No STATE OF NEW HAMPSHRIE SUPREME COURT UNITED STATES OF AMERICA, Appellant, RYAN HOWE, Defendant-Appellee.

Transcription

1 No STATE OF NEW HAMPSHRIE SUPREME COURT UNITED STATES OF AMERICA, Appellant, v. RYAN HOWE, Defendant-Appellee. Certified Question from the United States Court of Appeals for the First Circuit APPELLANT S BRIEF JOHN P. KACAVAS United States Attorney Seth R. Aframe, Assistant United States Attorney Mass. Bar No (Admitted Pro Hac Vice) United States Attorney's Office 53 Pleasant Street Concord, NH (603) seth.aframe@usdoj.gov

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... iv I. STATEMENT OF ISSUE ON APPEAL... 1 II. RELEVANT PROVISIONS... 1 A. New Hampshire Revised Statute Annotated 500-A:7-a(V)... 1 B. New Hampshire Revised Statute Annotated 500-A:6, III(b)(4)... 1 C. New Hampshire Revised Statute Annotated 651: III. STATEMENT OF THE CASE... 2 IV. STATEMENT OF FACTS... 2 V. SUMMARY OF ARGUMENT... 4 VI. ARGUMENT... 7 A. Under the Plain Language of the Statute, an Unannulled Felony Conviction Prohibits Jury Service... 7 B. An Annulled Conviction May Nevertheless Be Ineligible For An Annulment Under New Hampshire Law C. The Plain Construction of the Juror Qualification Statute Also Accords with the Structure of the New Hampshire Annulment Statute and Eliminated a Possibly Ambiguity that Would Otherwise Exist for New Hampshire Prior Convictions D. The Defendant s Construction of the Juror Qualification Statute Leads to Absurd Results E. The Legislative History Does Not Support the Conclusion that an Eligible Conviction is Sufficient to Restore Jury Service ii

3 VII. CONCLUSION VIII. REQUEST FOR ORAL ARGUMENT IX. APPENDED OPINIONS CERTIFICATE OF SERVICE ADDENDUM iii

4 TABLE OF AUTHORITIES Cases Astro Spectacular, Inc., 138 N.H. 298 (1994) Cagan's, Inc. v. New Hampshire Dep't of Revenue, 126 N.H. 239 (1985)... 7 Case of Welts, 136 N.H. 588 (1993)... 8 Hayes v. Hanson, 12 N.H. 284 (1841) In re Garrison Place Real Estate Inv. Trust, 159 N.H. 539 (2009)... 7 In re Geekie, 157 N.H In re Gray, 160 N.H. 62 (2010)... 7 In re Hoyt, 143 N.H. 533 (1999)... 8 Khabbaz v. Commissioner of Social Security, 155 N.H. 798 (2007)... 7 Pennelli v. Town of Pelham, 148 N.H. 365 (2002) Petition of State, 159 N.H. 456 (2009)... 7 State Employees Ass'n of N.H. v. State, 127 N.H State v. Baker, 64 N.H State v. Michael B., 124 N.H State v. Patterson, 145 N.H State v. Rothe, 142 N.H. 483 (1997)... 8 Unit Owners Ass'n of Summit Vista Lot 8 Condominium v. Miller, 141 N.H. 39 (1996)... 8 United States v. Howe, 736 F.3d 1 (1st Cir. 2013)... 2 Statutes 18 U.S.C. 922(g)(1)... 2 N.H. Rev. Stat. Ann. 500-A:6... 1, 20 N.H. Rev. Stat. Ann. 500-A:7... 1, 3, 8 N.H. Rev. Stat. Ann. 651:5... passim R.I. Gen. Laws (a) iv

5 I. STATEMENT OF ISSUE ON APPEAL. New Hampshire law provides that 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." Under this statute, is a felon, whose conviction is eligible for annulment, under New Hampshire law (i.e., not categorically barred from seeking an annulment) but who has not received an annulment allowed to sit on a jury? See United States v. Howe, 12-cr-101-JD, U.S.D.C., D.N.H., Docket Number 8, Appendix (Appx.) at II. RELEVANT PROVISIONS. A. New Hampshire Revised Statute Annotated 500-A:7-a(V), 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. B. New Hampshire Revised Statute Annotated 500-A:6, III(b)(4), Juror Qualification Form, provides: The clerk shall prepare the juror qualification form, subject to approval by the court. The juror qualification form shall require the prospective juror to specify if he is a convicted felon whose conviction has not been annulled or whose conviction is not eligible for annulment under New Hampshire law. C. New Hampshire Revised Statute Annotated 651:5, Annulment of Criminal Records. Because of the length of this statute, this provision is reproduced in the appendix. See Appx. at 4-8.

6 III. STATEMENT OF THE CASE. In August 2012, a federal grand jury in the District of New Hampshire indicted the defendant for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1) and possessing an unregistered firearm in violation of 26 U.S.C. 5641, et seq. Addendum to United States' Brief (Add.) at 1. The defendant then filed a motion to dismiss the felon-in-possession count on the ground that he was not a prohibited felon law under federal because all of his civil rights had been restored, including his right under New Hampshire law to sit as a juror. Appx. at Following briefing on the motion, the federal district court issued an order dismissing the 922(g) charge, concluding that the defendant was able to sit as a New Hampshire juror and therefore was not a felon as defined by federal law. Add. at 1-6. Thereafter, the United States filed an interlocutory appeal of this order to the United States Court of Appeal for the First Circuit. The parties briefed this issue, and the First Circuit held oral argument. Shortly after the argument, the First Circuit certified to this Court the question presented above. United States v. Howe, 736 F.3d 1 (1st Cir. 2013); Add. at IV. STATEMENT OF FACTS. The federal felon-in-possession charge against the defendant was predicated on the defendant's 1995 New Hampshire conviction for carrying a firearm without a license, a class B New Hampshire felony. The defendant finished serving his sentence on this prior conviction in late The defendant, however, never 2

7 sought to have this conviction annulled, even though the conviction was eligible for annulment under New Hampshire law. Add. at 4. Based on these undisputed facts, the defendant moved to dismiss the felonin-possession count, arguing that he was not a prohibited felon under federal law because New Hampshire had restored his civil rights -- the right to vote, the right to hold public office, and the right to serve on a jury. Appx. at By operation of New Hampshire law, the defendant's right to vote and hold office had been restored. Thus, the only issue was whether the defendant's right to sit as a juror had been restored. The New Hampshire juror qualification statute provides that "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 defendant argued that this statute restores a convicted felon's right to sit as a juror if either of two conditions is met: (1) the felon has received an annulment of his prior conviction or (2) the felon is eligible under New Hampshire law to have the conviction annulled, even if he has not done so. Appx. at The United States disagreed, arguing that a felon was disqualified from jury service if either (1) his conviction was ineligible for annulment under New Hampshire law or (2) the conviction, even though eligible, had not been annulled. Id. at The district court agreed with the defendant, concluding that the defendant's right to sit as a juror was restored because his conviction was eligible for an annulment under New Hampshire law, even though it had not been annulled. Add. 3

8 at 5-6. To reach this result, the court invoked the rule of statutory construction providing that, when possible, statutes should be construed to avoid a reading that would render any portion superfluous, void or insignificant. Id. The court explained that the United States' reading rendered the "is not eligible for an annulment under New Hampshire law" clause of the juror qualification statute superfluous because, by definition, a person who is ineligible for an annulment is a person whose conviction has not been annulled. Id. at 5. Thus, the court concluded that the plain meaning of the statute permits a felon to serve as a juror "if his conviction is eligible for annulment," even if he has not, in fact, obtained an annulment. Id. at 5-6. V. SUMMARY OF ARGUMENT. The plain language of the juror qualification statute precludes from jury service a person with an unannulled felony conviction, even if the conviction is eligible for annulment under New Hampshire law. The statute establishes a result -- disqualification from jury service -- and enacts two conditions separated by the disjunctive "or" which triggers the disqualification result. The conditions are (1) a conviction "which has not been annulled" or (2) a conviction which is not eligible for annulment under New Hampshire law. Thus, under the plain language of the statute, a person with an unannulled conviction (the first condition) is disqualified from jury service and so is a person with a conviction that is not eligible for annulment under New Hampshire law (the second condition). 4

9 Contrary to the district court's analysis of the statute, this construction is not redundant because there are people with annulled convictions (thereby avoiding the first disqualification condition) that are nevertheless ineligible for an annulment under New Hampshire law (thereby triggering the second disqualification condition). This could occur in at least two circumstances. First, a person with an out-of-state conviction could have the conviction annulled by the convicting state, even though that conviction would be ineligible for annulment under New Hampshire law. Second, a person with a New Hampshire conviction may have had that conviction erroneously annulled by a New Hampshire court, and therefore, even though the conviction was annulled, it would still be ineligible for annulment under New Hampshire law. Thus, the "is not eligible for annulment under New Hampshire law" clause independently bars from jury service people who have obtained annulments of felony offenses, which, nevertheless, remain ineligible for annulment under New Hampshire law. Construing the juror qualification statute to disqualify people with both unannulled but eligible convictions and ineligible convictions is consistent with the same distinction that is drawn by New Hampshire's annulment statute. The annulment statute sets forth a series of temporal and substantive requirements that a felon must meet even to be eligible to petition for an annulment. It also sets forth the process for adjudicating annulment petitions filed by felons who have met the eligibility requirements. 5

10 The annulment statute establishes four categories of convicted felons (1) those who are categorically ineligible to participate in the annulment process because they have not met the eligibility criteria; (2) those who are eligible to participate in the annulment process, but have not sought an annulment; (3) those who are eligible to participate in the annulment process and have done so unsuccessfully; and (4) those who are eligible to participate in the annulment process and have successfully obtained an annulment. The jury qualification statute tracks the annulment statute by providing that a person can only regain the right to serve on a jury by obtaining an annulment of an eligible conviction (category four). It also makes clear that people, who are categorically barred from seeking an annulment (category one), are barred from jury service in the same manner as those who are eligible but have not obtained an annulment (categories two and three). Finally, allowing a person with an eligible but unannulled conviction to serve as a juror (the argument advocated by the defendant) leads to an absurd result. This would occur where two felons committed the same crime and engaged in the same post-conviction conduct. If one of these felons sought but was denied an annulment, he would be barred from jury service because his conviction would be ineligible for annulment for three years under the New Hampshire annulment statute. Meanwhile, the felon who avoided the annulment system entirely would be allowed to sit as a juror. There is no logical reason that these two felons should be 6

11 treated differently, and yet this is precisely the result that defendant's construction would produce. VI. ARUGMENT. The certified question asks whether the New Hampshire juror qualification statute prohibits jury service by a felon whose conviction has not been annulled, even though the conviction is eligible for annulment under New Hampshire law. This question raises a pure issue of statutory construction over which this Court is the final arbiter. Khabbaz v. Commissioner of Social Security, 155 N.H. 798, 800 (2007). A. Under the Plain Language of the Statute, an Unannulled Felony Conviction Prohibits Jury Service. In matters of statutory construction, this Court places primary emphasis on plain meaning. Cagan's, Inc. v. New Hampshire Dep't of Revenue, 126 N.H. 239, 247 (1985). Thus, "when undertaking statutory interpretation, [this Court] first examine[s] the language found in the statute and where possible,... ascribe[s] plain and ordinary meanings to the words used." In re Gray, 160 N.H. 62, 65 (2010) (quotation omitted). In conducting this analysis, the Court "can neither ignore the plain meaning of the legislation nor add words which the lawmakers did not see fit to include." In re Garrison Place Real Estate Inv. Trust, 159 N.H. 539, 542 (2009) (quotation omitted). Where the statutory language has a plain meaning, this Court does not look beyond it for other indicia of legislative intent. Petition of State, 159 N.H. 456, 458 (2009). 7

12 A careful reading of the juror qualification statute demonstrates that the existence of an unannulled felony conviction precludes jury service regardless of whether the conviction is eligible for annulment under New Hampshire law. The pertinent language of the juror qualification statute provides that "[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." N.H. Rev. Stat. Ann. 500-A:7- a(v). This plain language establishes a result -- disqualification form jury service. This result is achieved if one of two conditions is met: (1) the prospective juror has a prior felony conviction "which has not been annulled" or (2) the prospective juror has a prior felony conviction "which is not eligible for annulment under New Hampshire law." Id. It is settled New Hampshire law that the legislature s use of the word "or" indicates the disjunctive. In re Hoyt, 143 N.H. 533, 535 (1999); State v. Rothe, 142 N.H. 483, 485 (1997); Unit Owners Ass'n of Summit Vista Lot 8 Condominium v. Miller, 141 N.H. 39, 45 (1996); Case of Welts, 136 N.H. 588, 592 (1993). Thus, the statute plainly provides that a person is disqualified from jury service if he or she has a felony conviction that either (1) has not been annulled or (2) is ineligible for annulment under New Hampshire law. The defendant in this case indisputably falls into the first category -- he has a felony conviction for illegal gun possession which has not been annulled. Thus, since the statute is written in the disjunctive and the defendant falls into the first disqualification category, he is prohibited from serving on a jury. 8

13 To advocate for the opposite result in the First Circuit, the defendant proposed rewriting the statute by stripping the word "not" every time it appears. Thus, the defendant proceeded as if the statute says, "A juror shall have been convicted of any felony which has been annulled or which is eligible for annulment." Or, otherwise stated, the right to jury service is restored to a convicted felon if the prior conviction (1) has been annulled or (2) is eligible for annulment. Using this made-up statute, the defendant argued that a person "is not disqualified," (or otherwise stated, after eliminating the double negative, the right to jury service is restored), where "a felony conviction has been annulled" or where "the felony conviction... is eligible for annulment." Def. 1st Circuit Br. at Since there is no dispute that the defendant's conviction is eligible for annulment under New Hampshire law, the defendant posited that his right to jury service had been restored because the defendant fell into the second category, i.e., he had a prior conviction that was eligible for annulment under New Hampshire law. Id. at The defendant s construction would be correct if the statute had been written without the word not. But this is not what the statute says. Rather, the result worked by the statute is disqualification from jury service not restoration. This disqualification result occurs if a conviction has not been annulled or the conviction is not eligible for annulment under New Hampshire law. Simply put, re-writing the statute, as the defendant did, to eliminate "not" changes it from a statute describing circumstances under which a person is prohibited from jury service to a statute 9

14 defining when the right to jury service has been restored. Appeal of Astro Spectacular, Inc., 138 N.H. 298, 300 (1994) (stating that court should not consider what the legislature might have said when construing a statute). This change makes all the difference. Here, the defendant was convicted of a felony "which has not been annulled." Under the plain language of the juror qualification statute as it actually reads, the defendant is disqualified from jury service for this reason, even though his conviction is eligible to be annulled under New Hampshire law. Accordingly, this Court should enforce the plain language of the statute and conclude that the defendant is disqualified from jury service because he has a conviction "which has not been annulled." B. An Annulled Conviction May Nevertheless Be Ineligible For An Annulment Under New Hampshire Law. The federal district court rejected this plain language construction of the juror qualification statute by invoking the cannon of construction counseling against construing a statute "to have used superfluous or redundant words." Pennelli v. Town of Pelham, 148 N.H. 365, (2002). The district court invoked this rule based on the notion that "a person convicted of one of the class of felonies which can never be annulled [under New Hampshire law] would be, by definition, a person whose felony conviction has not been annulled." Therefore, in the court's view, the "not eligible for annulment under New Hampshire law" clause was redundant under the United States' construction of the statute. Add. at 5. This is not so. The district court failed to consider prospective jurors with annulled out-of-state felony convictions which nevertheless are ineligible for 10

15 annulment under New Hampshire law. In this situation, contrary to the district court's conclusion, a prospective juror could have an annulled conviction which still is ineligible for annulment under New Hampshire law. Thus, the "which is not eligible for annulment under New Hampshire law" prong of the statute has independent meaning because it bars from service a potential juror who has an annulled out-of-state conviction, which is nevertheless ineligible for annulment under New Hampshire law. Consider, for example, a potential New Hampshire juror with an obstruction of justice conviction from Rhode Island. Rhode Island law allows a first time offender to receive an annulment (called expungement in Rhode Island) for all felony convictions, except crimes of violence. R.I. Gen. Laws (a). Thus, the prospective New Hampshire juror convicted of such an offense could have had this conviction annulled by a Rhode Island court. Nevertheless, this conviction still would be ineligible for annulment under New Hampshire law because New Hampshire's annulment statute categorically bars the annulment of an obstruction of justice felony offense. N.H. Rev. Stat. Ann. 651:5, V. Thus, as this straightforward example shows, there can be a prospective juror with an annulled conviction, even though the conviction is ineligible for annulment under New Hampshire law. Accordingly, contrary to the district court's analysis, each aspect of the statute can independently disqualify a potential juror. The first prong (the "which has not been annulled" clause) precludes from service a prospective juror like the defendant, i.e., a person who has not received an 11

16 annulment of a conviction that is eligible for annulment under New Hampshire law. The second prong (the "which is not eligible for annulment under New Hampshire law" clause) precludes from service a prospective juror like the person described in the example above, i.e., a person who has an annulled out-of-state conviction, which nevertheless is ineligible for annulment under New Hampshire law. Reading the statute this ways also provides an explanation for the legislature's deliberate use of "under New Hampshire law" at the end of the second prong of the statute but not the first. This language suggests that, regardless of the jurisdiction from which the annulment was issued, New Hampshire law provides the annulment eligibility standard as an independent basis for preventing a potential juror from sitting. There are obvious policy reasons for the legislature to have wanted this result. The legislature presumably would not have favored allowing someone on a New Hampshire jury who was convicted of such a serious crime that annulment was not an option under New Hampshire law, e.g. obstruction of justice. Without the "not eligible for annulment under New Hampshire law" clause, the legislature would have ceded control of the quality of the New Hampshire jury pool to the various annulment rules of the other states (and foreign countries). It is unlikely that the legislature would have wanted to lose control of such a core state function 12

17 as the operation of its jury system. 1 Accordingly, for these reasons, the plain language of the juror qualification statute does not render any portion of the statute superfluous or redundant. C. The Plain Construction of the Juror Qualification Statute Also Accords with the Structure of the New Hampshire Annulment Statute and Eliminated a Possible Ambiguity that Would Otherwise Exist for New Hampshire Prior Convictions. Not only does the plain language of the juror qualification statute give independent meaning to each word, it also accords with the New Hampshire annulment statute's distinction between convictions that are eligible for annulment and those that are not. Reading the juror qualification statute in light of the annulment statute is a standard method of statutory construction since the juror qualification statute makes direct reference to the annulment statute. This cannon of construction, called in pari materia, provides that "all the laws on the same subject are to be construed together" because "they are considered as framed upon one system...." Hayes v. Hanson, 12 N.H. 284 (1841). Here, it is apparent that the juror qualification law was written to draw on the distinction made in the annulment statute between eligibility to participate in 1 As the First Circuit suggested in its certification opinion, the "not eligible for an annulment under New Hampshire law" clause also serves as a fallback provision for someone whose New Hampshire conviction was erroneously annulled by a New Hampshire court. Add. at 10. Again, this provision would guarantee that juror qualification is not left solely to the vicissitudes of the annulment system. Rather, the standards set forth in the New Hampshire annulment statute would always serve as a threshold, even where a prospective juror has received an annulment. Thus, in this scenario as well, a person could have an annulment (even if erroneously granted) and still be ineligible to serve as a juror because the conviction "is not eligible for annulment under New Hampshire law." 13

18 the annulment process and ultimately having a conviction annulled. In this regard, the annulment statute sets forth several criteria, both temporal and substantive, that must be met before a person with a prior conviction may even participate in the annulment process, i.e., become eligible for an annulment. N.H. Rev. Stat. Ann. ' 651:5, III-VI. Concerning timing, the annulment statute provides that a person may not petition for an annulment of a conviction until a certain period has run from when the defendant has completed serving his sentence for the underlying offense, during which the defendant has not been convicted of another crime. There is also another timing requirement: If a petition for an annulment already has been denied, Ano further petition shall be brought more frequently than every 3 years thereafter.@ N.H. Rev. Stat. Ann. ' 651:5-IV. In addition to temporal eligibility, the annulment statute establishes limits on the types of convictions that may be annulled, i.e., substantive eligibility. In this regard, the annulment statute provides that A[n]o petition shall be brought... in the case of any violent crime, of any crime of obstruction of justice, or of any offense for which the petitioner was sentenced to an extended term of imprisonment.@ N.H. Rev. Stat. Ann. ' 651:5-V; State v. Baker, 164 N.H. 296, 299 (2012) (recognizing that Athe legislature has already determined that certain crimes are eligible for annulment, and others are not@). Also, a person may not bring a petition to annul a conviction if any part of his record includes one of the prohibited crimes identified in ' 651:5-V, or there is 14

19 another conviction on the person=s record that is temporally ineligible for annulment. N.H. Rev. Stat. Ann. ' 651:5-VI. The annulment statute further provides that if any of these bars to participating in the annulment process (temporal or substantive) exists, an improperly filed petition Ashall be dismissed without a hearing.@ N.H. Rev. Stat. Ann. ' 651:5-VIII. New Hampshire case law makes clear that this provision was intended to dispose of petitions filed by persons who are not eligible to participate in the annulment process. State v. Patterson, 145 N.H. 462, (2000); State v. Michael B., 124 N.H. 590, (1984). Even, however, where a person meets the eligibility requirements to participate in the annulment process, there is no guarantee that the court will actually annul the conviction. The proper filing of an annulment petition triggers the procedures set forth in N.H. Rev. Stat. Ann. ' 651:5- IX. Under these procedures, the court first must order the Department of Corrections to prepare a report identifying all state or federal convictions, arrests or prosecutions of the petitioner and any other information that may be relevant to the annulment decision. Id. The court must also provide a copy of the annulment petition to the prosecutor of the underlying offense and permit the prosecutor to be heard Aregarding the interest of justice in regard to the petition.@ Id. Once these procedures are complete, the court may either Agrant or deny@ the petition. N.H. Rev. Stat. Ann. ' 651:5-I. It does so by determining whether granting the annulment will assist in the Apetitioner=s rehabilitation and will be consistent with the public welfare.@ Id. 15

20 As this summary of the annulment statute demonstrates, obtaining an annulment is complicated. It requires first that a person meet certain threshold eligibility requirements before even being allowed to participate in the annulment process. Once these threshold requirements are met, the statute establishes an evidence gathering procedure that must be completed before the court determines whether to grant the requested annulment under the rehabilitation and public interest standard. The annulment statute thus has the effect of creating four categories of individuals with prior convictions: (1) those who are ineligible to participate in the annulment process because they cannot satisfy the threshold requirements under N.H. Rev. Stat. Ann. ' 651:5, III-VI; (2) those who are eligible to participate in the annulment process but have opted not to do so; (3) those who are eligible to participate in the annulment process, have done so, but are ultimately denied an annulment and (4) those who are eligible to participate in the annulment process, have done so, and are successful in obtaining the annulment. The juror qualification statute follows this same pattern of recognizing the distinction between those who can participate in the annulment process and those who cannot. In this regard, the Awhich is not eligible for annulment under New Hampshire law@ clause bars from jury service those who may not participate in the annulment process because they do not satisfy the threshold eligibility requirements, i.e., the first category described above. The Awhich has not been annulled, clause bars from jury service those who are eligible to participate in the 16

21 annulment process but have either chosen not to do so or have been denied the annulment on the merits, i.e. the second and third categories described above. Finally, the juror qualification statute does not cover (and thus allows service by) the fourth category -- those who have successfully obtained an annulment of an eligible conviction. Read with the structure of the annulment statute in mind, it is apparent that the juror qualification law was drafted to reflect the distinction drawn by the annulment statute between those who are allowed to participate in the annulment process, i.e., eligible to petition for an annulment, and those who are not. It does so by expressly excluding from jury service those who are ineligible to participate in the process as well as those who are eligible to participate but have, in fact, not obtained an annulment, either by choice or by adverse ruling. This understanding of the juror qualification statute further undermines the district court=s conclusion that the Awhich is not eligible for an annulment under New Hampshire clause is meaningless. As written, the statute makes clear that, regardless of whether one is categorically ineligible to participate in the annulment process or is eligible to participate but has not obtained an annulment, the result is the same -- disqualification. Read this way, the Awhich is not eligible for an annulment under New clause clarifies a possible ambiguity that could otherwise exist because of the annulment statute=s structure. If the Awhich is not eligible for an annulment under New Hampshire law@ clause was omitted, a prospective juror, with an 17

22 ineligible felony conviction, could plausibly could argue that the Awhich has not been clause does not apply because he is not allowed to participate in the annulment process at all (categories two and three, supra at 16 ). In this regard, the felon with the ineligible conviction could argue that limiting disqualification to a person with a felony "which has not been annulled" connotes an intention to exclude only those felons with an unrealized possibility of actually obtaining an annulment. 2 Since this particular felon had no possibility of obtaining an annulment, he could argue that the "which has not been annulled" clause would not apply to him. If a court were to adopt such a construction, it would leave outside the law=s coverage (and thus allow jury service by) those who are prohibited from participating in the annulment process. This result would be inconsistent with the legislature's intent of employing the annulment statute's standard of an eligible conviction as a threshold for jury service. Therefore, it was appropriate for the legislature to draft the law to avoid this ambiguity. Thus, the Awhich is not eligible for annulment under New Hampshire law" clause is important for the additional reason that it clarifies that a person is barred from jury service, even where that 2 An example from a more familiar context may help highlight this possible argument. To say, for example that a person "has not" filed a brief in a pending case in this Court is different from saying that a person is ineligible to file a brief in the same case. Saying that someone "has not" filed a brief suggests that the person could file a brief but chose not to do so. On the other hand, saying that a person is ineligible to file a brief means that the person is barred from doing so, regardless of his desire. Thus, it would be at least plausible to argue that an annulment which has not been annulled is different from a conviction which cannot be annulled. 18

23 person is prohibited by operation of law from participating in the annulment process. D. The Defendant's Construction of the Juror Qualification Statute Leads to Absurd Results. Construing the juror qualification statute to prohibit jury service by individuals with eligible but unannulled convictions is also sound because it avoids the absurd results that would occur if an eligible conviction was, by itself, sufficient to restore jury service. See In re Geekie, 157 N.H. 195, 202 (2008) (stating that court will not interpret statutory language in a manner that will lead to an absurd result). The New Hampshire annulment statute makes a conviction ineligible for annulment if a court has denied a request to have the conviction annulled in the past three years. N.H. Rev. Stat. Ann. 651:5, IV. Thus, a person with such a conviction would be barred from jury service during this time, even under the defendant s construction of the juror qualification statute, because he has a conviction that is ineligible for annulment under New Hampshire law. However, under the defendant s interpretation of the juror qualification statute, a second person with the exact same conviction and who has engaged in the exact same postconviction conduct as the first person (except for declining to seek an annulment) would be restored to jury service simply because he or she decided to avoid the annulment process entirely. This is so because the second person would have a conviction that is eligible for annulment when he was called for jury service. 19

24 This makes no sense. It is illogical to restore the privilege of jury service to those felons who decided to avoid the annulment process entirely while barring from service those who applied for an annulment but were denied. If anything, the result should be the opposite. The person who at least engaged the annulment system (even if unsuccessfully) has demonstrated more evidence of rehabilitation (and is therefore more deserving of serving on a jury) than the otherwise similarly situated person who chose to remain under the radar by ignoring the annulment process entirely. Yet, under the defendant s construction, the person who engaged the system is prohibited from serving while the one who avoided the system may serve. This plainly absurd result cannot have been the legislature's intent. 3 E. The Legislative History Does Not Support the Conclusion that an Eligible Conviction is Sufficient to Restore Jury Service. 3 The defendant's contention that the jury service is restored merely by the presence of a conviction that is eligible for annulment also ignores the juror qualification form statute. That statute provides that the clerk of court must provide potential jurors with a questionnaire which requires a prospective juror to specify, inter alia, if he or she is a convicted felon whose conviction has not been annulled or whose conviction is not eligible for annulment under New Hampshire law. N.H. Rev. Stat. Ann. 500-A:6, III(b)(4). If the defendant s reading of the juror qualification statute was correct, there would be no reason to require a prospective juror to declare if his conviction has not been annulled, since the only basis for disqualification is a conviction that is not eligible for annulment under New Hampshire law. Yet, the legislature mandated that prospective jurors disclose convictions which (1) have not been annulled, or (2) are ineligible for annulment under New Hampshire law. The only reason the legislature would have required jurors to disclose either type of conviction is because either type of conviction (unannulled or ineligible) disqualifies a person from serving as a juror. 20

25 In the First Circuit, the defendant devoted much of his focus to the legislative history of the juror qualification statute. This Court should not even consider this history in its analysis because it is not appropriate to "look to legislative history to modify the meaning of a statute that is plain on its face." State Employees Ass'n of N.H. v. State, 127 N.H. 565, 568 (1986). For the reasons already described, the juror qualification statute clearly provides that a person whose conviction "has not been annulled" is disqualified from jury service, even if that conviction is eligible for annulment under New Hampshire law. Therefore, this Court should not even consider the legislative history in resolving this case. But even if this Court considered the legislative history, it does not support the defendant s argument that the statute means something other than what it says. The defendant has focused primarily on a Superior Court Reform Study Committee report on the jury system, which contained a recommendation that legislation be enacted which "prohibit[s] convicted felons from jury service who are not eligible to have their convictions annulled." Appx. at 28. The defendant has read this recommendation to mean that a person is not required to actually annul his conviction to serve as a juror. But even if the defendant's reading of the Superior Court report is accurate, there is no indication that the legislative committee which reported the juror qualification statute intended to adopt this recommendation. Rather, the legislative committee report accompanying the juror qualification statute stated only that the legislative committee had studied the Superior Court 21

26 Report and had worked to reach a reasonable conclusion on the issues involved. Thus, the legislative committee report does not indicate that the bill recommended to (and eventually adopted by) the legislature was intended to adopt the Superior Court Reform Study Committee s recommendation on every aspect of juror qualifications. Moreover, the actual conclusion reached by the legislative committee is not consistent with the Superior Court report. The legislative committee report stated that the juror qualification bill was intended to disallow [from jury service] felons whose convictions have not been annulled or whose convictions are not eligible for annulment. Thus, the legislative committee report tracks the language of the statute: a felon is disqualified from service if his conviction has not been annulled or is not eligible for annulment. 4 Accordingly, the plain language of the committee report, like the statute itself, supports the conclusion that a felon whose conviction has not been annulled is disqualified from jury service, regardless of whether the conviction is eligible for annulment. VII. CONCLUSION. For the reasons stated, this Court should conclude that the juror qualification precludes from jury service a person with an unannulled felony conviction, even if that conviction is otherwise eligible for annulment under New Hampshire law. 4 The defendant has also quoted from a statement by a sponsoring representative that testified before the legislative committee about the bill. Def. First Cir. Brief at 25. This statement supports the notion that an ineligible conviction disqualifies a person from jury service. The statement however says nothing about the issue presented here namely, whether an eligible but unannulled conviction also disqualifies someone from jury service. 22

27 VIII. REQUEST FOR ORAL ARGUMENT. The United States requests argument before the full Court because this case raises an issue of first impression and therefore the Court will benefit from being able to question counsel about the question presented. Assistant United States Attorney Seth R. Aframe will argue on behalf of the United States. IX. APPENDED OPINIONS. The written order of the United States District Court for the District of New Hampshire and the opinion of the United States Court of Appeals for the First Circuit certifying the question presented are appended to this brief. Respectfully submitted, JOHN P. KACAVAS United States Attorney Dated: February 4, 2014 /s/ Seth R. Aframe Seth R. Aframe Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on this date, February 4, 2014, two true and correct copies of the Appellant s Brief and Appendix have been provided to counsel for the appellee, Behzad Mirhasham, Assistant Federal Defender, 22 Bridge Street, Concord, NH /s/ Seth R. Aframe Seth R. Aframe Assistant United States Attorney 23

28 ADDENDUM TO UNITED STATES' BRIEF

29 TABLE OF CONTENTS Document Page Order of the U.S. District Court, October 4, Opinion, First Circuit Court of Appeals, November 15,

30 Case 1:12-cr JD Document 17 Filed 10/04/12 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE United States of America Ryan Howe v. Criminal No. 12-cr JD 0 R D E R On August 8, 2012, a federal grand ]ury returned an indictment charging Ryan Howe with being a felon in possession of a firearm in violation of 18 U.S.C. 922(g) (1) ("Count One") and possession of an unregistered firearm in violation of 26 U.S.C. 5841, 5845(a), 5861(d) and Howe moves to dismiss Count One. The government objects to the motion. Background Howe was convicted of carrying a firearm without a license in violation of N.H. Rev. Stat. Ann ("RSA") 159:4, a class B felony, on May 12, He received a deferred sentence of a maximum of two years in prison and was placed on probation. On August 22, 1997, Howe was convicted of violating his probation, and was sentenced to one year in prison. He finished serving his sentence and was released from prison in late Howe was 1 Howe began serving his sentence in August 1997 but was granted bail pending appeal in November He lost his appeal in April 2000, and resumed serving his sentence in July Therefore, although Howe was sentenced in 1997 to a prison term of one year, he finished serving his sentence in late ADD. 001

31 Case 1:12-cr JD Document 17 Filed 10/04/12 Page 2 of 6 also convicted of disorderly conduct on May 13, 2002, and fined $250. Howe is charged with being a felon in possession of a firearm in violation of 18 U.S.C. 922(g) (1) ("Count One") and possession of an unregistered firearm in violation of 26 U.S.C. 5841, 5845(a), 5861(d) and He moves to dismiss Count One. Discussion In support of his motion to dismiss, Howe argues that he is not a felon for purposes of 922(g) (1) because his civil rights, including his right to serve on a jury, had been restored before the time of the alleged offense. The government contends that Howe's right to serve on a jury had not been restored because his conviction had not been annulled. A. Felon for Purposes of 922(g) (1) Section 922(g) (1) makes it illegal for anyone "who has been convicted in any court of, [sic] a crime punishable by imprisonment for a term exceeding one year" to possess a firearm. Section 921(a) (20) provides: Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had his 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. 2 ADD. 002

32 Case 1:12-cr JD Document 17 Filed 10/04/12 Page 3 of 6 Therefore, 922(g) (1) provides an exception for those who have had their civil rights restored after conviction of a felony. See United States v. Hartsock, 347 F. 3d 1, 10 (1st Cir. 2003); United States v. Bartelho, 71 F.3d 436, 440 (1st Cir. 1995). In the First Circuit, "the civil rights that must be restored to trigger the exception 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); see also United States v. Blodgett, 130 F.3d 1, 3 (1st Cir. 1997). Howe and the government agree that Howe's right to vote and hold public office were restored before September 15, 2011, when he was charged with being a felon in possession of a firearm in violation of 922(g) (1). See RSA 607-A:2 (providing that a person sentenced for a felony may not vote in an election or hold public office "from the time of his sentencing until his final discharge"). They disagree, however, as to whether Howe's right to serve on a jury was restored prior to his alleged violation of 922(g) (1). Therefore, whether Howe was a felon under 922(g) (1) depends on whether his right to serve on a jury was restored. B. Right to Serve on a Jury RSA 500-A:7-a 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." Howe argues 3 ADD. 003

33 Case 1:12-cr JD Document 17 Filed 10/04/12 Page 4 of 6 that the proper interpretation of 500-A:7-a prohibits jury service by a felon whose (1) conviction has not been annulled or (2) conviction is not yet eligible to be annulled. He contends that because his conviction became eligible for annulment several years before September 15, 2011, his right to serve on a jury had been restored at the time of the charged offense. The government does not dispute that Howe's felony conviction was eligible to be annulled under New Hampshire law at the time of his alleged violation of 922(g) (1). It contends, however, that RSA 500-A:7-a prohibits jury service by anyone convicted of a felony which has yet to be annulled or which could never be annulled. The government argues that because Howe's felony conviction was not annulled, his right to serve on a jury was not restored. "It is 'a cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" United States v. Cortes Claudio, 312 F.3d 17, 21 (1st Cir. 2002) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). Therefore, "no construction should be adopted which would render statutory words or phrases meaningless [or] redundant." United States v. Ven-Fuel. Inc., 758 F.2d 741, (1st Cir. 1985). In this case, the government's reading of RSA 500-A:7-a would render the language "which is eligible for annulment" 4 ADD. 004

34 Case 1:12-cr JD Document 17 Filed 10/04/12 Page 5 of 6 meaningless. Under the government's reading, the statute prohibits the following two types of felons from serving on a jury: (1) those whose felony convictions have not been annulled, and (2) those whose felony convictions are in the class of felonies that are never eligible for annulment, such as violent crimes or crimes of obstruction of justice, see RSA 651:5(V). Such a reading, however, would render reference to the second type of felon superfluous, as a person convicted of one of the class of felonies which can never be annulled would be, by definition, a person whose felony conviction has not been annulled. In other words, under the government's reading, if the phrase "or which is eligible for annulment" were eliminated from the statute, the statute would still have the same effect. Thus, the government's interpretation makes part of the statute superfluous and violates a basic principle of statutory construction. Under the plain meaning of the statute, an individual who has committed a felony may serve on a jury if his conviction is eligible for annulment. RSA 651:5(III) (d) provides, "any person convicted of [a class B felony] may petition for annulment of the record of arrest, conviction, and sentence where the petitioner has completed all the terms and conditions of the sentence and has thereafter been convicted of no other crime.. for a period of.. 5 years." Howe was convicted of a class B felony and completed the terms and conditions of his sentence for his 5 ADD. 005

35 Case 1:12-cr JD Document 17 Filed 10/04/12 Page 6 of 6 felony conviction in Howe's last criminal conviction, for disorderly conduct, was on May 13, 2002, more than five years before his alleged violation of 922(g) (1). Therefore, under 651:5(III) (d), Howe's felony conviction was "eligible for annulment under New Hampshire law" on September 15, 2011, when he was charged with a violation of 922(g) (1). Therefore, his right to serve on a jury had been restored at that time. Accordingly, because Howe's civil rights were restored at the time of his alleged violation of 922(g) (1), he is not considered a felon under that statute. Conclusion For the foregoing reasons, the defendant's motion to dismiss Count One (document no. 8) is granted. SO ORDERED. October 4, 2012 A. DiClerico, States District cc: Jeffrey S. Levin, Esq. Debra M. Walsh, Esq. U.S. Probation U.S. Marshal 6 ADD. 006

36 Case: Document: Page: 1 Date Filed: 11/15/2013 Entry ID: United States Court of Appeals For the First Circuit No UNITED STATES OF AMERICA, Appellant, v. RYAN HOWE, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] Before Lynch, Chief Judge, Selya, Circuit Judge, and Hillman, * District Judge. 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. November 15, 2013 * Of the District of Massachusetts, sitting by designation. ADD. 007

37 Case: Document: Page: 2 Date Filed: 11/15/2013 Entry ID: 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. I. 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. -2- ADD. 008