Tag Archives: felon-in-possession

You’re Not Exactly a Felon Yet – Update for September 30, 2019

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CONDITIONAL DISCHARGE NOT A CONVICTION

Tyrius Smith had a prior North Carolina case in which he had pled guilty, and then been “conditionally discharged.” But when he was caught with a gun, the Federal district judge called his prior a felony, and Ty was convicted of being a felon in possession of a gun in violation of 18 USC § 922(g).

manyguns190423Last week, the 4th Circuit reversed his conviction. “While there is no doubt that Ty possessed a firearm,” the 4th said, “we must decide whether he was a felon under federal law. Answering that question is surprisingly difficult. Federal law treats someone as a felon if “convicted” of a crime punishable by more than one year in prison. But what exactly counts as a ‘conviction’? In some cases the answer seems easy — for example, where a federal judge imposes a sentence after a jury has found the defendant guilty. In other cases it is hard; this is one of them.”

The North Carolina judge, after Ty’s guilty plea, imposed a “conditional discharge” as allowed by state law. This meant that without entering a judgment of guilt,” the court “deferred further proceedings and placed the person on probation… for the purpose of allowing the defendant to demonstrate the defendant’s good conduct.” If Ty fulfilled his probation conditions, the guilty plea would be withdrawn and the case dismissed.

Alas, Ty did not fulfill the conditions. Instead, he was caught with some guns, and his probation was violated by North Carolina. But before the conditional discharge could be withdrawn and he could be convicted in the state, the Feds charged him with the § 922(g).

The North Carolina felon-in-possession law defines “conviction” as “a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year… is authorized, without regard to the plea entered or to the sentence imposed.” Ty’s guilty pla and conditional discharge — as required by statute — was done without entering a judgment of guilt.” And without entry of a judgment, the 4th Circuit said, “and until the anticipated further proceedings” take place, the conditional discharge does not lead to a final judgment.”toughluck180419

So Ty dodged his Federal case. But he still has some ‘splainin’ to do to his North Carolina judge, and the smart money suggests that the state court is going to take the botched federal prosecution into account when it slams old Ty with time in state prison.

United States v. Smith, 2019 U.S. App. LEXIS 29218 (4th Cir. Sept. 27, 2019)

– Thomas L. Root

He Might Have Known About the Felon-Gun Thing – Update for September 13, 2019

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SOME THINGS PROVE THEMSELVES

resipsa190913There’s a doctrine we all had to learn in first-year law school torts class known as “res ipsa loquitur.” That’s Latin (which the law uses a lot because when things are obscure, you can charge clients more when you have to explain them), and translates as “the thing speaks for itself.”

In last June’s Rehaif v. United States decision, the Supreme Court explained the elements that the government has to prove for a felon-in-possession conviction under 18 USC § 922(g)(1), elements which everyone had been getting wrong for years. Samir Benamor was on direct appeal of his felon-in-possession conviction when he raised the Rehaif argument, maintaining that the government had not proven that he knew he was a felon prohibited from possessing firearms.

Because Sammy had not raised the issue in the trial court, the 9th Circuit ruled he had to show plain error under Federal Rule of Criminal Procedure 52(b). I seriously doubt the Circuit was right about applying Rule 52(b), but it did, and it concluded that Sam was out of luck.

There was no doubt that the district court plainly erred by not instructing the jury that it had to find that Sammy knew he was a felon ineligible to possess a firearm. But the “plain error” standard also requires proof that but for the error, the outcome of the proceeding would have been different. One of Sammy’s priors was for being a felon in possession of a gun. The Court sort of thought that that conviction spoke for itself.

gunb160201The 9th Circuit said, “At a minimum, the prior conviction for being a felon in possession of a firearm proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.”

Yeah, you’d think that having been convicted of being a felon in possession of a gun once before would have alerted Sammy that he was a convicted felon prohibited from having a gun. As the law might say, that “res” probably “ipsa loquiturs.”

United States v. Benamor, 2019 U.S. App. LEXIS 26793 (9th Cir. Sept. 5, 2019)

– Thomas L. Root

SCOTUS Rules 922(g) Requires “Knowledge” – Update for June 24, 2019

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KNOWNOTHING-ISM

In a decision that could be seismic for people convicted of being a felon in possession of a firearm, the Supreme Court last Friday ruled that it’s not enough to know that thing stuck in your pants is a gun. You have to know that you are part of a group the law says should not possess a gun. And, for that matter, you have to know you possess a firearm or ammo.

carriefgun170807Hamid Rehaif was in the country on a student visa that required him to be enrolled in college. He dropped out of school, but stuck around Florida to soak up the sun and fun. When ICE finally caught up to him, agents found him in possession of a half box of ammunition. Hamid had not really picked up on the “right to remain silent” thing, so he readily admitted going to a gun range. He was prosecuted for being illegally in possession of a firearm and ammo.

Under 18 U.S.C. 922(g), it is unlawful for a convicted felon to possess a firearm or ammunition. But that’s only subsection (g)(1). There are eight other subsections as well, categories that include fugitives, people under indictment, people convicted of a misdemeanor crime of domestic violence, people who have been found by courts to be mentally incompetent, illegal aliens, stalkers… there’s a long list.

The government has always gotten away with proving that a defendant had a gun or ammo, and that he or she was a felon or something else on the list. The defendant had to know that that thing he had stuffed in his waistband was a gun. Beyond that, there was no knowledge requirement. A defendant who claimed not to know that he or she was in a prohibited class was just plain out of luck. What the defendant knew or did not know simply was irrelevant. That’s what happened to Hamid. He was fine busting a few caps at the gun range as long as he was in school (and thus compliant with the terms of his student visa). But as soon as he dropped out, his visa automatically expired, and his antics at the gun range became illegal. The district court, and the 11th Circuit, agreed (as did every circuit court in America) that Hamid’s awareness that he should limit his firearms training to Nerf weapons.

rangeThat has now changed. The Supreme Court ruled that in a prosecution under 18 USC 922(g) and 924(a)(2) (they go together), the Government must prove both that the defendant knew he or she possessed a firearm and that the defendant knew he or she knew he belonged to the relevant category of persons barred from possessing a firearm.

Whether a criminal statute requires the government to prove that the defendant acted knowingly, the Court said, is a question of congressional intent. There is a longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” This is normally characterized as a “presumption in favor of scienter.”

In 922(g) and 924(a)(2), Justice Breyer wrote for the 7-2 decision, the statutory text supports the presumption. It specifies that a defendant commits a crime if he or she “knowingly” violates § 922(g), which makes possession of a firearm unlawful when the following elements are satisfied: (1) a status element; (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”). Aside from the jurisdictional element, the Court said, § 922(g)’s text “simply lists the elements that make a defendant’s behavior criminal. The term ‘knowingly’ is normally read ‘as applying to all the subsequently listed elements of the crime.’ And the ‘knowingly’ requirement clearly applies to 922(g)’s possession element, which follows the status element in the statutory text. There is no basis for interpreting ‘knowingly’ as applying to the second 922(g) element but not the first.

innocent161024What does this mean for the many felons-in-possession now in the system? It could be Bailey v. United States all over again, as people head back to court on 28 U.S.C. § 2241 petitions (where those are allowed) arguing that under the new statutory interpretation, they are actually innocent.

Justice Alito wrote a detailed and blistering dissent. He warned that the decision’s

practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g). It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating § 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies… This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of ‘fixing’.

Watch that space. This could be very interesting.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, June 21, 2019)

– Thomas L. Root

Supreme Court 922(g) Case May Hold Unintended Consequence for Felons with Guns – Update for April 29, 2019

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SLEEPER

An oral argument last Tuesday in Rehaif v. United States took a surprising turn, and could make a Supreme Court decision in the case the “sleeper” of the Court’s 2018-2019 term.

gunknot181009Refresher first: Federal law prohibits a long list of people from possessing guns or ammunition. The statute, 18 U.S.C. § 922(g), bans ownership by people charged with felonies, people convicted of felonies, people who have been certified as crazy, people who beat their spouses, people subject to protection orders, people who do drugs, people who are here illegally, and so on and so on.

The statute (922(g)) is colloquially known as the “felon-in-possession” statute, although its reach is much broader than that. Read the statute to figure out where you fit.

A quirk of the felon-in-possession statute is that it provides no punishment. Rather, punishment is meted out by another statute, 18 U.S.C. § 924(a)(2), which specifies a 10-year sentence for people who “knowingly” violate 922(g).

But “knowingly” what? Do you have to know it is a gun? Or a round of ammo? Do you have to know you are a felon or a drug abuser or here illegally? Do you have to know you are possessing it? Up to now, the statute was interpreted by the courts as requiring only that you know that it’s a firearm or ammunition.

Which brings us to the unluckiest hedonist in America, Hamid Rehaif. Hammy came to the US to attend college. Under immigration law, he retained his student-visa status only as long as he remained enrolled as a full-time student. But when he got here, he discovered that the non-classroom parts of college were more fun, the bars, the tailgating, the frat parties, all of the stuff that has conspired to place less of a workload on college students than on eighth graders.

Naturally, Hammy flunked out. But he had so much fun doing it that he couldn’t give it up. Instead of returning to his mother country with his academic tail between his legs, Hammy stayed in America. In Florida, actually, and who could blame him?

florida190429But events conspired against him. One day he went to a shooting range, rented a Glock .40 cal. pistol (is this a great country or what?), and happily blasted away at targets for an hour or so.  A few weeks later, some solid citizen reported Hamid, because she had seen him skulking around an apartment building (he lived there, but then, he is Middle Eastern, so of course he must be a terrorist). The FBI came by to talk to him, and Hammy – who had been at a party instead of an American government class, and thus did not know about the “right to remain silent” part of the Constitution – mentioned at one point in the interview that he had been shooting a few weeks before.

Like I used to tell my clients, remaining silent is not just a  right – it’s a whopping’ good idea. Hamid was charged as an unlawful alien in possession of a firearm under 18 U.S.C. § 922(g)(5). Of course, he was convicted, despite the fact Hammy argued he did not know he was in the country illegally. The trial court said that did not matter. The only “knowledge” provision of 922(g) that mattered was that he knew he possessed a gun, even just for an hour.

knowledge190429The question of whether “knowingly” meant a defendant had to be aware of his or her status (felon, spouse-beater, drug-abuser, illegal-alien, whatever) in order to violate 922(g). At oral argument last week, the Supreme Court justices quickly saw the slippery slope: if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily mean it will have to prove that a felon with a firearm knows he or she is a felon.

If Hamid’s conviction is reversed, the practical consequences could be huge. Only Justice Alito seemed to accept the current view that a defendant need not know his or her status to violate the statute.

Justice Ginsburg wondered what would happen if the Court ruled that status under 922(g) requires knowledge: “How many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said… I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.” The government’s lawyer responded that “under Bousley v. United States, the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status.”

It is tricky to predict a Supreme Court case’s outcome from oral argument, but the headcount strongly suggests Hamid will win. If the Supremes’ decision holds that knowledge of felon (or illegal immigrant) status is an element of a 922(g) offense, a flood of actual-innocence 28 U.S.C. § 2241 habeas corpus petitions is sure to follow. That would make Rehaif the “sleeper” decision of the year.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, decision by June 30, 2019)

SCOTUSBlog.com, Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon (Apr. 24)

– Thomas L. Root

Spoiler Alert: There’s No Easter Bunny (Especially an Armed One) – Update for April 23, 2019

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AIN’T NO EASTER BUNNY… AND NO DEFENSE TO FELON-IN-POSSESSION, EITHER

manyguns190423Something that just about all readers of this newsletter (at least, those who have it delivered through the Bureau of Prisons’ email system) have in common is that the current state of the law prohibits them from possessing a firearm or any ammunition. The felon-in-possession statute, 18 USC 922(g)(1), is easier to violate than you’d think. An old, broken shotgun missing its firing pin in a pile of attic junk, a single empty shell casing kept as a souvenir: either is enough to buy you a few more years in federal prison. Read the definitions in 18 USC 921 if you doubt it.

Bernard Cherry was lit up on booze when a police officer found him on his hands and knees in the grass with a flashlight, looking for his keys. The friendly cop helped Bert search until he found a .40 cal. Glock in the grass not far from the hapless drunk. Bernie said someone had tried to rob him, and he had knocked the gun out of the assailant’s hands before the man fled. Bernie had then picked up the Glock, but threw it down when the police officer pulled up.

Bernie had a record, and so was charged with being a felon-in-possession. At trial, he asked for an “innocent possession” instruction, that he was not guilty of being in possession if he obtained the gun innocently and held it with no illicit purpose; and if possession of the gun was only momentary. The district court turned him down, and Bernie was convicted.

bunnygun190423Last week, the 7th Circuit agreed, holding that – like the Easter Bunny – there ain’t no “innocent possession” defense. There may be “necessity” and “duress” defenses to felon-in-possession, where defendants can justify their momentary possession of a gun (you see a 6-year old waving a loaded pistol, and grab it for the child’s safety, for example). But the Circuit has never recognized the kind of defense Bernie proposed.

Besides, the Court pointed out, Bernie threw the gun away. “Even though he was in the presence of law enforcement,” the 7th said, “there is no evidence that he took any action, much less immediate action, to turn over the firearm.”

United States v. Cherry, 2019 U.S. App. LEXIS 11219 (7th Cir. Apr. 17, 2019)

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 14, 2019

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SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

Convicted CEO Wins Back Gun Rights – Update for October 9, 2018

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DISTRICT COURT SAYS NOT ALL FELONIES MAKE YOU A FELON-IN-POSSESSION

carriefgun170807One of the most popular offenses charged by U.S. Attorneys is 18 USC 922(g)(1), the felon-in-possession statute. The section prohibits people who have been convicted in any court of a crime punishable by imprisonment for a term exceeding one year from possessing firearms or ammunition that have traveled in interstate commerce.

There’s a twist, however (isn’t there always?) Under 18 USC 921(20), a “crime punishable by imprisonment for a term exceeding one year” does not include any federal or state offenses “pertaining to antitrust violations, unfair trade practices, or other similar offenses relating to the regulation of business practices…”

Greg Reyes, a corporate executive who did 18 months in 2010 for fraudulent backdating of corporate stock options, has sued the Dept. of Justice, arguing that his securities law convictions were “similar offenses relating to the regulation of business practices,” and thus he was not prohibited from buying a handgun.

gunknot181009The government responded that “other similar offenses relating to the regulation of business practices…” were only those relating to antitrust or unfair trade practices. The district court, however, held a week ago that a similar offense is any other offense “if an examination of either its primary purpose or the elements of the violation reveals that the offense statute is designed primarily to address economic harm to consumers or competition.”

Under this standard, none of Greg’s prior convictions for securities fraud, falsifying corporate books and records, and making false statements to accountants required the government to prove an effect on competition or consumers. Nevertheless, the court ruled, each offense was clearly enacted for the purpose of protecting consumers.

The district court concluded that Greg’s felony convictions did not prevent him from possessing guns or ammo. The court did not have to reach Greg’s secondary issue, that the statute violated equal protection by artificially parsing the convictions which would or would not prevent possession of firearms.

gun160711The court  denied a motion by DOJ to dismiss Greg’s lawsuit and set deadline this week to decide whether final relief should be granted in favor of the former executive.

Reyes v. Sessions, Case No. 17-1643 (D.D.C. Sept. 28, 2018)

Guns.com, Convicted securities fraud exec may get gun rights back (Oct. 3, 2018)

– Thomas L. Root

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This Is Not The Gun You’re Looking For – Update for March 30, 2017

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GUN CONTROL

The Scots had an expression for it: “possession is eleven points in the law, and they say there are but twelve.” But possession is not always a good thing – such as, for instance, if you’re one of a handful of Americans with a felony on your record (a mere 20 million people as of 2010).

gunfreezone170330In that case, federal law prohibits you from possessing a firearm. The statute in question – 18 USC 922(g) – is generally known as “felon-in-possession” although it’s more than that. The F-I-P statute is long on definitions as to what kind of crime is disqualifying, and what is a firearm – but the gist of it is that if you were ever convicted of a felony (or even some types of misdemeanors), you had better be standing on the twelfth point of the law. That is to say, you had better not be in possession of a firearm.

Which brings us to the story of Gilberto Ray Ramos. No doubt Gil is a man with a real problem. Earlier this week, the 8th Circuit upheld his conviction on multiple drug offenses. But in so doing, it reversed his conviction as a felon in possession.

Gil’s problems started with a fellow drug trafficker who, after being arrested for his own misdeeds, make the all-too-common and quite reasonable decision to help the police in hopes of reducing his sentencing. Among other tales the informant told the constabulary, he recounted that Gil had sent him a text message offering to sell him a .40 caliber handgun.

vibrator170330The authorities ultimately collected enough evidence to search Gil’s apartment, which he shared with a woman named Jasmyn. When they tossed the place, the police found a .45 caliber handgun in one of the two bedrooms, hidden under a mattress next to a pink vibrator. Men’s and women’s clothes were hanging in the closet. In the kitchen, the police found a water bill for the place, issued in Gil’s name.

When he was arrested, Gil was on parole from Arkansas. Before his trial in the federal case, Gil signed a waiver of hearing for Arkansas in which he admitted “that I have violated the following condition(s) of release as alleged[.]” Underneath, boxes labeled “#4 Laws” and “#5 Weapons” are marked.

The 8th Circuit held that the evidence wasn’t good enough. An F-I-P conviction may be based on constructive possession as well as actual possession. Constructive possession is where the felon knows the gun is present and can exercise control over the premises where the gun is located. Some cases have held that such dominion alone is good enough, because dominion permits the jury to infer the felon knew the gun was there.

goodpros170330But as the Circuit noted, dominion is not good enough to prove knowledge where the premises are occupied by more than one person. There, the government has to provide additional evidence of a link between the gun and the felon. “Otherwise,” the Court argued, “a father could be imprisoned for marijuana that his son has hidden in the house, or a wife could be jailed for her husband’s secret cache of illegal guns.”

Here, Gil jointly occupied the apartment with Jasmyn. As its extra evidence, the government pointed to the fact that there were men’s clothes in the closet of the bedroom where the gun was found. But, as the Circuit noted, “they also found women’s clothes in that closet and men’s clothes in the other bedroom’s closet. Further, the gun was found under the mattress next to a pink vibrator.”

The 8th concluded that “on this evidence, it is more than possible” that Gil was convicted for a gun Jasmyn had that he knew nothing about.”

Notguns170330The Court conceded that the government presented evidence that Gil had tried to sell a different gun to the informant and admitted in the Arkansas parole form that he violated a condition of parole involving “weapons.” But neither of those facts tied Gil to the particular gun – the .45 caliber pistol – that he was charged with possessing. “Although this evidence may demonstrate that Ramos had access to a gun,” the Court held, “it does not mean that he had access to this gun or that he even knew about it.”

United States v. Ramos, Case No. 16-1306 (8th Cir., Mar. 27, 2017)

– Thomas L. Root

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