Calvin Lamont Tomlinson raises several challenges to his conviction for illegal possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1).1 The critical challenge for purposes of this appeal involves the district court's refusal to instruct the jury that the Government had to prove that Tomlinson "knew" the gun he possessed was of a type that made him ineligible for Sec. 921(a)(20)'s "restoration of civil rights" exception to Sec. 922(g)(1).2

In a case decided while this appeal was pending, the Supreme Court held that, with regard to a related firearms possession statute, such a mens rea instruction is required. Staples v. United States, --- U.S. ----, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994). On this appeal, the Government has conceded that a Staples instruction was necessary here and that the failure to give it requires reversal. On that ground alone, we vacate the conviction and remand for a new trial.

Because of the complexity of the issue, we think it appropriate to explain why we think the government's general concession of error was proper, and to indicate the precise nature of the error, hence the corrective action required upon remand, for the district court's guidance.

* In May 1992, the State of North Carolina released Tomlinson from incarceration resulting from his conviction for a drug distribution felony. Upon his release, he was given, as a matter of regular course, a "Certificate of Unconditional Release" which contained a restoration of civil rights, whose effect is a major issue in this case. Several months later, Tomlinson was stopped and searched by two Raleigh city police officers. He was found to be carrying, concealed under his coat, a pistol-grip twelve-gauge shotgun with an 18 inch barrel that was manufactured by the Mossberg Company and marketed as its Model 500A "Persuader." It was not adapted for firing from the shoulder because it lacked a stock. The gun was advertised by its manufacturer as a "security" weapon and could be purchased over the counter in a variety of retail outlets in North Carolina.

Tomlinson was indicted by a federal grand jury for violating 18 U.S.C. Sec. 922(g)(1). As noted above, Sec. 922(g)(1) prohibits "any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" from possessing a firearm in interstate commerce. The predicate, "convicted," is, in turn, defined--or, rather, qualified--in Sec. 921(a)(20), which provides in part: "Any conviction ... for which a person ... has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. Sec. 921(a)(20).

Tomlinson moved before trial to dismiss the indictment on the basis that as a matter of law his possession was lawful in North Carolina. Specifically, his contention was that under Fourth Circuit precedent, state law determines which, if any, weapons an ex-felon with civil rights restored may lawfully possess and that under the North Carolina Felony Firearms Act, N.C.Gen.Stat. Sec. 14-415.1,3 possession of a firearm such as Tomlinson's, which had a barrel length of at least eighteen inches and an overall length of at least twenty-six inches, might lawfully be possessed by him as an ex-felon.

The Government's response was to file a superseding indictment alleging that in addition to the gun, Tomlinson was in possession of five rounds of twelve-gauge ammunition in violation of Sec. 922(g)(1). Tomlinson then moved again to dismiss, generally reiterating the above argument, and in addition noting that the Firearms Act does not in any way restrict the possession of ammunition. The Government then filed a response to the new motion to dismiss. In it the Government argued for the first time that Tomlinson's gun, the Mossberg, was a "weapon of mass death and destruction" and thus was prohibited from possession by an ex-felon under N.C.Gen.Stat. Sec. 14-415.1, notwithstanding that it met the statutory length requirements. Under North Carolina law, "weapons of mass death and destruction" include:

Any type of weapon (other than a shotgun or a shotgun shell of a type particularly suitable for sporting purposes) which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter.

N.C.Gen.Stat. Sec. 14-288.8. According to the Government, Tomlinson's gun was not a "shotgun" (because it could not be accurately aimed or fired from the shoulder), nor was it "particularly suitable for sporting purposes."

A hearing on Tomlinson's motion to dismiss was held. On the key question whether the firearm was, within the meaning of N.C.Gen.Stat. Sec. 14-288.8, a "weapon of mass death and destruction," the district court ultimately sided with the Government. An order was entered denying the motion to dismiss:

[I]n view of the "whole of North Carolina law," United States v. McLean, 904 F.2d 216, 218 (4th Cir.1990) the pistol grip Mossberg twelve-gauge, 500A "Persuader" shotgun, classified as a "security" weapon by its manufacturer, discovered beneath the defendant's coat is a "weapon of mass destruction" and not suited for sporting purpose. As such, its possession was illegal, even by the defendant whose civil rights had been restored following a drug conviction. See also N.C.Gen.Stat. Secs. 14-415.1(a). J.A. 95.4

After further defense motions focusing primarily on the mass death and destruction issue were made and denied, the case was tried to a jury in September 1993. At trial, the Government presented three witnesses, all law enforcement officers, who testified variously that Tomlinson possessed the gun in question, that the gun was a Mossberg twelve-gauge shotgun, and that Tomlinson previously had been convicted of a crime punishable by imprisonment for a term exceeding one year.

Following the testimony of the Government's last witness, an agent with the Bureau of Alcohol, Tobacco and Firearms (ATF), defense counsel conducted a voir dire examination of this witness outside the presence of the jury. During this examination, the ATF agent concurred with defense counsel's proposition that Tomlinson could not have known that the firearm he carried was a "weapon of mass death and destruction" since no court had so held and the Mossberg was sold over the counter throughout the state and nation.

The district court agreed. "It's obvious he didn't know. Nobody had so ruled. There's no way the defendant could have known." J.A. 245. The court added, however, that "I don't know that his knowledge [ ] of the weapon is [ ] integral to his commission of the offense." Id.

At the conclusion of the evidence, the district court instructed the jury:

The word "knowingly", as that term [i]s used from time to time in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident.

....

For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following elements beyond a reasonable doubt. First, that the defendant knowingly possessed a firearm as charged. The term firearm means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive.... Second, that before the defendant possessed the firearm, the defendant had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, that is, a felony offense.

....

The mere possession of a firearm by a person convicted in any court of a crime punishable by imprisonment for a term exceeding one year is a violation of the laws of the United States. It is not necessary for the government to prove that the defendant knew that the weapon in his possession was a "firearm" within the meaning of the statute, or that he knew his possession of that firearm was in violation of the law.

J.A. 263-66. Prior to the giving of these instructions, the defendant objected, arguing that the court should additionally charge that "the government is required to prove that Mr. Tomlinson knew, or a reasonable person would have known, that this firearm was a weapon of mass destruction." J.A. 256. The objection was overruled.5

The jury convicted Tomlinson; the judge sentenced him to fifteen years imprisonment.

This appeal followed.

Staples v. United States, --- U.S. ----, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994), interpreted a firearms registration provision, 26 U.S.C. Sec. 5861(d), which criminalizes, without any express scienter requirement, possession of a particular kind of unregistered firearm, a "machinegun."6 Staples held that an implicit scienter element of this statutory offense was knowledge that the firearm possessed had the features that made it a "machinegun" under the statutory definition. Id. at ----, 114 S.Ct. at 1804 ("[T]o obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his [firearm] that brought it within the scope of the Act.").

The instant case does not involve a violation of that statute, but rather of 18 U.S.C. Sec. 922(g)(1), which prohibits a convicted felon from possessing any firearm "in or affecting interstate commerce." Unlike the statute at issue in Staples, the Sec. 922(g)(1) offense has an express "knowledge" requirement, via its penalty provision, Sec. 924(a)(2),7 though it is not explicit as to everything the defendant must have "known." See United States v. Langley, 62 F.3d 602, 604-05 (4th Cir.1995) (en banc). In holding that when a statute prohibiting possession of a particular kind of firearm contains no express knowledge requirement, a general scienter requirement must be implied that includes knowledge of the firearm's particular criminalizing nature, Staples surely must be read to require the same where the statute contains an express knowledge requirement, as does Sec. 922(g)(1) via Sec. 924(a)(2). Section 922(g)(1) does not, however, by its own terms apply, as did the statute at issue in Staples, only to a particular type of firearm, but to all types. But, the Staples scienter requirement must nevertheless apply to the prosecution at issue here because of an interplay of state and federal statutes that does, by incorporation of state law in the federal offense, make conviction turn under the circumstances on the nature of the firearm possessed. This comes about in the following way. A predicate element of the Sec. 922(g)(1) offense is the defendant's status as a convicted "felon." The relevant definition statute, 18 U.S.C. Sec. 921(a)(20) provides, in effect, that felony convictions which otherwise would qualify, are not convictions if, as to them, the defendant has had his "civil rights restored." But, the statute then includes an exception to this exception: despite any such restoration, the conviction remains a conviction if the restoration "expressly provides that the person may not ship, transport, possess or receive firearms." Determining which part of Sec. 921(a)(20) applies--the initial exception to Sec. 922(g)(1) or the succeeding provision that trumps the exception--necessarily requires resort to state "restoration" law. As it turns out, under North Carolina's Felony Firearms Act a convicted felon is prohibited from possessing some, but not all firearms; hence an ex-felon may or may not have "convicted" status under Sec. 921(a)(20) depending upon the particular type possessed.8 Among those types whose possession is forbidden is the type the district court held to have been possessed here: a "weapon of mass ... destruction."

Here then, the question is whether Staples, by necessary implication, requires that when in a prosecution under Sec. 922(g)(1) a defendant's status as a convicted felon turns, under state law pertaining to restoration of civil rights, on his possession of a particular type of firearm, the Government must prove, under appropriate instructions, not only that he possessed such a firearm, but that he did so knowing of its particular nature. We hold that this is the necessary implication of Staples, and that, as the Government has conceded, we must reverse and remand for a new trial because of the district court's error in failing so to instruct.9 For purposes of a Sec. 922(g)(1) prosecution, when a defendant's status as a convicted felon turns on the possession of a particular type of firearm, a jury must be instructed that a defendant is not a convicted felon if, despite possessing such a firearm, he did not know it had the particular nature on which his "convicted" status turns. We emphasize, however, that this does not mean knowledge that, as a matter of law, the firearm was, as defined in the North Carolina statute, a "weapon of mass death and destruction," but only knowledge of those facts that bring the firearm within that legal definition. Here, that means, see N.C.Gen.Stat. Sec. 14-288.8, only the fact that the Mossberg "Persuader" (1) would "expel a projectile by the action of an explosive" (i.e., would fire shotgun pellets by triggering a shotgun cartridge); (2) had a "barrel with a bore of more than one-half inch in diameter;" and (3) critically, was not a shotgun "of a type particularly suitable for sporting purposes." See Staples, --- U.S. at ---- - ---- n. 3, 114 S. Ct. at 1805-06 n. 3 (Ginsburg, J., concurring in judgment) ("the mens rea presumption requires knowledge only of the facts that make the defendant's conduct illegal, lest it conflict with the related presumption, deeply rooted in the American legal system, that, ordinarily, 'ignorance of the law or a mistake of law is no defense to criminal prosecution' "); United States v. Ballentine, 4 F.3d 504, 505-6 (7th Cir.1993) (in prosecution under 18 U.S.C. Sec. 922(g)(2) for receipt of a firearm while a fugitive from justice, government need prove only knowledge of facts that created fugitive status, not knowledge that that legal status existed).

For the reasons stated above, we hold that the district court erred in failing to instruct that to convict Tomlinson under Sec. 922(g)(1)--based on his possession of a firearm that makes him ineligible for protection under Sec. 921(a)(20)--he must have known of the firearm's disqualifying features. We therefore vacate Tomlinson's conviction and remand for a new trial if the Government chooses to re-prosecute.

VACATED AND REMANDED.

Today, the majority commits two fundamental errors in reaching its conclusion that the government must, in a Sec. 922(g)(1) prosecution, prove that the defendant had knowledge of the characteristics of the firearm he or she possessed when the "defendant's status as a convicted felon turns on the possession of a particular type of firearm." Ante at 514. Because this additional evidentiary burden, one not heretofore recognized by this court or any other, has no place in the operation of Sec. 922(g)(1), and because the majority's decision is inconsistent with our recent en banc decision in United States v. Langley, 62 F.3d 602 (4th Cir.1995) (en banc), I respectfully dissent.

The first fundamental error in the majority's decision is its conclusion that Sec. 922(g)(1) contains an "element" requiring the government to prove that the defendant knew the characteristics of the firearm he or she possessed when the "defendant's status as a convicted felon turns on the possession of a particular type of firearm." Ante at 514. Section 922(g)(1) contains no such element; a short discussion of the operation of Sec. 922(g)(1) will so illustrate.

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; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Thus, to prove a Sec. 922(g)(1) violation, the government must prove three elements beyond a reasonable doubt: "(1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence." Langley, 62 F.3d at 606.1

When the prior felony relied upon by the government is a state offense, a subsidiary question arises under the felony status element of Sec. 922(g)(1) which requires a court to look to state law. This is so because Sec. 921(a)(20) provides that a felony conviction which would otherwise qualify as such is not a felony conviction if, as to that particular conviction, the defendant has had his "civil rights restored." We have said the effect of the restoration of rights provision of Sec. 921(a)(20) on the felony status element of Sec. 922(g)(1) is to "exclude[ ] from the definition of a predicate offense any conviction for which the defendant has had his civil rights, including the right to carry a firearm, restored." United States v. Thomas, 52 F.3d 82, 84 (4th Cir.1995).

Whether a state felony conviction is a felony conviction for purposes of Sec. 922(g)(1) is determined in accordance with "the law of the jurisdiction in which the proceedings were held." 18 U.S.C. Sec. 921(a)(20). Thus, to determine whether a defendant's civil rights have been restored under state law, we examine "the whole of [state] law." United States v. McLean, 904 F.2d 216, 218 (4th Cir.), cert. denied, 498 U.S. 875, 111 S. Ct. 203, 112 L. Ed. 2d 164 (1990). Under North Carolina law, an ex-felon is prohibited from possessing a "weapon of mass death and destruction." See N.C.Gen.Stat. Secs. 14-415.1 and 14-288.8.2

When the prior state felony conviction can be excluded from the definition of felony conviction under Sec. 921(a)(20), the government bears the evidentiary burden of proving "independently the additional fact that [the defendant's] civil rights ha[ve] not been restored." Thomas, 52 F.3d at 85. For example, in United States v. Essick, 935 F.2d 28 (4th Cir.1991), the defendant's prior state felony conviction occurred more than five years before the defendant's possession of the firearm that formed the basis of the Sec. 922(g)(1) charge. Id. at 29. North Carolina law provided that a defendant's civil rights were not restored if the defendant possessed a firearm within five years of his or her conviction or unconditional discharge from probation or parole, whichever occurred later. Id. at 30. Because the prior state felony conviction could have been excluded from the definition of felony conviction under Sec. 921(a)(20)--there was no evidence that the firearm was possessed within five years of the defendant's conviction or unconditional discharge from probation or parole, we required the government to prove the "continuing vitality of the conviction," i.e. that the defendant's civil rights had not been restored. Id. at 31.

But when the prior state felony conviction cannot be excluded from the definition of felony conviction under Sec. 921(a)(20), the government is not required to prove the "additional fact" that the defendant's civil rights have not been restored. Thomas, 52 F.3d at 85. For example, in Thomas, Thomas was arrested for possession of a firearm within one year of his conviction for a state felony. Under North Carolina law, Thomas' civil right to possess a firearm could not have been restored because five years had not elapsed since his prior state felony conviction. Id. at 84. Because Thomas' prior state felony conviction "could not have ... been excluded from the definition of predicate offense under 18 U.S.C. Sec. 921(a)(20), the government did not have the burden of proving independently the additional fact that Thomas' civil rights had not been restored." Id. at 85.

From the interplay between Sec. 922(g)(1) and Sec. 921(a)(20), the majority reaches a rather remarkable conclusion: the government must prove that the defendant had knowledge of the characteristics of the firearm he or she possessed when the "defendant's status as a convicted felon turns on the possession of a particular type of firearm." Ante at 514. This conclusion is premised on the notion that Tomlinson's civil rights were restored under North Carolina law if he had no knowledge of the characteristics of the firearm that brought the firearm within the definition of a "weapon of mass death and destruction." The critical fact the majority ignores in reaching its conclusion is that because the firearm at issue was a "weapon of mass death and destruction" under North Carolina law, Tomlinson's felony conviction could not have been excluded from the definition of felony conviction under Sec. 921(a)(20). Therefore, the government was not required to prove the additional fact that Tomlinson's civil rights had not been restored under North Carolina law because the "continuing vitality" of Tomlinson's prior state conviction could not meaningfully be challenged. Essick, 935 F.2d at 31; Thomas, 52 F.3d at 85. Thus, the only questions for the district court to instruct and for the jury to answer, were whether the government proved, beyond a reasonable doubt, that Tomlinson knowingly possessed the firearm after he committed the prior state felony and "the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence." Langley, 62 F.3d at 606. Because the jury in this case was properly instructed as to the elements of Sec. 922(g)(1), I see no reason to disturb the district court's judgment.3

Contrary to the majority's decision, the district court was not required to instruct the jury that the government had to prove that Tomlinson had knowledge of the characteristics of the firearm which brought the firearm within the definition of a "weapon of mass death and destruction" under North Carolina law. Such an instruction is inconsistent with the mechanics of Sec. 922(g)(1) described above, as the defendant's knowledge of the characteristics of the firearm possessed is irrelevant in a Sec. 922(g)(1) prosecution. Indeed, to my knowledge, no court has ever required the government to prove knowledge of the characteristics of a firearm in a Sec. 922(g)(1) prosecution. The reason for this dearth of authority is readily apparent--Sec. 922(g)(1) prohibits the possession of all firearms, regardless of the firearm's characteristics. In light of the language employed by Congress in Sec. 922(g)(1), it is highly unlikely that Congress intended for the government, under any circumstances, to shoulder the burden of proving knowledge of the characteristics of the firearm in a Sec. 922(g)(1) prosecution.4

The second fundamental error in the majority's decision is that the decision runs afoul of our recent en banc decision in Langley. In Langley, we held, with respect to the felony status element, the government need not establish that the defendant had knowledge of his felony status, but rather need only prove the defendant was convicted of a prior felony. Langley, 62 F.3d at 605-07. Here, the majority engrafts onto the felony status element a requirement that "when a defendant's status as a convicted felon turns on the possession of a particular type of firearm, a jury must be instructed that a defendant is not a convicted felon if, despite possessing such a firearm, he did not know it had the particular nature on which his 'convicted' status turns." Ante at 514. Because Langley rejected the notion that proof of knowledge applied to the felony status element, the majority's decision is inconsistent with our decision in Langley.

For these reasons, I respectfully dissent.