Case o' The Week: Short rifles, short decision, and shorted on mens rea - Woodberry and Mens Rea for Section 924(c) offenses

Prepare to pucker, on a sour Woodberry. 

United States v. Woodberry, 2021 WL 506091 (9th Cir. Feb. 11, 2021), decision available here.

Players: Decision by Judge Gould, joined by Judge Friedland and WD MO DJ Bough.  

Facts: Woodberry and Johnson, who were armed, robbed a marijuana dispensary. Id. at *1. Police later recovered a short-barreled rifle. Id. at *2.

  The men were charged with, among other things, a Section 924(c)(1) (B)(i) count for using a short-barreled rifle during a crime of violence. Id. (This Section 924(c) count triggered a ten-year mand-mind. Id. at *4).

  Over defense objection, the jury was instructed that it could convict if the gun’s length was under 16 inches (with no requirement that the defendants knew the rifle was short. Id.

  The men were convicted, and appealed.

Issue(s): “Defendants . . . challenge the district court's jury instruction regarding the short-barreled rifle provision in § 924(c)(1) (B)(i). They argue that because the short-barreled rifle provision contains a mens rea requirement, the district court should have instructed the jury to convict only if Defendants knew that the rifle barrel was less than sixteen inches long.” Id. at *4 (footnote omitted) (emphasis in original).

Held: Holding One: “Applying . . . Alleyne, we hold that the short-barrel provision in § 924(c)(1)(B)(i) is an essential element that must be proven to a jury beyond a reasonable doubt.” Id. (footnote omitted) (emphasis added).

Holding Two: “We see no reason to apply the mens rea presumption here, in part because the statute in question does not penalize ‘entirely innocent’ conduct.” Id. at *6 (citation omitted). “At its core, this case calls for no more than a straightforward application of Dean. We hold that § 924(c)(1) (B)(i) requires no showing of mens rea as to the rifle barrel’s length to sustain a conviction.” Id. at *7.

Of Note: Woodberry crams a number of disappointing holdings into a short opinion. The decision’s lead issue is whether robbing a marijuana dispensary is, effectively, a per se impact on interstate commerce that triggers commerce clause jurisdiction for Hobbes Act cases. See id. at *3. 

Extending the Supreme Court’s 2016 Taylor decision, the Ninth holds “(1) that the market for marijuana, including its intrastate aspects, is commerce over which the United States has jurisdiction, and (2) that the commerce element of a Hobbs Act robbery could be established if the robbery could affect commerce over which the United States has jurisdiction.” Id. at *4 (quotations and citations omitted).

A frustrating decision to mull when defending Hobbes Act cases.

How to Use: In this appeal the government kept referring to the short-barreled provision in Section 924(c) as a “sentencing ‘enhancement,’” rather than an element. Id. at *4.

The government was wrong.

Judge Gould takes this opportunity to clarify that, after Alleyne, this factual requirement is an essential element that must be proved to a jury beyond a reasonable doubt. See id.

Sadly, after Woodberry this is an element stripped of any meaningful mens rea requirement. Nonetheless, for future Section 924(c) cases, these are now clearly facts that must be alleged in the indictment, and that the jury must decide beyond a reasonable doubt.                                                   

For Further Reading: President Biden campaigned on criminal justice reform. In a compelling new OpEd, two Federal Defenders describe the many unilateral measures that the Administration should immediately take to deliver on these campaign promises. See Lisa Freeland and David Patton¸ The Biden Administration Can Act on Criminal Justice Act Reform Now, available here.

  Here in NorCal, U.S. Attorney David Anderson (appointed by President Trump), has announced that he will step down by the end of the month. See article here. 

  As main Justice aggressively unwinds Trump policies (and implements the new Biden / Harris priorities), it will be interesting to see how quickly these big changes are felt here in NorCal and the Ninth.  

 

 

 

Image of “Woodberry” from https://uksignshop.co.uk/woodberry

 

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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Case o' The Week: Six v. Five, Means Two v. Eight -- Collazo En Banc, and Mens Rea for 841 Drug Cases and 846 Conspiracies

“This should be an easy case.” 

The Honorable Judges Sandra Ikuta (Majority Opinion), and William Fletcher (Dissent)

United States v. Collazo, 2020 WL 7052298 (9th Cir. Dec. 2, 2020) (en banc) (W. Fletcher, J., dissenting), decision available here.

 Players: En banc decision by Judge Ikuta, joined by Judges M. Callahan, M. Smith, Jr., Miller, Bade and Bress.

  Thoughtful dissent by Judge W. Fletcher, joined by C.J. Thomas, and Judges Nguyen, Watford and Hurwitz.

  Hard-fought battle by former Fed. Def. San Diego AFPD Ben Coleman, among many other amicus allies.   

 Facts: Collazo his co-D’s were tried for, among other things, violating 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 841(b)(1)(B)(i), and 846. Id. at *3. The case involved schemes to smuggle drugs into jails.

  The jury was instructed that, if they found the defendants guilty of these conspiracy charges, they would have to make special findings as to the type and amounts of drugs if they were “reasonably foreseeable or fell within the scope of the [conspiracy’s] agreement.” Id.

  The jury found requisite drug amounts to trigger big mand-mins for six defendants. Id. at *4. See blog entries here 

 Issue(s): “[W]e voted to hear the appeals en banc to clarify our jury instructions for conspiracy under § 846 and the facts that trigger the penalties under § 841(b) (1)(A)–(B).” Id. at *4.

 Held: “[W]e conclude that in order to obtain a particular sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge of (or intent) with respect to that type and quantity.” Id. at *14.

  “[W]e conclude that to obtain a conviction and a particular sentence for conspiracy to distribute controlled substances under § 846, the government must prove only that the defendant's mental state was the same as if the defendant had been charged with the underlying offense. Applying that principle here, the government need not prove the defendant’s knowledge of the drug type and quantity under § 841(b).” Id. at *17.

 Of Note: Judge Fletcher’s compelling dissent sets forth precisely why Collazo is such a deeply troubling outcome. Id. at *20. The majority, he explains, breaks with SCOTUS’s increasing concern with the protections of mens rea requirements in criminal statutes. The majority decision also dodges the natural interpretation of a statute that does, after all, start with the words “knowingly” and “intentionally!” Id. at *23 (quoting Section 841(a)(1)).

  Will Collazo be the law of the Circuit until the Supremes grant cert.? Maybe – or maybe Ninth Circuit Rule 35-3 will come to the rescue. . . . (“In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.”)

 How to Use: This partisan-split opinion (six majority republicans versus five democrat dissenters) splits in other ways as well. Most notably, the Ninth parts ways with eight other circuits in this outlier opinion. Continue to preserve mens rea objections to Section 841 and 846 instructions: whether through a full en banc decision, or a Supreme Court reversal, this decision is unlikely to be the last word on federal drug mens rea requirements.

  ND Cal. Sr. Litigator Dan Blank also noted Collazo has parted ways with Buckland: Judge Ikuta now officially deems drug type and quantity as elements after Alleyne. Id. at *7 (“Under Alleyne’s reasoning, the facts of drug type and quantity under § 841(b) constitute elements or ingredients of the crime because they affect the penalty that can be imposed on a defendant) (emphasis added). 

 Now that the Ninth’s characterization of these facts has -- evolved – from the “sentencing factors” of Buckland to the “elements” of Collazo,  demand a Rule 29 dismissal to the entire drug case when the charged “elements” of specific drug type and quantity are not proved.                                                 

For Further Reading: “The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again. The presumption of mens rea is no mere technicality, but rather implicates ‘fundamental and far-reaching’ issues . . . .”

Judge Fletcher, dissenting in Collazo? 

Nope: this full-throated tribute to mens rea requirements is from then Judge, now Justice - Kavanagh. See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir. 2012) (Kavanaugh, C.J., dissenting).

 

 

 

Image of Judge Ikuta from https://www.law.com/therecorder/2019/07/24/parties-cant-have-their-day-in-court-and-compel-arbitration-too-ninth-circuit-rules/ . Image of Judge W. Fletcher from https://www.taiwannews.com.tw/en/news/3089662.

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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Case o' the Week: Ninth Delivers Intent-ional Reversal -- Alhaggagi and Specific Intent for Terrorism Enhancement in Material Support cases

By simple "cause and effect," one who works with terrorists is necessarily motivated to intimidate or coerce the U.S. government -- right?

Mr. August Gugelmann and Ms. Mary McNamara

Nope: not in the Ninth. 

United States v. Alhaggagi, 2020 WL 6192982 (9th Cir. Oct. 22, 2020), decision available here.

Players: Admirable decision by Judge Milan Smith, joined by District Judge Ezra.

Dissent by Judge Hurwitz.

Huge win after epic district court and appellate battles, for ND Cal CJA Panel attorneys August Gugelmann and Mary McNamara, Swanson & McNamara LLP.  (Note that Mary is also our Northern District CJA Liaison Attorney, as well as the Ninth Circuit's CJA representative to the national Defender Services Advisory Group).

 Facts: Twenty-one-year old Alhaggagi trolled Shia and Sunni users of group chats on the internet, provoking fights between the two. Id. at *2. He bragged about plans to commit terrorist acts, and his “chat persona” made extravagant claims such as like having access to bazookas. Id. 

This chatter drew the attention of the FBI, who arranged a meeting with an undercover agent. The pair discussed bombs, but Alhaggagi got cold feet and cut off communications with the agent. Id. at *3.

  Alhaggagi then began chatting online with ISIS supporters. Id. On two occasions, Alhaggagi agreed to open social media and email accounts for these ISIS members. Id. These accounts were later used by an ISIS propaganda organization to report ISIS attacks in Iraq. Id.

   After Alhaggagi was charged he plead open to, among other counts, attempting to provide material support to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). Id. at *4. The PSR put his offense level at 26, with a guideline range of 46-57 months. Id. The government argued for a “terrorism enhancement,” that skyrocketed the offense level to 38: a range of 360-564 months. Id.

  After a two-day evidentiary hearing, the court imposed the terrorism enhancement. Id. at *4.

 Issue(s): “[W]e consider whether the district court abused its discretion in applying the terrorism enhancement in sentencing Alhaggagi.” Id. at *5.

   “The [ ] question is whether Alhaggagi’s conduct satisfies the first prong: whether his attempt to provide material support to a terrorist organization by opening social media accounts was ‘calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.’” Id. at *7.

 Held: “Alhaggagi contends the district court erred in applying the terrorism enhancement because it centered its analysis on ISIS, not on Alhaggagi’s conduct or mental state. The enhancement, Alhaggagi argues, specifically requires the district court to consider the latter, whereas the offense itself implicates the former. Alhaggagi concludes that because the district court failed to determine whether he knew how the accounts he opened were to be used, it could not find that he specifically intended that the accounts be used to coerce or intimidate a government. We agree.” Id. at *7.

   “The district court did not make sufficient factual findings concerning Alhaggagi's knowledge of how the accounts he opened were to be used. Although Alhaggagi participated in a chatroom replete with posts praising ISIS, denouncing the United States, and planning ‘to kindle strife and chaos’ in the United States through Twitter, there is no evidence that Alhaggagi saw those posts, opened the accounts because of those posts, or had contact with the authors of the posts . . . .” Id. at *9.

  “We therefore conclude that clear and convincing evidence does not establish Alhaggagi opened social media accounts calculating that they would be used to retaliate against government action, and the district court erred by applying the sentencing enhancement.” Id. at *10.

 Of Note: Judge Milan Smith, nominated by President Bush, authors this brave decision reversing a terrorism enhancement. 

  By contrast, Judge Hurwitz (nominated by President Obama) authors a vigorous dissent that would uphold the district judge's imposition of the enhancement. See id. at *11.

The Honorable Judge Andrew Hurtwitz

 

 Alhaggagi again illustrates that politics can be a lousy predicator of a jurist’s particular vote in a criminal case.

How to Use: This great mens rea decision demands that the government meet a high evidentiary burden to show Alhaggagi’s intent. Id. at *6. Turn to Alhaggagi when specific intent is required in a guideline enhancement.

For Further Reading: For more background on this fascinating case, and a report on this high-profile NorCal sentencing hearing, see, California man sentenced to more than 15 years in ISIS support case, available here.

 

  

Image of counsel August Gugelmann and Mary McNamara from https://www.beaumontenterprise.com/crime/article/Oakland-man-who-pleaded-guilty-to-terror-charges-15668554.php#photo-15886933 .

Image of the Honorable Judge Andrew Hurwitz fromhttp://cronkitenewsonline.com/2012/03/arizona-supreme-court-justice-moves-closer-to-federal-judgeship/index.html 

 

Steven Kalar, Federal Public Defender N.D. Cal.  Website at www.ndcalfpd.org

 

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Case o' The Week: Ninth Unmoved by The Miller's Tale - Wire Fraud Jury Instructions

Prosecutorial misconduct puts fraud conviction on “Thin Ice.”

The "Thin Ice" Band, with Victim-Company Owner Russ Lesser, AUSA Greg Lesser, and James Miller

 United States v. Miller, 2020 WL 1317275 (9th Cir. Mar. 20, 2020), decision available here.

Players: Decision by DJ Rakoff, joined by Judges Watford and Bennett.  

Facts: James Miller took money without authorization by writing himself checks from the business for which he worked. Id. at *2. The business was owned by Russ Lesser.

   Russ Lesser’s son, AUSA Greg Lesser, owned a stake of the company. AUSA Greg Lesser called his friend in the FBI, who connected him to FBI Special Agent Joseph Swanson. Id. at *3 & n.2. “Shortly after,” Agent Swanson informed AUSA Lesser that the feds were investigating the case. Id.

  Miller was charged with wire fraud and filing false tax returns. Id. at *2. At trial, his defense was that he had always intended to (and eventually did) repay back the full amount he took from the company. Id. at *3. He requested a jury instruction that required proof that he had the intent to both deceive and cheat the company. That instruction was denied, and it was instead given in the disjunctive. Id.

  Miller was convicted.

Issue(s): “[W]hether the jury charge misstated the law by instructing that wire fraud under 18 U.S.C. § 1343 requires the intent to ‘deceive or cheat’ rather than the intent to ‘deceive and cheat.’” Id. at *1 (emphasis in original).

Held: “We conclude that the charge was erroneous. Several other circuit courts have long held that the crime of wire fraud requires the specific intent to utilize deception to deprive the victim of money or property, i.e., to cheat the victim, and we now align the law of the Ninth Circuit with that of the other circuits and with recent Supreme Court precedent. Nevertheless, we find that the erroneous instruction was harmless in this case.” Id.

Of Note: Miller also involves a jaw-dropping example of prosecutorial misconduct. As noted above, the son of the owner of the victim company was CD Cal AUSA Greg Lesser. Id. at *3. (AUSA Lesser owned a stake in his dad’s company). Id. AUSA Lesser called friends at the FBI to report Miller at the outset of the case, and Lesser remained involved in the investigation. Id. When AUSA Lesser’s supervisors learned of this involvement (three weeks into the investigation!), the CD Cal USAO conflicted out. The San Diego USAO prosecuted the case. Id.

  AUSA Lesser still, however, continued contact with FBI Special Agent Joseph Swanson, who was investigating the case. Id.

  The District Court denied Miller’s motion to dismiss for prosecutorial misconduct, and the Ninth – while finding that the improper conduct was “clear” – nonetheless upheld the district court. Id. at *7-*8.

  A disappointing holding, in a case involving shocking conduct by a self-interested federal prosecutor.

How to Use: The Ninth’s holding on the conjunctive fraud instruction is a welcome change, that brings the Circuit in line with other circuits and SCOTUS. Id. at *4-*6. 

  Before embracing a defense based on that instruction, however, read Miller carefully. Even with a conjunctive instruction, “Intent to repay . . . is not a defense to wire fraud.” Id. at *6. The “loan” defense to fraud, rejected by the Ninth in Treadwell, still doesn’t work – despite the new fraud instruction required by Miller. *6 & n.10

                                               

For Further Reading: The hottest NorCal hearing next week is an innocuous-looking civil proceeding before the Honorable Magistrate Judge Nathanael Cousins: Babu et al v. Ahern. See court calendar here. 

The Honorable Magistrate Judge Nathanael Cousins

  In Babu, civil rights plaintiffs representing inmates at Santa Rita Jail are hunting for the jail’s mysterious 80-page COVID-19 manual. This is a rumored document that the USAO and ND Cal Court have apparently been given, and that AUSAs expressly rely upon while fighting pretrial release, but that has still not been provided to any defense counsel. 

  Notably, last week a Santa Rita Jail nurse tested positive for COVID-19, see Mercury News Article here. As a result, two SRJ units with federal prisoners are now on quarantine.

  Three hundred and fourteen state and county defendants have now been released from Santa Rita Jail to respond to the COVID-19 risk. See article here. 

  In marked contrast, with the exception of former Presidents, federal pretrial inmates are not being released in NorCal in response to COVID-19.

  What fate awaits our desperate federal clients in Santa Rita Jail, if widespread release doesn’t happen soon? For a thoroughly terrifying description of the scenarios ahead for state prisons and jails, see David Montgomery, ‘Prisons are Bacteria Factories’; Elderly Most at Risk, available here. 

Image of the band, “Thin Ice” from https://easyreadernews.com/miller-indictment-divided-manhattan-beach/

Image of the Honorable Magistrate Judge Nathanael Cousins from https://www.law.com/therecorder/almID/1202719524838/Uber-Unlikely-to-Dodge-Discrimination-Suit/

Image of inmate shackled to hospital bed from https://www.pewtrusts.org/en/research-and-analysis/reports/2018/07/19/state-prisons-and-the-delivery-of-hospital-care

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfd.org

Case o' The Week: Go Big, or Go Home - Collazo E.B. Order with questions, and (Potential) Drug Mens Rea requirements

  Looks like we’ve won the battle.

Collazo En Banc Court

  Do we now have a shot at the war?

United States v. Robert Collazo, Nos. 16-50509 (9th Cir. Jan. 29, 2020) (Ord.).

Players: New questions from the en banc panel: CJ Thomas, Judges W. Fletcher, Callahan, M. Smith, Ikuta, Nguyen, Watford, Hurwitz, Miller, Bade and Bress.

   Admirable en banc argument by SD Cal Defender alumnus Ben Coleman.  

Facts: Last September the Ninth ordered the Collazo case to be reheard en banc. See overview of this en banc order here. 

  The Ninth resolved to sort-out the jury instructions for the “mess” of drug conspiracy mens rea requirements. On January 13 the case was argued before the en banc court. See video of en banc argument here.  

  Roughly two weeks after oral argument, the Court issued the following questions:

Issue(s): “1. How do United States v. Feola, 420 U.S. 671 (1975), and its progeny in this Circuit . . . apply to the government’s burden of proving that a defendant is guilty of conspiracy under 21 U.S.C. § 846 for agreeing to commit an offense under § 841(a), (b)? The parties should address whether the requisite intent for conspiracy under § 846 is the same as the requisite intent for distributing a controlled substance under § 841(a), (b). The parties should also address whether the government has to prove beyond a reasonable doubt that the scope of the defendant’s agreement for a § 846 and § 841(a), (b) offense includes a particular drug type and quantity. In connection with these issues, does the rule in Feola apply only to jurisdictional elements, or does it also apply to elements such as drug type and quantity?

  2. Whether this Court should adopt Judge W. Fletcher’s position in United States v. Jefferson, 791 F.3d1013, 1019 (9th Cir. 2015) (W. Fletcher, J., concurring), as to both substantive drug offenses under § 841(a) and conspiracy offenses under § 846. See Jefferson, 791 F.3d at 1023 (“I do not believe the government can subject the defendant to escalating mandatory minimums . . . without proving that he knew which illegal drug he was importing.”).

  3. Whether this Court should adopt the approach reflected in United States v. Gentry, 941 F.3d 767, 785–86, 794 (5th Cir. 2019) (requiring that defendant “knew or reasonably should have known that the scope of the conspiracy involved at least 50 grams of a mixture containing a detectable amount of meth”). 
  United States v. Callazo,  No. 15-50509, Ord., Dkt. Entry 171 (emphasis and hyperlinks added).

Held: Awaiting the decision of the en banc court.

Of Note: Defense counsel Ben Coleman slugged away for his client in this argument. He was enthusiastic for Judge Fletcher’s much bigger goal of revising drug mens rea requirements, but appropriately focused on the narrow path to victory for his specific client: “conjunctive” jury instructions.

  Ben was unfailingly diplomatic, but –well, watch the oral argument at around 24:20. He can’t resist gently noting the irony that it was the Ninth itself that created this mess nearly twenty years ago in Buckland. In Buckland, the Ninth avoided an Apprendi attack by (questionably) re-characterizing drug type and quantity as “material facts” and not “sentencing factors.” United States v. Buckland, 289 F.3d 558,568 (9th Cir. 2002). 

  After the Ninth avoided serious Apprendi constitutional challenges to the drug statutes in Buckland, it never went on to finish the job. The Court never required that these newly-minted pseudo-elements for drug offenses also carry mens rea requirements. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.”) (emphasis in original). 

  In sum, the Callazo en banc court today reaps the chaos of Buckland seeds sown eighteen years ago.

  Ben knows of what he speaks -- he and former San Diego AFD Steve Hubachek were two of the attorneys at the forefront of that bitter Buckland battle. Funny old world, to now watch Mr. Coleman (politely) addressing the downstream unintended consequences of the unfortunate Buckland decision, two decades after it was delivered.

How to Use: Spoiler alert: we won the battle (probably).

   During the en banc argument, Judge M. Smith deftly boxed the government into conceding its case -- conjunctive instructions will likely be the e.b. court’s holding. (Such an admirable cross that it earned a chuckle from the Chief).

  The far more interesting remaining issue that remains for the en banc Court is whether Judge Fletcher’s compelling Jefferson concurrence will prevail.  [Ed. opinion: it should!].

Hon. Judge W. Fletcher

   Read Judge Fletcher’s Jefferson concurrence and preserve these drug mens rea issues: this is a very hot topic, and (hopefully) a profoundly important legal development.

                                               

For Further Reading: Judge W. Fletcher’s must-read Jefferson concurrence is available here, at page 13. 

  For an overview of Judge Fletcher's concurrence, see blog entry  here. 

Screen shot of en banc court from https://www.youtube.com/watch?v=m3jMm-P7GWY

Image of the Honorable Judge W. Fletcher from https://www.yahoo.com/news/scholars-liberal-reputation-9th-circuit-overblown-080453616.html

Image of, "as you sow so shall you reap" from https://www.youtube.com/watch?v=P2emkEainUw 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: No Old Know, but Now New Knew - Benamor and Knowledge Requirements in Sec. 922(g)(1) Cases

   Taking antique shotguns for granted?

   Fine for the government.

   (Less fine with Vinnie Jones).

United States v. Benamor, 2019 WL 2375885 (9th Cir. June 6, 2019), decision available here.

Players: Decision by Judge Graber, joined by Judge Bybee and DJ Harpool.

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *1. Benamor went to trial on § 922(g) charges. Id. at *2. 

  At trial, an agent testified the shotgun could not have been manufactured before 1915. Id. Benamor moved for a Rule 29 and for instructions that the government had to prove that he knew the gun was manufactured after 1898. Id.  The motions were denied and Benamor was convicted. Id.

Issue(s): “Because firearms manufactured in or before 1898 do not qualify as ‘firearms’ under § 922, Defendant argues that the district court erred by refusing to instruct the jury that, to convict, they had to find that Defendant knew that his firearm was manufactured after 1898.” Id. at *1. 

  “Although Defendant’s shotgun was old, it was not ‘antique’ within the statutory definition, because it was manufactured after 1898. Defendant does not dispute that his shotgun met § 921(a)(3)’s definition of a firearm. Yet he argues that the government was required to prove his knowledge that the shotgun lacked the antiquity that would have placed it beyond § 922(g)’s reach.” Id. at *2.

Held: “Every circuit to address the ‘antique firearm’ exception in the criminal context has held that the exception is an affirmative defense to a § 922(g) prosecution, not an element of the crime.” Id. at *3. 

  “We affirm.” Id. at *1.

Of Note: In addition to the “antique” holding, Benamor also has an interesting Confrontation Clause analysis. Id. at *4. In the guise of “effect upon a witness,” the AUSA elicited incriminating hearsay statements from Benamor’s landlord to the cop. Id. The AUSA then argued this hearsay in closing. 

  The Court finds a Confrontation Clause / Crawford error (although it declines to reverse). Id. at *5. Nonetheless, Benamor is useful to brush-back when an AUSA smuggles testimonial hearsay through an “effect on the hearer” theory.

How to Use: Benamor is, respectfully, wrong – at least as it recounts the elements of a federal gun case.

  Quoting the (now erroneous) Ninth’s en banc decision in Nevils, Judge Graber explains that “To convict someone under § 922(g)(1), the government must prove three elements:

  (1) the defendant was a felon;

  (2) the defendant knowingly possessed a firearm or ammunition; and

  (3) the firearm or ammunition ‘was in or affecting interstate commerce.’” Id. at *2.

  At least as of Friday, that list is missing an element. In the Rehaif decision delivered June 21st, Justice Breyer writes that in a § 922(g)(1) prosecution, “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Rehaif v. United States, 2019 WL 2552487, at *2 (emphasis added), available here.

  Did Benamor’s indictment allege that he knew that he was a felon? Was the jury instructed that it had to find that Benamor knew he was a felon? Was there any evidence in this trial that Benamor knew of his status as a felon? No, no, and most likely, no.

   The Benamor decision happens to have a nice little discussion of “knowledge” in the context of § 922(g)(1) cases. See id. at *2 (discussing Beasley, 346 F.3d 930, 934 (9th Cir. 2003)); id. at *3 (discussing Staples). Glom these “knowledge” cases onto Rehaif’s “knew status” element –much mischief awaits.     

                                               

For Further Reading: Our gun cases are getting a hard Rehaif review this weekend. While mulling, remember the recent Ninth Circuit win in Bain. In Bain, Judge Tashima booted a deficient plea that was missing facts supporting an essential element -- a fact pattern that now resonates with hundreds of federal gun cases after Rehaif. See Bain blog entry here.

  Consider also James, 987 F.2d 648 (9th Cir. 1993) (reversing when gov’t failed to prove FDIC element in bank robbery trial), available here.  

Image from “Lock, Stock, and Two Smoking Barrels” from https://filmschoolrejects.com/guy-ritchie-is-returning-to-his-comfort-zone/

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: It Isn't What You Know . . . - Price and Mens Rea Requirements for Int'l Flight Sex Offense Statute

 No “know?”

 No problem.  

United States v. Price, 2019 WL 1575875 (9th Cir. Apr. 12, 2019), decision available here.

Players: Decision by Judge Wardlaw, joined by Judge Nguyen. 
  Concurrence by visiting Sixth Circuit judge Ronald Lee Gilman, “unabashedly” adopting draft opinion written by Judge Stephen Reinhardt, before his untimely passing. 
  Hard-fought appeal by CD Cal AFPD Jonathan Libby.  

Facts: Price, a 46-year old man, moved from his assigned seat to sit next to a young woman on a flight from Tokyo to L.A.. Id. at *1. He fondled the breast of the sleeping 21-year old Japanese student, slipped his hand in her underwear, and touched her vagina. Id. 
  Price was charged with a violation of 18 USC § 2244(b), which prohibits knowingly engaging in sexual contact with another person, without their permission, on an international flight. Id.

  At trial, Price disputed the § 2244(b) jury instruction. Id. at *3. Price asked for an instruction that required proof that he knew the sexual contact was without the woman’s permission. Id.

  The district court denied that instruction, Price was convicted, and appealed.

Issue(s): “Price appeals his conviction, contending that the government was also required to prove beyond a reasonable doubt that he subjectively knew that his victim did not consent.” Id. at *1.

Held: “To read ‘knowingly’ to apply to the second element in § 2244(a) [prohibiting sex acts criminalized in other statutes] would both be grammatically unnatural and produce absurd results. Because a conviction under § 2244(a) does not require that the government prove the defendant’s knowledge of the additional element, we should read § 2244(b) in the same manner.” Id. at *6.

  “In enacting the Sexual Abuse Act of 1986, of which 18 U.S.C. § 2244(b) is a part, Congress sought to expand criminal culpability for sexual acts and contacts and facilitate prosecution of those crimes. Thus it placed the burden on the actor who knowingly engages in sexual contact with another person to first obtain that person’s consent, objectively given. The government need not prove that the defendant subjectively knew he lacked consent, as Price asserted here. It need only prove that the victim did not consent as an objective matter.” Id. at *11.

Of Note: The Ninth’s April 2018 decision in Yovino v. Rizo made recent news. In Yovino, the Supreme Court rejected an en banc vote by Judge Reinhardt that was cast before he passed away, and before the opinion was issued. See Washington Post article here. “Federal judges are appointed for life, not for eternity,” the high Court clucked disapprovingly. Id.

The Hon. Judge Stephen Reinhardt

  It is interesting to remember this SCOTUS’ scolding, when reading the compelling concurrence in Price. See id. at *11 (Gilman, J., concurring). Visiting Judge Gilman persuasively explains why this statute should be read to include a knowing mens rea as to whether the defendant was acting with permission. Id. Judge Gilman explains that before his death, Judge Reinhardt was a member of the Price panel and wrote a draft opinion. Judge Gilman reveals, “Unabashedly, much of this concurrence can be attributed to the portions of Judge Reinhardt’s draft opinion with which I fully agree.” Id.

  “Eternity” might be a stretch, but it is fair to say that Judge Reinhardt’s remarkable legacy continues well beyond his death.

How to Use: Sex offenses on international flights? Rare. 

  Disputes over mens rea requirements? Common. 

   The bulk of Price is statutory analysis of this infrequently-charged crime, inferred from adjacent statutes and assumed from the (low) custodial term at stake for this offense. Id. at *7-*8. For better or worse, turn to Price when mens rea and statutory interpretation battles arise – the decision has some helpful inverse propositions (for example, high-exposure statutes support the need for higher mens rea requirements. Id. at *7.

                                               

For Further Reading: Ninth - 4:3:2. Four vacancies, three nominees, hearings held on two. 
   For a quick tabular recap of the current nomination status of the Ninth Circuit in the 116th Congress, see “Judicial Vacancies and Nominations,” available here.  

Image of “The Price Isn’t Right” from http://bentwoodrealty.com/the-price-isnt-right/429/

Image of the Honorable Judge Stephen Reinhardt from https://www.azquotes.com/quote/1132273

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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