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United States v. Howe

Supreme Court of New Hampshire

November 13, 2014

United States of America
Ryan Howe

Argued June 26, 2014.

U.S. Court of Appeals for the First Circuit.

John P. Kacavas, United States Attorney ( Seth R. Aframe, Assistant United States Attorney, on the brief and orally), for the United States of America.

Behzad Mirhashem, assistant federal defender, of Boston, Massachusetts, and Jeffrey S. Levin, assistant federal defender, of Concord ( Mr. Mirhashem and Mr. Levin on the brief, and Mr. Mirhashem orally), for the defendant.

Joseph A. Foster, attorney general ( K. Allen Brooks, senior assistant attorney general, on the brief), for the State of New Hampshire, as amicus curiae.

David J. Widi, Jr., self-represented, by brief, as amicus curiae.

HICKS, J. DALIANIS, C.J., and LYNN, CONBOY, and BASSETT, JJ., concurred.


Page 426

Hicks, J.

Pursuant to Supreme Court Rule 34, the United States Court of Appeals for the First Circuit ( Lynch, C.J.) certified to us the following question:

Under sections 500-A:7-a(V) and 651:5 of the New Hampshire Revised Statutes and the undisputed facts of this case, is a felon whose conviction is eligible for annulment (that is, not categorically disqualified from jury service) but who has not applied for or received an annulment of that conviction qualified to sit as a juror?

We respond in the affirmative.

The First Circuit's order provides the following facts. The defendant, Ryan Howe, was indicted under federal law in August 2012 for possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1) (2012), based upon a prior [167 N.H. 145] state felony conviction. He moved to dismiss that count on the ground that he was not a felon under section 922(g)(1) pursuant to an exception provided in 18 U.S.C. § 921(a)(20). See 18 U.S.C. § 921(a)(20) (2012). Section 921(a)(20) provides, in part, that " [a]ny conviction which has been expunged, or set aside or for which a person ... has had civil rights restored shall not be considered a conviction for purposes of this chapter." Id. The First Circuit has held that " the civil rights that must be restored to trigger the exception [in section 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 United States concedes that the defendant's rights to vote and to hold public office were restored by operation of state law before the date of the federal offense, September 15, 2011.

The parties disagree as to whether the defendant was eligible, as of September 15, 2011, to serve on a jury under our juror qualification statute. See RSA 500-A:7-a, V (2010) (amended 2014). RSA 500-A:7-a, V 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." The United States District Court for the District of New Hampshire ( DiClerico, J.) adopted the defendant's reading of RSA 500-A:7-a, V and dismissed the felon in possession charge. The United States appealed to the First Circuit, which certified to us the above question.

Responding to the certified question requires us to engage in statutory interpretation. " We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole." Town of Newbury v. N.H. Fish & Game Dep't, 165 N.H. 142, 144, 70 A.3d 461 (2013) (quotation omitted). " When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used." Id. (quotation omitted). " We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. (quotation omitted). " We also interpret a statute in the context of the overall statutory scheme and not in isolation." Id. (quotation omitted). " Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme." State v. Guay, 164 N.H. 696, 700, 62 A.3d 831 (2013) (quotation omitted).

The United States, as well as both amici curiae, correctly note that RSA 500-A:7-a, V should be read in conjunction with the statute governing annulments, RSA 651:5 (Supp. 2011) (amended 2012, 2013, 2014), as they are related in subject-matter. See Bradley v. City of Manchester, 141 N.H. 329, 334-35, 682 A.2d 1194

Page 427

(1996) (noting that " all statutes upon the same subject-matter are to be considered in interpreting any one of them" (quotation omitted)). [167 N.H. 146] The United States and the amici curiae, however, offer differing interpretations of how RSA 651:5's ...

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