United States District Court, E.D. Tennessee, Knoxville Division
MEMORANDUM AND ORDER
Bradley Hefner, objects to Magistrate Judge Poplin's
Report and Recommendation [D. 59], which recommends that Mr.
Hefner's motions to dismiss the Indictment [D. 30] and
the Superseding Indictment [D. 48] be denied. For the
following reasons, Mr. Hefner's objections [D. 61] is
overruled, the Report and Recommendation is accepted in
whole, and the motions to dismiss the Indictment and
Superseding Indictment are both denied.
Hefner was indicted on August 21, 2018, for one count of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) [D. 3]. On December 21, 2018, Mr.
Hefner filed a motion to dismiss the Indictment for failure
to state an offense [D. 30]. Judge Poplin held a hearing
regarding this motion (and a separate motion to
suppress) on January 18, 2019 [D. 37].
superseding indictment was later filed on February 20, 2019,
again charging Mr. Hefner on one count under §
922(g)(1), and on another count, for willfully receiving a
firearm while under indictment for a felony, in violation of
18 U.S.C. § 922(n) [D. 41]. (Both charges relate to the
same firearm.) After the Superseding Indictment was filed,
Mr. Hefner filed another motion to dismiss that indictment,
arguing the Government's decision to bring an additional
charge was vindictive, in violation of his Fifth Amendment
right to due process [D. 48].
Poplin filed a Report and Recommendation, recommending that
both motions to dismiss the indictment be denied [D. 59]. Mr.
Hefner raised his objection in a timely manner, and the issue
is now ripe for decision. Both motions are addressed in this
Order; the standard of review for each is de novo. 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Crim. P. 59(b)(2).
MOTION TO DISMISS: FAILURE TO STATE OFFENSE
original Indictment charged Mr. Hefner on one count, for
knowingly possessing a firearm, in interstate commerce,
“having previously been convicted in a court of a crime
punishable by a term of imprisonment exceeding one
year” [D. 3]. He admits a prior conviction, but argues
that he cannot be charged under Count One, because he had his
rights restored after serving his sentence for the prior
Hefner pled guilty in Minnehaha County, South
Dakota on November 24, 2008, to one count of second degree
burglary [D. 30-2]. He was sentenced to eight years in
prison, but the sentence was suspended, provided that he
comply with certain conditions [Id.]. Approximately
one year later, he violated those conditions; the court
revoked his suspended sentence, and Mr. Hefner went to prison
[D. 30-3]. He completed his sentence, and was released on
June 7, 2016 [D. 30-4]. Upon discharge, he was
“restored to the full rights of citizenship subject to
the provisions of SDCL [S.D. Codified Laws] 22-14-15 and SDCL
Hefner eventually came to Tennessee. On July 8, 2018, an
officer with the Sevier County Sheriff's Department
recovered a loaded Taurus 9 millimeter pistol from Mr.
Hefner's vehicle. At the scene, the officer ran a felony
check, which revealed the prior South Dakota conviction
[see D. 58, pp. 3-4]. As a result, he was indicted
on August 21, 2018, on one count for violating 18 U.S.C.
§ 922(g)(1) [D. 3].
Hefner challenges the sufficiency of this indictment. Section
922(g)(1) 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,
transport, possess, or receive a firearm. A “crime
punishable by imprisonment for a term exceeding one
year” does not include a conviction which has been
expunged, set aside, pardoned, or for which the person has
had their civil rights restored, unless the pardon,
expungement, or restoration “expressly provides that
the person may not ship, transport, possess, or receive
firearms.” 18 U.S.C. § 921(a)(20). This final
provision is known as the “unless clause.” Mr.
Hefner's argument is simple: Count One should be
dismissed because he had his rights restored, and since his
Certificate of Discharge does not “expressly
provide” that he may not possess a firearm, his
restoration is not excepted by the unless clause.
Sixth Circuit first interpreted this clause in U.S. v.
Cassidy, 899 F.2d 543 (1990). The defendant had been
convicted in Ohio for trafficking marijuana, a crime
punishable by a prison term greater than one year.
Id. at 544. When he was released from prison, the
defendant received a “Restoration to Civil
Rights” certificate, which restored “the rights
and privileges forfeited by his conviction; namely the right
to serve on juries and to hold office of honor, trust, or
profit.” Id. The Government later charged him
in federal court under § 922(g)(1), with the prior
marijuana conviction serving as the predicate felony. Since
the defendant's Restoration Certificate was silent
concerning firearms, the district court found there was no
express limitation on the defendant's firearm privileges
as defined by § 921(a)(20). Id. at 545 n. 5.
Accordingly, it held the § 922(g)(1) charge should be
reach this conclusion, the district court rejected the
argument that an independent Ohio statute, which restricted
firearm privileges for convicted felons, was an
“express limitation” within the meaning of §
921(a)(20). Id. The Sixth Circuit reversed, holding
that the “unless clause” can be triggered even if
the express restriction on firearms privileges is contained
outside the statutory provision or certificate that confers
the restoration of rights. Id. at 545 n. 5, 550, n.
years later, the Supreme Court took up § 921(a)(20) in
Caron v. U.S., 524 U.S. 308 (1998). Federal agents
had seized rifles and shotguns at the defendant's home,
and because he had prior felonies, he was charged on four
counts under § 922(g)(1). The district court initially
enhanced his sentence under 18 U.S.C. § 924(e)(1),
because he was at least a three-time “violent
felon”-that is, he had at least three prior convictions
for crimes “punishable by imprisonment for a term
exceeding one year” under § 922(g)(1).
Id. at 311.
of these prior convictions were in Massachusetts (there was
another in California) Id. at 310-11. Under
Massachusetts law, the defendant could not possess handguns
as a convicted felon, but he could possess rifles and
shotguns; the Indictment only charged him with possessing the
latter. Id. at 311. The defendant argued the
enhancement should not apply because he had his rights
restored with respect to his right to possess rifles and
district court first ruled against the defendant because it
held that his rights had not been restored in Massachusetts.
Id. After the First Circuit reversed this decision
(finding his rights had in fact been restored), the district
court ruled in the defendant's favor on remand, because
the handgun restriction did not apply to the defendant, who
had rifles and shotguns in his possession that he was
permitted to possess under state law. Id. at 311-12.
The First Circuit then reversed, and the case went to the
Supreme Court. Id.
justice majority ruled in the Government's favor,
adopting what it called an “all-or-nothing”
interpretation of the “unless clause.” Under this
approach, if the State forbids any type of firearm,
the “unless clause” is triggered, regardless of
whether the defendant in a given case is prohibited from
shipping, transporting, possessing, or receiving the
particular firearm at issue. Id. at 314-15. The
Court acknowledged this approach “creates
incongruities, ” but found that adopting the
defendant's position would contradict a “likely,
and rational, congressional policy.” Id. at
Sixth Circuit later applied this holding to a related federal
statute in U.S. v. Sanford, 707 F.3d 594 (6th Cir.
2012). The defendant had two prior domestic assault
convictions in Michigan, and was later discovered in
possession of multiple firearms. Id. at 595. Because
of the prior domestic assault convictions, a federal grand
jury indicted the defendant under 18 U.S.C. § 922(g)(9),
which makes it unlawful for anyone who has been convicted in
any court of a “misdemeanor crime of domestic
violence” to ship, transport, possess, or receive a
§ 921(a)(20) defines a “crime punishable by
imprisonment for a term exceeding one year, ” §
921(a)(33)(B)(ii) provides that a person shall not be
considered to have been convicted of a “misdemeanor
crime of domestic violence” if they have had their
civil rights restored from the prior conviction,
unless the restoration of civil rights
“expressly provides that the person may not ship,
transport, possess, or receive firearms.” The defendant
in Sanford had his rights restored, but under
Michigan law, his prior domestic assault convictions made him
ineligible for a concealed weapons permit. Sanford,
707 F.3d at 596. The Government argued the defendant's
ineligibility for a permit restricted his ability to
“transport” a firearm, thereby triggering the
domestic violence equivalent of the “unless
Sixth Circuit agreed with the Government, saying it was
“compell[ed]” to reach this conclusion based on
the holding in Caron. Id. There were two
relevant distinctions between the Massachusetts law in
Caron and the Michigan law in Sanford, but
the court found neither distinction was material.
Id. at 597. Ultimately, because the defendant
“did not have the same freedom to transport his firearm
as a Michigan citizen without a domestic assault record,
” his prior domestic assault convictions were
considered predicate offenses for a charge under §
in this case, if Mr. Hefner does not have the same freedom to
“ship, transport, possess, or receive” a firearm
as a South Dakota citizen without a prior felony, then his
prior South Dakota conviction may serve as the predicate
offense for a charge under § 922(g)(1).
South Dakota Firearms Restrictions
mentioned above, the Certificate of Discharge provided that
Mr. Hefner was “restored to the full rights of
citizenship” upon his release, subject to the
provisions of two South Dakota statutes, S.D. Codified Laws
§§ 22-14-15 and 22-14-15.1 [D. 30-4]. The first
statute makes it illegal for anyone convicted of a
“crime of violence” or certain enumerated drug
felonies to possess or have control of a firearm, while the
second statute provides that the firearm restrictions only
apply for five years in certain cases. See Id. The
Government concedes these statutes do not apply to Mr.
Hefner's prior burglary conviction [D. 34, p. 2].
South Dakota law provides that a permit to carry a concealed
pistol shall be issued within five days of application,
if the applicant “has never...been convicted
of a felony[.]” S.D. Codified Laws § 23-7-7.1(2).
The applicant may appeal the denial of an application, but
the statute contains no time limitation or exception that
would otherwise allow a convicted felon to obtain a concealed
carry permit at a later date.
decisions have already solved most of this statutory puzzle,
and this Court simply has to snap the final few pieces into
the Certificate of Discharge does indicate Mr. Hefner is
restored to his full rights of citizenship, subject only to
two South Dakota laws (which do not apply to him). But
Cassidy instructs the Court to view the whole of
state law, and not just the Certificate, when deciding if a
defendant's rights have been restored under §
because of his felony, Mr. Hefner is not eligible for a
concealed carry permit under South Dakota law. Under
Caron, the mere fact that state law prohibited him
from obtaining a concealed carry permit could trigger the
“unless clause, ” regardless of whether Mr.
Hefner actually needed a concealed carry permit to at the
time he (allegedly) possessed the firearm in this case.
Sanford applies Caron and holds that a law
prohibiting someone with a prior domestic violence conviction
from obtaining a concealed carry permit will trigger the
“unless clause” in an identically worded statute,
and Sanford compel this Court to hold that a South
Dakota law prohibiting previously convicted felons from
obtaining a concealed carry permit triggers the “unless
clause” of § 921(a)(20). Thus, the Government may
charge Mr. Hefner for violating § 922(g)(1), because he
has been convicted of a “crime punishable by
imprisonment for a term exceeding one year, ” as that
phrase is interpreted in precedential opinions. Judge
Poplin's recommendation is hereby adopted on this issue,
and Mr. Hefner's first motion to dismiss the indictment
MOTION TO DISMISS: VINDICTIVE PROSECUTION
months after the original Indictment was filed, a grand jury
returned a Superseding Indictment against Mr. Hefner [D. 41].
Count One of the original Indictment and the Superseding
Indictment is the same. The later Indictment simply adds a
new charge in Count Two, alleging that Mr. Hefner willfully
received a firearm while under indictment for a felony, in
violation of 18 U.S.C. § 922(n). Mr. Hefner argues the