Wednesday, January 20, 2021

US v. Gear, No. 19-10353 (1-19-21)(Per curiam: Lee, Bumatay, and Silver. Concurrence by Silver. Partial concurrence and partial dissent by Bumatay).  

This is a Rehaif “knowledge” issue arising from a defendant being a prohibited possessor because of his nonimmigrant-visa holder status. After Rehaif, the 9th holds that “the government must prove a defendant knew he had a nonimmigrant visa to satisfy the statute’s mens rea requirement.” (4). For a conviction, the government must prove the defendant knew he was admitted into the country under a nonimmigrant visa. It isn’t enough that the government prove what the visa was labeled. The government can prove knowledge by showing (1) the defendant knew his visa was classified as a nonimmigrant visa; or (2) knew the offending characteristics as a visa issued to a temporary alien coming for a specialty occupation. 

Unfortunately for the defendant, he cannot show he was prejudiced by the erroneous jury instructions under plain error. He admitted he knew it was illegal for him to possess a firearm. Thus, the 9th affirms.

Concurring, Silver finds the evidence overwhelming. She writes though to argue that the government should not be able to prove the knowledge alternatively through (1) and (2) above. It is not enough to know his visa was classified as a nonimmigrant visa. The government must prove knowledge of the offending characteristics.

Butamay, in his dissent, would find prejudice and return for a new trial.

The decision is here:


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