USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1907
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL INDELICATO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
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Before
Boudin, Circuit Judge.
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Aldrich, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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James L. Sultan, by Appointment of the Court, with whom Rankin &
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Sultan was on briefs for appellant.
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Paula J. DeGiacomo, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.
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October 15, 1996
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BOUDIN, Circuit Judge. In the district court Michael
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Indelicato pled guilty to various charges of possession and
distribution of cocaine, conspiracy to distribute cocaine,
wire fraud, and conspiracy to defraud the United States. 18
U.S.C. 371, 1343; 21 U.S.C. 841(a)(1), 846, 853. He
was tried on four related charges of possessing firearms and
ammunition, having previously been convicted of a crime
punishable by more than one year in prison. 18 U.S.C.
922(g)(1). In a jury-waived trial on stipulated facts, the
district court found Indelicato guilty on those counts as
well. United States v. Indelicato, 887 F. Supp. 23 (D. Mass.
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1995). Indelicato now appeals from these firearms possession
convictions and from his sentence on the drug counts.
I.
The background facts are easily summarized. In 1993,
Indelicato pled guilty in Massachusetts state court to
assault and battery with a knife and carrying a dangerous
weapon (the knife). Mass. Gen. Laws ch. 265, 13A; ch. 269,
10(b). The state court ultimately sentenced him to a one-
year suspended sentence and $7,500 in restitution, which
Indelicato paid. Both offenses are misdemeanors under state
law but punishable by a maximum of two and one-half years in
prison.
On May 7, 1994, federal agents arrested Indelicato. The
agents searched his home and place of business and found four
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firearms (including an Uzi semiautomatic weapon) and numerous
forms of ammunition. The ensuing indictment charged
Indelicato, among other offenses, with violating 18 U.S.C.
922(g)(1), which makes it unlawful for any person "who has
been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to ship or
transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition . . . ."1
Indelicato stipulated that the interstate commerce
requirement was satisfied.
However, 18 U.S.C. 921(a)(20) excludes from this
category "[a]ny conviction which has been expunged, or set
aside or for which a person has been pardoned or has had
civil rights restored . . . unless such pardon, expungement,
or restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive
firearms." At trial, Indelicato argued that this exclusion
applied to him because Massachusetts never took away his
civil rights and because he suffered no restrictions on his
state firearms privileges.
The district court rejected Indelicato's argument, quite
properly relying upon United States v. Ramos, 961 F.2d 1003,
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118 U.S.C. 921(a)(20)(B) excludes from this category
persons convicted of state misdemeanors punishable by a term
of imprisonment of two years or less. Because his state
crimes carried a larger maximum sentence, Indelicato did not
fall within this exception.
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1007-10 (1st Cir.), cert. denied, 506 U.S. 934 (1992), which
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held that rights never taken away cannot have been
"restored." Long after the district court sentenced
Indelicato, this court (in February 1996) sitting en banc
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announced its decision in United States v. Caron, 77 F.3d 1,
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5-6 (1st Cir.) (en banc), cert. denied, 116 S. Ct. 2569
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(1996), which overruled Ramos on a different issue and
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explicitly reserved judgment on whether civil rights never
taken away could be "restored."
At Indelicato's sentencing in July 1995, the district
court imposed concurrent terms of 168 months imprisonment on
the cocaine counts (based primarily on the weight of the
drugs), 120 months on the firearms possession counts, and 60
months on the fraud counts, as well as supervised release,
fines, assessments and forfeitures.
II.
Our principal concern on this appeal is with the
firearms possession counts, which present an issue of law
that we review de novo. As originally enacted in 1968, 18
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U.S.C. 922(g)(1) made criminal gun possession by anyone
previously convicted of a crime (the predicate offense)
punishable by more than one year of imprisonment, but the
statute allowed an exception for state misdemeanors
punishable by two years or less of imprisonment. 18 U.S.C.
921(a)(20). In 1983, the Supreme Court held that a predicate
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offense under section 922(g) is defined by federal law, and
that state expunctions of state convictions did not avoid the
ban of section 922(g)(1). Dickerson v. New Banner Institute,
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Inc., 460 U.S. 103, 111-12, 115 (1983).
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Congress reacted to Dickerson and like rulings by
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enacting in 1986 the Firearms Owners' Protection Act, 100
Stat. 449, which in pertinent part amended section
921(a)(20)'s definition of predicate offenses. The
amendment, which remains in effect today, provides that state
law defines what constitutes a predicate "conviction" for
purposes of section 922(g)(1) and other provisions of the
statute. It also excludes convictions that have been
"expunged" or "set aside," or for which the person has been
"pardoned" or "has had civil rights restored." Congress has
provided no definition of "civil rights" or "restored."
The main issue for us is whether the "civil rights
restored" provision in section 921(a)(20) protects one who,
like Indelicato, never had his civil rights taken away at
all. It is common ground that misdemeanants in Massachusetts
do not lose the rights that we and most courts describe as
"civil rights" under the statute: the rights to vote, to
serve on a jury, and to hold public office. Caron, 77 F.3d
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at 2. But the government argues, based on plain language,
that a defendant cannot have "restored" to him what the state
never took away.
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The issue is difficult because it pits the literal
language of the statute against Congress' perceived
rationale. Clearly the ordinary reading of the word
"restored" supports the government. This court so held in
Ramos, 961 F.2d at 1007-08, although over a strong dissent,
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and the Second Circuit followed Ramos on this issue in
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McGrath v. United States, 60 F.3d 1005, 1007 (2d Cir. 1995),
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cert. denied, 116 S. Ct. 929 (1996). But there are two
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different reasons why we are not inclined to treat the
literal language as precluding further inquiry, quite apart
from the determination of the en banc court in Caron treating
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the present issue as an open one in this circuit. See Caron,
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77 F.3d at 5-6.2
First, a ready explanation exists why Congress might
have used the term "restored" without intending to exclude
persons like Indelicato. The incidents that gave rise to the
amendment (in particular, Dickerson), and what Congress
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thought to be the ordinary case, involved the deprivation of
civil rights and their subsequent restoration (e.g., by
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pardon). Indeed, there is no indication in the legislative
history that Congress gave any attention to the rare case in
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2Although we think that Caron frees us to treat the
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issue as open despite Ramos, we have taken the precaution of
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circulating this opinion in advance to all of the circuit's
active judges. This informal circulation does not preclude a
petition for rehearing or suggestion of en banc
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reconsideration. See Trailer Marine Transport Corp. v. Rivera
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Vazquez, 977 F.2d 1, 9 n.5 (1st Cir. 1992).
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which someone convicted of a serious crime would not lose one
or more of the three civil rights that have been used by most
courts as touchstones under this section.
Second, as explained later in this opinion, it is hard
to find any reason why Congress would have wished to adopt
the distinction now urged by the government. In United
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States v. Cassidy, 899 F.2d 543, 549 n.13 (6th Cir. 1990),
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the Sixth Circuit went so far as to say that there was "no
rational basis" for distinguishing between a criminal who
never lost his civil rights and one who had them taken away
and then restored by statute. As the Supreme Court has
reminded us, "[l]ooking beyond the naked text for guidance is
perfectly proper when the result it apparently decrees is
difficult to fathom or where it seems inconsistent with
Congress' intention . . . ." Public Citizen v. Department of
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Justice, 491 U.S. 440, 455 (1989).
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Where language is not conclusive, courts turn to
legislative history and purpose. Most broadly, it has been
suggested that Congress' main purpose in enacting
section 921(a)(20) was to let the states decide who may carry
guns. E.g., United States v. Bost, 87 F.3d 1333, 1334 (D.C.
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Cir. 1996); Caron, 77 F.3d at 3; Ramos, 961 F.2d at 1011
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(Torruella, J., dissenting). If so, it might follow that
Massachusetts--having declined to restrict the gun possession
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rights of misdemeanants like Indelicato--should have its
preference followed as a matter of course.
This is too sweeping a contention. Congress in 1986
deliberately gave the states much latitude to determine who
would fall under the ban of the federal statute; but it did
not give the states carte blanche as to the manner of making
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this determination. Rather, Congress created a structure
that allows the state to make this decision only in
mechanically defined ways--such as by expungement or setting
aside of a conviction, pardon or restoration of civil rights.
For instance, if a state does not restore a felon's civil
rights but expressly allows him to possess firearms, the
felon may still be prosecuted under the federal statute.
United States v. Thomas, 991 F.2d 206, 214-15 (5th Cir.),
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cert. denied, 510 U.S. 1014 (1993).
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Although Congress did not specify which civil rights it
had in mind, the plurality view among the circuits--
explicitly adopted by this court in Caron--is that Congress
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had in mind the core cluster of "citizen" rights that are
typically lost by felons and restored by pardons, namely, the
right to vote, to serve on a jury and to hold public office.
Caron, 77 F.3d at 2. Indeed, when the Senate debated the
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amendment, Senator Sasser noted that under the federal
statute, convicted felons "lose most civil rights--to vote,
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hold office, and so on . . . ." 131 Cong. Rec. 18,182
(1985).
To key the federal statute to these civil rights makes
sense only on one assumption: that Congress thought of the
attribution of these rights as expressing "a state's judgment
that a particular person or class of persons is, despite a
prior conviction, sufficiently trustworthy to possess
firearms." McGrath, 60 F.3d at 1009. Accord United States
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v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, 510
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U.S. 919 (1993). This "trustworthiness" rationale is about
the best that we or anyone else has managed to explain
Congress' approach.
The tightest application of this rationale might suggest
that Congress intended to allow firearms possession only
where a state has made an individualized decision to restore
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civil rights as, for example, by an individual pardon. But
the statute contains no explicit requirement of
individualized action. And this court in Caron, together
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with most other circuits, see 77 F.3d at 2 n.1, 4, has
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rejected such a requirement of individualized action.
If individualized action is not required, it is hard to
see why Congress would wish to distinguish between one whose
civil rights were never taken away (Indelicato) and one whose
civil rights were mechanically taken away and mechanically
restored. The government has supplied no such reason, nor
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has any court done so. The distinction could certainly
create an anomalous result in various situations, such as a
jurisdiction that did not deprive a misdemeanant of civil
rights but took away the rights of a felon and then restored
them by statute on the felon's completion of his prison term
and period of supervision.
The government's best argument, ad hominem but not
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without force, is that Indelicato is a perfect example of the
kind of previously convicted criminal who ought to be barred
from possessing a firearm. Indelicato had earlier been
convicted of an assault with a knife; he was engaged in drug
operations; and his collection of weapons and ammunition
provided ample reason to think that he was a very dangerous
man. Yet because Massachusetts law does not deprive
Indelicato of his civil rights, Indelicato can do what a
federally convicted forger could not.
But the ad hominem argument is somewhat misleading.
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Indelicato is already serving a very long federal sentence
for the drug offenses; and if civil rights were not deemed to
be "restored" to him, neither would they be restored to some
other misdemeanant in Massachusetts whose crime might be so
pacific that no one would think that it made any sense to
deprive him of the opportunity to possess a firearm. See,
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e.g., Mass. Gen. Laws ch. 56, 50 (alteration of ballots).
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Congress can fix the flaws in the present statute; we cannot
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do so without creating other flaws and the possibility of
some new injustice.
We recognize that our conclusion is contrary to two very
able opinions--our own circuit's earlier two-to-one decision
on this issue in Ramos and the Second Circuit's decision in
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McGrath, relying directly upon Ramos. But Ramos' decision on
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the point at issue drew some of its force from its other
holding that Congress had intended restoration to be an
individualized decision--a defensible position, but one now
rejected by Caron and most other circuits. As for McGrath,
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it must be set against the contrary views of three other
circuits--the Fifth, Sixth and Tenth. Thomas, 991 F.2d at
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212; Cassidy, 899 F.2d at 549 n.13; United States v. Hall, 20
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F.3d 1066, 1069 (10th Cir. 1994). Ultimately, there can be
no perfect answer on a point that Congress did not consider.
The issue before us is unlikely to matter outside of a
very few states. Most states do take away from every felon
at least one of the three civil rights in question. Vermont
(the subject of McGrath) appears to be one of the very few
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states where a felon does not lose at least one of these
rights upon conviction; and even Vermont preserves those
rights only for a felon who is not actually incarcerated,
McGrath, 60 F.3d at 1007 & n.2. And most circuits have held
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that all three civil rights must be restored to avoid the
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federal ban.3 Thus, actual restoration is likely to be
required in most cases.
Conversely, misdemeanants are normally free of the
federal ban by virtue of a different exception in the federal
statute (see note 1, above) save where the misdemeanor is
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punishable by more than two years in prison. This too is
unusual, the traditional distinction between felony and
misdemeanor being the potential for a sentence of more than
one year. W. LaFave & A. Scott, 1 Substantive Criminal Law
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1.6, at 41 (1986). This does not preclude the possibility
that when Congress understands the implications of its
statute for a problem it did not foresee, it may prefer
another result.
We conclude, therefore, that Indelicato's civil rights,
to the extent that they were never taken away, should be
treated as "restored" for purposes of the federal statute.
Here, the government concedes that misdemeanants in
Massachusetts do not lose their civil rights. Accord Ramos,
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961 F.2d at 1008. Nor are we concerned with the exception to
the exception--the "expressly provides" proviso at the end of
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3United States v. Horodner, 91 F.3d 1317, 1319 (9th Cir.
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1996); United States v. Flower, 29 F.3d 530, 536 (10th Cir.
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1994), cert. denied, 115 S. Ct. 939 (1995); United States v.
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Essig, 10 F.3d 968,, 976 (3d Cir. 1993); United States v.
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Hassan El, 5 F.3d 726, 734 (4th Cir. 1993), cert. denied, 114
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S. Ct. 1374 (1994); United States v. Driscoll, 970 F.2d 1472,
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1478-79 (6th Cir. 1992), cert. denied, 506 U.S. 1083 (1993).
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But see United States v. Dupaquier, 74 F.3d 615, 618 (5th
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Cir. 1996).
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section 921(a)(20)--for the government also concedes that
Massachusetts does not restrict a misdemeanant's rights to
"ship, transport, possess, or receive firearms."
As this case illustrates all too well, the federal
statute, as now drafted, gives rise to a host of difficult
and obscure issues that Congress ought to resolve by
reexamining this statute. It is patent that Congress as a
whole did not appreciate the great variety and complexity of
state provisions that would have to be meshed with the new
federal statute or the odd results that would follow. One of
the senators made this very point, but only after the
amendment had passed. 132 Cong. Rec. 28,488 (1986)
(statement of Sen. Durenberger).
Yet, the proliferated case law, the conflicts, and the
utter waste of time incurred by courts and litigants are all
secondary reasons for revision. The main reason for Congress
to revisit the statute is that it does not do the job that
Congress expected it to do in reliably sorting out those who
present a special danger--and warrant special federal
restrictions on possession of firearms--from those who do
not. Wherever one chooses to draw the line (and the
conflicting policies are for Congress to balance), the
present line is too ragged and erratic to protect the public.
III.
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At sentencing in July 1995, Indelicato conceded that he
received about 35 kilograms of cocaine from Amilcar Antonio
Imbert, as supported by evidence from beeper records. He
disputed Imbert's testimony that Imbert had delivered cocaine
to Indelicato on many different occasions, including a ten-
kilogram transaction, and argued that the total amount of
cocaine that he purchased was less than 50 kilograms. The
district court concluded that the amount of drugs exceeded 50
kilograms, and sentenced Indelicato to 168 months
imprisonment on the drug counts, the minimum of the
applicable range for this quantity.
On appeal, Indelicato continues to dispute the quantity
of cocaine attributed to him. But a review of the record
indicates that the government presented enough evidence to
support the district court's finding (which need be only by a
preponderance) that Indelicato purchased more than 50
kilograms of cocaine from Imbert. Indelicato conceded 35
kilograms, although the more accurate estimate by the judge
of the sales recorded by beeper records was 36.25 kilograms.
Imbert also testified that he sold ten kilograms to
Indelicato on one occasion that would not have appeared in
the beeper records.
The question, then, is whether the district court had a
sufficient basis for finding an additional four kilograms not
represented in the beeper records. The court concluded,
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based on Imbert's testimony, that Imbert sold cocaine to
Indelicato several times each month for at least one-and-a-
half months prior to the beeper records and independent of
the ten-kilogram sale. Imbert also said that each sale
involved whole kilograms (or more) or large fractions of
kilograms. We think that these multiple deliveries of such
quantities over the course of six weeks provides a sufficient
basis for the conclusion that at least four more kilograms
should be attributed to Indelicato.
Credibility judgments at sentencing are the trial
judge's province, United States v. Webster, 54 F.3d 1, 5 (1st
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Cir. 1995), and the fact that the district judge rejected
some of Imbert's testimony as not credible does not mean that
she could not credit other aspects of his testimony. Because
the district court's findings for sentencing were not clearly
erroneous, e.g., United States v. Wihbey, 75 F.3d 761, 776
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(1st Cir. 1996), we affirm the drug quantity determination.
The defendant's convictions and sentence for violating
18 U.S.C. 922(g)(1) are vacated; his sentence on the drug
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counts is affirmed; and the case is remanded for entry of a
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modified judgment consistent with this opinion.
It is so ordered.
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