felony not provided for in
      subsection 1 or has been convicted of a class A misdemeanor involving
      violence or intimidation and that crime was committed while using or
      possessing a firearm or dangerous weapon . . . is prohibited from
      owning a firearm or having one in possession or under control from the
      date of conviction or continuing for a period of five years after the date
      of conviction or release from incarceration or probation, whichever is
      the latter.

N.D. Cent. Code 62.1-02-01.
      4
       The indictment also included a violation of 18 U.S.C. § 924(a)(2), which is
the penalty provision of the federal firearms statute. Record on Appeal at 7-8.
      5
          The indictment stated that:

      in connection with [Keeney's] attempted acquisition of a firearm . . .
      [he] knowingly made a false and fictitious written statement on a
      Firearms Transaction Record Form . . . which statement was likely
      to deceive [the seller] with respect to a fact material to the lawfulness
      of such attempted acquisition of the firearm by [Keeney] under the

                                           -3-
Keeney's prior conviction for a misdemeanor crime of domestic violence under North
Dakota law. Keeney moved to dismiss the indictment pursuant to the so-called civil
rights restoration exception, which provides:

             A person shall not be considered to have been convicted of
             such an offense for purposes of this chapter if the conviction
             has been expunged or set aside, or is an offense for which
             the person has been pardoned or has had civil rights restored
             (if the law of the applicable jurisdiction provides for the loss
             of civil rights under such an offense) unless the pardon,
             expungement, or restoration of civil rights expressly
             provides that the person may not ship, transport, possess, or
             receive firearms.

18 U.S.C. § 921(a)(33)(B)(ii).


       Keeney argued that his prior conviction did not count for purposes of applying
the federal firearms statutes because his civil rights had been restored following his
state conviction. The district court granted Keeney's motion to dismiss, reasoning that
Keeney's right to possess a firearm was taken away while he was on probation and that,
when the alleged federal offenses occurred, he was no longer on probation and his civil
rights had been restored. The court further reasoned that Keeney's probation was
included in the "judgment of his conviction and was part and parcel of his punishment
which included" incarceration and that, once Keeney's probation ended, his right to


      provisions of Chapter 44, Title 18, United States Code, in that
      [Keeney] falsely represented that he had never been convicted in any
      court of a misdemeanor crime of domestic violence, which in truth and
      fact, as [Keeney] then well knew, he had been convicted of
      misdemeanor Assault and Menacing a person similarly situated to a
      spouse.

Designated Record on Appeal at 7.

                                           -4-
possess firearms was automatically restored. Slip op. at 2. The district court
concluded that because Keeney's right to possess firearms had been restored, his
predicate conviction could not be considered a "misdemeanor crime of domestic
violence." Id. at 3.

       The district court distinguished United States v. Smith, 171 F.3d 617 (8th Cir.
1999), in which this court refused to extend the restoration exception to a defendant
who was convicted of an underlying misdemeanor offense which did not involve a loss
of civil rights. The district court distinguished Smith based on its reasoning that the
Iowa statute under which the defendant in Smith was originally convicted did not strip
misdemeanor offenders of any of their civil rights while Keeney's conviction for
domestic violence required that his right to possess a firearm be taken away while he
was on probation. The district court assumed that the privilege of possessing a firearm
is commensurate with the loss of civil rights pursuant to 18 U.S.C. § 921(a)(33)(B)(ii).
In reaching its conclusion that it could not ignore "the judgment of the State of North
Dakota" that Keeney was trustworthy to possess a firearm, the district court noted the
observation in Smith, 171 F.3d at 624, that Congress relied on each state's judgment
in this regard. See slip op. at 2-3. The district court also referred to McGrath v.
United States, 60 F.3d 1005, 1008 (2d Cir. 1995), where the Second Circuit surveyed
judicial interpretations regarding the restoration of civil rights pursuant to the
restoration exception. The district court did not articulate whether it sought to follow
McGrath or to distinguish it. This appeal followed.

                                      Discussion

      We review de novo the district court's decision to grant Keeney's motion to
dismiss the indictment. See Smith, 171 F.3d at 619. For reversal, the government
contends that Keeney did not lose his civil rights within the meaning of the restoration
exception.    The government argues that, because the plain language of
§ 921(a)(33)(B)(ii) uses the term "civil rights" in the plural, Congress intended that

                                          -5-
more than a single civil right had to be restored. The government further argues that
the "civil rights," which those convicted of a felony typically lose, include the rights
to vote, to serve on a jury and to hold public office. The government suggests that,
therefore, Congress did not intend that the restoration exception would apply where
these rights were not lost. It further suggests that because Keeney did not lose this
core cluster of civil rights pursuant to his conviction under North Dakota law, he did
not lose his civil rights within the meaning of the restoration exception. The
government additionally argues that, because Keeney did not lose his civil rights upon
his conviction, they could not be restored upon the completion of probation.

       We respectfully disagree with the analysis of the district court. As stated in
Smith, 171 F.3d at 623, "§ 921(a)(33) only applies to 'civil rights [that have been]
restored (if the law of the applicable jurisdiction provides for the loss of civil rights
under such an offense).'" We refused, in Smith, to accept the defendant's argument
that, because he did not forfeit civil rights pursuant to his underlying state conviction,
his right to equal protection under the Fifth Amendment would be violated absent
application of the restoration exception to him. See id. at 624. We reasoned that,
because most misdemeanor convictions do not result in the loss of civil rights, to hold
otherwise would permit the exception to swallow the rule. See id. at 624. In reaching
this conclusion, we noted that, because the federal firearms statute is concerned with
"preventing a known . . . domestic abuser from later using a firearm to inflict the
next bout of abuse," and because Congress was cognizant of the fact that domestic
abuse offenders who were successful in pleading a felony charge down to a
misdemeanor could escape the effect of the felon-in-possession statutes, Congress
included, in the firearms statute, a prohibition on possessing a firearm by a domestic
abuser convicted of a misdemeanor. Id. at 625. Additionally, we emphasized the
parenthetical language in the restoration exception which requires that "the law of the
applicable jurisdiction [provide] for the loss of civil rights under such an offense." Id.
at 623. Thus, a defendant must have lost his or her civil rights pursuant to state statute
in order to assert that the restoration exception is applicable. Keeney does not refute

                                           -6-
that his predicate offense of misdemeanor domestic abuse was within the class of
offenses included within the prohibition of 18 U.S.C. § 922, but rather he argues that
the restoration exception applies to him because his civil rights were taken away
pursuant to his conviction and, subsequently, pursuant to North Dakota statute, restored
when he was released from probation.

       The Second Circuit in McGrath held that a felon's retention of civil rights upon
his or her conviction was not the functional equivalent of having had civil rights
"restored" for purposes of the civil rights exception granted by § 921(a)(20). 60 F.3d
at 1007.6 The Second Circuit further held in McGrath that "the ordinary meaning of
'restore' could not encompass a person whose rights were never disabled." McGrath
at 1007, citing United States v. Ramos, 961 F.2d 1003, 1008 (1st Cir. 1992).
Therefore, the Second Circuit's opinion in McGrath and the First Circuit's opinion in
Ramos are consistent with this circuit's holding in Smith. Each of these cases holds
that the restoration exception only applies to a defendant whose civil rights were both
lost and restored pursuant to state statutes.

       We consider whether, under North Dakota law, Keeney first lost and then had
his "civil rights" restored within the meaning of § 921(a)(33)(B)(ii). Unless North
Dakota law provided for the loss of Keeney's civil rights, the restoration exception is
not applicable to him. See McGrath, 60 F.2d at 1007. Under North Dakota law, a
person convicted of a crime does not necessarily suffer the loss of civil rights. N.D.
Cent. Code § 12.1-33-02 states that:


      a person convicted of a crime does not suffer . . . loss of civil rights .
      . . but retains all of his [or her] rights, political, personal, civil, and


      6
        In United States v. Smith, 171 F.3d 617, 625 (8th Cir. 1999), this court
acknowledged that the restoration exception in § 921(a)(33) was modeled after the
restoration exception in § 921(a)(20).

                                          -7-
       otherwise, including the right to hold public office or employment; to
       vote; to hold, receive, and transfer property; to enter into contracts; to sue
       and be sued; and to hold offices of private trust in accordance with law.


       Because the general statutory provision, N.D. Cent. Code § 12.1-33-02,
specifically states that civil rights, as defined in that statute, are not lost automatically
pursuant to a criminal conviction, the specific provisions of the North Dakota statutes
under which Keeney was sentenced must be considered to determine if he suffered a
loss of civil rights. N.D. Cent. Code § 12.1-32-07 imposes a prohibition on possessing
a firearm as a condition of probation. The state court, upon sentencing Keeney for
misdemeanor domestic abuse, imposed such a condition. We, therefore, consider
whether loss of the right to possess a firearm, pursuant to North Dakota statute, is the
loss of civil rights under § 921(a)(33)(B)(ii).


        In McGrath, the Second Circuit held that the civil rights in question under 18
U.S.C. § 921(a)(20) "are those which most states extend by virtue of citizenship within
their borders: (i) the right to vote; (ii) the right to hold elective office; and (iii) the right
to sit on a jury." 60 F.3d at 1007. In United States v. Indelicato, 97 F.3d 627, 630 (1st
Cir. 1996), the First Circuit likewise held that "[a]lthough the Congress did not specify
which civil rights it had in mind, [in § 921(a)(33)(B)(ii)] the plurality view among the
circuits - explicitly adopted by the [First Circuit in United States v. Caron, 77 F.3d 1,
2 (1st Cir. 1996)] - is that Congress had in mind the core cluster of 'citizen' rights . .
. namely, the right to vote, to serve on a jury and to hold public office". Significantly,
§ 921(a)(20) and § 921(a)(33)(B)(ii) both refer to civil rights in the plural, thus
suggesting that Congress intended to include a cluster of rights, as referenced in
McGrath, within the meaning of the term "civil rights" as contained in these provisions.
See Smith, 171 F.3d at 620 (construing a statute, a court looks first to the plain meaning
of its words). Although, as noted in Indelicato, 97 F.3d at 631 & n.3 (citations
omitted), most circuits have held that "all three civil rights must be restored to avoid the


                                              -8-
federal ban" on possession of firearms, we need not reach that issue because Keeney
did not lose any of the rights within the core cluster. We further note that N.D. Cent.
Code § 12.1-33-02 designates civil rights which a criminal defendant does not
automatically lose, including the right to vote and to hold office, which are among the
rights the Second Circuit in McGrath found were included in the core cluster of civil
rights in question under 18 U.S.C. § 921(a)(20); N.D. Cent. Code § 12.1-33-02 does
not mention the possession of firearms.

       Consistent with our opinion in Smith and the Second Circuit's opinion in
McGrath, we hold that Keeney did not lose his any of his civil rights within the core
cluster and, thus, did not have his civil rights restored pursuant to the restoration
exception of § 921(a)(33)(B)(ii). We further hold that because the restoration
exception did not apply to Keeney, the district court improperly dismissed Keeney's
indictment for violations of 18 U.S.C. §§ 922(a)(6) and 922(g)(9).

                                      Conclusion

       For the reasons stated above, we hold that Keeney did not lose his civil rights,
and, therefore, did not have his civil rights restored, within the meaning of the
restoration exception, 18 U.S.C. § 921(a)(33)(B)(ii). We, therefore, reverse the
decision of the district court granting Keeney's motion to dismiss the indictment against
him, and we remand this matter for further proceedings consistent with this opinion.

      A true copy.

             Attest:

                   U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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