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United States v. Hefner

United States District Court, E.D. Tennessee, Knoxville Division

June 21, 2019



         Defendant, 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.

         I. BACKGROUND

         Mr. 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[1]) on January 18, 2019 [D. 37].

         A 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].

         Judge 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).


         The 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].[2] 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 conviction.

         a. Relevant Facts

         Mr. Hefner[3] 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 22-14-15.1” [Id.].

         Mr. 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].

         b. Applicable Law

         Mr. 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[4] a firearm, his restoration is not excepted by the unless clause.

         i. Case Law

         The 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 dismissed. Id.

         To 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. 15.

         A few 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.

         Three 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 shotguns. Id.

         The 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.

         A six 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 315.

         The 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 firearm.

         Just as § 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 clause.” Id.

         The 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 § 922(g)(9). Id.

         Accordingly, 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).

         ii. South Dakota Firearms Restrictions

         As 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].

         Elsewhere, 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.

         c. Application

         Prior decisions have already solved most of this statutory puzzle, and this Court simply has to snap the final few pieces into place.

         First, 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 § 921(a)(20).

         Second, 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, § 921(a)(33)(B)(ii).

         Caron 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 is denied.


         Six 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 Superseding ...

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