United States v. Ronald Driscoll

NATHANIEL R. JONES,

Circuit Judge, dissenting.

Because I believe that Driscoll should prevail on three of the issues he raised, before this Court, I must respectfully dissent.. I would hold that Driscoll did not violate 18 U.S.C. § 922 (g)(1) (1988), .that the district court’s flat refusal to allow him access to the police officers’ personnel files was error, and that the district court erred in refusing to give a jury instruction on the operability of the firearm involved in this case. My reasons are as follows.

I

The first count of Driscoll’s indictment charged him with violating 18 U.S.C. § 922 (g), which reads, in pertinent part, that: “[i]t shall be unlawful for any person — (1) who has been convicted in any court of[ ] a crime punishable by imprison-' ment 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.” Id. Driscoll argues that, because he is not a “convicted person” for purposes of § 922(g)(1), his conviction under that section cannot stand. Driscoll points out that 18 U.S.C. § 921 (a)(20) (1988) defines a conviction of the sort discussed in § 922(g)(1) to exclude, inter alia, convictions' “for which a person has been pardoned or has had civil rights restored ... unless such pardon ... 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). Driscoll contends that, because Michigan law restores convicted persons’ civil rights upon their release from imprisonment, he is not a convicted person and, therefore, is not barred from carrying a firearm under § 922(g)(1).

This court considered a similar argument in connection with Ohio law in United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990). The Cassidy court focused on Congress’s additional mandate in § 921(a)(20): “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.” 18 U.S.C. § 921 (a)(20); see Cassidy, 899 F.2d at 545 . After considering this text in conjunction with § 922(g)(1), the court held

that Congress intended that courts refer to state law to determine whether an individual should be subject to -federal firearms disabilities by virtue of a criminal conviction. If state law has restored civil rights to a felon, without expressly limiting the felon’s firearms privileges, that felon is not subject to federal firearms disabilities.

Cassidy, 899 F.2d at 546 . Thus, under Cassidy ,

if a “convicted felon” has his civil rights restored by operation of state law, with or without a certificate or order documenting the event, we must look to the whole of state law of the state of conviction to determine whether the “convicted felon” is entitled to vote, hold public office and serve on a jury and also whether the “convicted felon” is entitled to exercise the privileges of shipping, transporting, possessing or receiving a firearm.

Id. at 549 .

The only federal court of appeals to consider Michigan law under these circumstances has been the Ninth Circuit, in United States v. Dahms, 938 F.2d 131 (9th Cir.1991). The Ninth Circuit followed Cas-sidy in determining whether Michigan law restored Dahms’ civil rights upon his release from imprisonment. See id. at 133 . The court referred to sections 168.758b, 168.938, and 600.1307a of the Michigan Compiled Laws, which revoke a felon’s *1487 right to vote, to hold office, and to be a juror, respectively, during the time he is serving his sentence. Dahms, 938 F.2d at 134 nn. 1-3. “Once incarceration has ended, however, these rights are restored automatically by the force of the very laws that suspend them.” Id. at 134 .

The United States concedes that Michigan law automatically restores a felon’s right to vote and right to hold office upon his release from imprisonment, and the majority acknowledges this as well. The majority finds, however, that Michigan law does not restore the right to serve on a jury. This holding is based on the majority’s reading of the Michigan Court Rules, which provide that conviction of a felony is grounds for a challenge for cause against a prospective juror. Mich.Ct.R. 2.511(D)(2). The government reads this rule in conjunction with Rule 6.412(D)(2), which incorporates the grounds listed in Rule 2.511(D) by reference, and provides that “[i]f, after the examination of any juror, the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.” Mich.Ct.R. 6.412(D)(2). Reaching the conclusion that a convicted felon may, therefore, never properly serve on a jury, the majority holds that the right is not restored to convicted persons after release, and cites for support a line of Michigan cases which hold, for example, that a court is required “to excuse a juror whenever a challenge for cause clearly falls within one of the enumerated grounds.” E.g., People v. Lamar, 153 Mich.App. 127 , 395 N.W.2d 262, 265 (1986).

I disagree with the majority’s reasoning. Rule 2.511(D) provides that “[t]he parties may challenge jurors for cause.” Mich.Ct.R. 2.511(D) (emphasis added). If neither party in a civil suit challenges a convicted person’s presence on the jury, that person may serve on the jury. The cases cited by the majority hold only that when a challenge is made, if the basis for the challenge is listed in Rule 2.511(D), the court must excuse the challenged juror. See Lamar, 395 N.W.2d at 265 . Rule 6.412(D)(2), cited by the government as requiring the court to dismiss such jurors sua sponte, applies only to criminal cases and, moreover, as the commentary to that rule notes, “the court’s duty to discharge a juror for cause sua sponte is directive (‘should’) rather than mandatory or permissive.” Mich.Ct.R. 6.412(D)(2) staff comment (emphasis added). This distinction is quite logical, given that the general purpose of allowing parties to challenge jurors for cause is to weed out potentially biased jurors, see Lamar, 395 N.W.2d at 265 ; a convicted felon is more than likely to have a bias against the criminal justice system, whereas the same would not be true of a felon in a civil case.

Finally, as the majority acknowledges, one of the grounds for dismissal listed in Rule 2.511(D) is that the person “is not qualified to be a juror.” Mich.Ct.R. 2.511(D)(1). The qualifications for a juror are listed in section 600.1307a of the Michigan Compiled Laws Annotated, and are concerned with competency. One must be a citizen of the United States, at least eighteen years of age, conversant in English, and physically and mentally capable of fulfilling the duties of a juror, for example, to be qualified to be a juror in Michigan. Mich.Comp. Laws Ann. § 600.1307a(1)(a)-(c). This section also states clearly that one may “[n]ot be under sentence for a felony at the time of jury selection.” Id. § 600.1307a(1)(e) (emphasis added). This requirement is the only one pertaining to a felon’s competency that the Michigan legislature imposed. A strong argument exists that, if the court rules restrict a convicted felon’s right to serve on a jury after his release, the rules are unconstitutional under the Michigan Constitution as violative of the separation of powers. In any event, if a conviction made one “unqualified” to be a juror, even after release, under the laws of Michigan — as does being under the age of eighteen, for example, Mich.Comp. Laws Ann. 600.1307a(l)(a)) — there would be no need to list conviction as a separate ground. To interpret the provision otherwise renders Rule 2.511(D)(2) redundant. Therefore, although a convicted person’s right to sit on a jury may be limited, I *1488 would hold that -Michigan law does restore that right to such persons automatically after the period of incarceration is over. See Dahms, 938 F.2d at 134 .

Given that Michigan law restores a convicted person’s civil rights upon release from imprisonment, the only remaining question is whether Michigan law expressly prohibits such a person from shipping, transporting, possessing, or receiving firearms. See 18 U.S.C. § 921 (a)(20). Driscoll was convicted of carrying a short-barrelled shotgun. Michigan law, at the time relevant to this appeal, restricted a convicted person’s right with respect to firearms only as follows:

A person shall not purchase, carry,. or transport a pistol without first having obtained a license therefor as prescribed in this section.... A license shall not be granted under this section to any person unless the applicant meets all of the following: ... (c) [h]as not been convicted of a felony or has not been incarcerated as a result of a felony conviction in this state or elsewhere during the 8-year period immediately preceding the date, of application.

Mich.Comp.Laws § 28.422 (1989). The majority agrees with the Tenth Circuit, see United States v. Burns, 934 F.2d 1157 (10th Cir.1991), that the above restriction, although it is only a specific limitation rather than a total ban on a convicted person’s right to own firearms, triggers a complete federal ban on that person’s right.

The Ninth Circuit’s holding in Dahms is the better one, I believe, and I would hold, like the Ninth Circuit, that if Michigan law does not restrict a felon’s right to own the type of firearm found in his possession, then the “unless” clause of § 921(a)(20) is not triggered. The Ninth Circuit relied on this circuit’s opinion in Cassidy in determining that it must defer to state law with respect to the federal firearms privileges of persons convicted in that state. Dahms, 938 F.2d at 135 . Thus, our own precedent compels the conclusion reached by the Dahms court: “To apply § 922(g)(1) and conclude that [defendant’s] right to possess any firearm was restricted under federal law because the state restricted his possession of a pistol would undermine the explicit deference to state law in § 921(a)(20).” Id. Accordingly, I would reverse the district court’s decision on this issue.

II

Driscoll also argues that the district court erred in denying him access to the personnel files of the arresting officers who testified as witnesses at his trial. Contrary to the majority, I agree that the district court erred.

Driscoll claims that he needed the files to impeach the officers at trial, because the only evidence against him was their testimony. He and his cousin testified at trial that they were inside an apartment when the officers burst in and arrested them. Driscoll also claimed that he had never seen the firearm before. Because the prosecution’s case pitted the officers’ testimony against that of Driscoll and his cousin, the officers’ credibility was a crucial factor in the case. Driscoll contends that he should have been given access to the officers' personnel files so that he could present an adequate defense, effectively .cross-examine the officers, and attack their credibility in the same manner in which they were able to attack his.

Driscoll cites Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) in support of his argument. In Brady , the Supreme Court held that the United States is obligated to disclose evidence that the defense can use to impeach a government witness. Id. at 87 , 83 S.Ct. at 1196 . Although I recognize that “the Brady rule is not an evidentiary- rule which grants broad discovery powers to a defendant and that ‘[t]here is no general constitutional right to discovery in a criminal case,’ ” United States v. Todd, 920 F.2d 399, 405 (6th Cir.1990) (quoting Weatherford v. Bursey, 429 U.S. 545, 559 , 97 S.Ct. 837, 845 , 51 L.Ed.2d 30 (1977)), I nonetheless believe that the law requires courts to protect a defendant’s right to due process by making certain that the prosecution meets its obligation “to turn over evidence in its possession that is both favorable to the *1489 accused and material to guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 57 , 107 S.Ct. 989, 1001 , 94 L.Ed.2d 40 (1987). In United States v. Phillip, 948 F.2d 241 (6th Cir.1991), ce rt. denied, — U.S. -, 112 S.Ct. 1994 , 118 L.Ed.2d 590 (1992), this circuit acknowledged that only where the disclosure of evidence is reasonably likely to produce a different result in the trial is that evidence material. Id. at 249. The court went on to say that “information withheld by the prosecution is not material unless the information consists of, or would lead directly to, evidence admissible at trial for either substantive or impeachment purposes.” Id.

If the arresting officers’ personnel files contained evidence that would cast doubt on their credibility, there is a reasonable probability that the outcome of Driscoll’s trial might have been different. I am also convinced that Driscoll was at an unfair disadvantage, in that the prosecution emphasized the officers’ credibility, and Dris-coll was unable to rebut these remarks. Therefore, to balance the importance of a defendant’s due process rights against the recognition that a defendant does not have a right to unlimited discovery, I would again follow the lead of the Ninth Circuit. In a case on all fours with the instant case, United States v. Henthorn, 931 F.2d 29 (9th Cir.1991), the Ninth Circuit held that a defendant seeking Brady materials for impeachment purposes is not required to make an initial showing of materiality to have his case remanded for an in camera inspection of the materials in question. Id. at 31. The Henthorn holding is contrary to the Seventh Circuit’s decision in United States v. Andrus, 775 F.2d 825, 842-43 (7th Cir.1985), upon which the majority relies. I believe the Henthorn approach more evenly balances the opposing concerns involved. Therefore, I would remand this case to the district court for an in camera inspection of the officers’ personnel files, to determine if any evidence material to Driscoll’s guilt— that is, evidence that would undermine the officers’ credibility — is contained therein.

Ill

Finally, I disagree with the majority on Driscoll’s challenge to the district court’s refusal to give a jury instruction on whether the firearm he was charged with possessing was readily restorable. Driscoll was charged with violating 26 U.S.C. § 5861 (d), which makes it unlawful for anyone to “receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861 (d) (1988). Dris-coll argues that, because the prosecution did not prove that the firearm was operable, it failed to prove that the weapon he allegedly possessed was a “firearm.”

A “firearm,” for purposes of § 5861(d), is defined, inter alia, as “a shotgun having a barrel or barrels of less than 18 inches in length.” 26 U.S.C. § 5845 (a) (1988). A “shotgun,” in turn, is defined, in pertinent part, as “any such weapon which may be readily restored to fire a fixed shotgun shell.” 26 U.S.C. § 5845 (d) (1988). Dris-coll contends that the jury should have been charged to find that he was not in possession of a “firearm” if the weapon he was accused of carrying was not readily operable. Because the stock of the weapon involved in this case was broken when the officers found it, Driscoll argues that it was not readily operable — or, at a minimum, that the jury should have determined whether or not it was.

“The standard on appeal for a court’s charge to the jury is whether the charge, taken as a whole, fairly and adequately submits the issues and applicable law to the jury.” United States v. Martin, 740 F.2d 1352, 1361 (6th Cir.1984). I think it is clear that the issue of whether the weapon Driscoll was charged with possessing was a “firearm” was an issue for the jury. By not instructing the jury on that issue, the district court invaded the province of the jury. The prosecution should have been required to prove that the weapon was, in fact, “readily restorable.” The district court’s observance that Driscoll had not offered testimony that the firearm was unserviceable is irrelevant; the defendant’s failure to testify on an issue does not relieve the prosecution of its burden of proving the elements of the crime beyond a *1490 reasonable doubt. Thus, I would hold that the district court abused its discretion in refusing to give the requested jury instruction.