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WILLIE GOT HIS GUN…

Back in 2009, Willie Minor got into a minor beef with his wife that led to him being charged with domestic violence. When the Maine court told Willie that if he got convicted, he couldn’t possess a gun, Willie refused to plead to the charge (despite the prosecutor’s offer of no jail time).

The Maine prosecutor amended the charge to a simple “Assault, Class D” and struck out the sentence in the complaint stating, “this conduct was committed against a family or household member…” The judgment and commitment form had initially been printed with the offense “Domestic Violence Assault,” but the words “Domestic Violence” had been crossed out by hand. The assistant district attorney told Willie this change assured that Willie could continue to own firearms.

Six years later, Willie was caught with a handgun that he was sure he was allowed to have. The Feds this time (no county assistant district attorney) charged Willie with an 18 USC § 922(g)(9) felon-in-possession charge. Well, not really a “felon” in possession, but rather a wife-beater in possession: § 922(g)(9) prohibits possession of a gun by someone convicted of a misdemeanor crime of domestic violence (MCDV).

Willie went to trial, arguing that he hadn’t been convicted of an MCDV, and even if he had, he had no idea that he had. Relying on Rehaif v. United States, Willie argued the government had to prove he knew it was illegal for him to have the gun. The government argued Willie only needed to know he had done the acts that led to the assault conviction, and because the assault was against a family member – regardless of what the state conviction documents said or did not say – he had the guilty knowledge that supported the conviction.

Last week, the 1st Circuit split the case down the middle but vacated Willie’s conviction in the process. The Circuit agreed it is no defense for those charged with a 922(g) offense to say that they did not know that persons convicted of misdemeanor crimes of domestic violence could not possess guns. But, the 1st said, “while a defendant need not have known that possessing firearms was unlawful… the government need[s to] prove that he knew he violated the material elements of § 922(g)… which in this case means that he knew he had been convicted of a misdemeanor crime of domestic violence.”

In this case, whether the defendant knew was a dicey proposition. Willie had no lawyer for the assault conviction, and the Maine assistant DA told him that changing the domestic violence charge to a simple assault would let him keep his guns. But – as I have pointed out repeatedly where the definition of “crime punishable by imprisonment for a term exceeding one year” (§ 922(g)(1)) is concerned – the definitions undergirding Section 922 can be tricky. MCDVs are like that. They are defined as any misdemeanor assault where the victim is a family member or significant other. The offense doesn’t have to be called “domestic violence,” or even specify the victim’s connection to the defendant. What’s more, the court said, a § 922(g) usually results from the defendant having been convicted of a felony in a prior case where he had been represented by counsel. “And,” the Circuit said, “competent defense counsel is usually going to advise the client of the serious collateral ramifications of conviction.” (This pollyannish observation is laughable, but we’ll reserve discussion of it for another time).

So who cares about Willie’s victory (besides Willy, of course)? This decision could have ramifications for § 922(g)(1) felon-in-possession offenses. As I noted, the definition of a “crime punishable by imprisonment for a term exceeding one year” is detailed and legalistic, set out in 18 USC 921(a)(20). The logic used by the 1st Circuit in freeing Willie could well apply to any 922(g) conviction.

United States v. Minor, Case No 20-1903, 2022 U.S. App. LEXIS 9632 (1st Cir., Apr. 11, 2022)

– Thomas L. Root