Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellant.
Behzad Mirhashem, with whom Jeffrey S. Levin was on brief, for appellee.
Before LYNCH, Chief Judge, SELYA,
Circuit Judge, and HILLMAN, [*] District Judge.
LYNCH, Chief Judge.
The question raised is whether the district judge correctly dismissed one count of a 2012 federal indictment against Ryan Howe. That in turn hinges on whether Howe, convicted in 1995 of a felony, had his civil right to sit on a jury restored as a matter of New Hampshire state law. The state statutes involved, though, have not yet been construed and are far from clear, and their construction will be determinative in this case. Qualification for jury service is a core concern of the state and its judiciary. We think the best course is to certify the statutory interpretation question to the New Hampshire Supreme Court. See N.H. Sup.Ct. R. 34.
The defendant, Ryan Howe, was indicted in August 2012 for possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1), based on his prior predicate conviction of a state felony. He moved to dismiss this count, arguing that he could not be classified as a felon under § 922(g)(1) due to the exceptions listed in 18 U.S.C. § 921(a)(20). Section 921(a)(20) provides: " [a]ny conviction which has been expunged, or set aside or for which a person ... has had his civil rights restored shall not be considered a conviction for purposes of this chapter...." This court has held that " the civil rights that must be restored to trigger the exception [in § 921(a)(20) ] are the rights to vote, to hold public office, and to serve on a jury." United States v. Estrella, 104 F.3d 3, 5-6 (1st Cir.1997). The government concedes that Howe's right to vote and right to hold public office were restored before the date of the charged offense.
Howe argues that he was eligible to serve on a jury under New Hampshire's juror eligibility statutes as of September 15, 2011, the date of the federal crime. The prosecution argues that he was not. The district court adopted Howe's reading, as a matter of law, and dismissed the felon in possession charge. See United States v. Howe, No. 12-cr-101-01-JD, 2012 WL 4757891, at *2-3 (D.N.H. Oct. 4, 2012). The government appealed. We now certify to the New Hampshire Supreme Court the question of law of whether Howe's right to serve on a New Hampshire jury was restored as of September 15, 2011 under sections 500-A:7-a and 651:5 of the New Hampshire Revised Statutes. The facts are undisputed.
The New Hampshire Supreme Court will accept certified questions of law from a federal court " if there are involved in any proceeding before it questions of law of this State which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of this court." N.H. Sup.Ct. R. 34. This case meets those requirements; whether Howe's right to serve on a jury had been restored is determinative of whether this court must affirm the dismissal of the federal charge. The New Hampshire Supreme Court has not previously construed the state's juror qualification and annulment statutes with respect to the qualification law's annulment-of-prior-felonies provisions, and the answer to the question presented here is far from
clear. Federalism concerns also motivate us to certify the question best left to the New Hampshire high court to resolve.
The New Hampshire statute governing Qualifications of Jurors provides: " A juror shall not have been convicted of any felony which has not been annulled or which is not eligible for annulment under New Hampshire law." N.H.Rev.Stat. Ann. § 500-A:7-a(V). The process for annulment is set forth at section 651:5 of the New Hampshire Revised Statutes. It requires felons seeking an annulment to file a petition with a court and sets forth standards for the allowance of such a petition. Howe was eligible for annulment under New Hampshire law beginning five years from the date of his release from incarceration, see N.H.Rev.Stat. Ann. § 651:5(III)(d), but he had not petitioned for annulment ...