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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID BARRY, )
) Court of Appeals No. A-5860
Appellant, ) Trial Court No. 1JU-94-953 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1494 - October 17, 1996]
______________________________)
Appeal from the Superior Court, First Judicial
District, Juneau, Larry R. Weeks, Judge.
Appearances: Thomas G. Nave, Juneau, for
Appellant. Thomas E. Wagner, Assistant Dis-
trict Attorney, Richard A. Svobodny, District
Attorney, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
David Barry was convicted of criminally negligent
homicide, AS 11.41.130(a), for a homicide committed while he was
driving drunk. Barry was sentenced to 5 years' imprisonment with
3 years, 3 months suspended. As one of Barry's conditions of
probation, Superior Court Judge Larry R. Weeks prohibited Barry from
possessing any firearm. Barry now challenges this condition of
probation. We affirm the superior court's decision.
Barry brings a two-pronged attack against Judge Weeks's
decision to forbid him from possessing firearms. First, Barry
argues that Judge Weeks's action was based on a misunderstanding of
federal law. Judge Weeks imposed the probation condition under the
assumption that federal law prohibits all convicted felons from
possessing firearms of any type. (EN1) Barry asserts that Judge
Weeks was mistaken þ that federal law does not in fact prohibit
Barry from possessing firearms. The second part of Barry's argument
depends upon the first: assuming that federal law does not prohibit
Barry from possessing firearms, Barry argues that the circumstances
of his case do not support the superior court's decision to bar him
from possessing firearms. See Roman v. State, 570 P.2d 1235, 1240
(Alaska 1977) (conditions of probation "must be reasonably related
to the rehabilitation of the offender and the protection of the
public", and they "must not be unduly restrictive of [the probation-
er's] liberty").
The first part of Barry's argument is wrong: federal law
does in fact prohibit him from possessing firearms. The federal
statute at issue is 18 U.S.C. sec. 922. Under subsection (g)(1) of
this statute, it is 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 or transport in interstate or foreign
commerce, or possess in or affecting commerce,
any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
Barry admits that any firearm and ammunition he might
possess would have come to Alaska through interstate or foreign
commerce. However, Barry relies on Tot v. United States, 319 U.S.
463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), and United States v. Bass,
404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), for the
proposition that 18 U.S.C. sec. 922(g) was not intended to punish
felons' possession of firearms per se, but only to punish a felon's
act of shipping, transporting, or receiving firearms in a commercial
context (that is, while the felon was participating in commerce).
Barry particularly relies on the following passage from Bass:
[18 U.S.C. sec. 922(g)] apparently does not
reach posssessions ... at all, even those with
an interstate commerce nexus, but is limited to
the sending or receiving of firearms as part of
interstate transportation.
404 U.S. at 342-43, 92 S.Ct. at 520 (footnote omitted).
Barry's argument has two flaws. First, even though the
Bass Court indicated that the 1968 version of 18 U.S.C. sec. 922(g)
did not prohibit a felon from posssessing a firearm that had been
transported in interstate commerce, the Court at the same time held
that another federal statute, 18 U.S.C. app. sec. 1202(a) (1970)
(repealed 1986), did prohibit felons from possessing such weapons.
(EN2)
The Bass Court interpreted Section 1202(a) as prohibiting
a felon's possession or receipt of any firearm "in commerce or
affecting commerce". 404 U.S. at 346 n.14, 92 S.Ct. at 522 n.14.
The Court then added a "final word"
about the nexus with interstate commerce that
must be shown in individual cases [under 18
U.S.C. app. sec. 1202(a)]. ... [A] person
"possesses [a firearm] in commerce or affecting
commerce" if at the time of the offense the gun
was moving interstate ... or if the possession
affects commerce. Significantly broader in
reach, however, is the offense of "receiv[ing]
[a firearm] in commerce or affecting commerce",
for we conclude that the Government [proves
this element] if it demonstrates that the
firearm received has previously traveled in
interstate commerce.
Bass, 404 U.S. at 350, 92 S.Ct. at 524 (emphasis added) (footnote
omitted).
The second flaw in Barry's argument is that 18 U.S.C.
sec. 922 has been substantially amended since 1971 (when Bass was
decided). The statute, quoted above, now specifically forbids a
felon from "receiv[ing] any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce". We also
note that a related subsection of the same statute, 18 U.S.C.
sec. 922(d)(1), makes it unlawful for any person "to sell or
otherwise dispose of any firearm or ammunition to any person knowing
or having reasonable cause to believe that such person ... has been
convicted in any court of, a crime punishable by imprisonment for
a term exceeding one year".
The current statute manifests a clear Congressional intent
to prevent felons from taking possession of either a firearm or
ammunition that has moved through interstate commerce. See Ball v.
United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985),
where the Supreme Court held that a convicted felon who stole a
handgun from a friend's car could be convicted of violating
18 U.S.C. sec. 922 (the government having proved that the handgun
was previously shipped in interstate commerce).
As an alternative argument, Barry asserts that felony
probationers in Alaska are not subject to the restrictions of
18 U.S.C. sec. 922 because, upon their release from actual
incarceration, probationers are considered to have their civil
rights restored to them. Under 18 U.S.C. sec. 921(a)(20), "[a]ny
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".
However, under Alaska law, defendants on probation or
parole can not serve as jurors. See Singleton v. State, Opinion No.
1475 (Alaska App., July 5, 1996), slip opinion at 5. (EN3) This
disqualification means that, for purposes of federal firearms laws,
Barry's civil rights have not been restored.
In United States v. Andaverde, 64 F.3d 1305 (9th Cir.
1995), cert. denied, ___ U.S. ____, 116 S.Ct. 1055, 134 L.Ed.2d 199
(1996), the Ninth Circuit rejected an argument similar to Barry's
and held that a felon could be convicted under 18 U.S.C. sec. 922(g)
for possessing a shotgun even though state law allowed him to
possess this weapon:
Andaverde first argues that, because
Washington state law did not prohibit him from
possessing a shotgun, he should be considered
as having had his civil rights restored.
Therefore, Andaverde contends, his conviction
is not a conviction for sec. 922(g)(1)'s
purposes.
Andaverde is incorrect. In determining
whether a felon continues to suffer a civil
rights disability, the Ninth Circuit considers
whether the felon has been restored the right
to vote, sit on a jury, and hold public office.
United States v. Meeks, 987 F.2d 575, 578 (9th
Cir.), cert. denied, 510 U.S. 919, 114 S.Ct.
314, 126 L.Ed.2d 261 (1993); United States v.
Dahms, 938 F.2d 131, 133 (9th Cir. 1991).
Andaverde contends that this restoration
analysis should turn on whether state law
restores the right to bear arms. Even if, in
determining whether a felon's civil rights have
been restored, the court should look to state
law giving felons the right to bear arms, the
restoration of this single right does not
prevent prosecution under sec. 922(g)(1). A
restoration of rights must be "substantial,"
not merely de minimis. Meeks, 987 F.2d at 578;
Dahms, 938 F.2d at 133. We held in Meeks that,
under Missouri law which allowed convicted
felons to vote and hold office, but which did
not restore the right to serve on a jury, to
hold office as a sheriff, or to be a highway
patrol officer, the defendant had not had his
civil rights "substantially restored" and thus
could be prosecuted under sec. 922(g)(1).
Meeks, 987 F.2d at 578. In contrast, the Dahms
court ruled that a defendant who had been
restored the right to vote, hold public office,
and serve on a jury had had his rights substan-
tially restored within the meaning of sec.
921(a)(20). Dahms, 938 F.2d at 134.
Under Washington state law, a felon's
civil rights are restored in full when he
completes the requirements of his sentence and
is thereby discharged. Wash.Rev.Code
sec. 9.94A.220. However, until a felon is
discharged, state law prevents him from serving
on a jury, holding public office, and voting.
Wash.Rev.Code sec.sec. 2.36.070(5) (Supp.1995),
29.65.010(3); Wash. Const. Art. 6, sec. 3.
There is no evidence in the record that Andave-
rde has been discharged. Andaverde thus
substantially lacked civil rights when he was
prosecuted under sec. 922(g)(1). Cf. Dahms,
938 F.2d at 134. Therefore, the district court
did not err in ruling that he could be prose-
cuted under that statute.
Andaverde, 64 F.3d at 1309-1310 (footnotes omitted). Under the
authority of United States v. Andaverde and United States v. Meeks
(discussed in the quoted portion of Andaverde), we hold that Barry's
civil rights were not restored for purposes of the federal firearms
laws when Barry was released on probation.
Thus, federal law forbids Barry from possessing any
firearm or ammunition that has moved through interstate commerce.
Even if the superior court had not imposed a special condition of
probation addressed to firearms, Barry would still be prohibited
from possessing a firearm under the normal condition of probation
requiring him to obey all federal laws. The special condition of
probation that Barry attacks is essentially redundant.
Moreover, even if federal law did not forbid Barry from
possessing firearms, the record supports the superior court's
decision to impose the challenged condition of probation. Barry was
convicted of killing another person while driving drunk þ that is,
Barry became intoxicated and demonstrated criminal negligence with
regard to the risk that his conduct might kill someone. When a
defendant is convicted of such a crime, a sentencing court's
decision to prohibit the defendant from possessing firearms during
the period of his or her probation is, almost by definition,
"reasonably related to the protection of the public". Roman, 570
P.2d at 1240.
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. In contrast, Alaska's prohibition on firearm possession by
convicted felons extends only to concealable firearms.
AS 11.61.200(a)(1).
2. 18 U.S.C. app. sec. 1202(a), a portion of the 1968 Omnibus
Crime Control and Safe Streets Act, declared:
Any person who ... has been convicted by a court of
the United States or of a State or any political
subdivision thereof of a felony ... and who receives,
possesses, or transports in commerce or affecting
commerce ... any firearm shall be fined not more than
$10,000 or imprisoned for not more than two years, or
both.
(quoted in Bass, 404 U.S. at 337, 92 S.Ct. at 517.)
3. Some felons are also disqualified from voting. Under
AS 15.05.030(a) and AS 33.30.241(a), a person convicted of a felony
"involving moral turpitude" is disqualified from voting until his
or her unconditional discharge. As defined in AS 15.60.010(8),
"felony involving moral turpitude" includes those crimes
which are immoral or wrong in themselves such as murder,
sexual assault, robbery, kidnapping, incest, arson,
burglary, theft, and forgery.
Barry was convicted of criminally negligent homicide. The State
does not argue that Barry's crime is a "felony involving moral
turpitude" under AS 15.60.010(8). We therefore do not reach this
issue.
