United States v. Osborne ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4857
VINCENT G. OSBORNE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-97-75)
Submitted: February 16, 1999
Decided: March 9, 1999
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John M. Hassett, Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Tarra DeShields-Minnis, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
PER CURIAM:
Vincent G. Osborne appeals his conviction for possession of a fire-
arm by a felon, in violation of 18 U.S.C.A. § 922(g) (West Supp.
1998). On appeal, he challenges the validity of his indictment. The
Government filed a motion to dismiss the appeal as untimely filed.
We remanded the case for a finding as to whether there was excusable
neglect sufficient to warrant an extension of the appeal period. The
district court found on remand that Osborne had shown excusable
neglect, and therefore, his notice of appeal was timely filed. The Gov-
ernment has not challenged this finding. Thus, we deny the motion to
dismiss and consider the appeal on the merits.
Osborne maintains that the indictment under which he was con-
victed failed to allege the essential elements of his charge. Specifi-
cally, he avers that the indictment failed to allege as an element of
§ 922(g) that Osborne's civil rights had not been restored following
his prior felony conviction.
An indictment must apprise the accused of the essential elements
of each charge against him. See United States v. Pupo, 841 F.2d 1235,
1239 (4th Cir. 1988). The sufficiency of an indictment is determined
by practical, not technical, considerations. See United States v. Cobb,
905 F.2d 784, 790 (4th Cir. 1990). Ordinarily, an indictment which
follows the language of the underlying criminal statute is valid. See
United States v. American Waste Fibers, 809 F.2d 1044, 1046 (4th
Cir. 1987).
Osborne raises this claim for the first time on appeal. "Because
[Osborne's] objection to this indictment was made after the jury ren-
dered its verdict, any review for alleged defect is to be reviewed, if
at all, under a liberal standard and `every intendment is . . . indulged
in support of the sufficiency.'" United States v. Fogel, 901 F.2d 23,
25 (4th Cir. 1990) (quoting Finn v. United States, 256 F.2d 304,
306-07 (4th Cir. 1958)). Thus, we determine "only whether the neces-
sary facts appear in any form, or by a fair construction can be found
within [its] terms." United States v. Vogt, 910 F.2d 1184, 1201 (4th
Cir. 1990) (quotations omitted).
The indictment alleged that Osborne, "having been previously con-
victed of one or more crimes punishable by imprisonment for a term
2
exceeding one year, did knowingly, intentionally, and unlawfully pos-
sess [a] firearm." We find that the indictment tracked the language of
the relevant statute and sufficiently informed Osborne of the essential
elements of the charges against him. See 18 U.S.C.A. § 922(g)(1).
Further, we have explicitly found that "lack of restoration of civil
rights . . . is not an element of the offense stated in § 922(g)." United
States v. Clark, 993 F.2d 402, 406 (4th Cir. 1993). The Clark court
held that the lack of the restoration of the right to possess a firearm
was simply a definitional component of the essential element that the
accused have been previously convicted of a felony. This element is
further defined at 18 U.S.C.A. § 921(a)(20) (West Supp. 1998) to
exclude any conviction for which a person has had his civil rights
restored. See Clark, 993 F.2d at 405; see also United States v.
Bartelho, 71 F.3d 436, 440 & n.1 (1st Cir. 1995) (holding that
§ 921(a)(20) is a legal definition and may provide an affirmative
defense, but does not burden the Government with refuting that the
defendant had his prior convictions nullified or his civil rights
restored in every case). Thus, the Government sufficiently alleged the
necessary element that Osborne was previously convicted of a fel-
ony.*
_________________________________________________________________
*Osborne's claim that the indictment was deficient in failing to allege
that his civil rights had not been restored following his felony conviction
is based upon this court's decision in United States v. Essick, 935 F.2d
28 (4th Cir. 1991). In Essick, we held that, because North Carolina law
automatically restores a convicted felon's right to possess a firearm five
years after his prison release date, the Government, when prosecuting a
§ 922(g)(1) offense based upon a defendant's prior North Carolina felony
conviction, must additionally prove that the felony was committed within
five years of the § 922(g)(1) charge. See Essick, 935 F.2d at 31.
Essick is not immediately applicable, however, because Essick con-
cerned the sufficiency of the evidence at trial rather than the sufficiency
of an indictment which, as discussed above, is reviewed under a very lib-
eral standard. In addition, this court has revisited Essick and limited it to
cases involving an underlying conviction that might have been subject to
an automatic restoration provision. See United States v. Thomas, 52 F.3d
82, 85 (4th Cir. 1995). In Thomas, we held that Essick applies only in cir-
cumstances where the underlying felony was a North Carolina conviction
that occurred more than five years prior to the defendant's firearm pos-
3
Accordingly, we affirm the judgment of the district court. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
_________________________________________________________________
session. The Thomas court additionally found that the Essick burden of
proof specifically did not apply when the underlying North Carolina fel-
ony conviction was less than five years old. In such a case, "the govern-
ment did not have the burden of proving independently the additional
fact that Thomas' civil rights had not been restored." 52 F.3d at 85; see
also Almond v. United States, 854 F.Supp. 439, 444 (W.D. Va. 1994)
(holding that, because Virginia requires an affirmative petition by a felon
to regain the right to keep firearms, "a § 922(g) indictment based on prior
felony convictions under Virginia law need not allege that the defendant
has not yet been restored his civil rights"). Because Osborne does not
allege on appeal that his underlying conviction was subject to an auto-
matic restoration provision and because the record is silent as to the place
and circumstances of Osborne's predicate felony, we decline to address
the issue of whether Essick extends to cases challenging the sufficiency
of the indictment. See United States v. Jackson , 57 F.3d 1012, 1017 (11th
Cir. 1995) (declining to extend Essick).
4