We must decide in this case whether the government proved a violation of 18 U.S.C. § 922 (g)(1) when it established that (1) the defendant possessed a firearm, (2) in or affecting commerce, and (3) the defendant had one year earlier been convicted of a North Carolina state drug felony. The defendant, relying on our decision in United States v. Essick, 935 F.2d 28 (4th Cir. 1991), contends that the government's proof was inadequate because it failed to include evidence that the defendant's civil rights had not been restored under North Carolina law. We reject the argument in this case because defendant's underlying state felony conviction occurred within five years of the instant firearm offense, and under North Carolina law the defendant's civil rights could not have been fully restored within this time frame.

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. Kymberli argues that the district court erred in not requiring the government to prove at trial that the Maryland circuit court did not retroactively impose probation prior to judgment in Tracy Parker's case and cites United States v. Essick, 935 F.2d 28 (4th Cir. 1991), as authority. Essick concerned a federal prosecution in North Carolina under 18 U.S.C. § 922(g)(1), which forbids certain convicted felons from possessing firearms or ammunition, just as § 922(d)(1) forbids knowingly transferring firearms or ammunition to these felons.

Trial Tr. at 242:10-21 (Knoblauch). Moreover, Young argued, the United States failed to prove that Young's felony "has not been set aside," pursuant to United States v. Essick, 935 F.2d 28, 31 (4th Cir. 1991), which requires the United States to prove that Young's prior felony conviction was not one that allows for the restoration of his civil right to possess a firearm. Trial Tr. at 242:22-243:4 (Knoblauch).

18 U.S.C. § 922(g)(1) (1988 Supp. 1992).United States v. Essick, 935 F.2d 28, 29 (4th Cir. 1991).See United States v. Cassidy, 899 F.2d 543, 546-49 nn. 9, 11 (6th Cir. 1990).

Section 921(a)(20) expressly provides for reference to "the law of the jurisdiction in which the proceedings were held," i.e., here the law of Massachusetts, in order to determine what constitutes conviction of a predicate crime for purposes of 18 U.S.C. § 922(g). Cf. United States v. Essick, 935 F.2d 28, 30 (4th Cir. 1991); United States v. Gomez, 911 F.2d 219, 220 (9th Cir. 1990). Therefore, we must inquire further as to whether, and to what extent, Massachusetts restricts the civil rights of convicted misdemeanants and, whether and under what circumstances civil rights are "restored" by the state.

The United States Court of Appeals for the Fourth Circuit has held that to determine whether a defendant under § 922(g) meets the § 921(a)(20) definition, the court must look to the law of the jurisdiction in which that defendant's prior convictions occurred. United States v. Essick, 935 F.2d 28, 30 (4th Cir. 1991), citing United States v. McLean, 904 F.2d 216 (4th Cir.), cert. denied, 498 U.S. 875, 111 S.Ct. 203, 112 L.Ed.2d 164 (1990). The court cited the Firearm Owners' Protection Act through which Congress empowered each state to determine, through its state law, whether ex-felons would be legally permitted to possess firearms under federal law.Essick, 935 F.2d at 30-31.

This is an inaccurate and misleading statement of the law with regard to the firearm possession rights of ex-felons in North Carolina. In a series of recent decisions — United States v. McLean, 904 F.2d 216 (1990), United States v. Essick, 935 F.2d 28 (1991), United States v. McBryde, 938 F.2d 533 (1991), and United States v. Shoemaker, 2 F.3d 53 (1993) — this Circuit has held that notwithstanding North Carolina's Certificate of Unconditional Discharge (which appears to deny an ex-felon all firearm possession rights), ex-felons are entitled to possess certain types of firearms. In each case, courts must look to "the whole of state law," in particular the North Carolina Felony Firearms Act, to determine whether the particular firearm at issue, and the place of possession, was forbidden to ex-felons.

18 U.S.C. § 921(a)(20). We recently held in United States v. Essick, 935 F.2d 28, 31 (4th Cir. 1991), that to obtain a conviction under § 922(g)(1), the government must prove as an element of its case that the state has not restored the defendant's civil rights for the predicate felony.See Polowichak, 783 F.2d at 415 (requiring every element of an offense, requested or not, to be included in jury instructions).

In Utah there is no statute or other legal authority automatically restoring the civil rights to convicted felons. Consequently, this case, which is predicated, on prior Utah felony convictions, is different from the case of United States v. Essick, 935 F.2d 28 (4th Cir. 1991), the primary case cited by Flower in support of placing an affirmative duty on the government to prove a lack of restoration of civil rights to a defendant as part of the government's case in chief under 18 U.S.C. § 922(g). A review of Utah law indicates that unlike some other states, Utah does not issue Certificates of Restoration of Civil Rights to ex-felons who have completed their sentences.

He contended that he had received ineffective assistance of counsel and that he was wrongly subjected to prosecution under § 922(g)(1), because the civil rights revoked upon his conviction for the Michigan felony had been restored upon his release under the law of that state. 18 U.S.C. § 921(a)(20); United States v. Essick, 935 F.2d 28 (4th Cir. 1991). The district court denied the motion after Metzger was released from prison and had begun his term of supervised release.