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Facts of the pending case:
Fact: Defendent John Doe was convicted in the state of Louisiana for
forgery in 1992. He served 2 years probation and completed his
probation in 1994.
Fact: Upon completion of his probation, defendent John Doe had his
civil rights restored by the Louisiana state constitution Article, 1
Section, 20. Note: It has been determined by the 5th circuit court of
appeals that restoration of civil rights under Article, 1 Section, 20
qualifies as restoring civil rights essentially under 18 U.S.C. 921
(a) (20). See United. States v. Dupaquier, 74 F.3d 615, 617-19 (5th
Cir. 1996))).
Fact: Defendent John Doe was a first offender so he also recieved a
conditional state pardon fromLouisiana when he completed his sentence.
See La. Const. Art. 4 Section 5 (E) (1)
Note: It has not yet been determined by the 5th circuit court of
appleals if this pardon qualifies as a pardon under 18 U.S.C. 921 (a)
(20). It is simply unknown what this pardon does for the purpose of
exempting a prior conviction from being a predicate offense under 18
U.S.C. 922 (g) (1).
Fact: Defendent John Doe is not prohibited by the state of Louisiana
from possessing a firearm under any circumstances. The state law La.
RS 14:95.1 which prohibits felons convicted of "certain" felonies for
a period of 10 years from date of completion of sentence does not
apply to John Doe because (1) his conviction for forgery is not
outlined or enumerated in RS 14:95.1 and (2) an otherwise 10
restriction on John Doe's right to possess firearms under said law,
expired at the time he came into possession of the firearm.
Additionaly, John Doe's state pardon does not restrict his right to
possess a firearm.
Fact: In 2005 John Doe was found in possession of a firearm and
indicted for violating 18 U.S.C. 922 (g) (1). John Doe was
subsequently convicted in the federal court for the Western District
of Louisiana and sentenced. Following his conviction, John Doe now
seeks to appeal his conviction on the grounds that he was not a
convicted felon for the purpose of 18 U.S.C. 922 (g) (1). John Doe's
contention rests on the fact that his civil rights were essentially
restored under Article,1 Section, 20 of the Louisiana constitution and
he was not prohibited by the restoration law or any other procedure of
the state. John Doe relies on United States v. Dupaquier, 74 F.3d
615, 617-19 (5th Cir. 1996) in support of his argument where the 5th
circuit court of appeals held that Dupaquier was not a convicted felon
for the purpose of 18 U.S.C. 922 (g) (1) because (1) his civil rights
were essentially restored under the state constitution and (2) he was
not prohibited from possessing a firearm by the restoration law or any
other procedure of the state. The court held:
"As we have found that the Louisiana Constitution restored
essentially all of Dupaqier's civil rights upon completion of his
sentence on July 14, 1980, and the statutory restriction on his
right to possess firearms terminated on July 14, 1990, we hold that
Dupaquier was not a convicted felon within the meaning of sections
921(a)(20) and 922(g)(1) at the time of the alleged conduct on
August 8, 1990. His conviction on count one must therefore be
reversed."
Note: 18 U.S.C. 922 (g) (1) is the federal statute that prohibits
felons from possessing firearms who have been convicted of a crime
that carries a sentence exceeding one year.
18 U.S.C. 921 (a) (20) is the federal statute that defines conviction
for the purpose of 921 (a) (20). It states:
Enacted "to give federal effect to state statutes that fully
`restore' the civil rights of convicted felons where they are
released from prison . . . .," section 921(a)(20) defines
conviction of a crime for purposes of section 922(g)(1). Thomas,
991 F.2d at 209. Section 921(a)(20) provides that
[w]hat constitutes a conviction of such crime shall be
determined in accordance with the law of the jurisdiction in
which the proceedings were held. Any conviction . . . for
which a person has . . . been pardoned or had civil rights
restored shall not
be considered a conviction for purposes of this chapter,
unless such . . .pardon or restoration of civil rights expressly
provides that the person may not . . . possess . . . firearms.
Ok now having laid out all the facts. Is United States v. Dupaquier
controlling in John Doe's case? Bear in mind that Dupaquier was not a
first offender so he did not have the first offender pardon such as in
John Doe's case. But other than that the two relevant facts in
Dupaquier are exactly the same in John Doe's case. Also as noted
above, it is not really know if the first offender pardon as provided
by Louisiana qualifies as a pardon under 18 U.S.C. 921 (a) (20). If
it does then Dupaquier is of no concern. If it doesn't however and
the fact that John Doe recieved the pardon and Dupaqiuer didn't, does
that distinquish the two cases to such a degree that Dupaquier isn't
controlling? My opinion is that if the pardon does not qualify under
921 (a) (20) as a pardon, and since it does not restrict John Doe's
right to possess a firearm either, then it is not a fact that is
essential in the determination of weather John Doe is guilty or
inocent. It is not a relevant fact because it has no bearing on John
Doe's case and therefore does not distinquish the two cases.
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On 17 Apr 2008, <kristinvandoran@yahoo.com> repetitively said/asked,
in substance, but still without answering the interjected questions
below the answers to which are needed intelligently to evaluate the
_actual_ questions <kristinvandoran@yahoo.com> appears to be trying
to ask:
[ Doe was convicted in Louisiana of forgery in 1992.
He completed his sentence of probation in 1994
and, as first offender, received a conditional state
pardon pursuant to La. Const. Art. 4, Sect. 5(E)(1). ]
Are you referring to the "first offender . . . shall be pardoned
automatically" language of the cited La. constitutional provision
(which does not mention anything about "condition[s]") and, if so,
what do you mean by "conditional pardon"?
If you refer to a pardon other than an unconditionally "pardoned
automatically" one referred to above, what are the "condition[s]" the
pardon in question specifies or to which it refers?
Was the "forgery" offense of which Doe was convicted a "felony" or a
"misdemeanor" (or other lesser than "felony" penal offense) as defined
by La. law?
Regardless what the particular La. sentence imposed on Doe was,
including if only of probation, was "forgery" offense of which he was
convicted made "punishable" by a prison term of no more than two
years?
[ No facts applicable to Doe qualify the application
to him of the La. Const. Art. 1, Sect. 20, mandate
that "[f]ull rights of citizenship shall be restored
upon termination of state and federal supervision
following conviction for any offense" including that
no La. court or La. state agency has prohibited him
from possessing a firearm under any circumstances. ]
To what if any extent is it not accurate to say, IOW (as you seemed to
have indicated even if not sufficiently clearly in your earlier
postings), both (i) that the pardon and restoration of rights of Doe
to which you refer did not in any way provide that he may not ship or
transport or receive or possess a firearm and (ii) that no state or
federal law enforcement officer and no federal court has disputed what
is stated in "i" of this question?
[ In 2005 Doe was found in possession of a firearm
and indicted for violating 18 U.S.C. 922(g)(1) which
federally criminalizes possession of a firearm by any
person "who has been convicted in any court of a
crime punishable by imprisonment for a term exceeding
one year" and he eventually was convicted and
sentenced by a La. U.S. district court despite the
above summarized facts and despite the further fact
that 18 U.S.C. 921(a)(20), the "Definition[al]" conditions
which prescribe how the substatantive "Unlawful acts"
languge of 18 U.S.C. 922(g)(1) shall be interpreted and
applied, directs that "[t]he term 'crime punishable by
imprisonment for a term exceeding one year' does not
include . . . any State offense classified by the laws
of the State as a misdemeanor and punishable by a term
of imprisonment of two years or less" . . . ]
As noted, because you have yet to answer the questions posed here in
ways you say are applicable to Doe, you prevent a reader of your
postings about him from determining intelligently whether the above
quoted definition applies to him.
[ The language of 18 U.S.C. 921(a)(20) immediately following
that quoted above also/further states:
"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. 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."
Assuming that the above lays out all the pertinent
facts of Doe's case, does United States v. Dupaquier,
74 F.3d 615 (5th Cir. 1996), require that his conviction
and sentence be set aside if there is still time to move
for that relief in the district court or be reversed on
appeal if there is still time for him to appeal? ]
It would not be accurate to make the here requested factual assumption
at least not until you have answered fact specifically all the
questions summarized here.
In addition, because you have not yet sufficiently answered those
questions, you relatedly continue to prevent knowing the answers to
these questions:
1. Was Doe a La. first offender convicted of an La crime
classified as a misdemeanor and punishable by a term of imprisonment
of two years or less re. which he was pardoned and had his full civil
rights restored?
2. If an unqualified "Yes" is not the correct answer to Q.1
immediately above, did whatever the U.S. federal district court ruled
in sustaining his conviction by sentencing him require (at least in
effect if the judge did not address this issue explicitly) an exercise
of statutory construction of 18 U.S.C. 921(a)(20) that would directly
or in effect impute or decline to impute to the last sentence from
that provision quoted above (i.e., the one beginning, "[a]ny
conviction . . . ") the words "such offense" that do not appear in
that sentence but which do appear in the immediately preceding one
(i.e., the language that establishes that the preceding sentence
refers to a "misdemeanor" and so not to a "felony" that is not
"punishable" in the applicable state [here, La.] by a more than two
year prison term)?
You appear to be correct that Dupaquier does not address (much less
answer clearly) a scenario covered by Q.2 above because the facts of
Dupaquier apparently are closer to those covered by Q.1 than to Q.2
above -- what perhaps a reader of your numerous postings might guess
you are trying to get at by your repeated if somewhat confused musings
about the scope, standing alone, of the "pardoned" and "restoration of
civil rights" language of Sect. 921(a)(20) -- so that you appear in/by
your present and past postings to be dancing around what you are
trying to say/ask when you say that you do "not really know if the
first offender pardon as provided by Louisiana qualifies" without more
"as a pardon under 18 U.S.C. 921(a)(20)" for the purposes of requiring
a vacatur of Doe's conviction and sentence.
An additional reason not to make the assumption you do above (i.e.,
that you "hav[e] laid out all the [pertinent/operative] facts" of
Doe's case) is that you have not reported (let alone quoted) what
rationale(s) the federal prosecutor argued and also what the U.S.
federal district judge ruled provided reason to convict/sentence Doe
after (as you do seem to imply occurred) taking Dupaquier into
account.
You are of course free to continue to make newsgroup postings of the
sort you've so far posted, but you are not likely to elicit anything
close to meaningful analysis unless (as has in effect been suggested
earlier) you address/answer in an actually fact particularized manner
the questions/issues summarized above.
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