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UNITED STATES v. WHITE

December 2, 1992

UNITED STATES OF AMERICA
v.
TIMOTHY WAYNE WHITE



The opinion of the court was delivered by: THOMAS A. WISEMAN, JR.

MEMORANDUM

 I.

 The Defendant has moved to dismiss the indictment. The Defendant argues that the facts alleged in the indictment do not constitute a violation of 18 U.S.C. § 922(g)(1) because he is not, for the purposes of § 922(g)(1), a "convicted" felon. The Defendant contends that he is not a convicted felon under § 922(g)(1) because Tennessee has restored his civil rights and because Tennessee statutes do not prohibit him from possessing a firearm.

 For the reasons stated below, this Court DENIES the Defendant's motion to dismiss.

 II.

 A.

 18 U.S.C. § 922(g)(1) prohibits "a person convicted in any court of a crime punishable by imprisonment for a term exceeding one year" from possessing a firearm. 18 U.S.C. § 921(a)(20) limits the convictions which may qualify as "punishable by imprisonment for a term exceeding one year" under 18 U.S.C. § 922(g)(1):

 
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for the purpose of this chapter unless such 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)(2) (1976) (emphasis added).

 The Sixth Circuit has recently discussed the meaning of this statute. In United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990), the Sixth Circuit held that under § 921(a)(20), a federal court should look to state law to determine whether an individual should be subject to federal firearms disabilities by virtue of a prior criminal conviction. Id. at 546. Under § 921(a)(20), a felon may be immune from an 18 U.S.C. § 922(g)(1) violation because of a restoration of civil rights if "state law has restored civil rights to a felon, without expressly limiting the felon's firearms privileges." Cassidy, 899 F.2d at 546; accord United States v. Driscoll, 970 F.2d 1472, 1475-76 (6th Cir. 1992).

 In Cassidy, the Court expressly defined which "civil rights" must be restored by the state in order for a felon to fall under the exception within 18 U.S.C. § 921(a)(20). The Cassidy Court recognized that Congress had not listed a precise statement indentifying those rights. However, the Court stated that the use of the words "civil rights" as opposed to "all rights and privileges" indicated that Congress intended "to emcompass those rights accorded to an individual by virtue of his citizenship in a particular state." Cassidy, 899 F.2d at 549. These rights include "the right to vote, the right to seek and hold public office and the right to serve on a jury." Id.; accord Driscoll, 970 F.d at 1476.

 Once a court determines that those three civil rights have been restored, it moves on to the second step in its determination. It inquires as to whether the state has expressly limited the felon's firearms privileges. The court looks not only to the document, if any, given to a felon upon his release, but to the whole of state law to see if there is a limitation on his firearms privileges. Cassidy, 899 F.2d at 546. If there is any limitation on the felon's right to possess any type of firearm because of his conviction, he is subject to federal firearms disabilities. See Driscoll, 970 F.2d at 1480-81.

 In Cassidy, the Court found that although the felon's three relevant civil rights had been restored, that his firearms privileges had nevertheless been restricted by the State of Ohio. Ohio law prohibits a felon from carrying a firearm if the felon has previously been convicted of a drug-related crime. Ohio Rev. Code § 2923.13. The only way a felon can overcome this "disability" is to apply to the court of common pleas in the county where he resides. Ohio Rev. Code § 2923.14. Since the Defendant in Cassidy had not done so, his firearms rights were still restricted ...


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