|
stated in the original post that John Doe was convicted in federal
court for possession of a firearm by a convicted felon in violation of
18 U.S.C. 922 (g) (1). I did not mean to state that. I meant to
state that he was indicted for violating the federal statute and his
trial was still pending and seeks to have the indictment dismissed. I
also added some facts for clarity.
Facts of the pending case:
Fact: Defendent John Doe was convicted as a first offender in the
state of Louisiana for
forgery in 1992. The offense was a felony punishable by a term of
imprisonment
exceeding one year. He served 2 years probation and completed his
probation in 1994. John Doe has no other felony convictions or
convictions which carry a term
of imprisonment exceeding one year in any other state or federal
jurisdiction.
Fact: Louisiana has two seperate provisions of forgiveness extended
to felons when they complete their sentence. The first is a provision
under Article,1 Section, 20 of the Louisiana constitution which
provides:
"full rights of citizenship shall be restored upon termination of
state and
federal supervision following conviction for any offense".
This law is automatic and requires no action from the offender.
The second is the first offender pardon Art. 4 Section 5 (E) (1) which
provides: Pardon, Commutation, Reprieve, and Remission; Board of
Pardons. (1) The governor may grant reprieves to persons convicted of
offenses against the state and, upon favorable recommendation of the
Board of Pardons, may commute sentences, pardon those convicted of
offenses against the state, and remit fines and forfeitures imposed
for such offenses. However, a first offender convicted of a non-
violent crime, or convicted of aggravated battery, second degree
battery, aggravated assault, mingling harmful substances, aggravated
criminal damage to property, purse snatching, extortion, or illegal
use of weapons or dangerous instrumentalities never previously
convicted of a felony shall be pardoned automatically upon completion
of his sentence, without a recommendation of the Board of Pardons and
without action by the governor. The effects of this
pardon has been deminished over time by the Louisiana state supreme
court. The court has held in numerous case that this particular
pardon does not erase stutus of conviction. see
State v. Wiggins, 432 So.2d 234 (La. May 23, 1983) (No. 82-KA-0474).
The court has also held that this pardon does not restore a felon to
inocense. See
State v. Adams, 355 So.2d 917, 922 (La. Mar 06, 1978) (No. 60651). It
has also held that
the first offender pardon does not restore the right to sit on a
jury. See
State v. Haynes, 19158-KA (La.App. 2 Cir. 10/28/87), 514 So.2d 1206.
Note: Article, 1 Section, 20 restoration of civil rights and the first
offender pardon are two
seperate laws that operate independently of each other. The first
offender pardon is provided
only to first offenders as noted above. Article,1 Section, 20 however
restores civil rights to
convicted felons for any number of offenses. So it is possible for a
first offender in
Louisiana to recieve some relief from conviction under both laws.
Fact: La. RS 14:95.1 prohibits felons convicted of "certain" felonies
from possessing firearms for 10 years. RS 14:95.1 provides: The
provisions of this Section prohibiting the possession of firearms and
carrying concealed weapons by persons who have been convicted of
certain felonies shall not apply to any person who has not been
convicted of any felony for a period of ten years from the date of
completion of sentence, probation, parole, or suspension of sentence.
Note: This statute
enumerates felonies for which a felon can not possess a firearm for
ten years. They include:
Solicitation of murder
=95 First degree murder
=95 Second degree murder
=95 Manslaughter
=95 Aggravated battery
=95 Second degree battery
=95 Aggravated assault
=95 Mingling harmful substances
=95 Aggravated rape
=95 Forcible rape
=95 Simple rape
=95 Sexual battery
=95 Aggravated sexual battery
=95 Oral sexual battery
=95 Aggravated oral sexual battery
=95 Intentional exposure to AIDS virus
=95 Aggravated kidnapping
=95 Second degree kidnapping
=95 Simple kidnapping
=95 Aggravated arson
=95 Aggravated criminal damage to property
=95 Aggravated burglary
=95 Armed robbery
=95 First degree robbery
=95 Simple robbery
=95 Purse snatching
=95 Extortion
=95 Assault by drive-by shooting
=95 Aggravated crime against nature
=95 Carjacking
=95 Illegal use of weapons or dangerous instrumentalities
Fact: Upon completion of his probation, defendent John Doe had his
civil rights automatically 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 the
first offender pardon (mentioned above) from Louisiana when he
completed his sentence.
John Doe recieved a certificate that stated:
And it further appearing that the defendant has completed his sentence
and meets all
requirements of an automatic first offener pardon, as outlined in Art.
4 Section 5 (E) (1),
this will certify and proclaim that John Doe is fully pardoned for the
offense above stated
and that all rights of citizenship and franchize are restored in
Louisiana. The pardon does
not expressly prohibit John Doe from possessing a firearm. It is
totally silent to any firearm
restrictions.
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) because the Louisiana supreme court has limited
it's effects and thus is not a full unconditional pardon.
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. So even
if John Doe's offense was outlined RS 14:95.1, this statute of
limitation
had already expired at the time John Doe possessed the firearm.
Additionaly, John Doe's state pardon does not restrict his right to
possess a firearm as noted above.
Fact: In 2005 John Doe was found in possession of a firearm and
indicted for violating 18 U.S.C. 922 (g) (1) and his trial in federal
district court for the western district of Louisiana is now pending.
John Doe argues that his state felony conviction is not a predicate
offense under 18 U.S.C. 922 (g) (1).
His 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 restor
|
| |
| |
To kristinvandoran@yahoo.com re. your earlier postings in this and
related threads:
Contrary to you saying again that you have "laid out all the facts"
pertinent to a pending federal gun possession prosecution against the
John Doe to whom you referred earlier, you continue have not to have
done so because you persist in not reporting what, fairly stated, is
the prosecutor's theory (and, if s/he has stated or at least indicated
any, what is the assigned U.S. district judge's theory) of how and why
-- if the facts you have posted are accurate (as I presume they are)
-- the language in 18 U.S.C. 920(a)(20) that "[a]ny conviction . . .
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 . . . or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or receive
firearms" does not, standing alone (i.e., on its face), does not bar a
prosecution of Doe pursuant to Sect. 922(g)(1) (or, if you prefer to
formulate your question this way, how/why, despite the facts about Doe
you have so far posited, not only Dupaquier [74 F.3d 615] but also
Dupaquier's predecessor decisions including in other circuits and also
progeny decisions in the 5th circuit do not require a dismissal of
what you have so far said is the only federal charge against Doe).
Possibly -- it remains unfortunate that your factual vagueness in this
connection relegates a reader of your postings to "possibly"s
conjecture about the prosecutor's theory (and also about why you seem
to imply that the assigned judge has not at least suggested a
dismissal) in the face of the facts you have so far reported about Doe
-- one might guess that the prosecutor may claim that La. Rev'd. Stat.
14:95.1 qualifies both the cumulative pardons you said were afforded
John Doe by sub-sect. (C)(2) of that statute providing to the effect
(the prosecutor may be trying to argue?) that, apart and independent
from Doe not having been earlier convicted of any of the enumerated
felonies re. which the La. ten-year ban against possessing a firearm
applies, and even though a person (that is to say: every person, thus
including Mr. Doe) who had been convicted of felony in La. "shall have
the right to apply . . . for a permit to possess firearms" and that
such person "shall be entitled to possess the firearm" if s/he has
been issued such a permit, that -- the La. constitutionality provided
for pardons afforded Doe notwithstanding -- possessing a firearm
without a permit in La. (as you seem to imply was what Mr. Doe did) by
any/every person convicted of a felony is unlawful in La., so that,
correspondingly/correlatively, (taking some other language in the 18
U.S.C. 921(a)(20) gloss on 922(g)(1) out of context, 18 U.S.C.
922(g)(1) ought apply to Doe?
(Of course, if this or some like argument were attempted, it would be
-- anyway, should -- be unavailing because, as the Fifth Circuit ruled
in the portion of Thomas [991 F.2d 206] which Dupaquier did not modify
and instead endorsed, and as other circuits have ruled with respect to
this issue [and see Chenowith, infra], given the "expressly, etc."
requirement of 18 U.S.C.S. 921[a][20] that is required to enable
prosecution of a 18 U.S.C. 922[g][1] charge in a case like Doe's,
which you say does not exist re. Doe., "If the state sends the felon a
piece of paper [or certificate] implying that he is no longer
'convicted' and that all civil rights have been restored, a
reservation in a corner of the state's penal code can not be the basis
of a federal prosecution. A state must tell the felon [point blank]
that [firearms] are not kosher" [quoting and agreeing with U.S v.
Erwin, 902 F.2d 510, 512-13 [7th Cir.], cert. den., 498 U.S. 859
[1990].).
Or, possibly, the prosecutor is trying to expand on some language in
U.S. v. Huff, 370 F.3d 454 (5th Cir. 2004), which arguably signals a
partial retreat from Dupaquier, although with respect to a different
provision of 18 U.S.C. Tit. 44 than Sect. 922(g)(1) applicable to Doe,
and which, anyway, (as apparently relevant to the charge against Doe)
is contradicted by the holdings of Dupaquier and also of Chenowith,
infra?
The point, in any event, is that unless/until you've . . . well . . .
"laid out the facts" in this connection, you will continue to prevent
meaningful analysis especially because those facts you have stated
about John Doe make the prosecution to which you refer very puzzling
at best.
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).
John Doe might want to ask you to explain to him how you can say this
in the face of U.S. v. Chenowith, 459 F.3d 635 (5th cir. 2006) (albeit
that that ruling addressed/applied comparable provisions of Ohio law).
In any case, even if it were correct, your statement immediately above
is especially difficult to understand because none of the facts you
"laid out" earlier re. John Doe contravene the applicability to him of
the above quoted Sect. 921(a)(20) limiting language as, instead, those
facts are to the effect that, if you will, Doe has been doubly
afforded all the benefit provided by that section so that not even
that section's "or, etc." where used therein apply to him.
Although you suggested earlier that the facts in the case of John Doe
are more rather than less defense-favorable than those present in
Dupaquier (since, you've said, Mr. Doe has been granted the benefit of
two kinds of pardon provided by the La. constitution neither of which
"expressly" prohibit his possession of a firearm, and yet such an
"express" prohibition is the sine qua non of a Sect. 922(g)(1)
prosecution in a case like the one you've so far described, a further
puzzling element of your earlier postings has been your apparent
disregard of both pre-Dupaquier decisions and (as noted) later 5th
circuit rulings construing/applying the only provisions of federal
statutory law you've so far suggested are likely to be applicable to
Mr. Doe.
Still another issues you may have raised re. the Doe prosecution, at
least in effect, may implicate tactical burden of proof and burden of
persuasion ones if you are suggesting (unless perhaps done so
informally in a manner that induces the assigned judge [even if in the
circumstances only nominally sua sponte] to suggest if not in the
first instance affirmatively to rule on a dismissal) that Mr. Doe
proposes to move on papers to dismiss (i.e., opt for a mode of
requesting relief for which he then would have the burden of proof and
of persuasion in all other related ways) compared with (in form,
passively, if not by also being very thoroughly prepared in this
connection) by defending (in which event the prosecution would have
the burden of proving beyond a reasonable doubt complete
prosecution's compliance with all the facts required by 18 U.S.C.
921[a][20] and 922[g][1]).
|
| |
| |
n Apr 20, 3:12=A0pm, nos...@isp.com wrote:
To kristinvando...@yahoo.com re. your earlier postings in this and
related threads:
Contrary to you saying again that you have "laid out all the facts"
pertinent to a pending federal gun possession prosecution against the
John Doe to whom you referred earlier, you continue have not to have
done so because you persist in not reporting what, fairly stated, is
the prosecutor's theory (and, if s/he has stated or at least indicated
any, what is the assigned U.S. district judge's theory) of how and why
-- if the facts you have posted are accurate (as I presume they are)
-- the language in 18 U.S.C. =A7 920(a)(20) that "[a]ny conviction . . .
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 . . . or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or receive
firearms" does not, standing alone (i.e., on its face), does not bar a
prosecution of Doe pursuant to Sect. 922(g)(1) (or, if you prefer to
formulate your question this way, how/why, despite the facts about Doe
you have so far posited, not only =A0Dupaquier [74 F.3d 615] but also
Dupaquier's predecessor decisions including in other circuits and also
progeny decisions in the 5th circuit do not require a dismissal of
what you have so far said is the only federal charge against Doe).
Possibly -- it remains unfortunate that your factual vagueness in this
connection relegates a reader of your postings to "possibly"s
conjecture about the prosecutor's theory (and also about why you seem
to imply that the assigned judge has not at least suggested a
dismissal) in the face of the facts you have so far reported about Doe
-- one might guess that the prosecutor may claim that La. Rev'd. Stat.
=A714:95.1 qualifies both the cumulative pardons you said were afforded
John Doe by sub-sect. (C)(2) of that statute providing to the effect
(the prosecutor may be trying to argue?) that, apart and independent
from Doe not having been earlier convicted of any of the enumerated
felonies re. which the La. ten-year ban against possessing a firearm
applies, and even though a person (that is to say: every person, thus
including Mr. Doe) who had been convicted of felony in La. "shall have
the right to apply . . . for a permit to possess firearms" and that
such person "shall be entitled to possess the firearm" if s/he has
been issued such a permit, that -- the La. constitutionality provided
for pardons afforded Doe notwithstanding -- possessing a firearm
without a permit in La. (as you seem to imply was what Mr. Doe did) by
any/every person convicted of a felony is unlawful in La., so that,
correspondingly/correlatively, (taking some other language in the 18
U.S.C. =A7 921(a)(20) gloss on =A7 922(g)(1) out of context, 18 U.S.C. =A7=
922(g)(1) ought apply to Doe?
(Of course, if this or some like argument were attempted, it would be
-- anyway, should -- be unavailing because, as the Fifth Circuit ruled
in the portion of Thomas [991 F.2d 206] which Dupaquier did not modify
and instead endorsed, and as other circuits have ruled with respect to
this issue [and see Chenowith, infra], given the "expressly, etc."
requirement of 18 U.S.C.S. =A7 921[a][20] that is required to enable
prosecution of a 18 U.S.C. =A7 922[g][1] charge in a case like Doe's,
which you say does not exist re. Doe., "If the state sends the felon a
piece of paper [or certificate] implying that he is no longer
'convicted' and that all civil rights have been restored, a
reservation in a corner of the state's penal code can not be the basis
of a federal prosecution. A state must tell the felon [point blank]
that [firearms] are not kosher" [quoting and agreeing with U.S v.
Erwin, 902 F.2d 510, 512-13 [7th Cir.], cert. den., 498 U.S. 859
[1990].).
Or, possibly, the prosecutor is trying to expand on some language in
U.S. v. Huff, 370 F.3d 454 (5th Cir. 2004), which arguably signals a
partial retreat from Dupaquier, although with respect to a different
provision of 18 U.S.C. Tit. 44 than Sect. 922(g)(1) applicable to Doe,
and which, anyway, (as apparently relevant to the charge against Doe)
is contradicted by the holdings of Dupaquier and also of Chenowith,
infra?
The point, in any event, is that unless/until you've . . . well . . .
"laid out the facts" in this connection, you will continue to prevent
meaningful analysis especially because those facts you have stated
about John Doe make the prosecution to which you refer very puzzling
at best.
John Doe might want to ask you to explain to him how you can say this
in the face of U.S. v. Chenowith, 459 F.3d 635 (5th cir. 2006) (albeit
that that ruling addressed/applied comparable provisions of Ohio law).
In any case, even if it were correct, your statement immediately above
is especially difficult to understand because none of the facts you
"laid out" earlier re. John Doe contravene the applicability to him of
the above quoted Sect. 921(a)(20) limiting language as, instead, those
facts are to the effect that, if you will, Doe has been doubly
afforded all the benefit provided by that section so that not even
that section's "or, etc." where used therein apply to him.
Although you suggested earlier that the facts in the case of John Doe
are more rather than less defense-favorable than those present in
Dupaquier (since, you've said, Mr. Doe has been granted the benefit of
two kinds of pardon provided by the La. constitution neither of which
"expressly" prohibit his possession of a firearm, and yet such an
"express" prohibition is the sine qua non of a Sect. 922(g)(1)
prosecution in a case like the one you've so far described, a further
puzzling element of your earlier postings has been your apparent
disregard of both pre-Dupaquier decisions and (as noted) later 5th
circuit rulings construing/applying the only provisions of federal
statutory law you've so far suggested are likely to be applicable to
Mr. Doe.
Still another issues you may have raised re. the Doe prosecution, at
least in effect, may implicate tactical burden of proof and burden of
persuasion ones if you are suggesting (unless perhaps done so
informally in a manner that induces the assigned judge [even if in the
circumstances only nominally sua sponte] to suggest if not in the
first instance affirmatively to rule on a dismissal) that Mr. Doe
proposes to move on papers to dismiss (i.e., opt for a mode of
requesting relief for which he then would have the burden of proof and
of persuasion in all other related ways) compared with (in form,
passively, if not by also being very thoroughly prepared in this
connection) by defending (in which event the prosecution would have
the burden of proving beyond a reasonable doubt =A0complete
prosecution's compliance with all the facts required by 18 U.S.C. =A7=A7
921[a][20] and 922[g][1]).
You have misinterpreted RS: 14:95.1 regarding applying for a permit t
|
| |
| |
On 20 Apr 2008, kristinvandoran@yahoo.com wrote:
nos...@isp.com wrote:
You have misinterpreted RS: 14:95.1 regarding applying
for a permit to possess a firearm.
Unfortunately, you confirm once again that you do not read
sufficiently carefully. I did not proffer an interpretation (or
"misinterpret[ation]") of my own and, rather (though based on what I
know some real-life prosecutors have argued), suggested a theory a
prosecutor might make in the case to which you referred.
You interpreted incorrectly that a felon who is
subject to RS 14:95.1 resctrictions must apply for
and be granted a permit to possess a firearm even
after the 10 year statutory restriction has expired.
I did not make any such suggestion (nor misinterpretation).
The law is actually written to mean that a felon
who is restricted under RS 14:95.1 may apply for
a permit to possess a firearm before the 10 year
statutory restriction expires.
In speculating about what some prosecutor might argue in the case to
which you referred, I did not characterize what the cited law was
"written to mean" and, instead, confined myself to a fair paraphrase
of what it _said_ (leaving it to my here imagined prosecutor to argue
whatever it is s/he may wish to contend it "means").
And while your statement immediately evidently is predicated on what
you contend Sect. 14:95.1 was "actually written to mean" _that_
interpretation rests not on what the sub-sect. (C)(2) of that statute
says and, instead, on your presuming that that sub-sect. includes
language that one will not find therein, i.e., that that sub-sect.
refers explicitly/only to a felon of the kind referred to in
sub-sects. (A) and (B) and (C)(1) of that law.
In any case, again, what I actually wrote was not that I would
construe/apply any provision of Sect. Sect. 14:95.1 as would my here
hypothesized prosecutor.
Not that this matters to me, BUT: If your version of the operative
facts in the "John Doe" case is accurate, then (although if, as may be
possible, the prosecutor may have withheld key facts from the grand
jury, the indictment you mentioned earlier might be explicable in the
first instance) you might want to recall that you continue not to
explain why the case has been pending since 2005 much less report what
the prosecutor's theory is (and, s/he expressed or indicated one, what
is the assigned judge's theory) for how/why the "John Doe" to whom you
referred can be validly charged with the offense you described
earlier.
|
| |
| |
|
