UNITED STATES of America, Plaintiff-Appellee, v. Calvin Lamont TOMLINSON, Defendant-Appellant, 67 F.3d 508

Vacated and remanded by published opinion. Senior Judge PHILLIPS wrote the majority opinion, in which Judge MICHAEL joined. Judge HAMILTON wrote a dissenting opinion. OPINION PHILLIPS, Senior Circuit Judge: Calvin Lamont Tomlinson raises several challenges to his conviction for illegal possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

The critical challenge for purposes of this appeal involves the district court’s refusal to instruct the jury that the Government had to prove that Tomlinson “knew” the gun he possessed was of a type that made him ineligible for § 921(a)(20)’s “restoration of civil rights” exception to § 922(g)(1). In a ease decided while this appeal was pending, the Supreme Court held that, with regard to a related firearms possession statute, such a mens rea instruction is required. Staples v. United States, — U.S. ——, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

On this appeal, the Government has conceded that a Staples instruction was necessary here and that the failure to give it requires reversal. On that ground alone, we vacate the conviction and remand for a new trial. Because of the complexity of the issue, we think it appropriate to explain why we think the government’s general concession of error was proper, and to indicate the precise nature of the error, hence the corrective action required upon remand, for the district court’s guidance.

I In May 1992, the State of North Carolina released Tomlinson from incarceration resulting from his conviction for a drug distribution felony. Upon his release, he was given, as a matter of regular course, a “Certificate of Unconditional Release” which contained a restoration of civil rights, whose effect is a major issue in this case. Several months later, Tomlinson was stopped and searched by two Raleigh city police officers.

He was found to be carrying, concealed under his coat, a pistol-grip twelve-gauge shotgun with an 18 inch barrel that was manufactured by the Mossberg Company and marketed as its Model 500A “Persuader.” It was not adapted for firing from the shoulder because it lacked a stock. The gun was advertised by its manufacturer as a “security” weapon and could be purchased over the counter in a variety of retail outlets in North Carolina. Tomlinson was indicted by a federal grand jury for violating 18 U.S.C. § 922(g)(1).

As noted above, § 922(g)(1) prohibits “any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” from possessing a firearm in interstate commerce. The predicate, “convicted,” is, in turn, defined — or, rather, qualified — in § 921(a)(20), which provides in part: “Any conviction ... for which a person ... 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.” 18 U.S.C. § 921(a)(20).

Tomlinson moved before trial to dismiss the indictment on the basis that as a matter of law his possession was lawful in North Carolina. Specifically, his contention was that under Fourth Circuit precedent, state law determines which, if any, weapons an ex-felon with civil rights restored may lawfully possess and that under the North Carolina Felony Firearms Act, N.C.Gen.Stat. § 14-415.1, possession of a firearm such as Tom-linson’s, which had a barrel length of at least eighteen inches and an overall length of at least twenty-six inches, might lawfully be possessed by him as an ex-felon.

The Government’s response was to file a superseding indictment alleging that in addition to the gun, Tomlinson was in possession of five rounds of twelve-gauge ammunition in violation of § 922(g)(1). Tomlinson then moved again to dismiss, generally reiterating the above argument, and in addition noting that the Firearms Act does not in any way restrict the possession of ammunition. The Government then filed a response to the new motion to dismiss.

In it the Government argued for the first time that Tomlinson’s gun, the Mossberg, was a “weapon of mass death and destruction” and thus was prohibited from possession by an ex-felon under N.C.Gen.Stat. § 14-415.1, notwithstanding that it met the statutory length requirements.

Under North Carolina law, “weapons of mass death and destruction” include: Any type of weapon (other than a shotgun or a shotgun shell of a type particularly suitable for sporting purposes) which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter. N.C.Gen.Stat. § 14r-288.8.

According to the Government, Tomlinson’s gun was not a “shotgun” (because it could not be accurately aimed or fired from the shoulder), nor was it “particularly suitable for sporting purposes.” A hearing on Tomlinson’s motion to dismiss was held. On the key question whether the firearm was, within the meaning of N.C.Gen.Stat. § 14-288.8, a “weapon of mass death and destruction,” the district court ultimately sided with the Government. An order was entered denying the motion to dismiss: [I]n view of the “whole of North Carolina law,” United States v.

McLean, 904 F.2d 216, 218 (4th Cir.1990) the pistol grip Mossberg twelve-gauge, 500A “Persuader” shotgun, classified as a “security” weapon by its manufacturer, discovered beneath the defendant’s coat is a “weapon of mass destruction” and not suited for sporting purpose. As such, its possession was illegal, even by the defendant whose civil rights had been restored following a drug conviction. See also N.C.Gen.Stat. §§ 14-415.1(a). J.A. 95. After further defense motions focusing primarily on the mass death and destruction issue were made and denied, the case was tried to a jury in September 1993.

At trial, the Government presented three witnesses, all law enforcement officers, who testified variously that Tomlinson possessed the gun in question, that the gun was a Mossberg twelve-gauge shotgun, and that Tomlinson previously had been convicted of a crime punishable by imprisonment for a term exceeding one year. Following the testimony of the Government’s last witness, an agent with the Bureau of Alcohol, Tobacco and Firearms (ATF), defense counsel conducted a voir dire examination of this witness outside the pres-enee of the jury.

During this examination, the ATF agent concurred with defense counsel’s proposition that Tomlinson could not have known that the firearm he carried was a “weapon of mass death and destruction” since no court had so held and the Mossberg was sold over the counter throughout the state and nation. The district court agreed. “It’s obvious he didn’t know. Nobody had so ruled. There’s no way the defendant could have known.” J.A. 245. The court added, however, that “I don’t know that his knowledge [] of the weapon is [] integral to his commission of the offense.” Id.

At the conclusion of the evidence, the district court instructed the jury: The word “knowingly”, as that term [i]s used from time to time in these instructions, means that the act was done voluntarily and intentionally and not because of mistake or accident. For you to find the defendant guilty of this crime, you must be convinced that the government has proved each of the following elements beyond a reasonable doubt. First, that the defendant knowingly possessed a firearm as charged.

The term firearm means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explo-sive_ Second, that before the defendant possessed the firearm, the defendant had been convicted in a court of a crime punishable by imprisonment for a term in excess of one year, that is, a felony offense. The mere possession of a firearm by a person convicted in any court of a crime punishable by imprisonment for a term exceeding one year is a violation of the laws of the United States.

It is not necessary for the government to prove that the defendant knew that the weapon in his possession was a “firearm” within the meaning of the statute, or that he knew his possession of that firearm was in violation of the law. J.A. 263-66. Prior to the giving of these instructions, the defendant objected, arguing that the court should additionally charge that “the government is required to prove that Mr. Tomlinson knew, or a reasonable person would have known, that this firearm was a weapon of mass destruction.” J.A. 256. The objection was overruled.

The jury convicted Tomlinson; the judge sentenced him to fifteen years imprisonment. This appeal followed. II Staples v. United States, — U.S. -, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), interpreted a firearms registration provision, 26 U.S.C. § 5861(d), which criminalizes, without any express scienter requirement, possession of a particular kind of unregistered firearm, a “machinegun.” Staples held that an implicit scienter element of this statutory offense was knowledge that the firearm possessed had the features that made it a “ma-chinegun” under the statutory definition.

Id. at -, 114 S.Ct. at 1804 (“[T]o obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his [firearm] that brought it within the scope of the Act.”).

The instant case does not involve a violation of that statute, but rather of 18 U.S.C. § 922(g)(1), which prohibits a convicted felon from possessing any firearm “in or affecting interstate commerce.” Unlike the statute at issue in Staples, the § 922(g)(1) offense has an express “knowledge” requirement, via its penalty provision, § 924(a)(2), though it is not explicit as to everything the defendant must have “known.” See United States v. Langley, 62 F.3d 602, 604-05 (4th Cir.1995) (en banc).

In holding that when a statute prohibiting possession of a particular kind of firearm contains no express knowledge requirement, a general scienter requirement must be implied that includes knowledge of the firearm’s particular criminalizing nature, Staples surely must be read to require the same where the statute contains an express knowledge requirement, as does § 922(g)(1) via § 924(a)(2).

Section 922(g)(1) does not, however, by its own terms apply, as did the statute at issue in Staples, only to a particular type of firearm, but to all types. But, the Staples scienter requirement must nevertheless apply to the prosecution at issue here because of an interplay of state and federal statutes that does, by incorporation of state law in the federal offense, make conviction turn under the circumstances on the nature of the firearm possessed. This comes about in the following way.

A predicate element of the § 922(g)(1) offense is the defendant’s status as a convicted “felon.” The relevant definition statute, 18 U.S.C. § 921(a)(20) provides, in effect, that felony convictions which otherwise would qualify, are not convictions if, as to them, the defendant has had his “civil rights restored.” But, the statute then includes an exception to this exception: despite any such restoration, the conviction remains a conviction if the restoration “expressly provides that the person may not ship, transport, possess or receive firearms.” Determining which part of § 921(a)(20) applies — the initial exception to § 922(g)(1) or the succeeding provision that trumps the exception — necessarily requires resort to state “restoration” law.

As it turns out, under North Carolina’s Felony Firearms Act a convicted felon is prohibited from possessing some, but not all firearms; hence an ex-felon may or may not have “convicted” status under § 921(a)(20) depending upon the particular type possessed.

Among those types whose possession is forbidden is the type the district court held to have been possessed here: a “weapon of mass ... destruction.” Here then, the question is whether Staples, by necessary implication, requires that when in a prosecution under § 922(g)(1) a defendant’s status as a convicted felon turns, under state law pertaining to restoration of civil rights, on his possession of a particular type of firearm, the Government must prove, under appropriate instructions, not only that he possessed such a firearm, but that he did so knowing of its particular nature.

We hold that this is the necessary implication of Staples, and that, as the Government has conceded, we must reverse and remand for a new trial because of the district court’s error in failing so to instruct. For purposes of a § 922(g)(1) prosecution, when a defendant’s status as a convicted felon turns on the possession of a particular type of firearm, a jury must be instructed that a defendant is not a convicted felon if, despite possessing such a firearm, he did not know it had the particular nature on which his “convicted” status turns.

We emphasize, however, that this does not mean knowledge that, as a matter of law, the firearm was, as defined in the North Carolina statute, a “weapon of mass death and destruction,” but only knowledge of those facts that bring the firearm within that legal definition.

Here, that means, see N.C.Gen.Stat. § 14-288.8, only the fact that the Mossberg “Persuader” (1) would “expel a projectile by the action of an explosive” (ie., would fire shotgun pellets by triggering a shotgun cartridge); (2) had a “barrel with a bore of more than one-half inch in diameter;” and (8) critically, was not a shotgun “of a type particularly suitable for sporting purposes.” See Staples, — U.S. at -n. 3, 114 S.Ct. at 1805-06 n. 3 (Ginsburg, J., concurring in judgment) (“the mens rea presumption requires knowledge only of the facts that make the defendant’s conduct illegal, lest it conflict with the related presumption, deeply rooted in the American legal system, that, ordinarily, ‘ignorance of the law or a mistake of law is no defense to criminal prosecution’ ”); United States v.

Ballentine, 4 F.3d 504, 505-6 (7th Cir.1993) (in prosecution under 18 U.S.C. § 922(g)(2) for receipt of a firearm while a fugitive from justice, government need prove only knowledge of facts that created fugitive status, not knowledge that that legal status existed). III For the reasons stated above, we hold that the district court erred in failing to instruct that to convict Tomlinson under § 922(g)(1) — based on his possession of a firearm that makes him ineligible for protection under § 921(a)(20) — he must have known of the firearm’s disqualifying features.

We therefore vacate Tomlinson’s conviction and remand for a new trial if the Government chooses to re-proseeute. VACATED AND REMANDED. .

Section 922(g)(1) prohibits “any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” from, inter alia, possessing “in or affecting commerce any firearm or ammunition.” 18 U.S.C. § 922(g). .

Section 921(a)(20) provides in part: "Any conviction ... for which a person ... 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.” 18 U.S.C. § 921(a)(20). .

Section 14-415.1(

a) of the North Carolina General Statutes states in its entirety: It shall be unlawful for any person who has been convicted of any crime set out in subsection (

b) of this

section to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any weapon of mass death and destruction as defined in G.S. 14-288.8(c), within five years from the date of such conviction. N.C.Gen.Stat. § 14-415.1(a). .

We understand the district court’s full reasoning to be that (1) the Mossberg "Persuader” has the two features that qualify it as a "weapon of mass death and destruction” under the basic statutory definition — i.e., that it "will ... expel a projectile by the action of an explosive” (a shotgun shell) and it “has [a] barrel with a bore of more than one-half inch in diameter,” and that (2) it does not have a critical feature that would bring it within the statutory exception — i.e., that though a “shotgun,” it is not one "of a fype particularly suitable for sporting purposes.” We agree with that analysis as a matter of statutory

interpretation and application. . Prior to trial, Tomlinson had submitted a proposed jury instruction under which the jury would be told to: consider whether the government has proven beyond a reasonable doubt that Mr. Tomlinson knew that the firearm was a weapon of mass destruction at the time he possessed it. The government can meet this burden by proving beyond a reasonable doubt that Mr. Tomlinson personally knew that it was a weapon of mass destruction at the time he possessed it.

Alternatively, the government can meet this burden by proving beyond a reasonable doubt that a reasonable person would have known that the firearm was a weapon of mass destruction during the time Mr. Tomlinson possessed it. J.A. 187. . Although at the time of Tomlinson's trial Staples had not been decided, we are obligated to apply it as the law in effect at the time of our decision. United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801); see also United States v. Rogers, 18 F.3d 265, 268 (4th Cir.1994). .

Section 924(a)(2) states, in part: "Whoever knowingly violates subsection ... (g) ... of

section 922 shall be ... imprisoned not more than 10 years.... 8 U.S.C. § 924(a)(2)” (emphasis added). . It is worth noting that the Certificate of Unconditional Discharge Tomlinson received upon his release from prison did not adequately reflect this fact. The Certificate stated: The attached certificate of restoration of rights of citizenship * * * does not * * * entitle you to own, possess, receive, buy, or to otherwise acquire firearms of any description. 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. .United States v. Langley, 62 F.3d 602 (4th Cir.1995) (en banc), decided by this court after the Supreme Court’s decision in Staples, does not undercut this reading of Staples and require a different result in this case.

In Langley, we held that in a § 922(g)(1) “felon-in-possession” prosecution, it is not necessary for the Government to prove that the defendant knew that he had been "convicted of a crime punishable by imprisonment for a term exceeding one year.” That holding, one of statutory

interpretation, was rested primarily on the canon of construction that Congress is presumed to legislate consistently with "existing law and settled judicial understanding of [the enacted statute's] predecessor statutes.” Id. at 606. Because § 922(g)(l)'s predecessor statutes consistently had been interpreted not to require proof that a defendant knew of his "convicted felon" status, we thought this compelled interpreting § 922(g)(1), in view of its ambiguity on the point, to the same effect. Id. at 605-06.

As invoked in Langley, that canon of construction had application only to the "felony-status” element of § 922(g)(1). It had and has no application to the element at issue here: the particular nature of a firearm that makes its possession illegal. With respect to that element, as we specifically recognized in Langley, there is no comparable history of judicial

interpretation to draw upon. See id. at 607-08. Furthermore, we were careful in Langley to distinguish Staples ’ scienter requirement by pointing out other justifications for requiring knowledge of a firearm’s criminalizing nature that had no application to knowledge of "felony-status.” See id. at 607. For all the reasons drawn upon in Langley to distinguish Staples, therefore, Staples ’ rationale for requiring knowledge of a firearm’s criminalizing nature stands unaffected by Langley's refusal to require knowledge of "convicted-felon” status.