United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W MOLLOY, DISTRICT JUDGE
Allan Roy Goodman was indicted on five drug counts, two
firearm counts, and one count of obstructing justice by
retaliating against an informant. (Doc. 52.) Following a jury
trial, he was found guilty on all counts. (Doc. 93.) At
trial, he orally moved for acquittal on the two firearm
counts, Counts VI and VII, pursuant to Federal Rule of
Criminal Procedure 29. Following trial, he renewed his motion
as it relates to Count VII, which alleges that the defendant
is a prohibited person in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). (See Doc.
52.) Both parties have briefed the issue. (.See Docs. 96,
106, 107.) For the reasons stated below, Goodman's motion
a prior conviction qualifies as a predicate felony under
§ 922(g)(1) is a purely legal question. United
States v. McAdory, 935 F.3d 838, 842 (9th Cir. 2019).
"An offense qualifies as a predicate felony for a
conviction under § 922(g)(1) if it is 'punishable by
imprisonment for a term exceeding one year.'"
Id. (quoting 18 U.S.C. § 922(g)(1)). Goodman
argues that because his right to possess firearms has been
restored under Montana law, his previous Montana felonies
cannot serve as a predicate offense for his conviction under
§ 922(g)(1). He is correct.
purposes of § 922(g)(1),
What constitutes a conviction of ... a crime [punishable by
imprisonment for a term exceeding one year] shall be
determined in accordance with the law of the jurisdiction in
which the proceedings were held. Any conviction which has
been expunged, or set aside or for which a person has 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.
18 U.S.C. § 921(a)(20). Accordingly, the Ninth Circuit
has adopted a three-step process for determining whether a
state conviction is invalidated for the purposes of the
federal felon in possession statute:
1. Use state law to determine whether the defendant has a
"conviction." If not, the defendant is not guilty.
If so, go to step 2.
2. Determine whether the conviction was expunged, set aside,
the defendant was pardoned, or the defendant's civil
rights were restored. If not, the conviction stands. If so,
go to step 3.
3. Determine whether the pardon, expung[e]ment, or
restoration of civil rights expressly provides that the
defendant may not ship, transport, possess, or receive
firearms. If so, the conviction stands. If not, the defendant
is not guilty.
Van derHule v. Holder, 759 F.3d 1043, 1046 (9th Cir.
2014) (quoting United States v. Valeria, 441 F.3d
837, 840 (9th Cir. 2006)).
one, it is uncontested that Goodman has two previous felony
convictions in Montana. (See Certified Judgments,
Exs. 27, 28.) At step two, it is also uncontested that he has
discharged both convictions and therefore had his civil
rights restored by automatic operation of state law.
See Mont. Const, art. II, § 28(2) ("Full
rights are restored by termination of state supervision for
any offense against the state."); Mont. Code Ann. §
46-18-801(2) ("Except as provided in the Montana
constitution, if a person has been deprived of a civil or
constitutional right by reason of conviction for an offense
and the person's sentence has expired or the person has
been pardoned, the person is restored to all civil rights and
full citizenship, the same as if the conviction had not
occurred."). Thus, the question at step three-which is
also known as the "unless clause"- is whether
Montana law expressly restricts Goodman's ability to have
firearms because of his prior felonies. It does not.
defendant whose rights have been restored by state law may
still be prohibited from possessing a firearm if state law
places any restrictions on that defendant's right to
possess firearms because of his prior convictions. Caron
v. United States, 524 U.S. 308, 310 (1998). For example,
this Court previously held that Montana's prohibition on
felons obtaining a permit to carry a concealed weapon was a
sufficient restriction to bar possession of firearms under
federal law. See Van der Hule, 759 F.3d at 1051
(affirming). But, while that case was pending, the Montana
legislature amended the statute to limit the restriction to
only certain offenses, see Id. at 1047 n.2; Mont.
Code Ann. § 45-8-321(6), which does not include
Goodman's prior convictions for drug possession and
forgery. Nonetheless, the government argues that because
Goodman is a prohibited person under a separate subsection of
the federal statute, see 18 U.S.C. § 922(g)(8),
he is ineligible for a permit to carry a concealed weapon
under Montana law, see § 45-8-32l(1)(a), and
therefore a prohibited person under § 922(g)(1). Even
assuming the government is correct as to Goodman's
prohibited status under § 922(g)(8), the law does not
support his conviction under § 922(g)(1).
prohibits a person who "is ineligible under Montana or
federal law to own, possess, or receive a firearm" from
getting a permit to carry a concealed weapon. §
45-8-32l(1)(a). Relevant here, federal law prohibits a person
subject to a state domestic violence restraining order from
possessing firearms. See 18 U.S.C. § 922(g)(8).
On June 19, 2018, a Temporary Order of Protection was issued
against Goodman on a petition by a prior intimate partner.
(See Doc. 96-1.) Thus, assuming without deciding
that the Temporary Order of Protection meets the statutory
requirements of § 922(g)(8), Goodman could not have
obtained a permit to carry a concealed weapon once that Order
was issued. See § 45-8-321(1)(a). But that
restriction is completely unrelated to Goodman's previous
felonies and his restoration of rights. Unlike the situation
in Van der Hule, the government has not identified
any time, place, or manner restriction placed on
Goodman's possession of firearms because of his felony
status. 759 F.3d at 1049. Subsequent conduct by Goodman
independent of his previous felonies was required to trigger
the alleged state restriction here. Put another way, any
restriction on Goodman's ability to possess firearms
under the Order would exist regardless of his prior felony
status. As explained by the Supreme Court, "[e]ither the
restorations forbade possession of 'firearms' and the
convictions count for all purposes, or they did not and the
convictions count not at all." Caron, 524 U.S.
at 314. Because the restoration of Goodman's civil rights
did not "expressly provide that the defendant
may not ship, transport, possess, or receive firearms"
as required at the third step, Van der Hule, 759
F.3d at 1046, the "unless clause" has not been
result, the parties' dispute over the application of
§ 922(g)(8) is beside the point. The government did not
charge a violation of 18 U.S.C.§ 922(g)(8),
(see Doc. 52), the Temporary Order was not presented
to the jury, and the jury was not instructed on the elements
of § 922(g)(8), (see Final Instr. No. 30, Doc.
99 at 35). Thus, even if Goodman ...