Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Patrick W. KEGLEY, Defendant-Appellant.

No. 90-30261.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1991.Decided March 18, 1991.

Appeal from the United States District Court for the District of Idaho; No. CR-90-0007-MJC, Harold L. Ryan, Chief District Judge, and Marion J. Callister, Senior District Judge, Presiding.

D. Idaho

AFFIRMED.

Before JAMES R. BROWNING, EUGENE A. WRIGHT and FARRIS, Circuit Judges.


MEMORANDUM* 

Kegley, a convicted felon, was found in possession of a firearm and charged with violating 18 U.S.C. § 922(g) (1) (1988) as a convicted felon in possession of a firearm. He argues that because his prior conviction was discharged under Washington law, he is not a convicted felon for purposes of Sec. 922(g) (1).

* Prior to the filing of the indictment in this case, Kegley was convicted of felony possession of marijuana in violation of Wash.Rev.Code Sec. 69.50.401 (1989). Upon completion of his sentence, he received a discharge from probationary supervision by the Washington Department of Corrections. After he moved to Idaho, federal agents entered his residence and seized 14 firearms, including at least two pistols. He was indicted under 18 U.S.C. § 922(g) (1) (1988) for being a convicted felon in possession of a firearm. He moved to dismiss the indictment, arguing that his state discharge meant he was not a person "convicted" within the meaning of the federal statute. The court denied the motion, finding Kegley was still "convicted" because Washington had not restored his civil rights.

At trial, he sought to introduce his discharge into evidence. The court admitted it only for record purposes because the impact of the discharge on his prior conviction was an issue of law. His proposed jury instruction defining the legal effect of his discharge was also rejected. He appeals his conviction.

II

We review de novo the district court's decision not to dismiss the indictment because it rests on interpretation of a federal and a state statute, which is a question of law. See United States v. Gomez, 911 F.2d 219, 220-21 (9th Cir. 1990).

Section 922(g) (1) makes it unlawful, inter alia, for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess any firearm or ammunition that has been shipped or transported in interstate commerce. For purposes of this chapter,

[w]hat 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 purposes 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) (20) (1988).

The first sentence of the "conviction" definition indicates that Congress intended state law to control whether a felon is subject to prosecution under Sec. 922(g). Gomez, 911 F.2d at 220. The second sentence requires a two-part analysis of the nature of a state's restoration of rights. See id. at 220-21. We look first to see whether the state restored the felon's civil rights. If so, we look to see whether it expressly limited those rights regarding firearms. Id.

Congress did not articulate the quantity of rights that must be restored for purposes of Sec. 921(a) (20). United States v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990). Restoration must be more than de minimis, id., but need not be complete. Gomez, 911 F.2d at 220. To determine whether the civil rights were restored sufficiently, we look to the "whole of the state law." Id.

In Gomez, we found that Idaho law restored the felon's civil rights within the meaning of Sec. 921(a) (20). Id. at 221. We relied primarily on the Idaho restoration statute and the fact that Idaho allows convicted felons to vote and to serve on a jury. Id. Although Washington also gives convicted felons the right to vote and to perform jury service, the restoration statute differs significantly from Idaho's. It states in pertinent part:

The discharge shall have the effect of restoring all civil rights lost by operation of law upon conviction, and the certificate of discharge shall so state. Nothing in this section prohibits the use of an offender's prior record for purposes of determining sentences for later offenses as provided in this chapter. Nothing in this section affects or prevents use of the offender's prior conviction in a later criminal prosecution either as an element of an offense or for impeachment purposes. A certificate of discharge is not based on a finding of rehabilitation.

Wash.Rev.Code Sec. 9.94 A. 220 (1989) (emphasis added).

The statute restores a felon's rights more narrowly than does Idaho's. It also authorizes the use of the conviction in the manner contemplated by the government here.1  We hold that Kegley was "convicted" for purposes of Sec. 922(g) because Washington did not restore his rights within the meaning of Sec. 921(a) (20). Because of our holding, we do not reach the issue of whether the restoration expressly prohibited his possessing firearms.

III

Kegley argues that whether his civil rights were fully restored and whether that restoration was a defense are factual issues, which should have gone to the jury.2  We disagree. Whether he was "convicted" within the meaning of the statute was a legal question. See United States v. Keller, 912 F.2d 1058, 1061 (9th Cir. 1990). The district court did not err in failing to submit the question to the jury. Nor did it err in declining to give Kegley's proposed jury instruction. Questions of law are for the court not a jury to resolve. E.g., id.

The judgment is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Washington has a companion statute that requires a felon to go through a two-step process to restore further rights. Wash.Rev.Code 9.9 A. 230 (1989). Neither party contends that Kegley has completed this process. Even if he had, the statute allows the use of the conviction in subsequent prosecution

Kegley argues this two-step process is equivalent to an affirmative act we rejected in Gomez, 911 F.2d at 221. In Gomez, we rejected the argument that Sec. 922(g) could be read to require additional steps other than those imposed by the state restoration statute. Here, the two-step process is an integral part of the restoration process under Washington law. Section 922 does not dictate how states must restore rights.

 2

The state interprets Kegley's argument as a mistake of law defense. He cannot prevail on this theory. Violation of Sec. 922(g) is a general intent crime, requiring only that the defendant act knowingly. United States v. Sherbondy, 856 F.2d 996, 1002 (9th Cir. 1988). Ignorance or mistake of law is not a defense. Id