United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
On April 11, 2013, defendant Robert Ward ("Ward") was indicted by a grand jury for being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Ward filed this motion seeking to dismiss the one-count indictment on the ground that he is not a convicted felon for the purpose of§ 922(g)(1), as defined by federal statute § 921(a)(20). (D.I. 15.) The issue presented by Ward's motion is whether his civil rights had been restored at the time Ward was indicted. Should the court find his rights had been restored, Ward would no longer be considered a person prohibited under the federal statute, and the indictment should be dismissed. Ward contends that his rights were restored upon completing his felony conviction sentence. The prosecution ("the government") argues that Ward's civil rights have not yet been fully restored, and therefore the indictment should stand.
For the reasons that follow, the court will deny Ward's motion to dismiss the indictment.
In 2001, Ward was convicted under Delaware law for Fourth Offense Driving Under the Influence. This offense was a felony conviction, punishable by more than a year in prison. 21 Del. C. § 4177(d)(4). The parties do not dispute that, between his 2001 felony conviction and the time of his arrest, Ward completed his sentence.
On April 11, 2013, a grand jury returned a one-count indictment charging that Ward "did knowingly possess in and affecting interstate and foreign commerce, firearms and ammunition, " in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (D.I. 2.) On September 20, 2013, Ward filed this motion to dismiss the indictment on the grounds that§ 922(g)(1) does not apply.
18 U.S.C. § 922(g)(1) criminalizes the possession of a firearm by an individual "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year." § 922(g)(1). Section 921(a)(20) provides, however, that a conviction for a "crime punishable by imprisonment for a term exceeding one year" does not include "[a]ny... for which a person has been pardoned or has had civil rights restored."§ 921 (a)(20) (emphasis added). Thus, in this case, determination of whether civil rights have been "restored" is critical.
While § 921 offers no further guidance as to which civil rights must be restored, the Third Circuit has identified the "core civil rights" at issue as (1) the right to vote, (2) the right to hold public office, and (2) the right to sit on a jury. United States v. Leuschen, 395 F.3d 155, 159-60 (3d Cir. 2005). A convict must possess each of these core civil rights in order to have his federal firearms rights restored as well. Id. (citing United States v. Essig, 10 F.3d 968, 975-76 (3d Cir. 1993)).
The forfeiture and restoration of these core civil rights are governed by state law-in this case Delaware law. A felony conviction of any type results in the forfeiture of both the right to vote and the right to sit on a jury. Del. Const. art. V, § 2 ("[T]he General Assembly may impose the forfeiture of the right of suffrage as a punishment for crime."); 15 Del. C. § 1701 ("No... person convicted of a crime deemed by law a felony... shall be a qualified voter."); 10 Del. C. § 4509(b)(6) ("All persons are qualified for jury service except those who are:... Convicted felons who have not had their civil rights restored."). In contrast, forfeiture of one's right to hold public office is limited to a defined category of convicted felons. Del. Const. art. II, § 21 ("No person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.") In this case, the government does not argue that Ward's predicate felony conviction constituted an "infamous crime" such that his right to hold public office was lost. The court therefore focuses on the right to vote and the right to serve on a jury.
The restoration of a felon's right to vote is specifically provided for in the Delaware Constitution: "Any person who is disqualified as a voter because of a conviction of a crime deemed by law a felony shall have such disqualification removed upon being pardoned, or after the expiration of the sentence, whichever may first occur." Del. Const. art. V, § 2. There is no dispute that Ward has served his sentence for his 2001 felony conviction, and therefore his right to vote was restored. Rather, the crux of the parties' disagreement is whether Ward's right to serve on a jury has been restored.
Ward argues that section 4347(i) of Title 11 of the Delaware Code demonstrates that he had his right to sit on a jury restored. Section 4347(i) is part of Delaware's parole statute governing "Parole authority and procedure." 11 Del. C. 4347(i). Although parole was abolished in Delaware in 1989 for all crimes committed after June 29, 1990, Ward argues the following broad language remains in effect:
When a person on parole or conditional release has performed the obligations of that person's release for such time as shall satisfy the Board that the person's final release is not incompatible with the best interest of society and the welfare of the individual, the Board may make a final order of discharge and issue a certificate of discharge to the person; but no such order of discharge shall be made within 1 year after the date of release except where the sentence expires earlier thereto. Such discharge, and the discharge of a person ...