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DEACTIVATING THE MOUSETRAP: ENTRAPMENT BY ESTOPPEL AS A DEFENSE TO

FEDERAL FELON-IN-POSSESSION CHARGES

Madeline Stavis∗

INTRODUCTION Richard Raymond Glaser, a felon, is released from state prison and

receives the following certificate from the state: This is to certify that Richard Raymond Glaser, who was on the 20th day of May, 1983, sentenced to the Commissioner of Corrections by the District Court of Washington; Washington County, has completed such sentence and is hereby discharged this 17th day of June, 1986; and that pursuant to Minnesota Statutes, Section 609.165 the said Richard Raymond Glaser is hereby restored to all civil rights and to full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.1

Years later, he is arrested for the federal offense of carrying a firearm post-conviction. According to Mr. Glaser, he was under the impression that one of the rights that the government removed and subsequently restored was that of gun ownership. The federal felon-in-possession statute,2 contained in the Firearm Owners Protection Act (FOPA),3 makes it unlawful for felons to possess firearms. However,

∗ Symposia Editor, Cardozo Law Review. J.D. Candidate (June 2011), Benjamin N. Cardozo School of Law. Thanks to CLR staff for your tireless efforts and camaraderie. Also a huge thank you to my family and friends for your love, support, and unfailing sense of humor. 1 This is the certificate that was the subject of United States v. Glaser, 14 F.3d 1213 (7th Cir. 1994), discussed infra note 68. Glaser was serving three concurrent sentences for burglary. Id. at 1215. 2 18 U.S.C. § 922(g)(1) (2006), explained in detail infra notes 46-48 and accompanying text. 3 18 U.S.C. §§ 921-931. FOPA was enacted in 1986, and it was preceded by the Gun Control Act. Today, the Gun Control Act still exists as Title IV and Title VII of the Omnibus Crime Control and Safe Streets Act. See Daniel Brenner, Note, The Firearm Owners’ Protection Act and the Restoration of Felons’ Right to Possess Firearms: Congressional Intent Versus Notice, 2008 U. ILL. L. REV. 1045, 1051. Under the Gun Control Act, Title IV and Title VII led to discrepancies. Id. Title IV was generally about licensing, but it also prohibited felons from possessing weapons. The penalty could not exceed a fine of $5000 or imprisonment of five years. Id. at 1051-52. Under Title IV, the felon could obtain relief from firearm disability by petitioning the Secretary of the United States Department of Treasury. Id. at 1052. Title VII enumerated groups of people who were prohibited from possessing firearms, and like Title IV, Title VII listed

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the felon-in-possession statute does not apply to felons whose rights have been restored, so long as the restoration does not expressly provide4 that the felon may not ship, transport, possess, or receive firearms.5 Mr. Glaser’s certificate might appear to exempt him from the federal felon-in-possession statute since it expressly restored his rights and contained no provision against firearms. However, a state statute provides that felons may not possess firearms. Mr. Glaser lives in a circuit that looks beyond the certificate to other statutes to determine his right to carry firearms after his release, and therefore the applicability of the federal felon-in-possession statute.6 Because he lives in such a circuit, he might face federal prison time solely for possessing a firearm.

Mr. Glaser would fair much better if he lived in a circuit that interprets the federal felon-in-possession statute differently.7 These circuits look solely to the restoration certificate for an express provision regarding firearms. Because Mr. Glaser’s certificate is silent on the issue of firearms, he could not be charged under the federal felon-in-possession statute. Circuits take this position for two reasons.8 First, these circuits find clear instructions in the felon-in-possession statute’s language to look solely to the restoration certificate.9 Second, this

felons. Id. However, the penalty was to be no more $10,000 or imprisonment of two years. Id. Under Title VII, the only available relief was a pardon from the President or a state governor, and the pardon had to explicitly state that firearm restrictions were removed. Id. Because of these discrepancies in the statutory treatment of the same group of people, the Gun Control Act was susceptible to abuse. Id. at 1053 (“[W]hen both titles were applied, the government could invoke either at its option.”). The Gun Control Act was over-enforced by the Bureau of Alcohol, Tobacco, and Firearms, in part because of pressure to justify the Bureau’s role after a drop in its alcohol-related responsibilities. David T. Hardy, The Firearm Owners’ Protection Act: A Historical and Legal Perspective, 17 CUMB. L. REV. 585, 604-07 (1987). The problems of the Gun Control Act were among the reasons that Congress enacted FOPA in 1986. Id. at 585. Title VII was repealed, and the categories of prohibited persons were incorporated into Title IV. Brenner, supra, at 1056. For detailed a history of FOPA, see Hardy, supra. 4 The felon-in-possession statute is arguably unclear on what it means for the restoration to expressly provide that firearms are prohibited. Some courts hold that the express provision on firearms must appear in the restoration certificate, while others look to state statutes for an express provision. This circuit split will be discussed throughout this Note. 5 18 U.S.C. § 921(a)(20) (2006), explained in detail, infra note 48 and accompanying text. 6 The Fourth, Sixth, and Tenth Circuits take this approach. See, e.g., United States v. Burns, 934 F.2d. 1157, 1160-61 (10th Cir. 1991); United States v. McLean, 904 F.2d 216, 217 (4th Cir. 1990); United States v. Cassidy, 899 F.2d 543, 548 (6th Cir. 1990). For a detailed discussion of FOPA case law and reasoning in these circuits, see infra notes 74-96 and accompanying text. 7 The Fifth, Seventh, Ninth, and D.C. Circuits take this approach. See, e.g., United States v. Chenowith, 459 F.3d 635, 640 (5th Cir. 2006); United States v. Bost, 87 F.3d 1333 (D.C. Cir. 1996); United States v. Herron, 45 F.3d 340, 341 (9th Cir. 1995); United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994). For a detailed discussion of FOPA case law and reasoning in these circuits, see infra notes 62-73. 8 For a detailed exploration of these rationales, see infra notes 66-73. 9 The felon-in-possession statute says that a felon whose rights were restored cannot be charged under FOPA “unless such . . . restoration expressly provides” a restriction on firearms. 18 U.S.C. § 921(a)(20). These circuits find that this language clearly limits their inquiry to the

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approach comports with due process; to give effect to a state statute that contradicts Glaser’s individualized certificate would be to create a federal “mousetrap”10 in which the state certificate sets the bait and the federal felon-in-possession statute springs the trap.

Curiously, while due process concerns are clearly implicated where the state sends a silent certificate, neither litigants nor courts articulate a well established11 and squarely applicable due process doctrine: entrapment by estoppel.12 This Note argues that litigants should assert and courts should recognize entrapment by estoppel as a defense to a federal felon-in-possession charge in situations like Glaser’s, where the state restores the felon’s rights with a certificate that is silent on the issue of firearms (silent certificates). In such a situation, where the felon is later charged under the felon-in-possession statute, his successful entrapment by estoppel defense would depend on establishing the following elements: (1) a government official (2) made an affirmative representation that the conduct was legal and (3) the defendant reasonably relied on the representation.13

FOPA defendants have attempted14 to raise the defense in cases where a probation officer,15 firearms dealer,16 or judge17 has misrepresented that firearm possession is lawful. Surprisingly,

four corners of the certificate. For full discussion of this interpretation of the FOPA language, see infra note 66. However, the other circuits find the language in FOPA unclear. See infra note 83. 10 In United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir. 1990), Judge Easterbrook found that FOPA directs the court to look solely to the certificate because it is “an anti-mousetrapping rule.” For a detailed discussion of Easterbrook’s opinion, see infra notes 68-73. 11 The Supreme Court has articulated entrapment by estoppel three times. See infra notes 26-41. 12 The defense of entrapment by estoppel “applies when an official tells the defendant that certain conduct is legal and the defendant believes the official.” United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 825 (9th Cir. 1985). For a full discussion of entrapment by estoppel doctrine, see infra Part I.A. 13 See, e.g., United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987) (defining and describing entrapment by estoppel). For a discussion of entrapment by estoppel, see infra Part I.A. 14 For reasons discussed throughout this Note, these defendants tend to fail in asserting the defense. One reason is that defendants have relied on representations of state officials, and many courts demand a federal official make a representation in order to assert entrapment by estoppel to a federal crime. See infra notes 101-41 and accompanying text. In addition, these defendants have faced evidentiary issues in proving that an official actually made the representation. See infra note 152 and accompanying text. This Note argues that FOPA defendants with silent certificates can overcome both of these issues in asserting entrapment by estoppel. 15 See, for example, United States v. Nichols, 21 F.3d 1016, 1017 (10th Cir. 1994), in which defendant claimed that his probation officer made misleading statements to him. 16 See, for example, United States v. Austin, 915 F.2d 363 (8th Cir. 1990), where a federally licensed firearms dealer represented that defendant could own a firearm. See also Tallmadge, 829 F.2d at 767 (same). For juxtaposition of the different holdings of Austin and Tallmadge, see infra note 105. 17 See, for example, United States v. Brady, 710 F. Supp. 290, 294 (D. Colo. 1989), where the state judge told defendant he could use a firearm for purposes of his hunting and trapping occupation.

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however, the overwhelming majority18 of defendants do not raise the defense purely on the basis of a restoration certificate. If an individual like Mr. Glaser comes before a circuit that considers the state statute that contradicts his silent restoration certificate, the entrapment by estoppel defense would be warranted.

Recognition of the applicability of entrapment by estoppel in problematic circuits that convict felons on the basis of state laws that contradict the certificates will vindicate the due process rights of felons. The overwhelming number of defendants in these circuits have not made the argument that the silent certificate on its own constitutes entrapment by estoppel, and this Note provides them with a crucial tool to vindicate their due process rights in circuits that look beyond the certificate.19

Part I discusses Supreme Court case law on the doctrine of entrapment by estoppel. This Part also explains the mechanics of the felon-in-possession statute, exploring the two predominant approaches courts have taken to its interpretation. Part II applies entrapment by estoppel to felons who receive silent certificates. Using an elemental approach, Part II explains why these felons have a valid entrapment by estoppel defense to felon-in-possession charges. Part III addresses the ramifications of the defense and argues that, absent a change in certificate language, litigants should raise and courts should hear entrapment by estoppel defenses.

18 It should be noted that one court has addressed an argument that the entrapment by estoppel defense should apply because of a restoration certificate that was silent on firearms. Hood v. United States, 342 F.3d 861 (8th Cir. 2003), discussed infra notes 145-49 and accompanying text. Hood was an ineffective assistance of counsel case, and the court only touched on the entrapment by estoppel argument. Id. Without engaging in reasoning, the Hood court rejected the notion that a silent certificate could constitute an affirmative representation that firearm possession was lawful. Id. at 865. This case is a rarity in a sea of felon-in-possession cases where defendants do not raise entrapment by estoppel defenses based on the restoration certificate. FOPA defendants with a silent certificate should not be discouraged by this single piece of negative precedent. 19 This Note also provides additional support for circuits that do take due process concerns into account. Circuits that look solely to the certificate discuss due process on a general level and express abstract concerns about creating a “mousetrap.” United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir. 1990). This Note provides these circuits with a more solid doctrine on which to ground their reasoning. Circuits that fail to take due process into account are vulnerable to entrapment by estoppel defenses, while the due process-centered circuits need not worry about the defense applying based on the silent certificate.

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I. BACKGROUND: ENTRAPMENT BY ESTOPPEL AND APPROACHES TO THE

FIREARM OWNERS PROTECTION ACT

A. Entrapment by Estoppel Entrapment by estoppel is an exception to the maxim that

ignorance of the law is no defense.20 Federal and state courts have articulated the elements of entrapment by estoppel21 in different ways,22 but the articulations all share certain characteristics.23 To assert the

20 United States. v. Bruscantini, 761 F.2d 640, 642 (11th Cir. 1985). One of the rationales for the traditional common law rule that ignorance of the law is not a defense is that it encourages people to seek out the law and refuses to reward intentional ignorance. O.W. HOLMES, JR., THE COMMON LAW 47-49 (1881); see also Clark v. State, 739 P.2d 777, 779 (Alaska Ct. App. 1987) (discussing rationales for traditional principle). However, the Supreme Court has recognized that the “deeply rooted” rule makes less sense in light of current complex criminal codes. Cheek v. United States, 498 U.S. 192, 199-200 (1991). To deal with the changing system, courts have carved out narrow exceptions, such as entrapment by estoppel. The desire to disincentivize intentional ignorance is not persuasive where the person has sought out an interpretation of the law, but the government provides an interpretation that keeps the person ignorant of the true state of the law. 21 Entrapment by estoppel must be distinguished from entrapment. Entrapment by estoppel focuses on official conduct, whereas entrapment focuses on the defendant’s state of mind. 22 C.J.S. CRIMINAL LAW § 72, 78 (2010). Entrapment refers to situations where the government official encourages the defendant to engage in criminal conduct where the defendant was not already predisposed to commit the crime, while entrapment by estoppel refers to the official’s representation that the conduct at question is in fact legal and the defendant’s reliance on that representation. Id. Since the inquiry focuses on official conduct, entrapment by estoppel can be a defense even to a strict liability crime; the fact that the crime requires no intent is irrelevant because the defense does not deal with the defendant’s state of mind. United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); Tallmadge, 829 F.2d at 773. Entrapment by estoppel must also be distinguished from the broader defense of ignorance or mistaken interpretation of the law. See SueAnn D. Billimack, Note, Reliance on Official Interpretation of the Law: The Defense’s Appropriate Dimensions, 1993 U. ILL. L. REV. 565, 565-66 (calling the entrapment by estoppel doctrine an exception to the general rule that, “if someone engages in conduct that constitutes a crime, a court may still convict that individual of the offense even if he or she is unaware such conduct is illegal.”). The issue is not that the defendant misinterpreted or was ignorant of the law, but that the government affirmatively misrepresented the law to the defendant. 22 For a description of the different circuit tests, see United States v. West Indies Transporation, Inc., 127 F.3d 299, 312-13 (3d Cir. 1997). 23 See United States v. Howell, 37 F.3d 1197, 1204 (7th Cir. 1994) (“The common thread in the case law applying the defense is an affirmative misrepresentation of the law by a government official, reasonable reliance, and action upon that misrepresentation by a defendant.”). In addition to the judge-made law detailing the requirements of entrapment by estoppel, the Model Penal Code has also recognized the defense:

A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when . . . [a defendant] acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in . . . an official interpretation of the public officer or

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defense, the litigant must prove the following elements: (1) a government official (2) made an affirmative representation that the conduct was legal and (3) the defendant reasonably relied on the representation.24 Because the government misled the defendant, the defense estops the government from asserting that the advice provided was incorrect.25

The Supreme Court recognized the defense of entrapment by estoppel26 in a series of three cases decided between 1959 and 1973.27 The Court has grounded the defense in notions of due process.28 It first articulated the defense in Raley v. Ohio.29 In Raley, the Un-American Activities Commission of the State of Ohio had interrogated a group about communist activities.30 Throughout the proceedings, the Chairman of the Commission assured members that they had a right, under the United States31 and Ohio Constitutions,32 to invoke their privilege against self-incrimination. In fact, the privilege did not exist

body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

MODEL PENAL CODE § 2.04(3)(b) (2009). 24 See United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 825 (9th Cir.1985) (describing the elements of entrapment by estoppel); see also Sean Connelly, Bad Advice: The Entrapment by Estoppel Doctrine in Criminal Law, 48 U. MIAMI L. REV. 627, 630 (1994) (“Even where a mistake of law defense would not otherwise be cognizable, the Supreme Court has held that prosecution may be precluded under the Due Process Clause where government officials affirmatively, albeit mistakenly, assured defendants that their conduct was legal.”). 25 Frederick S. Kuhlman, Comment, Government Estoppel: The Search for Constitutional Limits, 25 LOY. L.A. L. REV. 229, 268 (1991) (explaining that when the defense applies, “the government is estopped to deny the correctness of the interpretation thus given”). See also Gideon Yaffe, “The Government Beguiled Me”: The Entrapment Defense and the Problem of Private Entrapment, 1 J. ETHICS & SOC. POL’Y 2, 21 (2005), asserting:

In other words, by convincing the defendant that the conduct was legal, the government committed itself to not convicting or punishing the defendant for that conduct; and since the defendant only acted as he did because of that commitment, to convict and punish would be to authorize governmental behavior while at the same time authorizing the commitment not to engage in it.

Id. 26 The Supreme Court has never used the term “entrapment by estoppel,” but lower courts and scholars have adopted the term. Sean Connelly points out that in United States v. Pennsylvania Industrial Chemical Corp., discussed infra note 40, the Supreme Court cited an article that used the term favorably. Connelly, supra note 24, at 631. For a discussion of Supreme Court entrapment by estoppel doctrine, see United States v. Conley, 859 F. Supp. 909, 921-27 (W.D. Pa. 1994). 27 United States v. Pa. Indus. Chem. Corp. (PICCO), 411 U.S. 655 (1973); Cox v. Louisiana, 379 U.S. 559 (1965); Raley v. Ohio, 360 U.S. 423 (1959). This Note refers to these three cases as the Supreme Court trilogy. 28 See infra note 35. 29 Raley, 360 U.S. 423. 30 Id. This is the first case where the Supreme Court recognized the defense of entrapment by estoppel, reasoning that to allow conviction, “would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him.” Id. at 425-26. 31 U.S. CONST. amend. V. 32 OHIO CONST. art. I, § 10.

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in this situation.33 The group was then indicted for failing to answer the questions, conduct that the State had previously assured them was legal and protected.34 In reversing the convictions, the Supreme Court articulated the defense of entrapment by estoppel and grounded it in the Fourteenth Amendment’s protection of due process.35 Vague statutes that give citizens no fair warning about what conduct will result in criminal sanctions offend due process.36 When the state goes beyond promulgating a vague statute and actively misleads citizens, the due process problem is even more serious.37 Where the state actively misleads, entrapment by estoppel ensures that the state cannot convict the defendant.38

The Supreme Court articulated the defense again in Cox v. Louisiana39 and United States v. Pennsylvania Industrial Chemical Corporation (PICCO).40 In Cox and PICCO, the Supreme Court

33 OHIO REV. CODE ANN. § 101.44 (West 2010) grants immunity from prosecution based on testimony before a legislature, so the privilege against self-incrimination was unavailable. 34 Raley, 360 U.S. at 426-32 (detailing the exchanges each defendant had with the Chairman of the Commission). 35 Id. at 425-26. U.S. CONST. amend. V (“No person shall be . . . deprived of life, liberty, or property, without due process of law . . . .”); U.S. CONST. amend. XIV (“No state shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”). The Fifth Amendment applies to the federal government, while the Fourteenth Amendment applies to states. The due process analysis is the same under both amendments. See Bowles v. Willingham, 321 U.S. 503 (1944). Connelly points out that the Court engaged in current-day fundamental due process analysis without using the term. Connelly, supra note 24, at 632. An entrapment by estoppel defense “challeng[es] the substantive fairness of the prosecution itself.” Id. 36 Raley, 360 U.S. at 438 (“A State may not issue commands to its citizens, under criminal sanctions, in language so vague and undefined as to afford no fair warning of what conduct might transgress them.” (citing Lanzetta v. New Jersey, 306 U.S 451 (1939)). 37 Id. at 438-39 (“Here there were more than commands simply vague or even contradictory. There was active misleading. . . . We cannot hold that the Due process clause permits convictions to be obtained under such circumstances.”). 38 Id. 39 379 U.S. 559 (1965). In Cox, the highest police official of the city told a group of demonstrators that they could protest across the street from the courthouse, but police then arrested the protestors for violating a Louisiana statute that criminalized demonstrating “near” a court. Id. at 560. The Court found that the defendants were justified in relying on the police official’s representation that they were not “near” enough to the courthouse to violate the law. Id. at 573. The Court found that the statute “foresees a degree of on-the-spot administrative interpretation by officials” and that the demonstrators “would justifiably tend to rely on this administrative interpretation of how ‘near’ the courthouse a particular demonstration might take place.” Id. at 568-69. The Court analogized this situation to Raley:

[T]o sustain appellant’s later conviction for demonstrating where [officials] told him he could “would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him.” The Due Process Clause does not permit convictions to be obtained under such circumstances.

Id. at 571 (citing Raley, 360 U.S. at 426). 40 411 U.S. 655 (1973). The defendant in PICCO was convicted under the Rivers and Harbors Appropriation Act of 1889 for discharging “refuse matter” without a permit from the Secretary of the Army. Id. However, the Army Corps of Engineers interpreted refuse matter as only those materials that would impede navigation. Id. In deciding to discharge the substances

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referred to the same concerns addressed in Raley and held that it would offend due process to prosecute where the government had represented that the conduct was lawful.41

The next Part explores FOPA. One interpretation of FOPA allows the state to mislead the defendant into violating FOPA. The defense of entrapment by estoppel should be available to these defendants.

B. The Scope and Applicability of the Firearm

Owners Protection Act

FOPA42 is a federal statute regulating firearms. Congress passed FOPA in 1986 to replace part of the Gun Control Act,43 partly in response to the Supreme Court’s holding in Dickerson v. New Banner Institute, Inc.44 FOPA45 enumerates unlawful acts, and 18 U.S.C. § 922(g)(1) (the felon-in-possession statute) makes it unlawful for anyone convicted of a state or federal “crime punishable by imprisonment for a term exceeding one year” to ship, transport, possess, or receive firearms or ammunition upon release.46 The felon need not use the firearm in furtherance of crime or with any specific intent.47

The felon-in-possession statute applies only to someone convicted “of a crime punishable by imprisonment for a term exceeding one year,” which is defined in 18 U.S.C. § 921(a)(20) (the FOPA definitional

without seeking a permit, the defendants consulted the Corps’ guidelines and relied on the Army Corps’ interpretation. Id. Citing Raley and Cox, the Court noted that if the defendant had relied on a government representation that the contemplated conduct was lawful, it would offend due process to prosecute that conduct. Id. at 674 (“Thus, to the extent that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution.”). The Supreme Court was deciding whether it was error for the District Court to prohibit the presentation of evidence of reliance, and the Court remanded for a decision as to whether there was actual and reasonable reliance on the guidelines. Id. 41 For analogy to Raley in Cox, see supra note 39. For reference to Raley in PICCO, see supra note 40. 42 18 U.S.C. §§ 921-931 (2006). 43 For a history of FOPA and problems of the Gun Control Act, see supra note 3. 44 460 U.S. 103 (1983). For a discussion of the widely held view that FOPA legislatively reversed the holding in Dickerson, see infra note 117. For a detailed discussion of Dickerson, see infra notes 85-93 and accompanying text. 45 18 U.S.C. §§ 921-931. 46 Most of the cases discussed in this Note relate to firearm possession, so this Note will refer to any FOPA violation as “possession.” However, felons can also violate FOPA by shipping, transporting, or receiving firearms. 47 See, e.g., United States v. Brady, 710 F. Supp. 290, 294 (D. Colo. 1989) (“All that the government needed to prove to make a prima facie case was that the defendant possessed a firearm, that the firearm traveled in interstate commerce, and that he had previously been convicted of a crime punishable by a year or more.”).

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section).48 If the felon’s rights were restored upon release, he is not considered convicted of a crime punishable by imprisonment of more than one year unless the restoration certificate “expressly provides” that the felon may not possess firearms (the unless clause). Circuits are split over the meaning of the unless clause.

C. The Restoration of Civil Rights and Prohibitions on

Firearms for Felons

Courts agree that the first sentence of FOPA’s definitional section directs them to look to “the law of the jurisdiction in which the proceedings were held”49 to determine if that state considers the defendant to be convicted of the predicate offense.50 If the jurisdiction considers him to have been convicted of a crime punishable by imprisonment of more than one year, the court then considers whether the felon’s civil rights were restored sufficiently. Most courts require “substantial” restoration of the rights that run with citizenship,51 which include the right to vote, hold public office, and serve on a jury.52

48 18 U.S.C. § 921(a)(20) reads: What constitutes a conviction of such a crime 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.

Id. (emphasis added). 49 Id. 50 For example, if a defendant is before the District Court of Montana on a federal felon-in-possession charge and his predicate conviction “of a crime punishable by imprisonment for a term exceeding one year” is from the state of Michigan, the Montana District Court will look to Michigan law to see if Michigan considers him convicted of the predicate offense. United States v. Dahms, 938 F.2d 131, 133 (9th Cir. 1991) (quoting 18 U.S.C. § 922(g)(1) (1988)). 51 See, e.g., United States v. Thomas, 991 F.2d 206, 211 (5th Cir. 1993) (“[T]he Ninth Circuit now looks to see whether the state of conviction of the predicate offense restores the felon’s rights to vote, to hold public office, and to serve on a jury, to determine whether the felon’s ‘civil rights’ have been restored.”); United States v. Cassidy, 899 F.2d 543, 549-50 (6th Cir. 1990) (requiring restoration of “those rights accorded to an individual by virtue of his citizenship in a particular state” and finding that defendant’s rights were restored “as contemplated by 18 U.S.C. § 921(a)(20) because, after his release from prison, the rights to vote, to serve on a jury and to seek and hold public office were restored to him” (citation omitted)). For courts declining to find substantial restoration, see United States v. Valerio, 441 F.3d 837, 842 (9th Cir. 2006) (“Under New Mexico law, Valerio’s civil right to vote has been restored. However, we have not found a case that says restoration of the right to vote is sufficient.”). See also United States v. Gilliam, 979 F.2d 436, 437 (6th Cir. 1992) (“Michigan law does not fully restore a convicted felon’s civil rights for purposes of section 921(a)(20) because a Michigan felon is restricted from serving on juries . . . .”). 52 Since Congress used the term “civil rights” rather than “all rights and privileges,” courts have not interpreted the definitional section to require a full restoration of the rights that were “forfeited upon conviction.” Cassidy, 899 F.2d at 549-50.

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Many states53 restore the civil rights of felons upon release from imprisonment automatically either through a statute, a restoration certificate, or a combination of both.54 For example, a state might send a certificate pursuant to a statute restoring the rights to serve on a jury and hold public office, and another statute might automatically restore the right to vote, without sending a restoration certificate.55 A state actively restores rights when it sends a restoration certificate to the felon, and a state passively restores rights through statutes.56 This Note focuses on cases involving active restoration where the state sends the felon a restoration certificate.

If there is sufficient restoration,57 the next step58 in FOPA cases is to ask whether there is an express provision against firearms. Circuit courts are split over whether that express provision must appear in the restoration certificate, or if it can appear in any state statute.59 States

53 Where the predicate offense is a state crime and the defendant has served time in state prison, the restoration certificate will come from that state. There is no federal procedure for restoring rights, and state restoration of a federal felon’s rights does not remove FOPA disabilities. Beecham v. United States, 511 U.S. 368 (1994). In Beecham, the Supreme Court held that the restoration must come from the convicting jurisdiction to count for the FOPA definitional section. Id. Cases where the predicate conviction was of a federal crime are outside the scope of this Note. 54 States restore rights in a variety of ways. See United States v. Bost, 87 F.3d 1333, 1335 (D.C. Cir. 1996) (“Some states restore civil rights by statute; others authorize officials to issue certificates of restoration to felons after a specified period; still others ‘restore rights in a piecemeal fashion’ by a combination of statutes or by certificate and statute.”). 55 Id. The statute declared that a person who is convicted of a felony “‘is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit. . . . [A]ny such person . . . is competent to be an elector [during the period of any grant of probation, parole, or conditional pardon] and thereafter following his final discharge.’” Id. at 1336 (quoting OHIO REV. CODE ANN. § 2961.01 (LexisNexis 1993)). This statute automatically restores the right to vote. A separate Ohio statute states, “[a] prisoner who has served the maximum term of his sentence or who has been granted his final release by the adult parole authority shall be restored to the rights and privileges forfeited by his conviction.” Id. at 1336 (quoting OHIO REV. CODE ANN. § 2967.16 (LexisNexis 1993)). Pursuant to the latter statute, the state sends the felon a certificate restoring his right to serve on juries and hold office. 56 See Brenner, supra note 3, at 1057-58. 57 For a discussion of what constitutes sufficient restoration, see supra notes 51-52. 58 In analyzing FOPA cases, courts have applied a multistep analysis that first looks to restoration and then to firearm prohibition. See United States v. Chenowith, 459 F.3d 635, 638 (5th Cir. 2006) (describing the two-step analysis and circuit split); United States v. Valerio, 441 F.3d 837, 840 (9th Cir. 2006) (explaining that the felon-in-possession statute establishes a path: courts determine if defendant has a conviction, if civil rights were restored, and whether the restoration expressly prohibits firearms). In Valerio, the court held that the defendant could not reach the third step, as his rights were never restored. Id.; see also United States v. Thomas, 991 F.2d 206, 215 (5th Cir.1993) (“If the felon has not ‘had civil rights restored,’ it simply does not matter what the state law provides concerning possession of firearms.”). 59 For a detailed description of the circuit split, see Brenner, supra note 3. Brenner explains that in addition to the active restoration circuit split discussed in the following subsections, there is also a passive restoration split. Id. According to Brenner, the majority of circuits will find an express provision against firearms even where the restriction and the restoration do not appear in the same statute; it is sufficient that they are both in the form of statutes. Id. at 1064; see, e.g., United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir. 1990) (upholding conviction where statute

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that send restoration certificates may also have statutes that make it a state crime for felons to possess firearms.60 Where the restoration certificate provides nothing about firearms, but a statute restricts the felon’s right to possess firearms, courts disagree as to whether the state statute is an “express provision” against firearms such that the felon-in-possession statute should apply.61 Litigants in courts that find an express prohibition in a state statute even where the certificate is silent on firearms should raise an entrapment by estoppel defense.

D. The Better Approach: Confining the Inquiry

to the Restoration Certificate

The Fifth,62 Seventh,63 Ninth,64 and D.C.65 Circuits have held that where a certificate is the source of a restoration of rights, the express provision against firearms must appear in that document; these circuits do not look to a state statute that makes it unlawful for felons to have guns. They instead find that the plain meaning of the FOPA definitional section requires them to go no further than the restoration document.66

automatically restored rights without a certificate and another statute prohibited felons from possessing firearms). The Fifth Circuit, however, has suggested in dicta that it might require the statutory prohibition on firearms to be contained alongside the restoration statute. Thomas, 991 F.2d at 213. This Note deals solely with active restoration. 60 For example, Ohio sends restoration certificates, but also has a statute that makes it a crime for felons to possess firearms. “[N]o person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance” if that person is “under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.” OHIO REV. CODE ANN. § 2923.13(A), (A)(2) (LexisNexis 2010). 61 See, e.g., Chenowith, 459 F.3d at 638 (recognizing that courts are “divided”). For a discussion of the circuit split, see infra Parts I.D-E. 62 Chenowith, 459 F.3d at 640 (“Because the certificate is the source of Chenowith’s civil-rights restoration, and because it does not expressly prohibit his possessing firearms, the district court erred in denying his motion to dismiss his indictment.”). 63 United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir. 1994) (“When the state gives the person a formal notice of the restoration of civil rights, however, the final sentence of § 921(a)(20) instructs us to look, not at the contents of the state’s statute books but at the contents of the document.”). 64 United States v. Herron, 45 F.3d 340, 341 (9th Cir. 1995) (“The document restoring Herron’s civil rights . . . does not expressly provide for firearms restrictions. That should be the end of the case.”). 65 United States v. Bost, 87 F.3d 1333, 1336 (D.C. Cir. 1996) (“[I]t [is] clear that in order to determine whether a convicted felon falls within the exception described in section 921(a)(20), a court may look no further than the source of the restoration of his civil rights to see whether his gun-related rights have been restricted.”). 66 These courts do not consider congressional intent because the definitional section of FOPA is so clear. Id. (“[R]esort to legislative history is uncalled for, however, because the section’s instructions are clear.”). These circuits emphasize that the FOPA definitional section 18 U.S.C. § 921(a)(20) clearly directs them to look to “such . . . restoration of civil rights” for the express provision. Bost, 87 F.3d at 1334. As the Ninth Circuit asserted:

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In addition to the clear instructions in FOPA, these circuits also stress due process concerns.67 In United States v. Erwin,68 Judge Easterbrook described the FOPA definitional section as “an anti-mousetrapping rule.”69 If the state sent the felon a restoration certificate that said nothing about firearms, the federal government could not rely on a “musty” statute to show an express provision against firearms.70 These circuits recognize that sending the defendant a restoration certificate and then pointing to an express statutory ban on firearms violates the Due Process Clause of the Fifth Amendment71 and looks like a “mousetrap.”72

This approach is not problematic and does not give effect to the official misleading that the entrapment by estoppel defense prevents.

By [the word “such”], Congress tells us what to read in order to determine whether the felon’s civil rights restoration made an exception for firearms. The words “expressly provides” tell us what to look for. This plain, literal interpretation comports better with fairness than the alternative approach, by requiring the state to give the felon fair notice if his restoration of civil rights makes an exception for firearms.

Herron, 45 F.3d at 343. 67 For framing of this side of the circuit split in terms of notice concerns, see Brenner, supra note 3. 68 902 F.2d 510 (7th Cir. 1990). In Erwin, the state restored the felon’s rights by statute, not by certificate. This is an example of passive restoration. However, in considering how to read the FOPA definitional section, Judge Easterbrook commented on the active restoration issue. Judge Easterbrook also wrote the opinion in Glaser, which is an example of active restoration. The Glaser court reversed defendant’s sentencing since he had received a restoration certificate that was silent about firearms prohibitions for the underlying felony. Glaser, 14 F.3d at 1218. Easterbrook repeated his concerns, originally expressed in Erwin, that to consult state law for a firearms prohibition where the felon has received a document that purports to restore all rights created “a sting in which the state certificate dangles the bait and the national government springs the trap.” Id. at 1219; see also Buchmeier v. United States, 581 F.3d 561, 565 (7th Cir. 2009) (describing Erwin’s discussion of the felon-in-possession statute as “dictum” but noting that “its approach became a holding at the first opportunity [in Glaser] and has been followed ever since”). 69 Erwin, 902 F.2d at 512-13. Judge Easterbrook expounded:

The second sentence of § 921(a)(20) is an anti-mousetrapping rule. If the state sends the felon a piece of paper implying that he is no longer “convicted” and that all civil rights have been restored, a reservation in a corner of the state’s penal code can not be the basis of a federal prosecution. A state must tell the felon point blank that weapons are not kosher. The final sentence of § 921(a)(20) can not logically mean that the state may dole out an apparently-unconditional restoration of rights yet be silent so long as any musty statute withholds the right to carry guns. Then the state never would need to say a peep about guns; the statute would self-destruct.

Id. Judge Easterbrook went on to distinguish the case before him, in which the rights had been restored by statute, and concluded that, “there is no potential for deception” because the state had not sent a certificate. Id. at 513. 70 Id. 71 U.S. CONST. amend. V. For an explanation of the application of the Fifth and Fourteenth Amendments to the federal and state governments, see supra note 35. 72 See Herron, 45 F.3d at 342 (noting that the government’s argument that the court should look beyond the defendant’s silent restoration certificate “raise[s] a Due Process concern. It would imply that even if the state told the felon that his civil rights were fully restored, the federal government could convict on the basis that the state misinformed him.”).

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Where the state has issued a restoration certificate to the defendant that is silent on firearms, the court deems the felon to be outside the purview of FOPA. The court declines to give effect to other sources, such as a state statute, that might conflict with what the state told the defendant in the certificate and thus “trap” the defendant under FOPA.73

E. The Problematic Cassidy Approach: Extending the Inquiry to

Statutes

Even where the certificate is silent about firearms, some courts find that a state statute can provide the express prohibition on firearms. The Fourth,74 Sixth,75 and Tenth76 Circuits follow this approach. Courts that look beyond the restoration certificate for an express provision on firearms follow the reasoning and holding annunciated in United States v. Cassidy.77 Upon releasing Cassidy from state prison, Ohio issued him a restoration certificate that said nothing about firearms. Five years later, he was charged as a felon-in-possession.78 Cassidy successfully argued to the district court that he could not be charged under FOPA because his silent certificate meant he was not convicted of a “crime punishable by imprisonment for a term exceeding one year.”79 On appeal, the Sixth Circuit reversed.80 To interpret the definition of “crime punishable by imprisonment for a term exceeding one year,” the court considered congressional intent and concluded that it must look beyond the silent restoration certificate.81

Circuits following Judge Easterbrook’s approach82 find clear instructions in the FOPA definitional section, but the Cassidy court found it unclear whether Congress intended courts to look only to the

73 See, e.g., id. (declining to consider a Washington statute prohibiting firearms for felons where the restoration certificate was silent on firearms). 74 United States v. McLean, 904 F.2d 216, 217 (4th Cir. 1990) (“We . . . therefore look to the whole of North Carolina law ‘to give effect to state reforms with respect to’ firearm privileges accorded McLean.”). 75 United States v. Cassidy, 899 F.2d 543, 548 (6th Cir. 1990) (“A narrow interpretation requiring that we look only to the document, if any, evidencing a restoration of rights, would frustrate the intent of Congress that we look to the whole of state law, including state law concerning a convicted felon’s firearms privileges.”). 76 United States v. Burns, 934 F.2d. 1157, 1160-61 (10th Cir. 1991) (“Looking to the whole of state law, we conclude defendant was still subject to the firearms disability found in [a state statute] at the time of his current conviction despite the language in the Certificate of Discharge.”). 77 Cassidy was convicted of trafficking marijuana in Ohio in 1983, and he served over one year in prison. Cassidy, 899 F.2d at 544. 78 Id. 79 Id. at 545 (citing 18 U.S.C. § 921(a)(20)). 80 Id. at 544. 81 Id. at 545. 82 See supra Part I.D.

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certificate for an express provision against firearms.83 The court determined that Congress intended for the felon-in-possession statute to give effect to all of state law, which includes statutes that expressly prohibit felons from possessing firearms.84

The Cassidy court found that Congress’ intent was quite clear, as FOPA was passed in response to Dickerson v. New Banner Institute, Inc.,85 in which the Supreme Court held that federal law determined whether a felon was convicted of a predicate state offense.86 In Dickerson, the Supreme Court found that a state expunction was irrelevant to the federal felon-in-possession statute.87 First, the Court

83 Cassidy, 899 F.2d at 546 (“[I]t is unclear whether Congress intended that a court look only to the document, if any, tendered to a felon upon release to determine whether his civil rights have been restored and whether there is an express limitation upon his firearms privileges.”). Since courts taking the other approach find clear instructions in the statute, they do not reach this issue of congressional intent. See supra note 66. 84 The court wrote that FOPA was as an attempt “to give effect to state reforms with respect to the status of an ex-convict.” Cassidy, 899 F.2d at 548. In Cassidy, an Ohio statute conflicted with the silent restoration certificate by making it unlawful for any person who “‘has been convicted of any offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse’” to possess a firearm. Id. at 550 (quoting OHIO REV. CODE ANN. § 2923.13(A)(3) (LexisNexis 2010)). Thus, the court looked to this state statute and found the express provision against firearms that allowed the defendant to be charged as a felon-in-possession even though his rights were restored. The court reasoned that, since FOPA directed the court to look at all state law to determine if the state had restored the felon’s rights, the court must also consider all of state law to determine if firearms were prohibited. Id. at 546. 85 460 U.S. 103 (1983). 86 Id. at 111-12 (“Whether one has been ‘convicted’ within the language of the gun control statutes is necessarily . . . a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State.” (citation omitted)). 87 Dickerson, 460 U.S. at 119. David Kennison, who was both the Chairman of the Board of New Banner Institute, Inc. and the defendant in Dickerson, had pled guilty to carrying a concealed weapon. Id at 103. Under an Iowa statute, the state court deferred judgment and placed the defendant on probation, at the end of which his record was expunged. Id. at 106-08. This case did not arise on a felon-in-possession charge, but rather because the Bureau of Alcohol Tobacco and Firearms (ATF) revoked New Banner Institute’s license to deal firearms when it discovered Kennison’s past. Id. Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 made it unlawful for anyone convicted of “‘a crime punishable by imprisonment for a term exceeding one year’” to engage in the firearms business. Id. at 105 (quoting 18 U.S.C. §§ 922(g)-(h)). In determining whether the defendant had been of “‘a crime punishable by imprisonment for a term exceeding one year,’” the Fourth Circuit held that his Iowa concealed weapons charge could not serve as the predicate offense under the Gun Control Act because Iowa expunged the conviction. New Banner Inst., Inc. v. Dickerson, 649 F.2d 216, 217 (4th Cir. 1981) (“We hold, however, that the earlier expunction of Kennison’s conviction under Iowa’s deferred judgment statute made inappropriate consideration of that conviction as a predicate conviction for purposes of [the Gun Control Act].”). The Fourth Circuit acknowledged that this holding ran against the position taken by other circuits. Id.; see United States v. Bergeman, 592 F.2d 533, 535 (9th Cir. 1979) (“[W]e conclude that despite the state expunction, the defendant is still a convicted felon within the terms of [the Gun Control Act]”); United States v. Padia, 584 F.2d 85, 86 (5th Cir. 1978) (“‘[T]he manner in which a Texas court chooses to deal with a party subsequent to his conviction is simply not of controlling importance’ where, as here, ‘a function of federal, not state law . . . is concerned.’” (quoting Gonzalez de Lara v. United States, 439 F.2d 1316, 1318 (5th Cir. 1971)). For connection between Dickerson and entrapment by estoppel, see infra notes 113-21 and accompanying text.

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found that the purpose of the Gun Control Act of 1968 was to prevent dangerous people from having firearms.88 A state expunction said nothing about the felon’s fitness to possess firearms and therefore should not affect the application of the federal Gun Control Act.89 Second, absent a showing of Congressional intent to the contrary, the Court assumed that Congress did not intend for a federal statute’s application to depend on state law.90 Whatever action a state chose to take91 post-conviction was irrelevant for the federal felon-in-possession statute.

Dickerson held that someone with a state expunction was still “convicted” for the purposes of the Gun Control Act of 1968.92 Congress reacted to Dickerson with FOPA, which clearly states that what constitutes a conviction is determined by the law of the jurisdiction of the predicate offense.93 This provision would have led to success for the Dickerson defendant, as Iowa no longer considered him convicted due to the expunction.

The Cassidy court understood Congress’ reaction to Dickerson and FOPA’s legislative history94 as evidence that Congress intended to

88 Dickerson, 460 U.S. at 119. The Court explained: [T]he purpose of the statute would be frustrated by a ruling that gave effect to state expunctions; a state expunction typically does not focus upon the question with which [the Gun Control Act] is concerned, namely, whether the convicted person is fit to engage in the firearms business or to possess a firearm.

89 Id. at 115 (explaining that “expunction does not alter the legality” of the conduct or show that the defendant was innocent; an expunction from Iowa shows only “that the State has provided a means for the trial court not to accord a conviction certain continuing effects under state law”). 90 Id. (citing NLRB v. Natural Gas Util. Dist., 402 U.S. 600, 603 (1971)); see also id. at 116-17 (“[W]e cannot believe that Congress intended to have a person convicted of a firearms felony under state law become eligible for firearms automatically because of a state expunction for whatever reason.”). The Court acknowledged that state law did have a place in the analysis, as it was state convictions that triggered the firearm disabilities. The Court saw the use of state convictions as Congress’ way of identifying people who would pose a danger to society if armed, and not as an attempt to make the definition of conviction depend on “the intricacies of state law.” Id. at 120. The Court went on to apply federal case law that determines what constitutes a conviction. Id. at 111-14. Because Kennison pled guilty, federal law considered him convicted. Id. at 113 (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969); Kercheval v. United States, 274 U.S. 220, 223 (1927)). 91 The Court noted the wide array of state procedures for expunction that vary in purpose and effect. Dickerson, 460 U.S. at 121-22. To rely on state law would be to defer to “a national patchwork.” Id. at 122. 92 Id. at 111-12. 93 18 U.S.C. § 921(a)(20) (2006). 94 The Cassidy court found a comment by Senator Durenberger (R-MN) persuasive. Durenberger sought to delay FOPA’s effective date, as he wanted to give states time to amend their statutes to include express prohibitions on felons possessing firearms.

In the State of Minnesota, a convicted felon’s civil rights are automatically restored when his sentence expires. Therefore, under the new federal law, it will no longer be a violation of the Federal Gun Control Act of 1968 for a Minnesotan convicted of a felony to possess a firearm after his sentence has expired. The same will be true in each State which automatically restores a convicted felon’s civil rights. This creates a

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allow states to determine which felons could be trusted with firearms.95 The Cassidy court looked to state statutes to see if the state had made that determination. Under this rubric, if the state restored rights without prohibiting firearms in another statute, the definitional section excludes the felon from the felon-in-possession statute. But if the state had made a determination embodied somewhere other than the certificate (such as a statute) that felons should be under firearm disabilities, the felon could be charged under the federal felon-in-possession statute.

Because Congress reacted to Dickerson with FOPA, all courts agree that state law determines whether a felon was convicted of a predicate offense. Courts disagree over the scope with which to look to state law for an express provision about firearms. While the courts that follow Judge Easterbrook’s approach look only to the state-issued certificate, courts following Cassidy look to other state statutes. The Cassidy approach is problematic for the reason articulated by Judge Easterbrook: The state is setting a mousetrap operated by the federal government.96 The state sets the bait by representing that rights have been restored, which implies that firearm possession is lawful, and the federal government traps the defendant with the felon-in-possession charge. The next Part argues that felons who receive restoration certificates that do not expressly prohibit firearms should assert entrapment by estoppel as a defense to felon-in-possession charges in Cassidy circuits.

problem in my State. The ironic, unintended side effect of this “glitch in the gun law” is to turn a law intended to crack down on crime into a law that could abet crime unless Minnesota changes its law regarding civil rights of felons. . . . I believe it is appropriate for all of the States to review, and possibly revise, their laws governing possession of firearms, especially those State statutes regulating possession of firearms by convicted felons.

United States v. Cassidy, 899 F.2d 543, 548-49 (6th Cir. 1990) (quoting 132 CONG. REC. S14,974 (daily ed. Oct. 3, 1986) (statement of Sen. David Durenberger)). This view implies that at least some of the lawmakers who passed FOPA assumed that any state statute restricting gun ownership for felons would be enough to qualify as an express provision and move the felon out from under the restoration exception. The court also noted a comment by Senator Hatch (R-UT) that the felon-in-possession statute granted authority to the prosecuting state to determine if the felon would be eligible for firearm possession. Cassidy, 899 F.2d at 549 n.11 (citing 131 CONG. REC. S8,689 (daily ed. June 24, 1985) (statement of Sen. Orrin Hatch)). According to Cassidy, if a state has made a determination about firearm eligibility through a statute, Congress intended that a court would give effect to that determination. Id. at 546. 95 Id. at 548 (“[Congress intended] to give effect to state reforms with respect to the status of an ex-convict.”). 96 United States v. Erwin, 902 F.2d 510, 512-13 (7th Cir. 1990).

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II. ENTRAPMENT BY ESTOPPEL APPLIED TO FOPA:

AN ELEMENTAL ANALYSIS

Where the government incorrectly represents in a certificate that the felon may lawfully possess firearms, the defense of entrapment by estoppel should apply, preventing the government from denying the misrepresentation. Therefore, the government cannot maintain that the felon falls under the FOPA definitional section because of a state statute that contains an express provision about firearms. To prove entrapment by estoppel, the defendant must show that (1) a government official (2) made an affirmative representation that the conduct was legal97 and (3) the defendant reasonably relied on the representation.98 The following Subparts set forth an elemental analysis demonstrating that a defendant with a silent restoration certificate in a Cassidy circuit would likely satisfy the elements of entrapment by estoppel. The first element requires an extended discussion because courts have misapplied this element of entrapment by estoppel in felon-in-possession cases.

A. Element One: A Government Official

For a litigant to assert a defense of entrapment by estoppel, a

government official must have represented that the conduct in question was lawful.99 Courts are split, however, as to whether the representation of a state official—as opposed to the representation of a

97 This Note argues that a restoration certificate that is silent on firearms constitutes an affirmative representation by the government that firearm possession is legal. The state has sent a silent restoration certificate, and while it does not explicitly tell the defendant that he can carry firearms, it implies as much by restoring civil rights with sweeping language. For development of this argument, see infra notes 156-60 and accompanying text. 98 See, e.g., 22 C.J.S. CRIMINAL LAW § 78 (2010) (“Establishing entrapment by estoppel requires showing that the government official or agent actively assured the defendant that certain conduct is legal, and the defendant relied on that assurance.”). 99 In the Supreme Court trilogy, government officials misled the defendants. In Raley, the Court noted that the commission spoke with “the voice of the State.” Raley v. Ohio, 360 U.S. 423, 439 (1959). In Cox, the protestors relied on the representation of “the highest police officials of the city, in the presence of the Sheriff and Mayor.” Cox v. Louisiana, 379 U.S. 559, 571(1965). And in PICCO, defendants relied on “the responsible administrative agency.” United States v. Pa. Indus. Chem. Corp. (PICCO), 411 U.S. 655, 674 (1973). Private representations of the law are irrelevant to the entrapment by estoppel inquiry. United States v. Clark, 986 F.2d 65 (4th Cir. 1993) (holding entrapment by estoppel defense not available where private taxidermist allegedly represented that sale of tiger skin rugs was lawful under Endangered Species Act); United States v. Indelicato, 887 F. Supp. 23 (D. Mass 1995) (asserting defense not available where private attorney incorrectly advised client that plea would not affect his ability to own firearms). Private assertions are irrelevant because entrapment by estoppel is a constitutional due process defense, so it can only be invoked against state actors. See Connelly, supra note 24, at 633.

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federal official—is sufficient to prove this element.100 Because (1) the applicability of FOPA depends on state law,101 and (2) entrapment by estoppel is a due process doctrine that focuses on fundamental fairness,102 courts should consider a state official’s representation to be sufficient.

1. The Illogical State-Federal Divide

FOPA defendants should have no trouble showing that they relied

on a government representation, but some courts hold illogically that it matters which entity—the state or federal government—misrepresented the law.103 Under the majority view,104 entrapment by estoppel applies only where the government that made the representation and the government prosecuting the crime are the same. Since felon-in-possession is a federal crime, the majority of courts require the misstatement of the law to come from a federal official in order for entrapment by estoppel to be a valid defense.105 At the core of the

100 Courts holding that the representation of a state official is sufficient are in the minority. United States v. Conley, 859 F. Supp. 909, 931 (W.D. Pa. 1994) (declining to adopt “a per se rule to deny the defense and hold that the federal government cannot be estopped from enforcing its criminal laws by the conduct of state or local officials.”); United States v. Brady, 710 F. Supp. 290, 296 (D. Colo. 1989) (“[A] person is entitled to rely on a state court’s views of federal law.”). The majority of courts to consider the issue have held that a federal official must make the representation to form an entrapment by estoppel defense to a federal charge. See cases cited infra note 104. 101 See infra Part II.A.1. 102 See infra Part II.B. 103 United States v. Funches, 135 F.3d 1405, 1407 (11th Cir. 1998) (“[T]he defense is not applicable where the state incorrectly advises the person and, then, the federal government prosecutes the person.”); United States v. Brebner, 951 F.2d 1017, 1026 (9th Cir. 1991) (holding that to make out an entrapment by estoppel defense to a violation of federal law, the defendant must have relied on “a federal government official empowered to render the claimed erroneous advice, or on an authorized agent of the federal government” who had the federal government’s authority to “render such advice”); United States v. Bruscantini, 761 F.2d 640, 642 (11th Cir. 1985) (“Where, however, the government that advises and the government that prosecutes are not the same, the entrapment problem is different.”). 104 While this is the majority view in federal courts, state courts have not necessarily adopted it. See, e.g., People v. Studifin, 504 N.Y.S.2d 608, 612 (Sup. Ct. Crim. Term 1986) (asserting that while the defendant relied on a federal official’s advice in violating a state statute, the federal and state “licensing requirements . . . are inextricably intertwined and officials of the two sovereigns work so closely together that it is altogether understandable that even a well intentioned, conscientious layman could get mixed up and confuse the two”). 105 See cases cited supra note 103. Within this narrow interpretation, courts interpret “federal official” narrowly. See United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996) (finding that a federally funded task force agent was a state actor and noting that “[f]ederal funding alone does not make agents of the task force federal government officials or agents”). But see United States v. Tallmadge, 829 F.2d 767 (9th Cir. 1987) (finding that representations by a federally licensed gun dealer was sufficient to make out an entrapment by estoppel defense to a federal felon-in-possession charge); cf. United States v. Austin, 915 F.2d 363, 366-67 (8th Cir. 1990) (“Despite the affirmative duty Congress has imposed upon federally licensed firearms dealers to enforce

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problem, however, is that for the purposes of FOPA, a state crime can serve as the predicate offense and a state restoration can exempt the felon from charges under FOPA. Still, courts have rejected the defense where it was raised by parties who received affirmative representations from the state.106 These courts have misapplied entrapment by estoppel to FOPA charges. Representations by state officials are critically relevant to the federal charge.

Courts applying the per se rule that representation of a state official cannot estop the federal government cite to United States v. Bruscantini107 and United States v. Brebner,108 and do not engage in independent reasoning to support the rule. Two related rationales come out of Bruscantini and Brebner. The first reason for the per se rule, provided by the Brebner court, is that the state official has no authority to bind the federal government.109 Second, the Bruscantini court found that allowing the state representation to count for purposes of estopping a federal prosecution punishes the wrong government.110 Bruscantini also noted that one of the benefits of entrapment by estoppel is that it may encourage officials to have a stronger knowledge of the law and to articulate it more clearly.111 According to the court, allowing the defense where a state official misleads the defendant does not encourage state officials to know and articulate the law because the defense does not punish the state for misleading. Instead, the defense punishes the federal government, even though it did not mislead the defendant.

Neither of the above reasons for holding a state official’s representation irrelevant is convincing (a) for a FOPA charge where the analysis of federal law depends on state law, and (b) in light of the due process focus of entrapment by estoppel doctrine.

a. FOPA’s Dependence on State Law

Whether or not a felon falls under FOPA depends on whether the

state considers him convicted and whether the state restored his rights.112 Congress specifically passed FOPA in reaction113 to

federal firearms laws at the point of sale, we cannot agree that this role . . . is sufficient to transform them into government officials, at least for purposes of the entrapment by estoppel defense.” (citations omitted)). 106 See, e.g., cases cited supra note 103. 107 761 F.2d 640 (11th Cir. 1985). 108 951 F.2d 1017 (9th Cir. 1991). 109 Id. at 1026 (holding that defendants are “not entitled to rely on any representations made by state or local officials because . . . these officials lacked the authority to bind the federal government to an erroneous interpretation of federal law”). 110 Bruscantini, 761 F.2d at 642. 111 Id. 112 See supra note 48.

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Dickerson’s holding that a state expunction was irrelevant for determining if a predicate offense triggered federal firearm disabilities.114 FOPA changed the language115 of the felon-in-possession statute, and Congress flatly rejected116 the notion that federal law determines what constitutes a conviction. Congress gave federal effect to state law governing the relationship felons may have with firearms, as FOPA honors state determinations of which felons can lawfully possess a firearm.117

When Congress reacted to Dickerson with FOPA, it made the federal felon-in-possession statute depend on state law. Ironically, Cassidy circuits rely heavily on Congress’ reaction to Dickerson, and point to Congress’ choice to make the definition of “conviction” depend on state law.118 These circuits look to all of state law in determining if there is a provision against firearms, yet when it comes to the defense of

113 FOPA was also a reaction to ATF’s over-enforcement of the Gun Control Act. See Hardy, supra note 3. 114 For a discussion of Dickerson, see supra notes 85-93 and accompanying text. 115 FOPA added:

What constitutes a conviction . . . 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) (2006). 116 Scholars and courts, including the Supreme Court, agree that FOPA legislatively overruled Dickerson. See Caron v. United States, 524 U.S. 308, 312-13 (1998) (“Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction. Congress modified this aspect of Dickerson . . . .” (citation omitted)); United States v. Cassidy, 899 F.2d 543, 547 (6th Cir. 1990) (“Congress expressly overruled Dickerson by making ‘convicted felon’ status dependent upon state law.”); Hardy, supra note 3, at 585 (asserting that legislative history also “indicates that FOPA is meant to render inapposite” Dickerson); Brenner, supra note 3, at 1057 (“FOPA . . . ran counter to six Supreme Court precedents, including Dickerson.”). 117 United States v. Thomas, 991 F.2d 206, 209 (5th Cir. 1993) (noting that FOPA “gave the states’ statutes federal effect by allowing the state that obtained the conviction to determine eligibility of the felon to possess a firearm without violating federal law”). 118 Cassidy demanded that the court look to all of state law because the court was convinced that this was Congress’ intent. The court devoted much of its analysis to FOPA’s legislative history and Congressional preference for state law. The court highlighted Senator Hatch’s comment:

[The FOPA bill] grants authority to the jurisdiction (State) which prosecuted the individual to determine eligibility for firearm possession after a felony conviction or plea of guilty to a felony. . . . Since the Federal prohibition is triggered by the States’ conviction, the States’ law as to what disqualifies an individual from firearms use should govern.

Cassidy, 899 F.2d at 549 n.11 (citing 131 CONG. REC. S8,689 (daily ed. June 24, 1985) (statement of Sen. Orrin Hatch)). The Cassidy court noted that Hatch’s comment “reinforces our conclusion that a primary concern of Congress was that ‘convicted felon’ status be determined with reference to state law.” Id. at 548.

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entrapment by estoppel, it is suddenly only the federal government that counts.

In applying the per se rule that a state misrepresentation is irrelevant to an entrapment by estoppel defense to a federal charge, most courts do no more than cite United States v. Bruscantini.119 However, Bruscantini was decided post-Dickerson, but pre-FOPA. The defendant in Bruscantini claimed that both a state prosecutor and a state judge told the defendant that he was not a convicted felon.120 The Eleventh Circuit rejected the argument that this case fell under Raley and Cox, noting that Raley and Cox dealt with state representations and state prosecutions.121 The court found that this distinction between state and federal representations was relevant in large part because of Dickerson, which held that federal law alone determined what constituted a conviction.122 One of the dispositive factors for the court was that the federal Gun Control Act, the precursor to FOPA, did not depend on state law.123 That statement simply is not true after the passage of FOPA; through FOPA, Congress made clear that the analysis of federal law does depend on state practice.

Despite the fact that Bruscantini came down pre-FOPA, courts continue to rely on Bruscantini’s reasoning in rejecting the argument that a state official’s misrepresentation can make out an entrapment by estoppel defense to a federal charge.124 The fact that Bruscantini turned on Dickerson, which is no longer good law, suggests that courts should approach the question of whether state representations can form the basis of entrapment by estoppel to federal felon-in-possession charges with fresh eyes.

Moving away from the per se rule and allowing the representation of a state official to form the basis of entrapment by estoppel would be more consistent with the preferences that Congress clearly elucidated in passing FOPA. However sensible the per se rule may be on a general level, the policy should be different where the federal statute depends

119 761 F.2d 640 (11th Cir. 1985). For cases relying on Bruscantini, see infra note 124. 120 Bruscantini, 761 F.2d 640. The state judge had accepted the defendant’s plea of nolo contendere to a burglary charge. 121 Id. at 641. 122 Id. (“This distinction is important here, particularly where the analysis of the federal [Gun Control Act] does not depend on state practice” (citing Dickerson v. New Banner Inst., Inc., 460 U.S. 103 (1983)). 123 Id. 124 United States v. Etheridge, 932 F.2d 318, 321 (4th Cir. 1991) (“We find the reasoning of United States v. Bruscantini more persuasive.” (citation omitted)). In United States v. Brebner, 951 F.2d 1017, 1026 (9th Cir. 1991), the court held, “Brebner was not entitled to rely on any representations made by state or local officials because, unlike situations where estoppel has been upheld, these officials lacked the authority to bind the federal government to an erroneous interpretation of federal law.” The court cited Bruscantini for this proposition. The court in United States v. Hall, 33 F.3d 55 (6th Cir. 1994), also cited Bruscantini to reject the availability of entrapment by estoppel.

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on interpreting state law. FOPA defendants with a silent restoration certificate argue that the state actually misrepresented state law to them. The state is not representing that firearm ownership is lawful under federal law; instead, the state represents that firearm ownership is lawful under state law. The fact that this is not actually true (because of a state statute making it unlawful for felons to possess firearms) makes the felon come within the FOPA “unless clause.”125 Since the federal felon-in-possession law depends on the state’s definition of conviction, the state’s restoration, and the state’s potential provision against firearms, a state misrepresentation of the law should be relevant to federal felon-in-possession charges.126

b. A Due Process Defense

Courts following the per se rule misapply entrapment by estoppel

because they undermine the due process grounding of the defense. The due process concern undergirding the entrapment by estoppel defense is that it is fundamentally unfair for the government to convict after assuring someone that conduct is lawful.127 When courts limit the defense’s applicability through other legal concepts like agency, i.e. that the state government could only bind the federal government if the state had the authority to do so,128 they undercut this due process concern.129 Rather than focusing its inquiry on due process, the Brebner court grounded its reasoning in agency principles. Specifically, the Brebner court was concerned that a state official lacked the authority to bind the

125 18 U.S.C. § 921(a)(20) (2006). 126 The court took this position in United States v. Conley, 859 F. Supp. 909 (W.D. Pa. 1994). Defendants operated video poker machines and claimed that state officials had misled them by issuing licenses when it was well known the machines were used for illegal purposes. The defendants were prosecuted under the federal gambling laws, and the Conley court rejected the per se rule. Id. Like FOPA, the federal gambling laws depend on state laws, making the per se rule unpersuasive. Id. at 933; see 18 U.S.C. § 1955(b)(i) (defining illegal gambling under federal statute as “a violation of the law of a State or political subdivision in which it is conducted”). Some statutes, such as the Organized Crime Control Act at issue in United States v. Hurst, 951 F.2d 1490 (6th Cir. 1991), intertwine federal and state law to “aid in the enforcement of state gambling laws where state enforcement was disabled by corruption of state officials.” Id. at 1499. In that situation, the state interpretation of federal law should not bind the federal government, as state officials are precisely the problem. This is not true of FOPA, as the dependence on state law has nothing to do with state authorities’ corruption or inability to enforce. 127 Conley, 859 F. Supp. at 932 (explaining that the defense is based in “fundamental fairness and substantial justice”). 128 RESTATEMENT (SECOND) OF AGENCY § 145 (1958). 129 Conley, 859 F. Supp. at 932 (noting that entrapment by estoppel “should not be arbitrarily constrained by concepts taken from other contexts such as estoppel”); see also United States v. Brady, 710 F. Supp. 290, 295 (D. Colo. 1989).

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federal government.130 This concern would be appropriate if entrapment by estoppel were a contract, rather than a due process, doctrine.131 Courts that hold that the state representation is irrelevant because of a lack of authority to bind the federal government are construing the doctrine as though it were a true estoppel.132 Despite the name of the doctrine, it is not founded on traditional estoppel principles.133 Instead, the Supreme Court has consistently held134 that the defense is about preventing fundamental unfairness.135 Courts that

130 See supra note 109 and accompanying text for discussion of Brebner’s rationale for the per se rule. 131 Brady, 710 F. Supp. at 295 (“[Bruscantini] focuses on agency and estoppel principles while Cox and Raley make clear that the purpose of the rule is to prevent fundamental unfairness and injustice.”). In dissent to the Cox opinion, Justice Black spoke of the authorization concerns related to agency later articulated in Brebner. Cox v. Louisiana, 379 U.S. 536, 581-84 (1965) (Black, J., concurring in part and dissenting in part). In Cox, the Chief of Police gave the protestors permission to picket where they were, although this advice actually led to violation of a statute. Id. The Court held that to allow the state to prosecute the picketers would violate due process; the representation of the Chief of Police estopped the State from prosecuting. Black found that, “a police chief cannot authorize violations of his State’s criminal laws.” Id. at 582. The majority did not even discuss the authority of the government actor making the representation, but instead focused on the fundamental unfairness of allowing a prosecution after the state represented that conduct was lawful. Courts that reject the notion that the state government representation can estop the federal government share Black’s concern about agency-related authority. However, this view was in the dissent; it was due process, not agency principles of authorization, that got the majority vote in the seminal case of Cox. For a discussion of estoppel principles in the traditional contract context, see infra note 156. 132 Brebner, 951 F.2d at 1026. 133 Brady, 710 F. Supp. at 295 (explaining that the defense “is not an estoppel at all in any meaningful sense”); see also Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 68 (1984) (Rehnquist, J., concurring) (clarifying the majority’s opinion on estopping the government by stating that PICCO was not a “traditional equitable estoppel cas[e]”); United States v. Austin, 915 F.2d 363, 366 (8th Cir. 1990) (“Despite its descriptive terminology, the defense of entrapment by estoppel ‘stems from the due process clause, not from the common law of contract, equity or agency.’” (quoting Brady, 710 F. Supp. at 295)). The confusion is compounded by the name of the doctrine. See Miller v. Virginia, 25 Va. App. 727, 736 (Ct. App. 1997) (“The ‘entrapment by estoppel’ misnomer inhibits clear analysis and application of the defense. . . . Furthermore, the use of the word ‘estoppel’ improvidently suggests that the dispositive analysis is grounded in the application of agency principles rather than constitutional concerns.”); John W. Lundquist, “They Knew What We Were Doing”: The Evolution of the Criminal Estoppel Defense, 23 WM. MITCHELL L. REV. 843, 845 (1997) (calling the label “entrapment by estoppel” an “awkward and inaccurate expression”). 134 See supra notes 26-41 and accompanying discussion of Raley, Cox, and PICCO; see also Connelly, supra note 24, at 632 (“An entrapment by estoppel claim, therefore, requires a court to analyze whether, under all the circumstances of the case, fundamental fairness precludes conviction.”); Note, Applying Estoppel Principles in Criminal Cases, 78 YALE L.J. 1046, 1047-48 (1969) (“[T]he Raley and Cox holdings reflect only an elemental notion of fairness: the individual must have fair warning of what conduct the government intends to punish.”). For the view that Raley and its progeny did not clearly explain the due process rationale, see John T. Parry, Culpability, Mistake, and Official Interpretations of the Law, 25 AM. J. CRIM. L. 1 (1997). 135 Brady, 710 F. Supp. at 296 (rejecting the characterization of entrapment by estoppel as an agency issue and maintaining that the defense is based on “the fundamental unfairness of punishing a defendant for conforming his conduct to an erroneous interpretation of the law”).

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adopt the per se rule that a state representation cannot estop a federal prosecution allow unfair prosecutions to go forward because of an inflexible rule that does not even pay lip service to due process.136

In addition to citing Brebner for the agency rationale, courts applying the per se rule cite Bruscantini. The Bruscantini court was concerned that punishing the federal government for state representations would not encourage officials of either government to know the law.137 This reasoning is not convincing. While one of the tangential benefits of entrapment by estoppel may be that it encourages government officials to know the law, it is not part of the fundamental rationale for the defense.138 Instead, the Supreme Court has been concerned only with the due process violation that occurs after the government misrepresents the law.139 It hardly makes sense to reject a defense based in the Constitution because of the absence of a tangential benefit.

Instead of focusing on authority to bind the government or punishing the misleading entity, a proper application of entrapment by estoppel doctrine focuses on due process and fairness. It is unfair140 to convict a defendant who relied on the “wrong” government official’s misleading statement.141 FOPA defendants can clear the hurdle of the

Every time the Supreme Court has addressed the defense, it has emphasized that it is grounded in due process and fundamental fairness. See supra notes 26-41and accompanying text. 136 Conley, 859 F.Supp. at 932 (“A per se rule in a federal criminal prosecution predicating the availability of the Due Process defense on federal action saps the notion of fundamental fairness of its flexibility and leaves the door open for fundamentally unfair prosecutions to be upheld.”). 137 United States v. Bruscantini, 761 F.2d 640, 642 (11th Cir. 1985). 138 “The Supreme Court . . . has evinced no desire to control the out-of-court rendering of legal advice by government officials.” Conley, 859 F. Supp. at 932 n.16 (finding Bruscantini’s “deterrence rationale to limit the availability of the Due Process defense . . . inapposite”). Even the Bruscantini court referred to the encouragement of the government to know and articulate the law as “one benefit” of entrapment by estoppel doctrine. 761 F.2d at 642. 139 Conley, 859 F.Supp. at 932 (“[The Supreme Court] has evinced no desire to control the out-of-court rendering of legal advice by government officials.” Instead, the Court has “held that once erroneous advice has been given, the imposition of criminal sanctions for following the advice violates Due Process and the prosecution is a nullity.”). 140 A defendant making an entrapment by estoppel argument is not claiming that the prosecution is unfair because he was ignorant of the law. Instead, it is unfair because the government has misled him as to the content of the law. For an explanation of the distinction between ignorance of the law and entrapment by estoppel, see supra note 21. 141 Courts have recognized that the per se rule is inconsistent with notions of fairness. In Conley, the court noted the entrapment by estoppel defense would certainly be available had the state rather than the federal government prosecuted, and the Conley court, “fail[ed] to see how a prosecution founded on the same conduct and the same state law would be rendered fundamentally fair because it was instituted by federal authorities.” 859 F. Supp at 932-33. The court in United States v. Herron, 45 F.3d 340 (9th Cir. 1995), was not confronted with an entrapment by estoppel defense. However, the Herron court noted that the government’s argument that the express provision against firearms could appear anywhere in state law “would raise a Due Process concern. It would imply that even if the state told the felon that his civil rights were fully restored, the federal government could convict on the basis that the state

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per se rule because FOPA relies on state convictions and restorations. In addition, courts applying the per se rule should reconsider the appropriateness of using agency principles to decide questions of due process. By making these arguments, FOPA defendants can prove the “government official” element.

B. Element Two: Affirmative Representation

A silent restoration certificate should count as an affirmative

representation that conduct is lawful, fulfilling the second element of entrapment by estoppel. This Part argues that a restoration certificate that purports to restore all civil rights and says nothing about firearms is tantamount to affirmatively telling the defendant that he can now posses firearms. The language of the certificate at issue in United States v. Glaser142 provides a strong example of how a restoration certificate affirmatively represents that possession of firearms is lawful. The Minnesota certificate told Glaser that he had been, “restored to all civil rights and to full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.”143 Prior to his conviction, Glaser had no firearm disabilities. The restoration certificate plainly says that all civil rights are restored “as if such conviction had not taken place.” When the certificate speaks of restoring privileges forfeited by conviction, it is as though the state is saying that firearm possession, a privilege forfeited by conviction, has been restored. This is the same as if the state told the defendant that under state law, it is lawful for him to possess a firearm.144

misinformed him.” Without identifying the per se rule, the Herron court described it and seemed unable to fathom that the per se rule could be consistent with due process. Id. at 342. There may be valid concerns about rejecting the per se rule, as some might object that state or even local officials who opine on federal law should not preclude the federal government from enforcing its laws. The limits of the rejection of the per se rule need not be decided here, however, as in the FOPA context, state officials give their opinion on state law. See supra note 126 and accompanying text. 142 United States v. Glaser, 14 F.3d 1213 (7th Cir. 1994). 143 Id. at 1218-19. 144 The strength of this argument depends on the specific wording of the certificate. Where the certificate specifically names restored rights, such as voting and jury service, it looks less like a broad restoration of rights that would constitute an affirmative representation that it is lawful to possess firearms. The government’s affirmative and explicit restoration of specific rights cuts against the argument that the certificate also restores other unenumerated rights. For example, the defendant in Cassidy received a certificate that restored, “‘the rights and privileges forfeited by [his] conviction; namely the right to serve on juries and to hold office of honor, trust, or profit.’” United States v. Cassidy, 899 F.2d 543, 544 (6th Cir. 1990). It is more difficult to argue that this language constitutes an affirmative representation. However, certificates that do not enumerate the rights restored or use words like “including” (which could imply “not limited to”) are more like affirmative representations. At least some certificates are tantamount to affirmative representations.

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The vast majority of FOPA defendants who received silent certificates do not bring entrapment by estoppel claims. In an outlier case, however, the defendant in Hood v. United States145 asserted that he received ineffective assistance of counsel based in part on the attorney’s failure to raise the defense. In holding that Hood’s attorney was not deficient, the court stated that a silent certificate does not constitute an affirmative representation.146 Based on the Hood court’s scant reasoning,147 it is unlikely that the court considered the arguments that follow.148 This piece of negative precedent should not discourage the potential success of arguing that a restoration certificate is an affirmative representation for the purposes of entrapment by estoppel.149

145 342 F.3d 861 (8th Cir. 2003). 146 The Hood court explained:

According to Hood, had this defense been raised by [his attorney], “a jury could entertain a reasonable doubt based on the certificate restoring Mr. Hood’s civil rights . . . ‘as if such conviction had not taken place.’” We reject this argument. Nothing in Hood’s certificate of discharge said Hood could possess a weapon. The certificate was silent on that issue. It is impossible for Hood to show any entrapment because he has failed to demonstrate any affirmative misrepresentation by the government.

Id. at 865 (quoting Brief of Petitioner-Appellee at 20, Hood v. United States, 342 F.3d 861 (8th Cir. 2003) (No. 02-3260)). 147 See supra note 146 for the entirety of the court’s discussion about whether silent certificate constitutes affirmative representation. 148 Hood’s appellate brief only devoted a paragraph to the entrapment by estoppel claim:

[A] jury could entertain a reasonable doubt based on the certificate restoring Mr. Hood’s civil rights where “as if such conviction had not taken place.” The jury would have likely decided that there was reason to believe that Mr. Hood relied on the government’s statement in the certificate to believe that there were no prohibitions on his conduct as a result of his prior conviction.

Brief of Petitioner-Appellee at 20, Hood v. United States, 342 F.3d 861 (8th Cir. 2003) (No. 02-3260). It is possible that the court would have come out differently if the issue of affirmative representation were more focused. 149 The procedural posture of this case also suggests it should not seriously discourage entrapment by estoppel claims. The Eighth Circuit was deciding whether Hood had received ineffective assistance of counsel, and in so doing had to evaluate the merits of Hood’s claims. Hood claimed that his attorney failed to address his restoration certificate, and this precluded his raising an entrapment by estoppel defense. Hood, 342 F.3d 861. It was through this inquiry that the court stated that the silent certificate was not affirmative misrepresentation. Therefore, his attorney was not deficient in failing to address the restoration certificate. Id. In holding that the certificate could not constitute an affirmative misrepresentation, it is possible that the court was influenced by the difficult standard defendants must meet to show ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must show deficiency, which “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The second prong is prejudice, which “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.

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1. Meeting the Hurdles of Narrow Construction

Courts have attempted to limit entrapment by estoppel doctrine in

part by narrowly construing the element of affirmative representation. But FOPA defendants can meet these narrowing requirements. Specifically, courts have required that defendants point to a specific misleading statement.150 In addition, some courts require that the official made the statement to the defendant and not to a third party.151 FOPA defendants can easily point to the language in the certificate to meet both of these hurdles. While defendants seeking to invoke entrapment by estoppel generally have trouble proving that the official made the affirmative representation,152 FOPA defendants can simply bring the state-issued certificate to court. It will not be difficult for FOPA defendants to identify the misleading statement and prove that it was made directly to the defendant, whose name appears on the certificate, and not to a third party. In addition, courts have scrutinized the substance of the representation. Courts have rejected the defense where the penalty for, rather than the legality of, the conduct was misrepresented.153 The restoration certificate incorrectly communicates that firearm possession is lawful, not that it comes with a light sentence, or that it is considered a misdemeanor.

Courts have also limited the defense by holding that lack of enforcement is not an affirmative representation for the purposes of entrapment by estoppel.154 A lack of enforcement argument would

150 See United States v. Howell, 37 F.3d 1197, 1205 (7th Cir. 1994) (“Indeed, [defendants] can point to no specific misleading statement on which they relied.”); United States v. Weitzenhoff, 1 F.3d 1523, 1535 (9th Cir. 1993) (noting that “appellants [did] not point to a statement on the part of a government official upon which they relied in reaching [the] conclusion” that their conduct was lawful). 151 See United States v. Corso, 20 F.3d 521, 528 (2d. Cir. 1994) (rejecting defense where alleged affirmative representation was contained in a letter from a government official to a firearms company, and not to defendant). 152 See, e.g., United States v. Aldridge, 985 F.2d 960, 961 (8th Cir. 1993) (rejecting defense because, inter alia, deputy sheriff disputed that he misled defendant into believing firearm possession was lawful); United States v. Clark, 986 F.2d 65, 70 (4th Cir. 1993) (rejecting defense where defendant “contend[ed] that former official” of Interior for Fish, Wildlife and Parks represented to defendant’s associate that conduct was lawful but “evidence fail[ed] to show that the former official ever” made such assurances). 153 See United States v. Meraz-Valeta, 26 F.3d 992, 996 (10th Cir. 1994) (rejecting defense where government misinformed defendant of penalties resulting from illegal reentry into United States following deportation; defendant was correctly informed that reentry would be unlawful); United States v. Troncoso, 23 F.3d 612, 615-16 (1st Cir. 1994) (same facts). 154 See United States v. Mann, 517 F.2d 259, 270 (5th Cir. 1975) (“[A] mere absence of prior prosecutions does not constitute active misleading, and the decisio[n] in Raley . . . [is] thus not applicable to the circumstances in this case.” (citations omitted)); see also United States v. Lowenstein, 108 F.3d 80, 83 (6th Cir. 1997) (rejecting argument that Probation Department’s

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claim that the federal government does not enforce and prosecute FOPA violations, and that this lack of enforcement misled the defendant. FOPA defendants do not make this argument. The government misleads FOPA defendants through a restoration certificate, not through a failure to enforce or prosecute FOPA or state firearm violations.

Courts have also held that governmental silence155 does not constitute an affirmative representation. The restoration certificate is not analogous to silence. If the state said absolutely nothing to the defendant upon his release from prison, he would have no reason to complain of government misleading. Instead of silence, the state speaks by sending a certificate that says that rights have been restored. Sending such a certificate is fundamentally different from saying nothing. Instead, sending the restoration certificate is far more analogous to telling the defendant that firearm possession is legal.

2. Arguing that Certificate Language is Tantamount to an

Affirmative Representation

Restoration certificates can meet the court-imposed hurdles discussed above and count as affirmative representations. However, it must be acknowledged that the state does not explicitly tell the felon that he can possess a firearm; rather, FOPA defendants would argue that the certificate language is tantamount to such an explicit representation. This Part argues that courts are likely to accept this argument, and finds support in interpretations of “affirmative” in another context. The case law regarding the equitable estoppel of the government156 in civil

failure to report probation violation was tantamount to “suggest[ing] to defendant that he could” violate probation terms); United States v. Hurst, 951 F.2d 1490, 1499 (6th Cir. 1991) (rejecting defense where state officials failed to enforce gambling laws against bingo hall, and noting that, “if this court were to accept [defendant’s] contention that mere nonfeasance in law enforcement was tantamount to official approval of illegal acts and entrapment, there would be scarcely a speeding ticket not subject to due process challenge”). For a general discussion of government knowledge of illegal conduct and lack of enforcement as it relates to entrapment by estoppel, see Lundquist, supra note 133. 155 See Mann, 517 F.2d at 270 (“But the Government has never approved the making of loans under the circumstances here, nor has it previously vouched for the propriety of such transactions. However, governmental silence ‘is not affirmative assurance that punishment will not attach.’”); see also Wade Pediatrics v. HHS, 567 F.3d 1202, 1207 (10th Cir. 2009) (“Silence, of course, does not rise to the level . . . of ‘affirmative misconduct’ required to warrant estoppel against the government.”). 156 Equitable estoppel is different from entrapment by estoppel, as entrapment by estoppel only applies in criminal actions. Equitable estoppel applies in civil contexts, and it requires that (1) the party to be estopped knows the facts; (2) the party to be estopped intends that his conduct shall be acted on or acts so that the party asserting the estoppel has a right to believe it is so intended; (3) the latter is ignorant of the true facts; and (4) the latter relies on the former’s conduct to his injury. United States v. Georgia-Pacific Co., 421 F.2d 92, 96 (9th Cir. 1970) (citations omitted); see also RESTATEMENT (SECOND) OF CONTRACTS § 90 (1981). For a

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actions supports the notion that a court might agree that, even without an explicit representation, the sweeping language is tantamount to an affirmative representation.

Courts in the 1970s held that in order to equitably estop the government, the party claiming estoppel had to show affirmative misconduct.157 The courts’ interpretation of “affirmative” in that context sheds light on what “affirmative” might mean for entrapment by estoppel purposes. Since civil and criminal estoppel situations can be analogous,158 it is appropriate to look to the treatment of “affirmative” in equitable estoppel cases. Courts have tried to distinguish between nonfeasance and misfeasance, but have acknowledged that these are “slippery terms” and that this is a “semantic problem.”159 This

discussion of equitable estoppel of the government, see Kuhlman, supra note 25; David K. Thompson, Note, Equitable Estoppel of the Government, 79 COLUM. L. REV. 551 (1979). However, the “Government may not be estopped on the same terms as any other litigant.” Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S 51, 60 (1984). In fact, the Court has now moved away from allowing equitable estoppel against the government. See, e.g., Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990). However, in the 1970s, courts entertained equitable estoppel claims against the government. In the older cases, the party claiming estoppel had to prove additional elements, including “‘affirmative misconduct’ as opposed to mere failure to inform or assist.” INS v. Hibi, 414 U.S. 5 (1973). The court required this affirmative misconduct because “estoppel should be applied against the Government with utmost caution and restraint, for it is not a happy occasion when the Government’s hands, performing duties in behalf of the public, are tied by the acts and conduct of particular officials in their relations with particular individuals.” Schuster v. Comm’r, 312 F.2d 311, 317 (9th Cir. 1962). Government estoppel cases tend to involve economic benefits and immigration. Kuhlman, supra note 25, at 270. The court has trended away from allowing equitable estoppel even in the face of affirmative misconduct, for the reasons given by the Schuster court. 157 The Supreme Court has moved away from allowing equitable estoppel against the government, even where affirmative misconduct is involved. Office of Pers. Mgmt., 496 U.S. 414. Still, the earlier interpretations of affirmative misconduct that arose in a regime that allowed estoppel are instructive. 158 See Sun Il Yoo v. INS, 534 F.2d 1325 (9th Cir. 1976). Even though immigration is a civil matter, courts have recognized that “[d]eportation can be the equivalent of banishment or exile.” Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947). Like criminal sanctions, deportation is a “drastic” consequence. Sun Il Yoo, 534 F.2d at 1329. In addition, the court in Sun Il Yoo explicitly found that where INS engages in affirmative misconduct, INS’s “conduct is analogous to the entrapment of a criminal defendant and, as such, cannot be countenanced.” Id. Courts have also relied on both entrapment by estoppel and equitable estoppel cases to consider whether the representation was “affirmative.” See United States v. Woodley, 9 F.3d 774, 779 (9th Cir. 1993) (citing United States v. Brebner, 951 F.2d 1017 (9th Cir. 1991); Lavin v. Marsh, 644 F.2d 1378 (9th Cir. 1981)) (finding that defendant had failed to make prima facie showing of entrapment by estoppel under Brebner, an entrapment by estoppel case, and Lavin, a case involving equitable estoppel against the government)). 159 Santiago v. INS, 526 F.2d 488, 493 (9th Cir. 1975). For a discussion of courts’ “unproductive efforts to define ‘affirmative misconduct’” in regard to estopping the government, see Akbarin v. INS, 669 F.2d 839, 843 (1st Cir. 1982). Courts have “recognize[d] that the question of whether a given set of facts justifies a finding of ‘affirmative misconduct’ is subject to debate.” Lavin, 644 F.2d at 1382. For example, the Second Circuit in Corniel-Rodriguez v. INS, 532 F.2d 301 (2d Cir. 1976), found that an immigration official’s failure to comply with a regulation that he inform a visa recipient of a requirement constituted affirmative misconduct, while the First Circuit has held that the government’s failure to respond to inquiries was not affirmative misconduct. Precious Metals Assoc. v. CFTC, 620 F.2d 900, 909 (1st Cir. 1980).

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difficulty has caused courts to take a fact-sensitive approach to determining if an affirmative representation was made.160 This indicates that courts may be willing to look closely at restoration certificates to determine if the language constitutes an affirmative representation.161 The unsettled judicial doctrine about the definition of “affirmative” in the equitable estoppel context provides support for the proposition that courts could find the restoration certificate language to be an affirmative representation.

C. Element Three: Reasonable Reliance

Many felons who receive silent restoration certificates will be able

to show that they reasonably relied on the representation, although this will depend on the circumstances of each case. In fact, a certificate from the State may be the most reasonable representation on which to rely.162 In his hands, the defendant holds an official certificate issued by the state.163 It is more reasonable to rely on this representation than that of a licensed gun dealer164 or a sole probation officer165 that results from a casual conversation.

Courts have also been concerned about defendants attempting to use advice from officials who were not familiar with the defendant’s individual situation; it is not reasonable to lie to a state official and then rely on the advice that follows.166 This is not a concern for FOPA

While these cases present different factual scenarios, both involve governmental inaction, yet the courts came out differently on whether the inaction constituted was affirmative misconduct. 160 Lavin, 644 F.2d at 1382 (“[A] review of the cases suggests that each turns on its own particular facts and circumstances.”). 161 See supra notes 142-44 and accompanying text for discussion of the type of certificate language that courts would be most likely to consider an affirmative representation. See Lundquist, supra note 133, at 849-50, for an argument that the Supreme Court trilogy actually supports the view that the affirmative misrepresentation may be “‘implied’ from behavior and other circumstances.” 162 The Court has allowed the defense in situations where it may have been less reasonable to rely on the representation. In Cox v. Louisiana, 379 U.S. 559 (1965), one of the seminal Supreme Court cases on entrapment by estoppel, the defendants relied on the police chief’s spoken advice. It is even more reasonable to rely on a written certificate that the state has had time to contemplate and create. 163 The state-issued certificate is short and relatively simple, and there is no fine print. The simplicity of the document can also lull the felon into reliance, and the lack of fine print makes reliance more reasonable. 164 See United States v. Tallmadge, 829 F.2d 767, 774 (9th Cir. 1987) (allowing entrapment by estoppel defense where defendant relied on federally licensed gun dealer’s representation). 165 See United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994) (rejecting defendant’s argument that he relied on probation officer’s statement that he could not hunt while on probation to mean that he could possess firearms after his probationary period). 166 See United States v. Austin, 915 F.2d 363, 364-65, 367 (8th Cir. 1990) (noting that when federally licensed firearm dealer asked defendant if he had been convicted of a felony, he falsely answered “no”); see also Billimack, supra note 21, at 569 (noting that reasonable reliance

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defendants, as the state has all of the information about the defendant and his or her criminal history when it issues the restoration certificate. The State knows that it is representing the law to a felon, and the felon knows he is receiving advice from a state official who is familiar with his criminal background. It is reasonable to rely on such a representation.

Some FOPA defendants will be unable to establish that they reasonably relied on the representation that firearms were lawful. While some FOPA prosecutions are part of a litany of charges, FOPA itself only punishes the possession of a firearm; it is possible to violate FOPA without being engaged in a separate crime. Where someone is using a firearm while committing an assault or burglary, it would be difficult to argue that the felon was relying on the government representation that his conduct of possessing a firearm was lawful.167 These felons violate FOPA while committing acts mala in se,168 and it is not reasonable to rely on any representation that malum in se conduct is lawful.169 However, for those felons who are charged solely under FOPA, they should be able to assert that they were reasonably relying on official advice. Felons whose only crime is violating FOPA170 commit malum prohibitum, a crime that is wrong because it is illegal but not because it is immoral.171 It is much more reasonable to find that someone in this

requires that, “the defendant must have given the official full and accurate information as to the defendant’s particular circumstances”). 167 See Caron v. United States, 524 U.S. 308, 311 (1998) (observing that defendant entered someone’s home and “brandished the rifle in [the home occupant’s] face, and pointed it at his wife, his daughters, and his 3-year-old grandson”); United States v. Bost, 87 F.3d 1333, 1334 (D.C. Cir. 1996) (noting that defendant went to White House with a rifle in his truck and asked to see the President). 168 Mala in se acts are those that are “intrinsically wrongful.” Parry, supra note 134, at 20. 169 In Cox, the Court noted that “[o]bviously telling demonstrators how far from the courthouse steps is ‘near’ the courthouse for purposes of a permissible peaceful demonstration is a far cry from allowing one to commit, for example, murder, or robbery.” Cox v. Louisiana, 379 U.S. 559 (1965). For the argument that society cannot afford to permit the defense for malum in se crimes, see Note, supra note 134, at 1060-61 (discussing that a defendant charged with a “heinous crime” cannot invoke entrapment by estoppel; because the crime is “reprehensible . . . society cannot permit a doubt as to the law—no mater how well-founded—to serve as an excuse for a violation”); see also Miller v. Virginia, 492 S.E.2d 482, 737 (Va. Ct. App. 1997) (“[W]e believe it could scarcely be said that an individual could reasonably and in good faith rely on advice condoning the commission of a serious crime.”). In addition, it is not reasonable to rely on a representation that the malum in se conduct is legal, as “their wrongfulness should be apparent even in the face of official misleading.” Note, supra note 134, at 1061. 170 See United States v. Chenowith, 459 F.3d 635, 636 (5th Cir. 2006) (observing that firearm was found while ATF was executing a search warrant in Chenowith’s home; he was not using a firearm in furtherance of another crime, but only possessed a firearm); United States v. Herron, 45 F.3d 340, 341 (9th Cir. 1995) (recounting that while in his home on another matter, police noticed firearms that defendant kept in a cabinet in his living room); United States v. McLean, 904 F.2d 216, 217 (4th Cir. 1990) (noting that defendant possessed firearm in a bag); United States v. Brady, 710 F. Supp. 290 (D. Colo. 1989) (reciting that defendant used firearms for hunting and trapping business). 171 BLACK’S LAW DICTIONARY 444 (3d pocket ed. 1996).

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category relied on official advice. It is important to remember that FOPA punishes firearm possession, which is not a moral offense.172 Felons who possess a firearm and violate FOPA without committing another crime are in the malum prohibitum category, and these felons should be able to show that they reasonably relied on the restoration certificate.

III. RAMIFICATIONS AND PROPOSALS

Many commentators are concerned about the ramifications of an

entrapment by estoppel defense, as they fear that those who commit crimes will be able to escape punishment.173 One obvious and simple solution is for states to change the language in the restoration certificates. If states followed Judge Easterbrook’s advice and told “the felon point blank that weapons are not kosher,”174 states would eliminate the potential for entrapment by estoppel based on the certificate. Of course, legislative change is slow, and it is unlikely that all states will suddenly change the restoration certificates. Absent such a change, litigants should raise and courts should accept entrapment by estoppel defenses. FOPA defendants should use entrapment by estoppel, solely on the basis of a silent certificate, as a tool to effectuate due process rights in Cassidy circuits.

CONCLUSION

This Note is not about the wisdom of arming felons, but argues that

when the federal government seeks to punish the possession of firearms and bases part of the analysis on state law, the State must clearly communicate that to the defendant. When the State sends a certificate

172 See Note, supra note 134, 1062-63 (noting that the importance of entrapment by estoppel is “greatest in prosecutions under regulatory statutes, public welfare laws, and minor crimes of numerous types . . . [which] have little to do with common notions of good and evil”); see also Parry, supra note 134, at 26 (“Because the crime is not so strongly defined in moral terms, individuals cannot rely on an understanding of community morals as a guide to legality and must look elsewhere for a guide to appropriate conduct.”). 173 Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 60 (1984) (warning that, “[w]hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined”); United States v. Glaser, 14 F.3d 1213, 1219 (7th Cir. 1994) (acknowledging that reasonable people might find the court’s interpretation of FOPA to be “an unwarranted immunity bath”); Connelly, supra note 24, at 633-34 (calling entrapment by estoppel “strong medicine” and arguing that “the Court may balance the unfairness to the defendant against the cost to society of estopping law enforcement”). 174 United States v. Erwin, 902 F.2d 510, 513 (7th Cir. 1990).

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with sweeping language that is silent on firearms and the court looks to a state statute to find an “express provision” against firearms, the defendant has an entrapment by estoppel defense. The State’s misleading statements have created the problem,175 and the State can easily eliminate the potential for the defense by providing clear restoration certificates. Until states send clear restoration certificates, due process demands that felons who receive silent certificates in Cassidy circuits be able to assert an entrapment by estoppel defense to escape the federal felon-in-possession mousetrap.

175 In addition to creating due process problems that lay the foundation for the entrapment by estoppel defense, the official misleading currently occurring strains the entire system. The American criminal justice system faces many problems, including recidivism and over-incarceration. See Donald Braman, Punishment and Accountability: Understanding and Reforming Criminal Sanctions in America, 53 UCLA L. REV. 1143, 1167 (2006) (noting that the American justice system has “reached a dead end” with high recidivism and incarceration rates); Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations’, N.Y. TIMES, Apr. 23, 2008, at A1. The typical recidivism issue concerns former prisoners who re-offend. In the context of the felon-in-possession statute, the federal government is not punishing the repeat of the original offense; the issue is not that the felon is repeating the predicate offense, but that he is possessing a firearm. The problem of handling actual re-offenders is daunting enough, and it is pointless to additionally burden the system with felons who were misled into violating the law. Incarcerating felons who violate FOPA, particularly those who violate it solely by possessing a firearm, exacerbates the problem. Of course, those felons who commit separate crimes while using the firearm will be prosecuted and potentially incarcerated anyway, but felons who possess firearms do not necessarily require incarceration. In addition to the due process issues at the heart of entrapment by estoppel, the current situation exacerbates policy concerns.