UNITED STATES of America, Plaintiff-Appellee, v. Tony E. COLLINS, Defendant-Appellant

Citations: 61 F.3d 1379; 95 Daily Journal DAR 9809; 95 Cal. Daily Op. Serv. 5758; 1995 U.S. App. LEXIS 19181; 1995 WL 431727Docket: 94-30300

Court: Court of Appeals for the Ninth Circuit; July 24, 1995; Federal Appellate Court

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Tony E. Collins was convicted of violating 18 U.S.C. §§ 922(g)(1) and 922(g)(2) for possessing firearms as a felon and fugitive. He was sentenced as an armed career criminal under 18 U.S.C. § 924(e)(1). On appeal, Collins argued that his civil rights, including his right to possess firearms, were restored, thus his prior felony convictions should not count as predicates for his current charges. The court disagreed, stating that Collins’ rights were never fully restored. Additionally, the court rejected his arguments regarding the search warrant, entrapment defense, evidence of his fugitive status, and acceptance of responsibility. The facts reveal that Collins had multiple felony convictions from Illinois in the late 1970s, was arrested for misdemeanor theft in 1991, and failed to appear for trial, leading to an outstanding warrant. In 1993, after a report of him firing a gun, he was found with firearms but was released. Later, ATF agents executed a search warrant at Collins' trailer, discovering firearms while Collins was in Illinois. The court affirmed his conviction and sentence, emphasizing the legality of his prior convictions under federal law.

A felon's civil rights must be restored for their felony conviction to be excluded as a predicate for violating 18 U.S.C. § 922(g)(1). Restoration of civil rights must be determined by the convicting jurisdiction's law. In Collins’ case, the district court ruled that Illinois law applied, indicating his civil rights had not been restored under that jurisdiction, despite Montana's restoration. Illinois law, at the time of Collins' release in 1979, restored certain civil rights, but also explicitly prohibited him from possessing firearms for five years. This prohibition was reinforced by a subsequent change in the law in 1984, which barred all felons from firearm possession without special permission. Collins’ argument that his rights were restored under Montana law was rejected, affirming that state law dictates the restoration of rights and any firearm prohibitions.

Collins contends that his right to possess firearms was restored in 1984 despite his incarceration. However, in United States v. Clark, the Fourth Circuit determined that a felon’s firearm possession rights must be effectively restored under state law for them to be excluded from consideration as prior convictions under federal statutes. The court emphasized that isolating individual offenses would undermine the purpose of the recidivist statutes, and thus, Collins' rights to possess firearms were never restored under Illinois law. Consequently, his prior felony convictions were valid predicate offenses under sections 922(g)(1) and 924(e).

Collins' claim that the amended statute conflicts with Cardwell is dismissed; Cardwell clarifies that the restoration of rights is evaluated based on the law at the time restoration occurs, not during later offenses. Additionally, the court finds no violation of the ex post facto clause in considering the amended statute, as supported by the Illinois Court of Appeals and by precedent in United States v. Huss, which established that regulatory statutes do not constitute punishment. Lastly, Collins' equal protection argument regarding the reliance on non-uniform state laws to determine the restoration of a felon's civil rights is also rejected, with reference to prior rulings on similar challenges.

Collins' claims that section 922(g)(1) violates the commerce clause and the Tenth Amendment are rejected. The court references United States v. Hanna, affirming that the statute is a valid exercise of Congress' commerce authority, which does not infringe upon state authority regarding firearm possession or the impact of out-of-state felony convictions. The court also addresses Collins' request for a Franks hearing, asserting that he failed to demonstrate a substantial preliminary showing of deliberate or reckless omissions in the search warrant affidavit. His claim that the omission of a June 25, 1993 incident was intentional does not prove malice, as it may be attributed to negligence or innocent mistake, which is insufficient for a Franks hearing. 

Regarding probable cause for the search warrant, the affidavit indicated Collins' admission to firearm possession, his felony convictions, and reliable reports of firearms in his residence, leading to the magistrate judge's finding of probable cause not being clearly erroneous. Collins' argument about the staleness of the June 25, 1993 information is dismissed, as staleness is assessed based on case specifics rather than merely the passage of time.

In United States v. Vaandering, the court determined that information regarding Collins' unlawful firearm possession, even if dated (up to twenty-two months old), was not stale due to more recent corroborating information. A tip indicated illegal firearms in Collins' home shortly before the search, updating the older information from 1993. This led the magistrate to reasonably conclude that firearms would likely be found at Collins' residence, supported by precedents emphasizing the durability of firearms. 

Collins also raised an entrapment by estoppel defense, claiming he believed his firearm possession was legal based on a discussion with a state employee. However, the court clarified that this defense requires reliance on advice from a federal official, which Collins failed to demonstrate, as the state employee was not authorized to provide such guidance.

Regarding the sufficiency of the evidence for his conviction on three counts of being a fugitive in possession of firearms under 18 U.S.C. Sec. 922(g)(2), Collins contested the validity of a misdemeanor warrant from May 1991, asserting it was not outstanding on June 25, 1993. Despite a "disposition completed" entry and the possibility of the warrant being recalled, the court found that evidence, when viewed favorably for the government, could support a rational conclusion that the warrant remained outstanding, thus upholding the conviction.

Collins argues he was not a "fugitive from justice" as defined by 18 U.S.C. Sec. 921(a)(15) because he voluntarily returned to Illinois before February 25, 1994. The statute defines a fugitive as someone who has fled a state to avoid prosecution or giving testimony. Collins does not dispute that he initially fled Illinois with the intent to evade prosecution. The key issue is whether returning to the jurisdiction while concealing oneself negates fugitive status. The court distinguishes Collins' situation from that in United States v. Durcan, where the defendant left Florida unaware of a warrant and returned upon discovery, failing to turn himself in. Unlike Durcan, Collins returned to Illinois but continued to evade authorities, leading the court to conclude his fugitive status persisted under the statute. The court also references cases indicating that concealing oneself within a jurisdiction can constitute fleeing from justice. Additionally, Collins requested a two-level adjustment for acceptance of responsibility under U.S.S.G. Sec. 3E1.1, but the district court found no clear error in determining he did not accept responsibility, affirming the court's decision.