United States v. Alexander C. Nazzaro, 985 F.2d 552, 1st Cir. (1993)

985 F.
2d 552
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Alexander C. NAZZARO, Defendant, Appellant.
No. 92-1448.
United States Court of Appeals,

First Circuit.
January 28, 1993
Appeal From the United States District Court for the District of
Massachusetts
Elliot M. Weinstein for appellant.
Sharen Litwin, Assistant United States Attorney, with whom A. John
Pappalardo, United States Attorney, was on brief for appellee.
D.Mass.
AFFIRMED.
Before Torruella, Circuit Judge, Brown,* Senior Circuit Judge, and Stahl,
Circuit Judge.
STAHL, Circuit Judge.
I.
Defendant-appellant Alexander C. Nazzaro challenges his conviction for

violating 18 U.S.C. 922(g)(1), which makes it unlawful for any person "who
has been convicted in any court of a crime punishable by imprisonment for a
term exceeding one year ... to ... possess in or affecting commerce, any firearm
or ammunition ... " Although we affirm the conviction, we do so for reasons
different from those asserted by the district court.
Prior Proceedings
2
The relevant facts of this case are undisputed. On March 12, 1990, agents from
the Federal Bureau of Alcohol, Tobacco and Firearms (BATF), Massachusetts
State Police and Barnstable (Mass.) Police Department executed a federal
search warrant at the Hyannis home of defendant's mother, where defendant
resided. The search yielded five firearms.1
Nazzaro's subsequent indictment was predicated on the following

Massachusetts state court convictions, all of which were punishable by
imprisonment for more than one year:
41. Assault and battery; Chelsea District Court; February 1977;

5 Rape and assault and battery with a dangerous weapon; Suffolk Superior Court;
2.
December 1977;
63. Assault and battery; Essex Superior Court; October 1978. 2
7
The case was submitted to a bench trial, prior to which both sides stipulated to
defendant's possession of the five firearms listed in the indictment and to his
prior convictions. In addition, the parties stipulated that Nazzaro, at the time of
his arrest, possessed a valid Massachusetts Firearms Identification Card (FID),
by which the Commonwealth authorized him to possess in his home the
firearms at issue. See Mass. Gen. L. ch. 140, 129B.3
Thus, the sole issue before the trial judge was the efficacy of Nazzaro's
defense, in which he sought refuge under the portion of 18 U.S.C. 921(a)(20)
which provides that:
9 conviction which has been expunged, or set aside or for which a person has
Any
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.
10
Nazzaro argued that the provisions of Mass Gen. L. ch. 140, 129B which
allow a convicted felon to obtain a FID five years after conviction or release
from jail, and thereby possess a firearm at home, when taken in conjunction
with his possession of a valid FID and the failure of authorities to revoke same,
constituted a "restoration of civil rights" within the meaning of 18 U.S.C.
921(a)(20), thus taking his convictions for rape and assault and battery with a
dangerous weapons-the Massachusetts feloniesoutside the reach of federal

firearms law. The trial court disagreed, ruling that because possession of a
firearm is not a "civil right" in Massachusetts, defendant's possession of the FID
and right to possess the firearms at issue cannot constitute a "restoration of civil
rights." United States v. Nazzaro, 778 F. Supp. 1, 2 (D. Mass. 1991).
II.
Discussion
11
We review de novo the district court's ruling on Nazzaro's status. United States
v. Chambers, 964 F.2d 1250 (1st Cir. 1992); See United States v. Haynes, 961
F.2d 50, 51 (4th Cir. 1992) (issue of whether defendant was a convicted felon
within the meaning of 18 U.S.C. 921(a)(20) and 922(g)(1) involves a purely
legal determination). As noted above, we affirm Nazzaro's conviction. A brief
explanation of our reasoning follows.
12
As appellant's counsel essentially conceded at oral argument, a panel of this

court recently-and explicitly-blocked the way to Nazzaro's putative safe haven.
In United States v. Ramos, 961 F.2d 1003 (1st Cir.), cert. denied, 113 S. Ct.
364 (1992), we were presented with, as we are here, a federal "felon-inpossession" defendant among whose predicate crimes were those categorized
as misdemeanors under Massachusetts law. We concluded that
13 individual convicted of a crime categorized as a misdemeanor under

an
Massachusetts law, ... does not by law forfeit any civil rights. Hence, the proper
inquiry here is whether an individual residing in a jurisdiction which does not strip
him or her of any civil rights as a collateral consequence of conviction should be
deemed, as appellant urges, to have had his civil rights "restored" for purposes of
922(a)(1), after having served his/her sentence.
Like the district court, we believe the answer is no.
14
15
Id. at 1008.
16
As appellant's counsel recognized, this case is on all fours with Ramos vis-a-vis
appellant's Massachusetts misdemeanor convictions.4 Nazzaro, like Ramos, was
stripped of no civil rights as a result of his misdemeanor convictions. Thus,
according to Ramos, Nazzaro could not have had any such rights "restored"
within the meaning of 18 U.S.C. 921(a)(20). Bound as we are by prior panel
decisions so closely on point, Fournier v. Best Western Treasure Island Resort,
962 F.2d 126, 127 (1st. Cir. 1992), we find, pursuant to 18 U.S.C. 922(g)(1),
that appellant's prior misdemeanors are "crimes punishable by imprisonment

for a term exceeding one year." Accordingly, his conviction is affirmed.5
*Of the Fifth Circuit, sitting by designation. Judge Brown heard oral argument
in this matter, and participated in the semble, but did not participate in the
drafting or the issuance of the panel's opinion. The remaining two panelists
therefore issue this opinion pursuant to 28 U.S.C. 46(d).
1
The firearms at issue were two shotguns, two rifles and one pistol
Under Massachusetts law, only the December 1977, rape and assault and
battery with a dangerous weapon convictions-number two, above-are
considered felonies. See Mass. Gen. L. ch. 265, 13A; Mass. Gen. L. ch. 274,
1. While the other convictions are misdemeanors under Massachusetts law,
18 U.S.C. 921(a)(20)(B) provides that a state misdemeanor is considered a
"crime punishable by imprisonment for a term exceeding one year" if it is
punishable by more than two years imprisonment. Under Massachusetts law,
assault and battery is punishable by a maximum term of two and one half years,
thus bringing the two state misdemeanors within the purview of section 922(g)
(1)
Nazzaro received his FID in October 1977, after his first misdemeanor
conviction, but prior to his felony convictions. Under Mass. Gen. L. ch. 140,
129B, the misdemeanor conviction had no legal effect on his ability to obtain
the FID, but it could have been revoked by the issuing authority-the Barnstable
Police Department-after the felony convictions. For reasons unknown,
however, revocation never occurred. In addition, the same statute prohibits a
felon from obtaining a FID within five years of conviction or release from jail.
There is no dispute that the five-year firearm proscription had expired by the
time of Nazzaro's federal arrest and prosecution
We note that the potential legal effect of Nazzaro's Massachusetts misdemeanor

convictions was not extensively argued before, nor relied on by, the trial court,
and that we rendered our decision in Ramos subsequent to those proceedings.
However, the parties stipulated to the existence of those convictions, and where
the key facts are undisputed, we may affirm the district court by grouping those
facts " 'along the [proper] matrix.' " Unites States v. Nivica, 887 F.2d 1110,
1127 (1st Cir. 1989) ( quoting United States v. Mora, 821 F.2d 860, 869 (1st
Cir. 1987)), cert. denied, 110 S. Ct. 1300 (1990). Thus, we rely on Ramos, as
explained more fully, infra, n. 5
We choose here to rely on Ramos rather than the district court's "civil rights"
analysis for two reasons. First, as illustrated above, Ramos is indistinguishable

from the case at bar, and thus provides the most direct resolution to the issue on
appeal. Second, we are not entirely comfortable with the district court's analysis
of the interplay between 18 U.S.C. 922(g)(1) and 18 U.S.C. 921(a)(20). Our
concern stems from the fact that no other court that has examined this oftcontested issue has used the criterion of whether the state considers firearm
ownership to be a civil right as a ratio decidendi. Instead, many courts have
used a dual inquiry, initially determining whether the felon's "political" civil
rights-to vote, hold office, sit on a jury, etc.-have been restored, and then
examining whether and to what extent such restoration curtails his firearm
privileges as a result of his felon status. See, e.g., United States v. Driscoll, 970
F.2d 1472 (6th Cir. 1992), cert. denied, 61 U.S.L.W. 3498 (U.S. Jan. 13, 1993)
(No. 92-6132); United States v. Cardwell, 967 F.2d 1349 (9th Cir. 1992);
United States v. Dahms, 938 F.2d 131 (9th Cir. 1991); United States v. Traxel,
914 F.2d 119 (8th Cir. 1990); United States v. Gomez, 911 F.2d 219 (9th Cir.
1990); United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990); United States v.
Coffman, 761 F. Supp. 1493 (D. Kan. 1991). This method of analysis seems
most consistent with the language of section 921(a)(20) wherein the civil rights
restoration does not save a defendant if such restoration "expressly provides that
the person may not ship, transport, possess, or receive firearms."
The district court relied on United States v. Erwin, 723 F. Supp. 1285 (C.D. Ill.
1989), aff'd, 902 F.2d 510 (7th Cir.), cert. denied, 111 S. Ct. 161 (1991), which
does question whether firearm ownership itself is a civil right. However, that
court's affirmative answer was not the determinative factor in its final decision.
Finally, we note that while Ramos held that some affirmative state action is
required to "restore" a felon's civil rights, that case dealt with a Massachusetts
misdemeanant who never had any rights taken away. This circuit has yet to
decide what constitutes an affirmative restoration, or what quantum of rights
need be restored to satisfy 18 U.S.C. 921(a)(20). Because we base our
decision today on Nazzaro's prior Massachusetts misdemeanors, we need not
address the impact of Nazzaro's prior Massachusetts felonies.

United States v. Alexander C. Nazzaro, 985 F.2d 552, 1st Cir. (1993)

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985 F.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

United States Court of Appeals,

Defendant-appellant Alexander C. Nazzaro challenges his conviction for

Nazzaro's subsequent indictment was predicated on the following

41. Assault and battery; Chelsea District Court; February 1977;

dangerous weapons-the Massachusetts feloniesoutside the reach of federal

As appellant's counsel essentially conceded at oral argument, a panel of this

13 individual convicted of a crime categorized as a misdemeanor under

that appellant's prior misdemeanors are "crimes punishable by imprisonment

We note that the potential legal effect of Nazzaro's Massachusetts misdemeanor

analysis for two reasons. First, as illustrated above, Ramos is indistinguishable

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