Opinion
No. 01-40056-01-SAC.
December 11, 2001
MEMORANDUM AND ORDER
This case comes before the court on the defendant's following pretrial motions: Demand for Notice from Government as to its intent to introduce evidence pursuant to Rule 404(b), Rule 609 and Rule 807 of the Federal Rules of Evidence (Dk. 15); Motion to Disclose Expert Testimony pursuant to Fed.R.Crim.P. 16(a)(1)(E) (Dk. 16); and Motion to Exclude Evidence of his prior state conviction in case No. 92-CR-1378 for burglary (Dk. 19). On September 26, 2001, counsel appeared and argued the motions without the defendant being present. At that time, the court said it would hold the motions in abeyance pending counsel's submission of additional documents. (Dk. 29). In receipt of the defense counsel's supplemental filing (Dk. 34), the court is ready to rule.
NOTICE OF INTENT TO INTRODUCE EVIDENCE
The government responds that it does not intend to offer evidence pursuant to Rule 404(b) or Rule 807 of the Federal Rules of Evidence and that it is premature to disclose Rule 609 evidence. The court accepts the government's representations and denies the defendant's request for notice as moot in light of these representations.
MOTION TO DISCLOSE EXPERT TESTIMONY
The government does not oppose this motion and says the evidence will be disclosed upon determining whether it will be used. The court accepts the government's representation and denies the defendant's motion as moot. The government, however, will make any required disclosure no later than December 31, 2001.
MOTION TO EXCLUDE EVIDENCE OF PRIOR CONVICTION
By this motion, the defendant seeks to strike as surplusage the state court theft and burglary convictions listed in the indictment and to preclude any evidence of these prior convictions at trial. The defendant argues he is entitled to this relief because those convictions in Shawnee County Case No. 92-CR-1378 did not preclude him from possessing a weapon as defined by 18 U.S.C. § 921(a)(20) on December 5, 2000. More specifically, the defendant contends that he had been finally discharged on the burglary and theft convictions, that his civil rights had been restored, and that Kansas law did not otherwise bar him from possessing firearms as a result of these convictions. The defendant, however, admits that his state court drug conviction in Shawnee County Case No. 89-CR-412 appears to disable him from possessing a firearm and that this drug conviction listed in the indictment is a sufficient allegation for the felony possession offense charged there.
Though it does not dispute the law as cited and argued by the defendant, the government maintains the defendant's documents do not establish that the State of Kansas restored his civil rights on the burglary and theft convictions. The government, however, agrees that if the defendant can satisfy the test in United States v. Hall, 20 F.3d 1066 (10th Cir. 1994), then the burglary conviction should be deleted from the indictment.
The court finds that the defendant has carried his burden of showing the allegations regarding the state burglary and theft convictions in case No. 92-CR-1378 are not relevant to the felony possession charge and are otherwise prejudicial. By the terms of 18 U.S.C. § 921(a)(20), "[a]ny conviction which . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms." Thus, Kansas law will govern whether the defendant's burglary and theft convictions constitute felony convictions that disqualified him from possessing a firearm on December 5, 2000.
The language used in K.S.A. § 22-3722 is quite plain that when an inmate has served the term of imprisonment and completed the post-release supervision period, he is discharged which "shall have the effect of restoring all civil rights lost by operation of law upon commitment." It is true this same statute directs the parole board to issue a certificate of discharge that states the inmate's civil rights have been restored. The statute, however, does not condition the discharge or the restoration of rights upon the parole board issuing the certificate. As Judge Theis observed in United States v. Coffman, 761 F. Supp. 1493, 1500 (D.Kan. 1991), an inmate's rights are restored by operation of law and the certificate merely documents the event.
Nonetheless, the defendant in his supplemental filing attached the certificate of post release supervision discharge issued by the Kansas Parole Board and dated December 21, 1994. This certificate establishes that all civil rights were restored with the exception of the defendant's right to own, possess or use a firearm "as prohibited by K.S.A. 1993 Supp. 21-4202 or K.S.A. 1993 Supp. 21-4204." (Dk. 34). As a result of this certificate and Kansas statutes, the defendant's civil rights were restored subject to the state law provision that makes it unlawful for him to possess a firearm for five years following his release from imprisonment on the burglary and theft convictions. Upon the expiration of this five-year waiting period in August of 1999, the burglary and theft convictions no longer qualify as convictions for purposes of 18 U.S.C. § 921(a)(20) and 922(g). The court, therefore, grants the defendant's motion to strike the following language as surplusage beginning on the seventh line of count 1: "and 2) on May 9, 1993, defendant was convicted of burglary, in violation of K.S.A. 21-3715 and theft over $500.00, in violation of K.S.A. 21-3701, felony offenses, in the district court of Shawnee County, Kansas, case number 92-CR-1378." The court further grants the defendant's motion to bar the government from introducing these state convictions as proof of the felony conviction element to the defendants § 922(g) charge.
IT IS THEREFORE ORDERED that the defendant's Demand for Notice from Government as to its intent to introduce evidence pursuant to Rule 404(b), Rule 609 and Rule 807 of the Federal Rules of Evidence (Dk. 15) and his Motion to Disclose Expert Testimony pursuant to Fed.R.Crim.P. 16(a)(1)(E) (Dk. 16) are denied as moot in light of the government's representations;
IT IS FURTHER ORDERED that the defendant's Motion to Exclude Evidence of his prior state conviction in case No. 92-CR-1378 for burglary (Dk. 19) is granted and the allegation referencing this conviction in count 1 of the superseding indictment is stricken.