United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss the Indictment
under Rule 12(b)(3)(A) of the Federal Rules of Criminal
Procedure. (Doc. 23). The government opposes the motion.
Indictment charges the Defendant with one count of
“Prohibited Person in Possession of a Firearm” in
violation of 18 U.S.C. § 922(g)(1). The Indictment
alleges that Defendant is prohibited from possessing a
firearm based on his December 28, 1994, conviction of a crime
punishable by imprisonment for a term exceeding one year
under the laws of the State of Colorado, and that Defendant,
on April 3, 2019, knowingly possessed, in and affecting
interstate and foreign commerce firearms and ammunition.
motion to dismiss an indictment is governed by Rule 12 of the
Federal Rules of Criminal Procedure, which allows a party to
“raise by pretrial motion any defense, objection, or
request that the court can determine without a trial on the
merits.” Fed. R. Crim. P. 12(b)(1). Motions based on
“a defect in instituting the prosecution” must be
“raised by pretrial motion if the basis for the motion
is then reasonably available and the motion can be determined
without a trial on the merits.” Fed. R. Crim. P.
12(b)(3)(A). Although the Court “may make preliminary
findings of fact necessary to decide the legal
questions” presented by a pretrial motion, the Court
must not invade the province of the jury by prematurely
deciding whether the government can prove the elements of the
charged offense. United States v. Nukida, 8 F.3d
665, 669 (9th Cir. 1993).
BASED ON COLORADO STATUTE
argues that he cannot be charged as a prohibited person in
possession of a firearm because the Colorado law in effect at
the time he was charged with the predicate convictions only
prohibited persons previously convicted of “burglary,
arson, or a felony involving the use of force or violence or
the use of a deadly weapon, or attempt or conspiracy to
commit such offenses” from owning firearms. (Doc. 24 at
3, citing Colo. Rev. Stat. § 18-12-108 (1990)).
Defendant argues in the alternative that even if he had been
charged and convicted of one of the crimes enumerated in the
1990 version of Colo. Rev. Stat. § 18-12-108, his rights
would have been restored by February of 2013. (Doc. 24 at 4).
appears to acknowledge that the amended version of Colo. Rev.
Stat. § 18-12-108, which took effect on July 1, 1994,
prohibits possession of a weapon by any offender convicted of
a felony. (Doc. 24 at 6). He argues that applying the amended
Colorado statute violates the ex post facto
prohibitions of the United States Constitution. (Doc. 24 at
Court begins its analysis by determining when, if ever, the
State of Colorado restored Defendant's right to possess
firearms. The Court looks to the whole of state law at the
time of the restoration of civil rights when deciding whether
a defendant's prior conviction constitutes a predicate
offense for purposes of 18 U.S.C. § 922(g)(1).
United States v. Cardwell, 967 F.2d 1349, 1350
(9th Cir. 1992).
Court first determines “whether [Knapp's] civil
rights were substantially restored by [Colorado] law.
United States v. Collins, 61 F.3d 1379, 1382
(9th Cir. 1995). “Colorado, like many
states, restores various civil rights such as the rights to
vote, sit on a jury, and hold office to its convicted felons
once they have completed their sentences.” United
States v. Hall, 20 F.3d 1066, 1068 (10thCir.
1994). Knapp claims that he completed serving his Colorado
criminal sentence by February 3rd of 2003. (Doc.
24 at 3). Knapp's civil rights were substantially
restored by state law when he discharged his sentence in
February of 2003.
Court next determines “whether state law expressly
prohibited [Knapp] from possessing firearms, notwithstanding
the substantial restoration of his civil rights.”
Collins, 61 F.3d at 1382. The 1993 amendment to
Colo. Rev. Stat. § 18-12-108, which went into effect in
July of 1994, made it a “crime for any convicted felon
to possess a firearm.” United States v.
Norman, 129 F.3d 1393, 1397 (10thCir. 1997).
In 2003, the first subsection of Colo. Rev. Stat. §
18-12-108 prohibited anyone convicted of a felony anywhere in
the United States from possessing a firearm, stating:
“A person commits the crime of possession of a weapon
by a previous offender if the person knowingly possesses,
uses, or carries upon his or her person a firearm as
described in section 18-1-901(3)(h) or any other weapon that
is subject to the provisions of this article subsequent to
the person's conviction for a felony, or subsequent to
the person's conviction for attempt or conspiracy to
commit a felony, under Colorado or any other state's law
or under federal law.” Colo. Rev. Stat. Ann. §
18-12-108(1) (2003). Knapp's right to possess firearms was
not restored by the State of Colorado when he finished
serving his sentence in 2003. See Collins, 61 F.3d
Court must also consider whether the 1993 amendment to the
Colorado statute, which went into effect after Knapp was
charged but before he was sentenced, violates the ex post
facto clauses of the United States Constitution. The
United States Court of Appeals for the Ninth Circuit
considered and rejected a similar argument in
Collins. 61 F.3d at 1383. Defendant Collins, like
Knapp, argued that his Illinois convictions did not qualify
as convictions for purposes of 18 U.S.C. § 921(a)
because Illinois law was amended to prohibit felons from
possessing firearms after he was convicted and while he was
incarcerated, and that application of the amended statutes
violated the ex post facto clause. Id. In
rejecting this argument, the Ninth Circuit relied in part on
an Illinois Court of Appeals' decision rejecting such an
Court, following the lead of the Ninth Circuit in
Collins, considers Colorado law in determining
Knapp's ex post facto challenge to a Colorado
statute. The Colorado Court of Appeals considered this issue
in People v. DeWitt, 275 P.3d 728 (Colo. Ct. App.
2011), applying the reasoning of the United States Supreme
Court in Weaver v. Graham, 450 U.S. 24 (1981). The
United States Supreme Court has long recognized “that
two critical elements must be present for a criminal or penal
law to be ex post facto: it must be retrospective,
that is, it must apply to events occurring before its
enactment, and it must disadvantage the offender affected by
it.” Weaver, 450 U.S. at 29. The Colorado
Court of Appeals rejected the defendant's ex post
facto argument in DeWitt because the prohibited
conduct in that case - “defendant's possession of a
firearm - occurred in 2009, well after the 1994
amendment.” DeWitt, 275 P.3d at 732. The same
is true in the instant case - Knapp's alleged possession
of firearms occurred in 2019, after the 1994 amendment to the
Colorado statute. If Knapp is ...