1The Honorable Frank M. Coffin, United States Senior Circuit

Judge for the First Circuit, sitting by designation.

PUBLISH

UNITED STATES COURT OF APPEALS

Filed 2/21/96

TENTH CIRCUIT

____________________

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

v. ) No. 95-3083

)

MICHAEL E. CAPPS, )

)

Defendant-Appellant. )

____________________

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 93-CR-20091)

____________________

Michael Lewis Harris, Assistant Federal Public Defender, Kansas

City, Kansas, for Defendant-Appellant.

Robert S. Streepy, Assistant United States Attorney, Kansas City,

Kansas (Randall K. Rathburn, United States Attorney, with him on

the brief), for Plaintiff-Appellee.

____________________

Before TACHA, COFFIN,1 and LUCERO.

____________________

COFFIN, Senior Circuit Judge. At his trial for violating the

"felon-in-possession" statute, 18 U.S.C. § 922(g)(1), Michael Capps

stipulated that 1) he was previously convicted of two federal

felonies; 2) he was in possession of a functioning firearm; and 3)

the firearm was not manufactured in Kansas. Though acknowledging

that these stipulations facially satisfied the government's case in

chief, Capps offered as a defense his good faith and reasonable

belief that, because his civil rights were restored under Kansas
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law, the federal convictions did not count as predicate felonies

and, therefore, did not prohibit his firearm possession. The court

ruled that Capps' knowledge as to his felony status was not an

element of the offense, and Capps was swiftly convicted. 

This appeal presents two claims. First, Capps reiterates the

claim that knowledge of his felony status is an element of §

922(g)(1). Second, Capps claims that applying to him the Supreme

Court's decision in Beecham v. United States, 114 S. Ct. 1669

(1994), which holds that a state's restoration of civil rights does

not affect federal felonies, retroactively expanded criminal

responsibility under § 922(g)(1) in violation of ex post facto

principles and the Due Process Clause. We address each claim in

turn and, discerning no error, we affirm.

 DISCUSSION

A. The Mens Rea Requirement

The "felon-in-possession" statute provides, in relevant part:

(g) It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one year

. . .

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammunition

. . . .

18 U.S.C. § 922(g)(1).

A conviction, for purposes of the act, does not include a

prior conviction "for which a person . . . has had civil rights

restored, . . . unless such . . . restoration of civil rights

expressly provides that the person may not ship, transport,
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possess, or receive firearms." 18 U.S.C. § 921(a)(20). Under

Kansas law, at the time of his most recent arrest, Capps suffered

no deprivation of civil rights or limitation on his firearm

privileges. If, indeed, as Capps allegedly believed, a state

restoration scheme could nullify federal convictions (for purposes

of the act), Capps would not have been subject to § 922(g)(1)

liability.

At the time of Capps' possession, two circuits had held that

state schemes could affect federal convictions. See United States

v. Geyler, 932 F.2d 1330, 1333 (9th Cir. 1991); United States v.

Edwards, 946 F.2d 1347, 1348 (8th Cir. 1991). Though these

holdings were rejected by Beecham in 1994, Capps wanted to argue to

the jury that the earlier rulings supported his reasonable belief

that his felonies no longer served as predicate convictions, and

that, consequently, he should not be convicted under § 922(g)(1).

The problem with this argument is that its central premise is

contrary to the law in this circuit. The Kansas restoration scheme

is relevant only if Capps' knowledge concerning the status of his

prior convictions is an element of § 922(g)(1). In other words,

does a conviction under § 922(g)(1) require proof that the

defendant knew that he had suffered a prior felony conviction? We

have held implicitly that it does not.

Our cases identify three elements necessary to sustain a

conviction under § 922(g)(1):

1) the defendant was convicted of a felony; 
 

2 Section 922(g)(1) was enacted as part of the Firearms

Owners' Protection Act (FOPA), Pub. L. 99-308, 100 Stat. 449

(1986), and consolidated various laws placing firearm disabilities

on felons. Courts interpreting these statutory predecessors

consistently held that a mens rea requirement, if any, applied only

to the conduct (possession, transportation or reception) itself.

Dancy, 861 F.2d at 81. Indeed, prior to FOPA, the firearm

provisions were often considered strict liability offenses. United

States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir. 1988).

FOPA also amended the penalty provision for § 922, which

authorizes punishment for "[w]hoever knowingly violates subsection

. . . (g)." 18 U.S.C. § 924(a)(2) (emphasis added). The addition

of the term "knowingly" created a textual ambiguity as to which

elements "knowingly" attached. However, the legislative history

indicates that Congress intended to incorporate former law, and at

most was attempting to avoid punishing unintentional conduct. See

United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en

banc); Sherbondy, 865 F.2d at 1001-02; Dancy, 861 F.2d at 81. 

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2) the defendant thereafter knowingly possessed a firearm; and

3) the possession was in or affecting interstate commerce.

United States v. Mains, 33 F.3d 1222, 1228 (10th Cir. 1994); United

States v. Flower, 29 F.3d 530, 534 (10th Cir. 1994); United States

v. Shunk, 881 F.2d 917, 921 (10th Cir. 1989). As our formulation

makes clear, "the only knowledge required for a § 922(g) conviction

is knowledge that the instrument possessed is a firearm." Mains,

33 F.3d at 1228. Indeed, in setting forth the elements in Shunk,

we relied upon United States v. Dancy, 861 F.2d 77, 81 (5th Cir.

1988), where, upon examining the legislative history and statutory

predecessors of § 922(g), the Fifth Circuit explicitly held that

the government need not prove that the defendant had knowledge that

he was a felon.2 

Moreover, as far as we can tell, no circuit has extended the

knowledge component of § 922(g)(1) beyond the act of possession

itself. See, e.g., Langley, 62 F.3d at 606; United States v.
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Smith, 940 F.2d 710, 713 (1st Cir. 1991); United States v. McNeal,

900 F.2d 119, 121 (7th Cir. 1990); Sherbondy, 865 F.2d at 1002-03.

Seeking relief from this precedential albatross, Capps argues

that the 1994 Supreme Court cases of Staples v. United States, 114

S. Ct. 1793 (1994), and United States v. X-Citement Video, Inc.,

115 S. Ct. 464 (1994), mandate a different interpretation of §

922(g)(1). In Staples, the Court held that to sustain a conviction

for the possession of an unregistered firearm under 26 U.S.C. §

5861(d), based on defendant's possession of a machinegun, the

government had to prove that the defendant knew of the features of

his gun that brought it within the scope of the act. 114 S. Ct. at

1804. This required proof that Staples knew that his weapon could

shoot, or be readily restored to shoot, automatically, without

manual reloading. See 26 U.S.C. § 5845(b).

X-Citement Video involved the Protection of Children Against

Sexual Exploitation Act of 1977, which prohibits "knowingly"

transporting, shipping, receiving, distributing or reproducing a

visual depiction, if such depiction involves the use of a minor

engaged in sexually explicit conduct. 18 U.S.C. § 2252(a). The

Court held that the term "knowingly" modifies the phrase "the use

of a minor," primarily because the "age of the performers is the

crucial element separating legal innocence from wrongful conduct."

115 S. Ct. at 469. Relying on these cases, Capps argues that the

government should be required to prove that he had knowledge of the

facts that brought his conduct within the scope of § 922(g)(1),
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including knowledge that he suffered a predicate conviction under

the act. 

Capps' post-Staples argument has been thoroughly considered

and rejected by the Fourth Circuit en banc in Langley, 62 F.3d at

606-08. We agree with the analysis in Langley, and briefly recount

the reasons presented there that clearly distinguish Staples and XCitement Video. First, in contrast to an ordinary citizen

possessing a firearm unaware of its automatic firing capability or

trafficking in sexually explicit materials involving adults, a

person convicted of a felony cannot reasonably expect to be free

from regulation when possessing a firearm. This is accordingly not

a situation involving a need to apply a scienter requirement to

"each of the statutory elements which criminalize otherwise

innocent conduct." Id. at 607 (quoting X-Citement Video, 115 S.

Ct. at 469).

Second, the statutes at issue in the Supreme Court cases 

did not have long-standing, firmly entrenched, uniform

judicial interpretations that necessitated the

application of the presumption that "Congress acts with

knowledge of existing law, and that 'absent a clear

manifestation of contrary intent, a newly-enacted or

revised statute is presumed to be harmonious with

existing law and its judicial construction.'"

Id. at 607-08 (citations omitted). In contrast, the statutory

predecessors of § 922(g)(1) were consistently interpreted not to

require proof of defendant's knowledge of either felony status or

interstate nexus. See supra note 2.

Moreover, we think Staples and X-Citement Video are

particularly inapposite to the circumstances presented here. There
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is a vast difference between knowledge of facts that pertain to the

criminal conduct, and knowledge of the law prohibiting such

conduct. See Staples, 114 S. Ct. at 1805 n.3 (Ginsburg, J.,

concurring) ("The mens rea presumption requires knowledge only of

the facts that make the defendant's conduct illegal, lest it

conflict with the related presumption, 'deeply rooted in the

American legal system,' that, ordinarily, 'ignorance of the law or

a mistake of law is no defense to criminal prosecution.'")

(citation omitted). Capps asserts that his reasonable

misinterpretation of the effect of state law on his federal

conviction negates an element of the offense. However, we have

held that whether a prior conviction serves as a predicate under §

922(g)(1) is a question of law. See Flower, 29 F.3d at 534-35.

Therefore, his complaint is essentially one of ignorance of the law

-- "I thought the law applied differently than it does." 

Finally, Capps' argument is wholly different from the

challenges advanced in the Supreme Court cases. Instead, it is

more akin to the hypothetical situation of Staples contending that,

though aware of the automatic nature of his gun, he did not know

that the definition of a machine gun included his weapon, or the

owner of X-Citement Video, Inc., admitting knowledge that the video

portrayed a 16-year-old, but claiming a good faith belief that

"minor" defined only persons under 16. Such an ignorance of the

law defense is easily rejected. See Sherbondy, 865 F.2d at 1002.

In sum, Staples and X-Citement Video have not changed the

scienter requirements applicable to a prosecution under §
 

3 Compare United States v. Geyler, 932 F.2d 1330, 1333 (9th

Cir. 1991) and United States v. Edwards, 946 F.2d 1347, 1348 (8th

Cir. 1991) with United States v. Jones, 993 F.2d 1131, 1136 (4th

Cir. 1993).

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922(g)(1), and "knowingly" still modifies only defendant's

possession of the firearm. Accordingly, issues regarding the

reasonableness or sincerity of Capps' interpretation of a legal

question were not legally relevant to his guilt or innocence, and

were properly excluded from the jury instructions. 

B. Due Process

Resolving a conflict in the circuits, 3 the Supreme Court in

Beecham interpreted § 921(a)(20) to require that only federal

restoration of civil rights could remove firearm disabilities

resulting from federal convictions. 114 S. Ct. at 1672. Capps

claims that the application to him of this interpretation

constituted a retroactive expansion of criminal responsibility in

contravention of ex post facto principles and the Due Process

Clause.

"A law violates the Ex Post Facto Clause when it punishes

behavior which was not punishable at the time it was committed or

increases the punishment beyond the level imposed at the time of

commission." Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir. 1994)

(citing U.S. Const., art. 1, § 10., cl. 1; Collins v. Youngblood,

497 U.S. 37, 42 (1990)). Though the Ex Post Facto Clause serves to

limit legislative power, an unforeseeable judicial enlargement of

a criminal statute, applied retroactively, can function like an ex

post facto law, and violate the Due Process Clause. See Bouie v.
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City of Columbia, 378 U.S. 347, 353-54 (1964); Coleman v. Saffle,

869 F.2d 1377, 1385 (10th Cir. 1989).

Capps' ex post facto claim confronts two insurmountable

hurdles. First, it is clear that Beecham did not alter a Tenth

Circuit interpretation regarding the power of state restoration

schemes over prior federal convictions. Because we had never

addressed the issue, Capps has no basis to argue that Beecham

constitutes a "judicial enlargement" of the "felon-in-possession"

statute. 

Second, even if we were to apply ex post facto principles, we

would conclude that the result of Beecham was foreseeable. We have

maintained that if the interpretation of a statute was "dictated by

the plain language," it was foreseeable. See Lustgarden v. Gunter,

966 F.2d 552, 554 (10th Cir. 1992). In Beecham, a unanimous Court

held that the unambiguous statutory language of § 921(a)(20)

governed its decision. 114 S. Ct. at 1672. As such, Beecham

neither altered the law nor ruled in an unforeseeable manner.

Therefore, Capps' challenge must fail. 

Affirmed.