2013-0825, United States of America v. Ryan Howe

curiae. attorney general, on the brief), for the State of New Hampshire, as amicus Joseph A. Foster, attorney general (K. Allen Brooks, senior assistant

defendant. (Mr. Mirhashem and Mr. Levin on the brief, and Mr. Mirhashem orally), for the Massachusetts, and Jeffrey S. Levin, assistant federal defender, of Concord Behzad Mirhashem, assistant federal defender, of Boston,

America. United States Attorney, on the brief and orally), for the United States of John P. Kacavas, United States Attorney (Seth R. Aframe, Assistant

No. 2013 - 825 U.S. Court of Appeals for the First Circuit

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

“When examining the language of the statute, we ascribe the plain and v. N.H. Fish & Game Dep’t, 165 N.H. 14 p. 2 2, 144 (2013) (quotation omitted). expressed in the words of the statute considered as a whole.” Town of Newbury interpretation. “We are the final arbiter of the intent of the legislature as Responding to the certified question requires us to engage in statutory

certified to us the above question. possession charge. The United States appealed to the First Circuit, which the defendant’s reading of RSA 500 - A:7 - a, V and di smissed the felon in States District Court for th e District of New Hampshire (DiClerico, J.) adopted or which is not eligible for annulment under New Hampshire law.” The United juror shall not have been convicted of any felony which has not been annulled S ee RSA 500 - A:7 - a, V ( p. 2 2010) (amended 2014). RSA 500 - A:7 - a, V provides: “A September 15, 2011, to serve on a jury under our juror qualification statute. The parties disagree as to whether the defendant was eligible, as of

September 15, p. 2 2011. restored by operation of state law before the date of the fe deral of fense, concedes that the defendant’s right s to vote and to hold public office were United States v. Estrella, 104 F.3d 3, 5 - 6 (1st Cir. 1997). The United States 921(a)(20)] are the rights to vote, to hold public office, and to serve on a jury.” “the civil rights that must be restored to trigger the e xception [in section conviction for purposes of this chapter.” Id. The First Circuit has held that or for which a person. . . has had civil rights restored shall not be considered a provides, in part, that “[a] ny conviction wh ich has been expunged, or set aside U.S.C. § 921(a)(20). See 18 U.S.C. § 921(a)(20) (2012). Section 921(a)(20) not a felon under section 922(g)(1) pursuant to an exception provide d in 18 felony conviction. He moved to dismiss th at count on the ground that he was firearm by a felon, see 18 U.S.C. § 922(g)(1) (2012), bas ed upon a prior state Ryan Howe, was indicted under federal law in August 2012 for possession of a The First Circuit’s ord er provides the following facts. The defendant,

We respond in the affir mative.

received an annulment of that conviction qualified to sit as a juror? disqualified from jury service) but who has not applied for or whose conviction is eligible for annulment (that is, not categorically Revised Statutes and the undisputed fac ts of this case, is a felon Under sections 500 - A:7 - a(V) and 651:5 of the New Hampshire

question: of Appeals for the First Circuit (Lynch, C.J.) certified to us the following HICKS, J. Pursuant to Supreme Court Rule 34, the United States Court

David J. Widi, Jr., self - represented, by brief, as amicus curiae. p. 3 3

satisfy the threshold [temporal] eligibility requirements.” The State, on the those who may not participate in the annulment process because they do not under New Hampshire law’ clause [in RSA 507 - A:7 - a, V] bars from jury service The United S tates contends that “the ‘which is not eligible for an nulment

V I. annulment of any part of the record is barred under paragraph V.” RSA 651:5, petition for annulment shall be brought and no annulment granted . . . [i]f convicted of more than one offense” and provides, among other things, that “no RSA 651:5, XIII, XIV (200 7). Paragraph VI applies “[i]f a person has been obstruction of justice” are set forth in paragraphs XIII and XIV, respectively. purpose of the annulment statue and the definition of the term “crime of RSA 651:6.” RSA 651:5, V. The offenses constituting “violent crime[s]” for which the petitioner was sentenced to an extended t erm of imprisonment under any violent crime, of any crime of obstruction of justice, or of any offense for state d: “No petition shall be brought and no annulment granted in the case of time of the defendant’s alleged vio lation of 18 U.S.C. § 922(g)(1), p aragraph V for certain offenses. RSA 651:5, V (2007) (amended 2014), VI (2007). At the 651:5, IV (200 7). Paragraphs V and VI set forth a categorical bar to annulment petition shall b e brought more frequently than every p. 3 3 years thereafter.” RSA Paragraph IV provides that “[i]f a petition for annulment is denied, no further specified for certain categories or levels of offense. RSA 651:5, III (Supp. 2010). exc ept for certain motor vehicle offenses, for the period of time thereafter of the sentence”; and (2) “has thereafter been convicted of no other crime,” for annulment when he or she: (1) “has completed all the terms and conditions that “[e]xcept as provided in . . . paragraphs V and VI,” a person may petition to obtaining annulments. Thus, for instance, RSA 651:5, III pr ovides, in part, RSA 651:5 sets forth both procedural prerequisites and categorical bars

651:5’s provisions tie into the structure of RSA 500 - A:7 - a, V. States and the amic i curiae, however, offer differing interpretations of how RSA considered in interpreting any one of them” (quotation omitted)). The United p. 3 3 3 4 - 35 (1996) (noting that “all statutes upon the same subject - matter are to be related in subject - matter. See Bradley v. City of Manchester, 141 N.H. 329, annulment s, RSA 651:5 (Supp. 2011) (amended 2012, 2013, 2014), as they are 500 - A:7 - a, V should be read in conjunction with the statute governing T he United Sta tes, as well as both amic i curiae, correctly note that RSA

scheme.” State v. Guay, 16 p. 4 4 N.H. 696, 700 (201 p. 3 3) (quotation omitted). them, and in light of the policy sought to be advanced by the entire statutory “Our goal is to apply statutes in light of the legislature’s intent in enacting of the overall statutory scheme and not in isolation.” Id. (quotation om itted). to include.” Id. (quotation omitted). “We also interpret a statute in the context legislature might have said or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the ordinary meaning to the words used.” Id. (quotation omitted). “We interpret 4

If a felony conviction is eligible for annulment, the person is not disqualified.” status. If a felony conviction has been annu lled, the person is not disqualified. from jury service only persons with felony criminal convictions of a specified a person from jury service.” The defendant contends that “t he statute excludes annulment under New Hamp shire law, then that conviction does not disqualify A:7 - a, V under which, “if a conviction has not been annulled, but is eligible for The defendant, on the other hand, argues for a construction of RSA 500 -

alone constitutes misconduct” (quotation omitted)). is disjunctive and concluding, therefore, that “[a] fin ding of misrepresentation attorney’s “conduct involve[ed] dishonesty, fraud, deceit or misrepresentation,” (noting that attorney professional conduct rule establishing misconduct where either knowing or willful acts”); Welts’ Case, 136 N.H. 588, 591 - 92 (1993) RSA 358 - A:10 (2009)] manifests a clear intent to award multiple damages for disjunctive ‘or’ [in the damages provision of the Consumer Protection Act, see Summit Vista v. Miller, 1 p. 4 41 N.H. 39, 45 (1996) (concluding that “the use of the other statutes written in the disjunctive. See, e.g., Unit Owners Assoc. of (Emphasis added.) Such a reading is consistent with our interpretation of

New Hampshire law. the presence of a felony which is not eligible for annulment under (1) the presence of a felony which has not been annulled “or” (2) which triggers the disqualification result. These conditions are: service (“no j uror shall”) – and creates two conditions, either of [T]he statute establishes a result – disqualification from jury

“or,” which, it contends “indicates the disjunctive.” It argues: Hampshire law.” The United States focuses upon the statute’s use of the term felony conviction, even if the conviction is eligible for annulment under New qualification statute precludes from jury service a person with an unannulled The United States argues that “[t]he plain language of the juror

h is conviction, is he nevertheless qualified to serve as a jur or ? defendant, despite that undisputed eligibility, has not obtained annulment of New Hampshire law.” Th us, th e only question before us is: G iven that the is no dispute that the defendant’s conviction is eligible for annulment under means by “not eligible for annulment,” the United Stat es con cedes that “there correct in order t o answer the certified question. Whatever RSA 500 - A:7 - a, V We need not determine which, if any, of th e se proposed constructions are

include the “the tempora l requirements for petitioning for annulment.” contends that the eligibility contemplated by RSA p. 5 500 - A:7 - a, V does not I through IV to be subsumed within the “actually . . . annulled” clause. Widi RSA 651:5, V and VI, and considers the procedural requirements of RSA 651:5, other hand, reads the “not eligible” clause as referring to the categorical bar of 5

law; and (2) a New Hampshire conviction “erroneously annulled” by a New convicting state but which is ineligible for annulment under New Hampshire Hampshire law”: (1) an out - of - state conviction that was annulled in the an annulled conviction which still is i neligible for annulment under New coexist. It posits two circumstances in which “a prospective juror could have RSA p. 5 500 - A:7 - a, V describe “inchoate” and “actualized” states that can never The Unite d States, on the other hand, disputes that the two clauses in

that have been annulled.” clause, regarding eligibility for annulment, “would not cover those convictions meaning and effect,” and asserts that both are necessary, because the second cannot ex ist simultaneously. He n ot es that both clauses must “be given Because “[o]ne state ripens into the other state,” he contends, both states while another clause refers to an actualized state – completed annulment.” clause [of the statute] refers to an inchoate state – eligibility for annulment – for annulment, but has not yet been actually annulled.” He a rgues that “[o]ne for annulment’” because “[a] conviction is eligible for annulment if it qualifies contends that his “construction comports with the plain meaning of ‘eligibility double negative, which gives the provision a positive meaning”). The def endant “[t]he terms ‘no’ and ‘without’ used in the same [statutory] clause create a 1990); State v. Myers, 621 N.E.2d 881, 884 (Ohio Ct. App. 1993) (noting that read as ‘an association may establish . . . with’”), af f’d, 917 F.2d 1126 (8 th Cir. of the double negative, i.e., ‘no association may establish . . . without’ can be associations] amounts to an affirmative grant of branching authority because negative language used in [a st ate statute dealing with savings and loan America v. Clarke, 743 F. Supp. 687, 690 (W.D. Mo. 1989) (noting that “the method of statutory construction. S ee, e.g., Independent Bankers Ass ’n of elim ination of the double negative from the statute also has some support as a Notwithstanding the author ity of these interpretive rules, the defendant’s

Four v. Nissan N. Am., 164 N.H. 729, 739 (2013) (quotation omitted). have said or add language that the legislature did not see fit to include.” Strike written” and our policy t hat we “will not consider what th e legislature might conflicts with our policy of interpreting “legislative intent from the statute as jury service is restored.” Such a construction, the United States maintains, service into a law describing the con ditions under which someone’s right to describing the conditions under which someone is disqualified from jury asserts that the defendant “rewrite[es] the statute to convert it from a law The United States protests that “this is not what the statute says.” It

annulment under New Hampshire law.” RSA p. 5 500 - A:7 - a, V. convicted of any felony which has . . . been annulled or which is . . . eligible for thereby concludes that a juror is qualified to serve if he “shall . . . have been dispensing with the double negative by deleting the successive “nots.” He In essence, the defendant’s construction states the provision in positive form, p. 6 6

Id.

amended. annulment. The committee agreed unanimously on the bill as have not been annulled or whose convictions are not eligible for exemptions from serving, and disallows felons whose convictions of drivers’ licenses and voting checklists, takes away all reasonable conclusion. The amendment allows for a m aster blend August 15, 1997, and worked with the sponsor to reach a Superi or Court Reform Study Committee” which came out on rectify the problems, the committee studied the “Report of the peers and that jury pools have been dwindling. In an effort to The committee recognizes the importance of having a jury of one’s

Representative Janet G. Wall for t hat committee re ads as follows: not eligible for annulment under New Hampshire law.” Id. The state ment by not have been convicted of any felony which has not been annulled o r which is purposes is the reinsertion of section V in the following form: “V. A juror shall with amendment. N.H.H.R. Jour. 8 p. 6 6 (1998). The relevant amendment for our and Family Law Committee, which again reporte d that the bill ought to pass Committee, N.H.H.R. Jour. 620 (1997), the bill was re - referred to the Judiciary Following an inexpedient to legislate vote by the House Finance

Committee. Id. bill as amended was passed by the House and referred to the House Finance specifically, an amendment striking section V. N.H.H.R. Jour. 2 p. 6 67 (1997). The 89 (1997), which reported that the bill ought to pass with amendment; bill was referred to the Judiciary and Family Law Committee, N.H.H.R. Jour. http://gencourt.state.nh.us/SofS_ Archives/1998/ house/ HB616H.pdf. The moral turpitude which has not been annulled.” House Bill 616 - FN, available at which has not b een annulled, or of any misdemeanor involving a crime of the following provision: “V. A juror shall not have been convicted of any felony See Laws 1998, 237:5. As introduced in January 1997, HB 616 - FN contained RSA 500 - A:7 - a was enacted in 1998, originating as House Bill 616 - FN.

history.” Appeal of Naswa Motor Inn, 144 N.H. 89, 90 (1999). the ambiguity by determining the legislature’s intent in light of legislative “language is subject to more than one reasonable interpretation, we will resolve construction s are reasona bl e. Accordingly, because RSA 500 - A:7 - a, V’s W e conclude that both the United States’ and defendant’s proffered

meaning. that under its interpretation, each clause in RSA 500 - A: p. 7 7 - a, V has independent Hampshire court. Citing these circumstances, the United States maintains 7

upon a citizen. is no right to sit on a jury, rather it’s just a duty that we impose so that if you can’t get it annulled, you can’t serve on a jury. There you’ve served your sentence. This would track that pattern down, cannot have your conviction annulled for ten ye ars, until after to serve on a jury.” For example, there are certain felonies you eligible to have your conviction annulled, then you are not eligible convicted of any crime, a felony in particular, that if you are not various factions in the House. But it says, “ . . . if you’ve been What this bill does, it represents compromise between some

felons tend to drive more so than they tend to vote. more felons arriving in the jury pools. It just so happens that driver’s licenses, a number of county prosecutor s saw more and on a jury. When we move to a system of choosing jurors by The third thing that the bill does, it clarifies when a felon can serve

prime sponsor, addressed the committee, in relevant part, as follows: Judiciary, N.H.S. Jour. p. 7 72 (199 8). Representative David Mittleman, the b ill’s FN was introduced in the Senate and referred to the Senate Committee on Following its passage by the House, N.H.H.R. Jour. 236 (1998), HB 616 -

199 p. 7 7). Report of the Superior Court Jury Refor m Study Committee 11 (August 15,

service. cannot receive annulments ought not to be allowed the privilege of rehabilitation to permit their service on juries, and that those who convicted felons who are eligible for annulment are of sufficient have their convictions annulled. The committee feels that prohibit convicted felons from jury service who are not eligible to The committee recommends that legislation be enacted . . . to

. . .

be enacted to bring some certainty to this particular matter. conviction, a standard policy regarding felony convictions shoul d are degrees of felonies and varying passages of time from felons are . . . eligible for service under current law. While there . . . convicted felons. . . from sitting on a jury. . . . Convicted There is currently no statute in New Hampshire which prohibits

pertinent part: House Committee on Judiciary and Family Law’s report referred, stated, in The Report of the Superior Court Reform Study Committee, to which the p. 8 8

(contending that its construction “provides an explanati on for the legislature’s Hampshire convictions. It backs its argument with both textual support annulment under New Hampshire law; a nd (2) erroneously annulled New and subsequently annulled out - of - state, but which would not be eligible for to function as a safety net of sorts, catching: (1) convictions that were imposed The United States contends that the purpose of the disputed language is

failed to make it through Ways and Means Committee). 27, 1229 (Md. Ct. Spec. App. 19 p. 8 84) (discerning legi slative intent from bill that the legislature”); Chesapeake Industries v. Comptroller, 475 A.2d 1224, 1226 existence” because, for instance, “the language under question was rejected by “[l]egislative history can. . . consider part of a statute that never came into have turned in attempting to construe an ambiguous act” and noting that to its final validation, has generally been the first extrinsic aid to which courts events during the process of enactment, from its introduction in the legislature Construction § 4 8: 4, at 562 - 63 (7th ed. 2007) (stating that “the history of 1998, 237:5; see also 2A N. Singer & J.D. Singer, Statutes and Statutory and added to it a component referencing eligib i l ity for annulment. See Laws version that was eventually enacted revived the actual - annulment component approved by the House Finance Committee. N.H.H.R. Jour. 62 0 (1997). The An amended version, without any convicted felon disqualification, failed to be House Committee on Judiciary and Family Law. N.H.H.R. Jour. 267 (1997). disqualifying conviction annulled, failed to be recommended for passage by the qualification based upon whether the prospective juror had actually had any opposite progression. The initial ver sion of section V, which determined juror committee’s recommendation. The legislative history, however, indicates the was added to eligibility language adapted from the superior court study The United States’ argument assumes that the actual annulment clause

recommendation.” account for the textual change made to t he Study Committee Report disqualifying those with unannulled convictions. The defendant takes no Committee rejected the Study Committee language and added language to enact this recommendation.” In fact, the United States argues, “the House legislative history “suggest[s] that the actual juror qualification bill was drafted jurors whose convictions were not eligible for an annulment,” nothing in the although the Superior Court committee “recommended a rule disqualifying report” and acknowledged that report. The United S tates counters that Judiciary and Family L aw “on the heels of the Superior Court committee’ s relevant version of RSA 500 - A:7 - a, V was proposed by the House Committee o n interpretation of RS A 500 - A:7 - a, V. He notes, among other things, that the The defendant argues this legislative history supports the District Court’s

10 p. 8 82 (1 p. 9 998). Joint App. at 29, No. 2 013 - 0825. The bill passed in the Senate. N.H.S. Jour. Transcript of Senate Committee on Judiciary, available at N.H. Suprem e Court, 9

construction would produce. differently, and yet this is precisely the result that defendant’s There is no logical reason that these two felons should be treated annulment system entirely would be allowed to sit as a juror. annulment statute. Meanwhile, the felon who avoided the ineligible for annulment for three years under the New Hampshire would be barred from jury service because his conviction would be If one of the se felons sought but was denied an annulment, he

same crime and engaged in the same post - conviction conduct.” It explains: of the statute would lead to an absurd result “wher e two felons committed the The United States nevertheless argues that the defendant’s construction

history. interpretation of RSA 500 - A:7 - a, V is supported by the statute’s legislative Study Committee, s upra at 11. We conclude that the defendant’s annulment, not actual annulment. Report of the Superior Court Jury Reform “sufficient rehabilitation to permit their service on juries” with eligibility for consulted a Superior Court Reform Study Committee report that equated for - annulment language, the House Committee on Judiciary and F amily Law supported by the legislative history showing that prior to adding the eligible been “sufficiently rehabilitated to serve as a juror.” This interpretation is having actually obtained an annulment, were nevertheless thought to have pool of potential jurors to include those convicted felon s who, although not addition of the el igible - for - annulment language as an attempt to broaden the jury pools. N.H.H.R. Jour. 86 (1 p. 9 998). Thus, it is reasonable to read the that RSA 500 - A:7 - a was also intended to “rectify the problem[]” of dwindling way shrank the universe of available jurors, the legislative history indicates jury service that had not previously existed in New Hampshire law, and in that legislative history. Although RSA 500 - A:7 - a, V added a disqualific ation from rehabilitated to serve as a juror.” Th is argument is consistent with th e judgment that a person who is eligible for annulment has been sufficiently proposed to ensure a sufficiently broad jury pool, based on a legislative conditioned jury service on actual annulment failed, the current version was The defendant, on the other hand, argues that “after a statute that

found nowhere in the legislative history. p rompt ing us to consult legislative history; t he proffered policy reasons are above, could reasonably support t he competing construction s, thereby textual support reprises a plain meaning analysis, which, as we have explained annulmen t was not an option under New Hampshire law”). The proffered a New Hampshire jury who was convicted of such a serious crime that that “[t] he legislature presumably would not have favored allowing someone on deliberate use of ‘under New Hampshire law’”) and policy reasons (contending p. 10 10

DALIANIS, C.J.