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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

U.S. Court of Appeals for the First Circuit

No. 2013-825

UNITED STATES OF AMERICA

v.

RYAN HOWE

Argued: June 26, 2014

Opinion Issued: November 13, 2014

John P. Kacavas, United States Attorney (Seth R. Aframe, Assistant 

United States Attorney, on the brief and orally), for the United States of 

America.

Behzad Mirhashem, assistant federal defender, of Boston, 

Massachusetts, and Jeffrey S. Levin, assistant federal defender, of Concord

(Mr. Mirhashem and Mr. Levin on the brief, and Mr. Mirhashem orally), for the 

defendant.

Joseph A. Foster, attorney general (K. Allen Brooks, senior assistant 

attorney general, on the brief), for the State of New Hampshire, as amicus

curiae.
2

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

HICKS, J. Pursuant to Supreme Court Rule 34, the United States Court 

of Appeals for the First Circuit (Lynch, C.J.) certified to us the following 

question:

Under sections 500-A:7-a(V) and 651:5 of the New Hampshire 

Revised Statutes and the undisputed facts of this case, is a felon 

whose conviction is eligible for annulment (that is, not categorically 

disqualified from jury service) but who has not applied for or 

received an annulment of that conviction qualified to sit as a juror?

We respond in the affirmative.

The First Circuit’s order provides the following facts. The defendant, 

Ryan Howe, was indicted under federal law in August 2012 for possession of a 

firearm by a felon, see 18 U.S.C. § 922(g)(1) (2012), based upon a prior state 

felony conviction. He moved to dismiss that count on the ground that he was 

not a felon under section 922(g)(1) pursuant to an exception provided in 18 

U.S.C. § 921(a)(20). See 18 U.S.C. § 921(a)(20) (2012). Section 921(a)(20) 

provides, in part, that “[a]ny conviction which has been expunged, or set aside 

or for which a person . . . has had civil rights restored shall not be considered a 

conviction for purposes of this chapter.” Id. The First Circuit has held that 

“the civil rights that must be restored to trigger the exception [in section

921(a)(20)] are the rights to vote, to hold public office, and to serve on a jury.” 

United States v. Estrella, 104 F.3d 3, 5-6 (1st Cir. 1997). The United States

concedes that the defendant’s rights to vote and to hold public office were 

restored by operation of state law before the date of the federal offense, 

September 15, 2011. 

The parties disagree as to whether the defendant was eligible, as of 

September 15, 2011, to serve on a jury under our juror qualification statute. 

See RSA 500-A:7-a, V (2010) (amended 2014). RSA 500-A:7-a, V provides: “A 

juror shall not have been convicted of any felony which has not been annulled 

or which is not eligible for annulment under New Hampshire law.” The United 

States District Court for the District of New Hampshire (DiClerico, J.) adopted 

the defendant’s reading of RSA 500-A:7-a, V and dismissed the felon in 

possession charge. The United States appealed to the First Circuit, which 

certified to us the above question.

Responding to the certified question requires us to engage in statutory 

interpretation. “We are the final arbiter of the intent of the legislature as 

expressed in the words of the statute considered as a whole.” Town of Newbury 

v. N.H. Fish & Game Dep’t, 165 N.H. 142, 144 (2013) (quotation omitted).

“When examining the language of the statute, we ascribe the plain and 
3

ordinary meaning to the words used.” Id. (quotation omitted). “We interpret 

legislative intent from the statute as written and will not consider what the 

legislature might have said or add language that the legislature did not see fit 

to include.” Id. (quotation omitted). “We also interpret a statute in the context 

of the overall statutory scheme and not in isolation.” Id. (quotation omitted).

“Our goal is to apply statutes in light of the legislature’s intent in enacting 

them, and in light of the policy sought to be advanced by the entire statutory 

scheme.” State v. Guay, 164 N.H. 696, 700 (2013) (quotation omitted). 

The United States, as well as both amici curiae, correctly note that RSA 

500-A:7-a, V should be read in conjunction with the statute governing 

annulments, RSA 651:5 (Supp. 2011) (amended 2012, 2013, 2014), as they are 

related in subject-matter. See Bradley v. City of Manchester, 141 N.H. 329, 

334-35 (1996) (noting that “all statutes upon the same subject-matter are to be 

considered in interpreting any one of them” (quotation omitted)). The United 

States and the amici curiae, however, offer differing interpretations of how RSA 

651:5’s provisions tie into the structure of RSA 500-A:7-a, V. 

RSA 651:5 sets forth both procedural prerequisites and categorical bars 

to obtaining annulments. Thus, for instance, RSA 651:5, III provides, in part, 

that “[e]xcept as provided in . . . paragraphs V and VI,” a person may petition 

for annulment when he or she: (1) “has completed all the terms and conditions 

of the sentence”; and (2) “has thereafter been convicted of no other crime,” 

except for certain motor vehicle offenses, for the period of time thereafter 

specified for certain categories or levels of offense. RSA 651:5, III (Supp. 2010). 

Paragraph IV provides that “[i]f a petition for annulment is denied, no further 

petition shall be brought more frequently than every 3 years thereafter.” RSA 

651:5, IV (2007). Paragraphs V and VI set forth a categorical bar to annulment 

for certain offenses. RSA 651:5, V (2007) (amended 2014), VI (2007). At the 

time of the defendant’s alleged violation of 18 U.S.C. § 922(g)(1), paragraph V 

stated: “No petition shall be brought and no annulment granted in the case of 

any violent crime, of any crime of obstruction of justice, or of any offense for 

which the petitioner was sentenced to an extended term of imprisonment under 

RSA 651:6.” RSA 651:5, V. The offenses constituting “violent crime[s]” for 

purpose of the annulment statue and the definition of the term “crime of 

obstruction of justice” are set forth in paragraphs XIII and XIV, respectively. 

RSA 651:5, XIII, XIV (2007). Paragraph VI applies “[i]f a person has been 

convicted of more than one offense” and provides, among other things, that “no 

petition for annulment shall be brought and no annulment granted . . . [i]f 

annulment of any part of the record is barred under paragraph V.” RSA 651:5, 

VI. 

The United States contends that “the ‘which is not eligible for annulment 

under New Hampshire law’ clause [in RSA 507-A:7-a, V] bars from jury service 

those who may not participate in the annulment process because they do not 

satisfy the threshold [temporal] eligibility requirements.” The State, on the 
4

other hand, reads the “not eligible” clause as referring to the categorical bar of 

RSA 651:5, V and VI, and considers the procedural requirements of RSA 651:5, 

I through IV to be subsumed within the “actually . . . annulled” clause. Widi 

contends that the eligibility contemplated by RSA 500-A:7-a, V does not 

include the “the temporal requirements for petitioning for annulment.” 

We need not determine which, if any, of these proposed constructions are

correct in order to answer the certified question. Whatever RSA 500-A:7-a, V

means by “not eligible for annulment,” the United States concedes that “there 

is no dispute that the defendant’s conviction is eligible for annulment under 

New Hampshire law.” Thus, the only question before us is: Given that the 

defendant, despite that undisputed eligibility, has not obtained annulment of 

his conviction, is he nevertheless qualified to serve as a juror? 

The United States argues that “[t]he plain language of the juror 

qualification statute precludes from jury service a person with an unannulled 

felony conviction, even if the conviction is eligible for annulment under New 

Hampshire law.” The United States focuses upon the statute’s use of the term 

“or,” which, it contends “indicates the disjunctive.” It argues:

[T]he statute establishes a result – disqualification from jury 

service (“no juror shall”) – and creates two conditions, either of 

which triggers the disqualification result. These conditions are: 

(1) the presence of a felony which has not been annulled “or” (2) 

the presence of a felony which is not eligible for annulment under 

New Hampshire law.

(Emphasis added.) Such a reading is consistent with our interpretation of 

other statutes written in the disjunctive. See, e.g., Unit Owners Assoc. of 

Summit Vista v. Miller, 141 N.H. 39, 45 (1996) (concluding that “the use of the 

disjunctive ‘or’ [in the damages provision of the Consumer Protection Act, see

RSA 358-A:10 (2009)] manifests a clear intent to award multiple damages for 

either knowing or willful acts”); Welts’ Case, 136 N.H. 588, 591-92 (1993) 

(noting that attorney professional conduct rule establishing misconduct where 

attorney’s “conduct involve[ed] dishonesty, fraud, deceit or misrepresentation,” 

is disjunctive and concluding, therefore, that “[a] finding of misrepresentation 

alone constitutes misconduct” (quotation omitted)).

The defendant, on the other hand, argues for a construction of RSA 500-

A:7-a, V under which, “if a conviction has not been annulled, but is eligible for 

annulment under New Hampshire law, then that conviction does not disqualify 

a person from jury service.” The defendant contends that “the statute excludes 

from jury service only persons with felony criminal convictions of a specified 

status. If a felony conviction has been annulled, the person is not disqualified. 

If a felony conviction is eligible for annulment, the person is not disqualified.” 
5

In essence, the defendant’s construction states the provision in positive form, 

dispensing with the double negative by deleting the successive “nots.” He 

thereby concludes that a juror is qualified to serve if he “shall . . . have been 

convicted of any felony which has . . . been annulled or which is . . . eligible for 

annulment under New Hampshire law.” RSA 500-A:7-a, V. 

The United States protests that “this is not what the statute says.” It 

asserts that the defendant “rewrite[es] the statute to convert it from a law 

describing the conditions under which someone is disqualified from jury 

service into a law describing the conditions under which someone’s right to 

jury service is restored.” Such a construction, the United States maintains, 

conflicts with our policy of interpreting “legislative intent from the statute as 

written” and our policy that we “will not consider what the legislature might 

have said or add language that the legislature did not see fit to include.” Strike 

Four v. Nissan N. Am., 164 N.H. 729, 739 (2013) (quotation omitted).

Notwithstanding the authority of these interpretive rules, the defendant’s 

elimination of the double negative from the statute also has some support as a 

method of statutory construction. See, e.g., Independent Bankers Ass’n of 

America v. Clarke, 743 F. Supp. 687, 690 (W.D. Mo. 1989) (noting that “the 

negative language used in [a state statute dealing with savings and loan 

associations] amounts to an affirmative grant of branching authority because 

of the double negative, i.e., ‘no association may establish . . . without’ can be 

read as ‘an association may establish . . . with’”), aff’d, 917 F.2d 1126 (8th Cir. 

1990); State v. Myers, 621 N.E.2d 881, 884 (Ohio Ct. App. 1993) (noting that 

“[t]he terms ‘no’ and ‘without’ used in the same [statutory] clause create a 

double negative, which gives the provision a positive meaning”). The defendant 

contends that his “construction comports with the plain meaning of ‘eligibility 

for annulment’” because “[a] conviction is eligible for annulment if it qualifies 

for annulment, but has not yet been actually annulled.” He argues that “[o]ne 

clause [of the statute] refers to an inchoate state – eligibility for annulment –

while another clause refers to an actualized state – completed annulment.” 

Because “[o]ne state ripens into the other state,” he contends, both states 

cannot exist simultaneously. He notes that both clauses must “be given 

meaning and effect,” and asserts that both are necessary, because the second 

clause, regarding eligibility for annulment, “would not cover those convictions 

that have been annulled.”

The United States, on the other hand, disputes that the two clauses in 

RSA 500-A:7-a, V describe “inchoate” and “actualized” states that can never 

coexist. It posits two circumstances in which “a prospective juror could have 

an annulled conviction which still is ineligible for annulment under New 

Hampshire law”: (1) an out-of-state conviction that was annulled in the

convicting state but which is ineligible for annulment under New Hampshire 

law; and (2) a New Hampshire conviction “erroneously annulled” by a New 
6

Hampshire court. Citing these circumstances, the United States maintains 

that under its interpretation, each clause in RSA 500-A:7-a, V has independent 

meaning.

We conclude that both the United States’ and defendant’s proffered 

constructions are reasonable. Accordingly, because RSA 500-A:7-a, V’s 

“language is subject to more than one reasonable interpretation, we will resolve 

the ambiguity by determining the legislature’s intent in light of legislative 

history.” Appeal of Naswa Motor Inn, 144 N.H. 89, 90 (1999). 

RSA 500-A:7-a was enacted in 1998, originating as House Bill 616-FN.

See Laws 1998, 237:5. As introduced in January 1997, HB 616-FN contained 

the following provision: “V. A juror shall not have been convicted of any felony 

which has not been annulled, or of any misdemeanor involving a crime of 

moral turpitude which has not been annulled.” House Bill 616-FN, available at

http://gencourt.state.nh.us/SofS_ Archives/1998/house/HB616H.pdf. The 

bill was referred to the Judiciary and Family Law Committee, N.H.H.R. Jour.

89 (1997), which reported that the bill ought to pass with amendment; 

specifically, an amendment striking section V. N.H.H.R. Jour. 267 (1997). The 

bill as amended was passed by the House and referred to the House Finance 

Committee. Id. 

Following an inexpedient to legislate vote by the House Finance 

Committee, N.H.H.R. Jour. 620 (1997), the bill was re-referred to the Judiciary 

and Family Law Committee, which again reported that the bill ought to pass 

with amendment. N.H.H.R. Jour. 86 (1998). The relevant amendment for our 

purposes is the reinsertion of section V in the following form: “V. A juror shall 

not have been convicted of any felony which has not been annulled or which is 

not eligible for annulment under New Hampshire law.” Id. The statement by 

Representative Janet G. Wall for that committee reads as follows:

The committee recognizes the importance of having a jury of one’s 

peers and that jury pools have been dwindling. In an effort to 

rectify the problems, the committee studied the “Report of the 

Superior Court Reform Study Committee” which came out on 

August 15, 1997, and worked with the sponsor to reach a 

reasonable conclusion. The amendment allows for a master blend 

of drivers’ licenses and voting checklists, takes away all 

exemptions from serving, and disallows felons whose convictions 

have not been annulled or whose convictions are not eligible for 

annulment. The committee agreed unanimously on the bill as 

amended.

Id.
7

The Report of the Superior Court Reform Study Committee, to which the 

House Committee on Judiciary and Family Law’s report referred, stated, in 

pertinent part: 

There is currently no statute in New Hampshire which prohibits

. . . convicted felons . . . from sitting on a jury. . . . Convicted 

felons are . . . eligible for service under current law. While there 

are degrees of felonies and varying passages of time from 

conviction, a standard policy regarding felony convictions should 

be enacted to bring some certainty to this particular matter.

. . .

The committee recommends that legislation be enacted . . . to 

prohibit convicted felons from jury service who are not eligible to 

have their convictions annulled. The committee feels that 

convicted felons who are eligible for annulment are of sufficient 

rehabilitation to permit their service on juries, and that those who 

cannot receive annulments ought not to be allowed the privilege of 

service.

Report of the Superior Court Jury Reform Study Committee 11 (August 15, 

1997).

Following its passage by the House, N.H.H.R. Jour. 236 (1998), HB 616-

FN was introduced in the Senate and referred to the Senate Committee on 

Judiciary, N.H.S. Jour. 72 (1998). Representative David Mittleman, the bill’s 

prime sponsor, addressed the committee, in relevant part, as follows:

The third thing that the bill does, it clarifies when a felon can serve 

on a jury. When we move to a system of choosing jurors by 

driver’s licenses, a number of county prosecutors saw more and 

more felons arriving in the jury pools. It just so happens that 

felons tend to drive more so than they tend to vote.

What this bill does, it represents compromise between some 

various factions in the House. But it says, “ . . . if you’ve been 

convicted of any crime, a felony in particular, that if you are not 

eligible to have your conviction annulled, then you are not eligible 

to serve on a jury.” For example, there are certain felonies you 

cannot have your conviction annulled for ten years, until after 

you’ve served your sentence. This would track that pattern down, 

so that if you can’t get it annulled, you can’t serve on a jury. There 

is no right to sit on a jury, rather it’s just a duty that we impose 

upon a citizen.
8

Transcript of Senate Committee on Judiciary, available at N.H. Supreme Court, 

Joint App. at 29, No. 2013-0825. The bill passed in the Senate. N.H.S. Jour.

1082 (1998). 

The defendant argues this legislative history supports the District Court’s 

interpretation of RSA 500-A:7-a, V. He notes, among other things, that the 

relevant version of RSA 500-A:7-a, V was proposed by the House Committee on

Judiciary and Family Law “on the heels of the Superior Court committee’s 

report” and acknowledged that report. The United States counters that 

although the Superior Court committee “recommended a rule disqualifying 

jurors whose convictions were not eligible for an annulment,” nothing in the 

legislative history “suggest[s] that the actual juror qualification bill was drafted 

to enact this recommendation.” In fact, the United States argues, “the House 

Committee rejected the Study Committee language and added language 

disqualifying those with unannulled convictions. The defendant takes no 

account for the textual change made to the Study Committee Report 

recommendation.”

The United States’ argument assumes that the actual annulment clause 

was added to eligibility language adapted from the superior court study 

committee’s recommendation. The legislative history, however, indicates the 

opposite progression. The initial version of section V, which determined juror 

qualification based upon whether the prospective juror had actually had any 

disqualifying conviction annulled, failed to be recommended for passage by the 

House Committee on Judiciary and Family Law. N.H.H.R. Jour. 267 (1997). 

An amended version, without any convicted felon disqualification, failed to be 

approved by the House Finance Committee. N.H.H.R. Jour. 620 (1997). The 

version that was eventually enacted revived the actual-annulment component 

and added to it a component referencing eligibility for annulment. See Laws 

1998, 237:5; see also 2A N. Singer & J.D. Singer, Statutes and Statutory 

Construction § 48:4, at 562-63 (7th ed. 2007) (stating that “the history of 

events during the process of enactment, from its introduction in the legislature 

to its final validation, has generally been the first extrinsic aid to which courts 

have turned in attempting to construe an ambiguous act” and noting that 

“[l]egislative history can . . . consider part of a statute that never came into 

existence” because, for instance, “the language under question was rejected by 

the legislature”); Chesapeake Industries v. Comptroller, 475 A.2d 1224, 1226-

27, 1229 (Md. Ct. Spec. App. 1984) (discerning legislative intent from bill that 

failed to make it through Ways and Means Committee).

The United States contends that the purpose of the disputed language is 

to function as a safety net of sorts, catching: (1) convictions that were imposed 

and subsequently annulled out-of-state, but which would not be eligible for 

annulment under New Hampshire law; and (2) erroneously annulled New 

Hampshire convictions. It backs its argument with both textual support 

(contending that its construction “provides an explanation for the legislature’s 
9

deliberate use of ‘under New Hampshire law’”) and policy reasons (contending 

that “[t]he legislature presumably would not have favored allowing someone on 

a New Hampshire jury who was convicted of such a serious crime that 

annulment was not an option under New Hampshire law”). The proffered 

textual support reprises a plain meaning analysis, which, as we have explained 

above, could reasonably support the competing constructions, thereby 

prompting us to consult legislative history; the proffered policy reasons are 

found nowhere in the legislative history.

The defendant, on the other hand, argues that “after a statute that 

conditioned jury service on actual annulment failed, the current version was 

proposed to ensure a sufficiently broad jury pool, based on a legislative 

judgment that a person who is eligible for annulment has been sufficiently 

rehabilitated to serve as a juror.” This argument is consistent with the 

legislative history. Although RSA 500-A:7-a, V added a disqualification from 

jury service that had not previously existed in New Hampshire law, and in that 

way shrank the universe of available jurors, the legislative history indicates 

that RSA 500-A:7-a was also intended to “rectify the problem[]” of dwindling 

jury pools. N.H.H.R. Jour. 86 (1998). Thus, it is reasonable to read the 

addition of the eligible-for-annulment language as an attempt to broaden the 

pool of potential jurors to include those convicted felons who, although not 

having actually obtained an annulment, were nevertheless thought to have 

been “sufficiently rehabilitated to serve as a juror.” This interpretation is 

supported by the legislative history showing that prior to adding the eligiblefor-annulment language, the House Committee on Judiciary and Family Law 

consulted a Superior Court Reform Study Committee report that equated 

“sufficient rehabilitation to permit their service on juries” with eligibility for 

annulment, not actual annulment. Report of the Superior Court Jury Reform 

Study Committee, supra at 11. We conclude that the defendant’s 

interpretation of RSA 500-A:7-a, V is supported by the statute’s legislative 

history.

The United States nevertheless argues that the defendant’s construction 

of the statute would lead to an absurd result “where two felons committed the 

same crime and engaged in the same post-conviction conduct.” It explains:

If one of these felons sought but was denied an annulment, he 

would be barred from jury service because his conviction would be 

ineligible for annulment for three years under the New Hampshire 

annulment statute. Meanwhile, the felon who avoided the 

annulment system entirely would be allowed to sit as a juror. 

There is no logical reason that these two felons should be treated 

differently, and yet this is precisely the result that defendant’s 

construction would produce. 
10

Although such a result may appear counterintuitive, we note that RSA 500-

A:7-a deals only with the initial qualification of jurors – their eligibility to be in 

the jury pool. Individual jurors are still subject to challenge at the jury 

selection stage. Prospective jurors may be examined on voir dire by the court 

in both civil and criminal cases, RSA 500-A:12 (2010), :12-a (2010) (amended 

2014), and by counsel in civil cases “in order to enable counsel to intelligently 

exercise both peremptory challenges and challenges for cause,” RSA 500-A:12-

a; see Laws 2014, 40:1 (amending RSA 500-A:12-a to apply to criminal as well 

as civil cases, effective January 1, 2015). Presumably, a felon who has not 

sought an annulment of his conviction would be scrutinized by the court and 

counsel for suitability for jury service. Thus, the absurd result posited by the 

United States may be more theoretical than real. 

Finally, we note that the legislature amended RSA 500-A:7-a in 2014. 

See Laws 2014, 204:33. Section V, as amended, reads: “A juror shall not have 

been convicted of any felony unless the conviction has been annulled.” Id. 

This amendment does not affect our interpretation of RSA 500-A:7-a in its prior 

form. Accordingly, we answer the certified question in the affirmative.

Remanded.

DALIANIS, C.J., and LYNN, CONBOY, and BASSETT, JJ., concurred.