United States v. Minor ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-1903
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIE RICHARD MINOR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Karen A. Pickett, with whom Pickett Law Offices, P.C. appeared
on brief, for appellant.
Benjamin M. Block, Assistant United States Attorney, with
whom Donald E. Clark, Acting United States Attorney, was on brief,
for appellee.
April 11, 2022
KAYATTA, Circuit Judge. A jury convicted Willie Minor
under 18 U.S.C. § 924(a)(2) of knowingly violating 18 U.S.C.
§ 922(g), which prohibits nine categories of persons from
possessing a firearm. On appeal, Minor asserts that the
proceedings below were tainted by a series of errors relating to
the mens rea required to establish a knowing violation of
section 922(g). In Rehaif v. United States, 139 S. Ct. 2191, 2200
(2019), the Supreme Court held that convictions under
section 924(a)(2) for knowingly violating section 922(g) require
"the Government [to] prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant
category of persons barred from possessing a firearm." The
"relevant category" in this instance is the category of persons
who have been convicted of "a misdemeanor crime of domestic
violence." 18 U.S.C. § 922(g)(9). The government charged Minor
with belonging to this category based on his 2010 no-contest plea
to a simple assault under Maine law, which he entered after
refusing to plead guilty to a charge of domestic violence assault.
But because the jury was allowed to convict Minor of knowingly
violating section 922(g)(9) without finding that he knew that his
assault conviction placed him in the category of persons convicted
of a misdemeanor crime of domestic violence, we vacate his
conviction and offer further guidance on related issues to be
addressed on remand.
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I.
We first discuss the procedural path leading to Minor's
trial and the largely undisputed facts presented to the jury. We
then describe the parties' debate concerning how best to apply
Rehaif's holding to adjudicating a charge that a person knowingly
violated section 922(g)(9), which effectively sets the stage for
the issues raised in this appeal.
A.
Minor's federal case began with a November 2016
interview with members of the Auburn, Maine Police Department,1 in
which Minor told the officers that he owned "a Lorcin black
firearm," which the officers later seized. In February 2017, a
federal grand jury charged Minor under sections 924(a)(2) and
922(g)(9) with possession of a firearm by a person who had
previously been convicted of a misdemeanor crime of domestic
violence. The predicate offense supporting Minor's prohibited
status is a June 2010 Maine conviction for Assault, Class D,
committed against Minor's then-spouse. Minor was convicted on the
federal possession charge after a trial in December 2017.
While his appeal from that conviction was pending, the
Supreme Court issued its decision in Rehaif construing
1 The reason for this interview was not elicited at Minor's trial
and does not appear to bear on the instant appeal.
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sections 924(a)(2) and 922(g) to require the prosecution to show
that the defendant knew he belonged to the relevant category of
persons prohibited from possessing a gun (thus articulating what
we have called the "scienter-of-status" requirement, see United
States v. Burghardt, 939 F.3d 397, 400 (1st Cir. 2019)). In light
of that ruling, the parties agreed that Minor's conviction should
be vacated and the case remanded for a new trial. The government
then filed a superseding indictment that included the allegation
that Minor "knew that he had been previously convicted of th[e]
misdemeanor crime of domestic violence."
In the course of the proceedings leading up to his second
trial, Minor raised two issues of mens rea in order to provide the
foundation for defenses he intended to present at trial. Most
ambitiously, he argued that he could not be convicted unless he
knew that it was unlawful for him to possess a firearm. More
narrowly, he argued that the government at least had to prove that
he knew that the simple assault offense to which he had previously
pleaded guilty was a misdemeanor crime of domestic violence.
The government urged the court to adopt an even narrower
view of the requisite mens rea. It argued, in essence, that it
need only prove that Minor knew "the features" of his past offense
that rendered it a misdemeanor crime of domestic violence, even if
he did not know that, because of those features, the offense was
indeed a misdemeanor crime of domestic violence. Those features
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were: that he had been convicted of assault, that the conviction
subjected him to incarceration for one year or less, that the
conviction was for causing bodily injury or offensive physical
contact to another person, and that that person was his spouse at
the time.
The district court ultimately accepted the government's
view of the mens rea requirement. As a result, the court declined
Minor's repeated request that the court instruct the jurors that
they needed to find that Minor knew that his prior offense was a
misdemeanor crime of domestic violence.
Minor's case proceeded to his second trial, at which he
stipulated to most elements of the offense charged. He agreed
that the gun was recovered from his home, was operable, and had
been moved in interstate commerce, and that he had "knowingly
possessed" it. Minor also stipulated to several details regarding
his prior Maine assault conviction, including that the victim named
in the 2009 assault complaint was his spouse at the time. As Minor
maintains on appeal, his defense homed in on what he knew about
his prior conviction, since he had "stipulated to literally every
other aspect of the crime."
The government then introduced state-court records of
Minor's prior offense. These records show that Minor was initially
charged with a "Domestic Violence Assault" that occurred on
August 23, 2009. The complaint alleges that the charged conduct
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was directed at "Betty Minor." It then stated, "This conduct was
committed against a family or household member as defined by [Maine
law]." The judicial advice-of-rights video played at Minor's
state-court arraignment on the charge of Domestic Violence Assault
instructed him:
If you are convicted of certain specific
crimes, you may lose your right to purchase,
possess, or own a firearm or any type of
ammunition. These specific crimes include
offenses that involve the use of force, or
even the attempt to use physical force, or
offensive physical contact, or the use, or
threat to use, a deadly weapon and . . . and
the victim was either your spouse [or another
specified relation]. The judge can tell you
whether you are charged with such a crime. If
you are, I would strongly suggest you speak
with an attorney before entering a plea of
guilty or no contest.
In the wake of that admonition, Minor refused to plead
guilty to the domestic violence charge on which he was arraigned.
Subsequently, the state prosecutor successfully moved to amend the
complaint to reduce the charge to "Assault, Class D" and to strike
the sentence stating, "This conduct was committed against a family
or household member . . . ." The docket entries characterized
the revision as a motion to amend "to delete DV reference." The
revised charge thus eliminated any express allegation of domestic
violence, claiming only that Minor "did intentionally, knowingly
or recklessly cause bodily injury or offensive physical contact to
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Betty Minor."2 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 state court
records show that Minor then pleaded no contest to the assault
charge in June 2010.
In his own trial testimony in 2020 on the federal gun-
possession charge, Minor described his understanding of his 2010
state-court conviction: "I was convicted of a simple assault."
But, he said, "I wasn't convicted of a domestic. . . . They removed
any language . . . that it was a domestic." Minor then related
that he had told his prior counsel, "I want to make sure I'm not
pleading to a domestic," "because it would have meant that I
couldn't have firearms." Minor testified that he believed he could
possess a firearm and that this result had been arranged in his
plea, but the court struck those answers on the government's
objection, and it denied on relevance and unfair-prejudice grounds
Minor's counsel's entreaty for further inquiry into Minor's belief
that he could own a firearm.
Minor also sought to introduce testimony from George
Hess, the lawyer who had represented him in the Maine state
proceedings. As proffered, Hess would purportedly have testified
2 Betty Minor was also known as Bettyann Minor and Betty Ann
Minor.
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about Minor's desire "to possess a firearm" and that Minor was
"unwilling to plead to a domestic violence offense." Minor further
proffered that Hess would testify to representations made to him
by Assistant District Attorney Nick Worden, who prosecuted Minor's
misdemeanor. Specifically, ADA Worden allegedly told Hess "that
Mr. Minor would still be able to possess a firearm if he pled
guilty to the Class D simple assault." The district court excluded
this evidence on relevance grounds.
B.
Before trial, Minor sought jury instructions on the
knowledge requirement imposed by Rehaif. He requested the jury be
instructed that: "In order to find the Defendant guilty of the
charged offense you must find beyond a reasonable doubt that he
acted knowingly in possessing the firearm and that he knew that he
belonged to the relevant category of persons barred from possessing
a firearm." Later, Minor revised the latter portion of the request
so that he sought instructions requiring the jury to find, for a
guilty verdict, "that at the time [Minor] possessed the firearm,
he knew that he had been previously convicted of a misdemeanor
crime of domestic violence" and "that he knew that he belonged to
the status of individuals convicted of a crime of domestic violence
as defined by federal law." Minor later supplemented the "as
defined by federal law" portion of that request by asking that the
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court additionally read out the statutory definition of
"misdemeanor crime of domestic violence," which states:
[A] 'misdemeanor crime of domestic violence'
means an offense that (i) is a misdemeanor
under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted
use of physical force, or the threatened use
of a deadly weapon, committed by a current or
former spouse . . . of the victim.
18 U.S.C. § 921(a)(33)(A).
The district court denied all of Minor's requested
versions of the Rehaif instruction and ultimately instructed the
jury that to find Minor guilty, it must find:
that Willie Richard Minor knew that he had
been convicted of [the specified Maine assault
Class D offense], that he knew the conviction
subjected him to incarceration of up to
364 days, that he knew the conviction was for
causing bodily injury or offensive physical
contact to another person, and that he knew
the victim of the crime was his spouse at the
time. 3
3 The complete instruction for the elements of the charged
section 922(g)(9) offense explained that, to find Minor guilty,
the jury must find:
First, that Willie Richard Minor had been
convicted as charged in the superseding
indictment of assault Class D in the Maine
Superior Court on June 14, 2010.
Second, that the victim of that crime was
Willie Richard Minor's spouse at the time.
Minor has stipulated that he and Bettyann
Minor were married from June 8, 2008, until
October 4, 2016, and that the victim listed in
the complaint filed on October 14, 2009, Betty
Minor, was his spouse at the time.
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At the government's request, in light of Minor's
testimony, the district court also charged the jury that Minor's
"belief that he could possess a firearm is not itself a defense."
The jury returned a guilty verdict, and the district court
subsequently sentenced Minor to time served with three years'
supervised released. Minor timely appealed.
II.
Minor argues that the district court misapprehended
Rehaif's requirement throughout the proceedings below, leading to
Third, that Willie Richard Minor knew that he
had been convicted of that crime, that he knew
the conviction subjected him to incarceration
of up to 364 days, that he knew the conviction
was for causing bodily injury or offensive
physical contact to another person, and that
he knew the victim of the crime was his spouse
at the time.
Fourth, that on about November 27, 2016,
Willie Richard Minor knowingly possessed the
firearm described in the superseding
indictment. Minor has stipulated that is so.
Fifth, that the firearm satisfied the federal
definition of firearm and was connected with
interstate commerce. Minor has stipulated
that that is so.
The word knowingly means that the act was done
voluntarily and intentionally, not because of
mistake or accident. The Government does not
have to prove that Willie Richard Minor knew
that his conduct in possessing a firearm was
illegal or that he knew that he was prohibited
from possessing a firearm, and his belief that
he could possess a firearm is not itself a
defense.
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his being convicted on insufficient evidence and improper jury
instructions, among other purported errors. We review this
preserved contention of legal error de novo. See United States v.
Norris, 21 F.4th 188, 193–95 (1st Cir. 2021) (applying de novo
standard of review to preserved challenges to sufficiency of the
evidence and jury instructions). To conduct this review, we first
address the application of Rehaif to section 922(g)(9) before
turning to Minor's specific claims of error.
A.
In Rehaif, the Supreme Court held that, "in a prosecution
under 18 U.S.C. § 922(g) and § 924(a)(2) the Government must prove
both that the defendant knew he possessed a firearm and that he
knew he belonged to the relevant category of persons barred from
possessing a firearm." 139 S. Ct. at 2200. Rehaif recognized
that firearms possession may be perfectly lawful absent a status-
based prohibition imposed by section 922(g). Id. at 2197.
Accordingly, "[w]ithout knowledge of that status," a defendant's
"behavior may . . . be an innocent mistake to which criminal
sanctions normally do not attach." Id.The defendant in Rehaif had been charged with unlawful
possession due to the prohibited status specified in
section 922(g)(5)(A); i.e., that of "an alien . . . illegally or
unlawfully in the United States." The Court acknowledged that
"whether an alien is 'illegally or unlawfully in the United States'
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is a question of law, not fact." Id. at 2198. And while the
government touted the "maxim" that "ignorance of the law" provides
no defense, the Court recognized that this principle traditionally
"applies where a defendant . . . claims to be unaware of the
existence of a statute proscribing his conduct." Id. (internal
quotation omitted). "In contrast, the maxim does not normally
apply where a defendant has a mistaken impression concerning the
legal effect of some collateral matter and that mistake results in
his misunderstanding the full significance of his conduct, thereby
negating an element of the offense." Id. (internal quotation
omitted). The Court thus held that even though determining the
legality of one's presence in the United States may be "a legal
matter," that matter is "collateral" to a charge under
section 922(g)(5)(A) because a defendant unaware of or mistaken as
to the answer to this preliminary legal question "does not have
the guilty state of mind that [section 922(g)]'s language and
purposes require." Id.Minor argues that whether he is properly subject to the
prohibited status in section 922(g)(9) should likewise be
considered a collateral legal issue, because his knowledge of that
issue could render his otherwise innocent possession criminal.
See Rehaif, 139 S. Ct. at 2197. Minor does not contest that his
2010 Maine conviction in fact places him within the prohibited
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category of section 922(g)(9); he disputes only "that he knew he
belonged to the relevant category." Rehaif, 139 S. Ct. at 2200.
Had Minor been convicted as originally charged for
domestic violence assault under Maine law, none of this likely
would have mattered because it would have been obvious that he
knew that he had been convicted of a misdemeanor crime of domestic
violence. But federal law's classification of other misdemeanors
-- i.e., simple assault -- as crimes of domestic violence is "quite
complex." United States v. Triggs, 963 F.3d 710, 715 (7th Cir.
2020). After all, it took three split United States Supreme Court
opinions -- two decided long after Minor pled in a Maine court --
to establish the contours of how a simple assault can constitute
a "misdemeanor crime of domestic violence" under
section 922(g)(9), as that phrase is defined in
section 921(a)(33)(A). See Voisine v. United States, 136 S. Ct.
2272, 2282 (2016) (the prior offense may qualify even if it could
have been proved by showing only reckless conduct); United States
v. Castleman, 572 U.S. 157, 163 (2014) (the requirement of "force"
may be shown by "even the slightest offensive touching"); United
States v. Hayes, 555 U.S. 415, 418 (2009) (an offense may qualify
regardless of whether the domestic relationship is included as an
element).
Nor does a finding that a defendant is aware of the
component parts of his prohibited status necessarily mean that he
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is aware of the implication of the sum of those components. In
Rehaif, the defendant clearly knew that he was in the United
States, and he knew all the facts that rendered that presence
unlawful. See 139 S. Ct. at 2201–02 (Alito, J., dissenting). Yet
the Court found that the government must show that he knew the
legal import of those facts, i.e., that his presence was unlawful.
Id. at 2198 (majority op.).
For the foregoing reasons, Minor's reliance on Rehaif
seems persuasive. The government and our dissenting colleague
nevertheless argue that we should rule otherwise. To those
arguments we turn next.
B.
The government urges us to find that Minor need only
have known of "the features" of his past offense that rendered it
"within the scope of" section 921(a)(33)(A). See Staples v. United
States, 511 U.S. 600, 619 (1994). The government derives this
position from statements by the Supreme Court in Staples and
Liparota v. United States, 471 U.S. 419 (1985), two cases in which
the Court read mens rea requirements into criminal statutes that
(unlike section 924(a)(2)) otherwise would not have included any.
In Staples, a defendant had been charged with possessing
an unregistered machinegun in violation of the National Firearms
Act, 26 U.S.C. §§ 5801–5872. With the relevant statute (unlike
section 924(a)(2)) containing no express mens rea requirement, the
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district court had instructed the jury that, for the mens rea
element, the government need only prove that the defendant "kn[ew]
that he [wa]s dealing with a dangerous device of a type as would
alert one to the likelihood of regulation." 511 U.S. at 602–04.
The defendant asserted that the government ought to have been
required to prove more -- that he knew of the specific features of
his firearm which brought it within the scope of the Act. Id. at
602. The Court agreed with the defendant's proposed version of a
mens rea requirement, reasoning that the defendant "must know the
facts that make his conduct illegal." Id. at 619. Notably, the
defendant did not argue that the government ought to have been
required to prove his knowledge of any collateral legal matter,
such as that his gun in fact qualified as a machinegun under the
Act.
Liparota addressed a statute that criminalized the
unauthorized use of food stamps. 471 U.S. at 420. The Court there
held that the offense required proving that the defendant knew his
use was unauthorized, but not that the defendant "had knowledge of
specific regulations governing food stamp acquisition or
possession." Id. at 434. The Court has since characterized this
holding in varying ways. It has said Liparota required that a
defendant "kn[ew] of the facts that made the use of the food stamps
unauthorized." Elonis v. United States, 575 U.S. 723, 736 (2015).
More recently, the Rehaif Court cited Liparota as an example of a
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mens rea requirement as to a collateral mistake of law, noting:
"We held [in Liparota] that the statute required scienter not only
in respect to the defendant's use of food stamps, but also in
respect to whether the food stamps were used in a 'manner not
authorized by the statute or regulations.'" Rehaif, 139 S. Ct. at
2198 (quoting Liparota, 471 U.S. at 425 n.9).
Essentially ignoring both how the mens rea issue arose
in Staples and Rehaif's explanation of Liparota, the government
argues that the district court's approach here, as captured in the
jury instructions, sufficiently required the jury to find that
Minor knew "the facts" that made his past offense a "misdemeanor
crime of domestic violence" -- even if he did not need to know
that those facts added up to a particular result. Specifically,
the district court required the jury to find that Minor knew:
(1) "that he had been convicted of [the prior offense]"; (2) that
"the conviction subjected him to incarceration of up to 364 days";
(3) that "the conviction was for causing bodily injury or offensive
physical contact to another person"; and (4) that "the victim of
the crime was his spouse at the time."
This approach reflects that taken by our dissenting
colleague and by the majority of an Eleventh Circuit panel in
United States v. Johnson, which similarly considered an appeal
from a section 922(g)(9) conviction. See 981 F.3d 1171, 1182 (11th
Cir. 2020) ("[The defendant] must have known the facts that made
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[his prior conviction] qualify as a misdemeanor crime of domestic
violence."). But see id. at 1192 (Martin, J., concurring in part
and dissenting in part) ("I believe the majority's approach dilutes
the knowledge-of-status requirement from Rehaif that may result in
the government sending people to prison for 'innocent
mistake[s].'" (quoting Rehaif, 139 S. Ct. at 2197)). The Johnson
majority, too, invoked the maxim that "a defendant generally must
know the facts that make his conduct fit the definition of the
offense, even if he does not know that those facts give rise to a
crime." Id. at 1182 (majority op.) (cleaned up) (quoting Elonis,
575 U.S. at 735).
The defect in the application of this maxim to this case
rests in the failure to pay heed both to the express requirement
in section 924(a)(2) that violations of section 922(g) must be
"knowing[]," and to Rehaif's reminder that one of the "facts" that
a defendant must know in order to knowingly violate the relevant
parts of section 922(g) is a conclusion of law; i.e., that "he
knew he belonged to the relevant category of persons barred from
possessing a firearm." 139 S. Ct. at 2200. Just as the government
in Rehaif could not prove a knowing violation of section 922(g)(5)
without proving that the defendant knew that his presence in the
United States was "illegal[] or unlawful[]," the government here
need prove that Minor knew that he had been convicted of a
misdemeanor crime of domestic violence.
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Our own past precedent supports this conclusion. In
United States v. Guzmán-Merced, 984 F.3d 18, 21 (1st Cir. 2020),
we held that in order to prove a knowing violation of
section 922(g)(1), the government need prove that the defendant
knew a point of law, i.e., that his prior convictions were for
crimes punishable by more than a year in prison. And in United
States v. Patrone, 985 F.3d 81, 86 (1st Cir. 2021), we held that
in order to prove a knowing violation of section 922(g)(5) the
government need prove knowledge of another point of law, i.e.,
that the defendant knew his presence in the United States was
unlawful. In so doing, we observed that a defendant noncitizen
who had overstayed his visa may permissibly argue, for example,
that he "believed his pending application to remain in the United
States rendered his presence lawful." 985 F.3d at 86.
We have considered on our own accord trying to
distinguish Rehaif from the instant case based on the fact that
the prohibited status at issue in Rehaif was "being an alien . . .
unlawfully in the United States," section 922(g)(5), while this
case concerns section 922(g)(9), which addresses the toxic mix of
firearms and domestic violence. But Rehaif's textual analysis did
not rely on the particular status defined in subsection 922(g)(5).
Rather, the court trained its attention on the word "knowingly" in
section 924(a)(2), a term that applies equally to all violations
of section 922(g). And while our dissenting colleague is correct
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that Congress thought it important to keep guns out of the hands
of persons convicted of domestic violence, Congress also
undoubtedly thought it important to keep guns out of the hands of
all persons who fall into any of the nine categories specified in
section 922(g).
In sum, unless we are to engage in result-driven
interpretative gymnastics, Rehaif effectively controls our
treatment of this case. To establish that Minor "knowingly"
violated section 922(g)(9), the government need prove that he
"knew he violated the material elements of § 922(g)," Rehaif, 139
S. Ct. at 2196, which in this case means that he knew he had been
convicted of a misdemeanor crime of domestic violence.
C.
Just as Rehaif makes it not quite so easy to convict
some persons under section 922(g)(5), and our following opinion in
Guzmán makes it not quite so easy to convict some defendants under
section 922(g)(1), so too our holding today adds to the
government's burden in proving some cases involving
section 922(g)(9). That being said, our dissenting colleague's
cry that the sky will fall is greatly exaggerated. Our adherence
to Rehaif creates no plausible defense for defendants convicted on
an express charge of domestic violence. Section 922(g) also
separately applies to any person subject to domestic restraining
orders. See § 922(g)(8).
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Even as to simple assault convictions, as a practical
matter, few defendants will be able to marshal a credible case for
finding that they did not know that their conviction placed them
in a category of persons who could not possess a firearm. The
government can rely on circumstantial evidence to prove the
requisite knowledge. Rehaif, 139 S. Ct. at 2198 (quoting Staples,
511 U.S. at 615, n.11).
Notably, a section 922(g)(9) offense only occurs if the
individual was represented by counsel in connection with the
predicate offense or knowingly and intelligently waived the right
to counsel. See 18 U.S.C. § 921(a)(33)(B)(i)(I). And competent
defense counsel is usually going to advise the client of the
serious collateral ramifications of conviction. See Standards for
Criminal Justice Standard 14-3.2(f) (Am. Bar Ass'n 1999) ("To the
extent possible, defense counsel should determine and advise the
defendant, sufficiently in advance of the entry of any plea, as to
the possible collateral consequences that might ensue from entry
of the contemplated plea."); see also Gabriel J. Chin & Richard W.
Holmes, Jr., Effective Assistance of Counsel and the Consequences
of Guilty Pleas, 87 Cornell L. Rev. 697, 713–18 (2002) (surveying
further professional standards and guidance that direct counsel to
advise a client of a guilty plea's collateral consequences).
Minor himself only claims to have lacked the requisite
knowledge upon pleading guilty to simple assault because of the
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presumably unusual combination of erroneous advice given by a
prosecuting attorney and an amendment of the complaint to drop
references to domestic violence.
Nor would it do any good for a defendant to say that he
did not know his conviction was a "misdemeanor" because he believed
his conviction rendered him eligible for a lengthier sentence.
Such a mistake would only place him within the category of
section 922(g)(1)'s prohibition on firearms possession for those
who have been convicted of crimes punishable by more than a year
in prison, so he would still have the requisite mens rea for a
knowing violation of section 922(g).
We do agree with the government -- indeed, we have
previously said -- that it is no defense for those charged with
violating section 922(g) to say that they did not know that persons
convicted of misdemeanor crimes of domestic violence could not
possess guns. See United States v. Austin, 991 F.3d 51, 59 (1st
Cir. 2021) ("Austin misconstrues the nature of the status element.
Austin suggests that Rehaif would have obligated the government to
prove his 'subjective knowledge that he [was] violating the law.'
This is not the case." (alteration in original)). This would be
a classic "mistake of law" as to the charged statute establishing
the offense -- here, section 924(a)(2) -- to which the maxim used
by the government would apply. See 129 S. Ct. at 2198. Requiring
proof of such knowledge, moreover, would elevate the mens rea
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requirement for section 922(g) from "knowingly" to "willfully."
Triggs, 963 F.3d at 714; see also Bryan v. United States, 524 U.S.
184, 191–92 (1998) ("[Generally,] in order to establish a 'willful'
violation of a [criminal] statute, 'the Government must prove that
the defendant acted with knowledge that his conduct was unlawful.'"
(quoting Ratzlaf v. United States, 510 U.S. 135, 137 (1994))).
But while a defendant need not have known that possessing firearms
was unlawful, such knowledge should often suffice, a fortiori, to
establish the lower requisite mens rea. Cf. United States v.
MacPherson, 424 F.3d 183, 192 (2d Cir. 2005) (holding that
"evidence sufficient to establish willful illegality necessarily
support[ed] [a] lesser scienter requirement").
Nor is there any reason to think that Rehaif's
construction of section 924(a)(2) provides materially less
deterrence of gun possession by domestic abusers than does our
colleague's reading. One can hardly be deterred by
section 924(a)(2) if one does not know that one belongs to one of
the categories of persons listed in section 922(g).
For all these reasons, our interpretation of what
section 924(a)(2) requires the government to prove for a knowing
violation of section 922(g)(9) simply does not run contrary to the
important policy aims that gave rise to Congress's decision to
punish knowing violations of section 922(g). Rather, it leaves
those aims unimpeded while simultaneously understanding Congress
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to have adhered to the "basic principle of criminal law" that
"help[s] to 'separate those who understand the wrongful nature of
their act from those who do not.'" Rehaif, 139 S. Ct. at 2196(quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72–
73, n.3 (1994)).
III.
Having determined that a conviction under
sections 924(a)(2) and 922(g)(9) required the government to prove
that Minor knew he had been convicted of "a misdemeanor crime of
domestic violence," we turn now to Minor's specific claims of
error. He contends that the government's evidence was insufficient
to establish his scienter of status; that the jury instructions
did not require the jury to find that element as properly
construed; and that certain testimony bearing on his state of mind
was improperly excluded at trial. We take these arguments in turn.
A.
We first consider Minor's challenge to the sufficiency
of the government's evidence. The government does not dispute
that this challenge was preserved. Accordingly, we review the
claim de novo, evaluating the evidence "in the light most favorable
to the verdict" to decide "whether 'that evidence, including all
plausible inferences drawn therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime.'" United States v. Torres Monje, 989
- 23 -
F.3d 25, 27 (1st Cir. 2021) (quoting United States v. Santos-
Rivera, 726 F.3d 17, 23 (1st Cir. 2013)). In so doing, "we do not
view each piece of evidence separately, re-weigh the evidence, or
second-guess the jury's credibility calls." United States v.
Acevedo-Hernández, 898 F.3d 150, 161 (1st Cir. 2018).
Here, Minor stipulated to or conceded most elements of
the offense, including that he knowingly possessed the gun, that
it had travelled in interstate commerce, that he had been convicted
of a misdemeanor assault offense, and that the named victim in his
assault complaint was his spouse at the time. On appeal, Minor
disputes only the government's proof that he knew of his prohibited
status as a domestic violence misdemeanant.
On that element, the government introduced the Maine
state court records, which included the initially charged offense
of "domestic violence assault" against Betty Minor. According to
the transcript of Minor's arraignment on that initial charge, which
the government also introduced, Minor testified that he understood
he had been charged with "domestic violence assault," that it was
for "intentionally, knowingly or recklessly caus[ing] bodily
injury or offensive physical contact to Betty . . . Minor," and
that the alleged assault was "committed against a family or
household member." The judicial advice-of-rights video played at
this arraignment further informed Minor that he could lose the
right to possess firearms for certain offenses involving force
- 24 -
against a spouse, and Minor later testified in his federal trial
that he had understood this guidance. Thereafter, the motion to
amend the complaint reduced the charge to simple assault and
specifically struck the language alleging that "[t]his conduct was
committed against a family or household member as defined by [Maine
law]," but it did not disturb the allegation that Minor
"intentionally, knowingly or recklessly cause[d] bodily injury or
offensive physical contact to Betty Minor."
The unusual sequence of events leading to Minor's state-
court plea certainly provides him with a strong basis on which to
claim that he did not know that even the reduced assault charge
marked him as one convicted of a misdemeanor crime of domestic
violence. But having a strong argument does not mean that the
other side's evidence is not minimally sufficient. Accordingly,
because the records presented at trial do not demonstrate that the
amended complaint removed the name of the victim, because Minor
has stipulated that this victim was his spouse at the time, and
because Minor had been informed of and understood the risk of
losing his rights for offenses involving the use of force against
a spouse, a jury could have plausibly inferred from this evidence
that Minor also knew that his conviction on the assault charge,
even as amended, was itself also a conviction for a misdemeanor
crime of domestic violence.
- 25 -
While Minor testified in his federal trial that he
"wasn't convicted of a domestic," that he believed his spouse's
name had also been struck from the complaint, and that he
understood that the charge had been pleaded down, a rational
factfinder could nonetheless discredit such countervailing
testimony. In light of our standard of review, we "resolve all
credibility disputes in [the government's] favor," and must
"choose the inference 'most compatible' with the jury's guilty
verdict when confronted with competing inferences." Acevedo-
Hernández, 898 F.3d at 161 (quoting United States v. Acosta-Colón,
741 F.3d 179, 191 (1st Cir. 2013)). Accordingly, we find that the
government presented sufficient evidence for a rational factfinder
to find Minor possessed a firearm while knowing that he had been
convicted of a misdemeanor crime of domestic violence.
B.
We next apply our view of the scienter-of-status
requirement to Minor's preserved challenge to the jury
instructions. See United States v. Godin, 534 F.3d 51, 61 (1st
Cir. 2008) ("[A] court may still find that an erroneous jury
instruction constitutes reversible error after finding that [the]
evidence was sufficient to support the verdict." (citing United
States v. Baldyga, 233 F.3d 674, 682 n.8 (1st Cir. 2000))). Minor
contends that the instructions "omitted or materially altered [an]
element[] of [his] offense," and he preserved this objection by
- 26 -
renewing it after the trial court charged the jury, so we review
this challenge de novo. United States v. Ford, 821 F.3d 63, 67–
68 (1st Cir. 2016).
As discussed, the district court's instructions tracked
the approach the government now advances on appeal: that Minor
needed to know only the features of his prior conviction that
rendered it a qualifying domestic violence misdemeanor.
Accordingly, as to the scienter-of-status element, the jury was
required to find only that:
Willie Richard Minor knew that he had been
convicted of [the specified Maine assault
Class D offense], that he knew the conviction
subjected him to incarceration of up to 364
days, that he knew the conviction was for
causing bodily injury or offensive physical
contact to another person, and that he knew
the victim of the crime was his spouse at the
time.
In giving this instruction, the district court rejected
Minor's request to instruct the jury that a guilty verdict required
finding "that at the time [Minor] possessed the firearm, he knew
that he had been previously convicted of a misdemeanor crime of
domestic violence." For the reasons stated above, the court erred
when it allowed the jurors to convict without finding that Minor
knew that his state-court conviction placed him in the relevant
category of persons barred from possessing a firearm, i.e., persons
convicted of misdemeanor crimes of domestic violence.
- 27 -
Having found error, we consider whether it was harmless.
Ford, 821 F.3d at 68. "A jury instruction error is not harmless
if 'the record contains evidence that could rationally lead to a
contrary finding' in the absence of the error." Id. (quoting
Godin, 534 F.3d at 56). Thus, an instructional error "on an
element of the offense can be harmless beyond a reasonable doubt,
if, given the factual circumstances of the case, the jury could
not have found the defendant guilty without making the proper
factual finding as to that element." United States v. McLellan,
959 F.3d 442, 466 (1st Cir. 2020) (quoting United States v.
Doherty, 867 F.2d 47, 58 (1st Cir. 1989)). The government has
presented no argument that the jury instructions here, even if
erroneous, were nonetheless harmless -- and for good reason. Minor
testified directly to his belief that he "wasn't convicted of a
domestic." And given the amendment of the assault complaint and
the alleged information conveyed to Minor, it was certainly quite
possible that a properly instructed jury could rationally find
that he did not have the necessary mens rea. The instructional
error was thus not harmless, so Minor's conviction must be vacated
and his case remanded for a new trial. See Ford, 821 F.3d at 68.
C.
We turn finally to Minor's claims of evidentiary error.
While we have already determined that Minor is entitled to a new
trial, these evidentiary disputes are likely to reoccur below, so
- 28 -
we resolve them now to provide clarity for the further proceedings.
Minor points to two categories of evidence excluded by the court
below. First, the court barred Minor "from testifying to what he
believed about whether he was allowed to possess a gun after the
simple assault conviction." Second, the court denied Minor's
entreaties to present evidence of an "entrapment by estoppel"
defense, including testimony from his state-court counsel
regarding ADA Worden's purported representation that Minor would
still be able to possess firearms if he pleaded to the reduced
simple assault charge. We consider these challenges in turn.
1.
The government's primary argument below for barring
Minor from testifying to his belief about whether he could lawfully
possess firearms was that such evidence would be irrelevant because
the government was not required to prove Minor knew his possession
was unlawful. See Fed. R. Evid. 401, 402; Austin, 991 F.3d at 59.
The district court agreed with this rationale and excluded the
evidence. When Minor's counsel renewed this line of inquiry during
Minor's testimony, the court supplemented the basis for excluding
this evidence by further agreeing with the government that such
evidence would also be unfairly prejudicial as an appeal to jury
nullification. See Fed. R. Evid 403 (providing a mechanism for
courts to exclude even "relevant evidence[,] if its probative value
- 29 -
is substantially outweighed by a danger of . . . unfair
prejudice . . . [or, among other things,] misleading the jury").
Minor counters, as he did below, that even if his belief
as to the lawfulness of his gun possession would not represent a
defense in itself, this belief is nonetheless relevant because it
bears indirectly but probatively on the appropriate mens rea
inquiry -- that is, it tends to demonstrate that Minor did not
know he had been convicted of a misdemeanor crime of domestic
violence. This tendency can only be shown if Minor understood the
relationship between a domestic violence conviction and the
ability to possess firearms. As we have explained, Minor testified
that he did understand this relationship at the time of his prior
conviction.
This argument for relevance further relies on the legal
premise that scienter of status for section 922(g)(9) requires
knowing one's past conviction represents a misdemeanor crime of
domestic violence, rather than simply knowing certain features of
the past conviction. And, as we have found that premise to be
correct, we likewise agree that Minor's knowledge of whether he
could possess a firearm may be relevant to establishing whether he
knew that he had been convicted of a misdemeanor crime of domestic
violence.
Finding relevance does not, however, end the inquiry
into this testimony, because the district court also found that
- 30 -
this evidence would be unfairly prejudicial. See United States v.
Centeno-González, 989 F.3d 36, 53 (1st Cir. 2021) ("Even when
evidence is proffered by the defense, a district court maintains
'general discretion to exclude otherwise relevant evidence "if its
probative value is substantially outweighed by the danger of unfair
prejudice."'" (quoting United States v. DeCologero, 530 F.3d 36,
60 (1st Cir. 2008))). Specifically, the district court explained
to Minor's counsel that soliciting this testimony would be:
an invitation at that point to jury
nullification because it's not an element of
the crime, and the Government has to prove the
elements of the crime. And you're able to
challenge all of th[os]e things, including
what he believed about the nature of his
conviction, but what you're not able to do is
put in that he thinks that he was allowed to
have a gun because that can only be appealing
to sympathy and jury nullification.
We do not doubt that the proffered testimony might cause
some prejudice. But, the court to date has conducted this
balancing with one empty scale, as it incorrectly understood the
testimony to have no relevance and thus no probative value. So,
on remand, Rule 403 will require the court to weigh the testimony's
probative value -- aided by our explication of its admittedly
indirect relevance -- against the possible unfair prejudice or
confusion.
- 31 -
2.
Minor also challenges the district court's decision
barring him from introducing certain testimony from his state-
court counsel Hess about representations purportedly made by ADA
Worden, the Maine prosecutor of Minor's assault charge.4 The
district court ruled that this proffered evidence would be
irrelevant because any representations by ADA Worden would not
give rise to a valid entrapment-by-estoppel defense, Minor's only
argued-for basis for this evidence.5 On appeal, Minor sets aside
4 The district court characterized this proffered evidence as:
testimony by Attorney George Hess that with
respect to the underlying state misdemeanor
crime that Assistant DA Nicholas Worden said
to him that if Mr. Minor pleaded down to the
simple assault rather than the domestic
violence assault under state law that he would
still be able to possess a firearm even under
federal law.
5 Entrapment by estoppel may be available as a defense in
"certain, relatively narrow, circumstances." United States v.
Smith, 940 F.2d 710, 714 (1st Cir. 1991). In considering this
defense, courts "must ask whether [the defendant] was advised by
a government official that the act was legal, whether [he] relied
on that advice, whether that reliance was reasonable, and whether,
given that reliance, prosecution of the defendant would be unfair."
Id. at 715. The defense "generally requires that the misleading
statement come from an official representing the sovereign
bringing the prosecution, [here], a federal official." United
States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006). The district
court found the proffered evidence of a state official's (ADA
Worden's) representations insufficient to establish the defense,
and Minor presents us no occasion to revisit our jurisprudence on
this issue, as he has apparently abandoned on appeal his contention
- 32 -
the argument that he is entitled to present an entrapment-by-
estoppel defense and hangs his case for presenting the proffered
evidence instead on its relevance for his scienter of status.
While Minor did not argue precisely this basis for the proffered
evidence below, the government has not argued that Minor waived
his argument. Moreover, the identical issue will most certainly
arise afresh at any new trial. We therefore proceed to consider
his argument on appeal for the prudential purpose of providing
guidance in subsequent proceedings below.
The government relies on its reading of the scienter-
of-status requirement to contend that whatever ADA Worden may have
told Minor about his ability to possess firearms is irrelevant,
reasoning that "the prosecutor's purported misstatement would not
have deprived Minor of any of the knowledge about his conviction
that would place him in the category of a domestic violence
misdemeanant." But we have determined that the mens rea element
for proving a knowing violation of section 922(g)(9) requires more
than knowledge of the features of one's prior conviction: It
requires knowledge that that prior conviction was for a misdemeanor
crime of domestic violence.
that the challenged testimony should have been admissible for the
purposes of presenting an entrapment-by-estoppel defense.
- 33 -
Thus, while it may be true that ADA Worden's
representations would not have changed Minor's awareness that his
prior conviction involved the use of force or that the victim was
his spouse, such representations may very well have borne on
whether Minor knew that the conviction qualified as a misdemeanor
crime of domestic violence even in the wake of the amendment
dropping the so-named charge. If Minor knew that a domestic
violence conviction would prevent him from possessing firearms --
which he does claim to have known -- then any representations that
he would remain able to possess firearms could reasonably have
caused him to believe the reduced charge must not qualify as "a
domestic." Certainly, if the prosecutor had told Minor that his
simple assault conviction prevented him from possessing firearms,
the government would reasonably argue that such a warning may well
have alerted Minor that his conviction was a misdemeanor crime of
domestic violence, since he knew that conviction for such would
bar him from possessing a firearm.
We therefore find that the proffered evidence of
representations made by ADA Worden in discussions leading up to
Minor's 2010 conviction would be relevant to Minor's knowledge
that he belonged in the category of persons barred from possessing
firearms, and that excluding such evidence solely on lack-of-
relevance grounds would be an abuse of discretion. In so finding,
- 34 -
however, we express no view on any other arguments against the
admissibility of such evidence that have not been presented to us.
IV.
For the foregoing reasons, we vacate Minor's conviction
under sections 924(a)(2) and 922(g)(9) and remand for further
proceedings in accordance with this opinion.
- DISSENTING OPINION FOLLOWS -
- 35 -
LYNCH, Circuit Judge, dissenting. With respect, I
dissent. The majority misreads Rehaif v. United States, 139 S.
Ct. 2191 (2019) and other binding Supreme Court cases. The
majority's erroneous decision creates a circuit split. It will
have the unfortunate consequence of impairing efforts to prevent
instances of domestic violence within the jurisdictions which
comprise the First Circuit.
In 1996, Congress expanded the federal firearm
prohibition to include persons convicted of "a misdemeanor crime
of domestic violence." 18 U.S.C. § 922(g)(9). Congress had
recognized that existing felon-in-possession laws "were not
keeping firearms out of the hands of domestic abusers," as "many
people who engage in serious spousal or child abuse ultimately are
not charged with or convicted of felonies." United States v.
Hayes, 555 U.S. 415, 426 (2009) (second quoting 142 Cong. Rec.
22985 (1996) (statement of Sen. Lautenberg)).6 Further, "only
about one-third of the States had criminal statutes that
specifically proscribed domestic violence,"7 and even in those
6 In 1996, a gun apparently was present in approximately 150,000
cases of spousal abuse each year. That is why the amendment was
enacted. Proponents of section 922(g)(9) sought to "close this
dangerous loophole," and remove any "margin of error when it comes
to domestic abuse and guns." 142 Cong. Rec. 22986 (statement of
Sen. Lautenberg). They drafted an "amendment [to] say[]: Abuse
your wife, lose your gun . . . no ifs, ands, or buts." Id.7 By 2013, still only about half the states had such laws. See C.
Reinhart, Chief Attorney, States with Specific Domestic Violence
- 36 -
states, "domestic abusers were (and are) routinely prosecuted
under generally applicable assault or battery laws." Id. at 427.
So, "Congress enacted [section] 922(g)(9) in 1996 to bar those
domestic abusers convicted of garden-variety assault or battery
misdemeanors . . . from owning guns." Voisine v. United States,
579 U.S. 686, 136 S. Ct. 2272, 2280 (2016).
Defendant Willie Richard Minor's criminal history
reflects several instances of domestic abuse and a propensity
toward violence.8 Relevant here, in 2009, Minor was charged under
Maine law with "domestic violence assault," Me. Rev. Stat. Ann.,
tit. 17-A, § 207-A(1)(A), having caused bodily injury or offensive
physical contact to his then-wife.9 Months later, he pleaded nolo
contendere to simple assault under Maine law, Me. Rev. Stat. Ann.,
tit. 17-A, § 207(1)(A), and the named victim of the offense
remained his then-wife. In 2016, Minor admitted to state law
enforcement that he owned a firearm. The matter was referred for
federal prosecution, and Minor was convicted in federal court
following a jury trial of knowingly possessing a firearm as a
Crimes, 2013-R-0157 (Feb. 26, 2013) cga.ct.gov/2013/rpt/2013-R-
0157.htm.
8 Minor has been arrested and/or formally charged eight times with
conduct that appears to involve domestic violence or assault.
9 His then-wife had reported to police that Minor hit her and
pushed her into a metal shelf.
- 37 -
domestic violence misdemeanant, in violation of 18 U.S.C.
§ 922(g)(9).
At the trial, Minor had admitted he knowingly possessed
the firearm. He also had admitted he knew he previously was
convicted of misdemeanor assault under Maine law, and the victim
was his then-wife. Acknowledging, as it must, that this is
sufficient evidence to support Minor's section 922(g)(9)
conviction, the majority nonetheless vacates the conviction based
on what it says was an error in the district court's jury
instructions. The district court had instructed the jury that it
must find, which it did, that Minor knew all of the features
necessary to render his prior Maine conviction a domestic violence
misdemeanor under section 922(g)(9). The majority says this is
not enough, and under Rehaif, that the jury should have been
instructed further to find Minor knew, legally, that his state
court conviction for assaulting his then-wife constituted a
"misdemeanor crime of domestic violence" under federal law. In my
view, the majority is clearly wrong that Rehaif's knowledge-of-
status element requires the defendant to have such in-depth legal
knowledge to be convicted under section 922(g)(9). Further, the
majority opinion will create an unfortunate loophole in efforts to
protect victims of domestic violence. See 142 Cong. Rec. 22987
- 38 -
(statement of Sen. Murray) ("[T]he gun is the key ingredient most
likely to turn a domestic violence incident into a homicide.").
I dissent.
I.
The district court had instructed as to Rehaif's
knowledge-of-status element that the jury must find, as it did,
that Minor knew: (1) "he had been convicted of [the state
misdemeanor offense]"; (2) "the conviction subjected him to
incarceration of up to 364 days"; (3) "the conviction was for
causing bodily injury or offensive physical contact to another
person"; and (4) "the victim of the crime was his spouse at the
time." The majority holds this was insufficient, and that the
district court was required further to instruct the jury, as
requested by Minor, that it must find Minor knew his Maine violent
misdemeanor against his then-wife specifically qualified as a
"misdemeanor crime of domestic violence" under 18 U.S.C.
§§ 921(a)(33)(A), 922(g)(9). I strongly disagree.10
10 The majority and I agree the district court properly declined
to instruct the jury that it must find Minor knew he was prohibited
from possessing a firearm, as ignorance of the law is no defense.
See United States v. Austin, 991 F.3d 51, 59 (1st Cir. 2021)
("[Defendant] suggests that Rehaif would have obligated the
government to prove his 'subjective knowledge that he [was]
violating the law.' This is not the case." (alteration in
original)).
- 39 -
This court follows a "two-tiered" standard in reviewing
preserved claims of instructional error: "we consider de novo
whether an instruction embodied an error of law, but we review for
abuse of discretion whether the instructions adequately explained
the law or whether they tended to confuse or mislead the jury on
the controlling issues." United States v. Symonevich, 688 F.3d
12, 24 (1st Cir. 2012) (quoting United States v. Jadlowe, 628 F.3d
1, 14 (1st Cir. 2010)) (internal quotation marks omitted). When
a district court declines to give a requested instruction, that
refusal constitutes error only if the proposed instruction was
"(1) correct as a matter of substantive law, (2) not substantially
incorporated into the charge as rendered, and (3) integral to an
important point in the case." Id.The question ultimately is whether "the instructions
adequately illuminate the law applicable to the controlling issues
in the case without unduly complicating matters or misleading the
jury." United States v. DeStefano, 59 F.3d 1, 3 (1st Cir. 1995).
The district court's instructions did exactly this and no more was
needed.
A.
Rehaif's knowledge-of-status element was substantially
incorporated into the charge as rendered. I begin with the
definition of the relevant status, i.e., "misdemeanor crime of
- 40 -
domestic violence," to determine the elements of the offense Minor
had to be aware of.
For unlawful possession purposes, Congress defined
"misdemeanor crime of domestic violence" as any misdemeanor under
state or federal law that "has, as an element, the use or attempted
use of physical force" and is "committed by a current or former
spouse, parent, or guardian of the victim." 18 U.S.C.
§ 921(a)(33)(A). In United States v. Hayes, the Supreme Court
considered whether this definition would include, as here, any
misdemeanor battery where "the battered victim was in fact the
offender's spouse," or whether "to trigger the possession
ban, . . . the predicate misdemeanor [must] identify as an element
of the crime a domestic relationship between aggressor and victim."
555 U.S. at 418. The defendant in that case was challenging his
section 922(g)(9) unlawful possession conviction because his
predicate battery conviction did not have as an element a domestic
relationship between aggressor and victim, although the victim in
his case was his then-wife. Id. at 418–19. The Court rejected
his argument and held that a domestic relationship "need not be a
defining element of the predicate offense" in a section 922(g)(9)
prosecution. Id. at 418. Rather, a misdemeanor crime of domestic
violence has only two elements: (1) "the use or attempted use of
physical force, or the threatened use of a deadly weapon," and
(2) the crime "must be 'committed by' a person who has a specified
- 41 -
domestic relationship with the victim." Id. at 421 (quoting
section 921(a)(33)(A)).
The Court in Hayes went on to clarify that these elements
are satisfied so long as the government "charge[s] and prove[s] a
prior conviction that was, in fact, for an offense . . . committed
by the defendant against a spouse or other domestic victim." Id.
at 421 (ellipses in original) (internal quotation marks omitted).
The Court cited the law's legislative history in support,
explaining that "[c]onstruing [section] 922(g)(9) to exclude the
domestic abuser convicted under a generic use-of-force statute
(one that does not designate a domestic relationship as an element
of the offense) would frustrate Congress' manifest purpose." Id.at 426–27; see also id. at 427 ("[W]e find it highly improbable
that Congress meant to extend [section] 922(g)(9)'s firearm
possession ban only to the relatively few domestic abusers
prosecuted under laws rendering a domestic relationship an element
of the offense."); id. ("Even in [the one-third of States with
statutes specifically proscribing domestic violence], domestic
abusers were (and are) routinely prosecuted under generally
applicable assault or battery laws.").
Seven years later, the Supreme Court upheld the
application of section 922(g)(9) to the exact underlying assault
statute at issue in this case: section 207 of the Maine Criminal
Code. Voisine, 136 S. Ct. at 2272; Me. Rev. Stat. Ann., tit. 17-
- 42 -
A, § 207(1)(A). The state statute makes it a misdemeanor to
"intentionally, knowingly or recklessly cause[] bodily injury or
offensive physical contact to another person." Voisine, 136 S. Ct.
at 2277 (brackets in original) (quoting Me. Rev. Stat. Ann., tit.
17-A, § 207(1)(A)). A domestic relationship between the assailant
and victim is not an element of the offense, but the use of physical
force is. Id. at 2278. The Court held that the defendant's
possession of a gun following his conviction under
section 207(1)(A) for recklessly assaulting an individual who
happened to be a domestic relation violated section 922(g)(9).
Id. at 2282. The Court noted that "Congress enacted
[section] 922(g)(9) in order to prohibit domestic abusers
convicted under run-of-the-mill misdemeanor assault and battery
laws from possessing guns." Id. at 2278.
Rehaif did not overrule these precedents; rather, it
added a knowledge-of-status element. The precise holding in Rehaif
requires the jury to find only "that the defendant knew he
possessed a firearm and that he knew he belonged to the relevant
category of persons barred from possessing a firearm." 139 S. Ct.
at 2200; see also Wooden v. United States, 142 S. Ct. 1063, 1076
(Kavanaugh, J., concurring) ("The deeply rooted presumption of
mens rea generally requires the Government to prove the defendant's
mens rea with respect to each element of a federal offense, unless
- 43 -
Congress plainly provides otherwise." (citing Rehaif, 139 S. Ct.
at 2195)).
The district court here properly instructed the jury
that it must find Minor knew the elements of his prior offense
(including what the majority calls "collateral legal issues") that
rendered him a domestic violence misdemeanant, i.e., that he
previously was convicted of a misdemeanor, and that the conviction
was for causing bodily injury to his then-wife. See Hayes, 555
U.S. at 421; see also United States v. Johnson, 981 F.3d 1171,
1182 (11th Cir. 2020) ("[Under Rehaif,] the defendant must have
known that he was convicted of a misdemeanor, and he must have
known the facts that made that crime qualify as a misdemeanor crime
of domestic violence.").
Contrary to Minor's argument, this charge did not
"t[ake] away the jury's ability to consider whether Mr. Minor acted
with the requisite [knowledge]." The instructions appropriately
set forth the elements of a "misdemeanor crime of domestic
violence," and asked whether Minor was aware of those elements.11
Cf. Elonis v. United States, 575 U.S. 723, 735 (2015) ("[A]
defendant generally must 'know the facts that make his conduct fit
11 Had the district court instead instructed only that the jury
must find Minor knew he was a domestic violence misdemeanant, the
jurors likely would not have understood the instructions. There
was no error in the district court's decision to convert legal
jargon into a digestible definition for the jurors.
- 44 -
the definition of the offense.'" (quoting Staples v. United States,
511 U.S. 600, 607 n.3 (1994))); Liparota v. United States, 471
U.S. 419, 434 (1985) ("To prove that petitioner knew that his
acquisition or possession of food stamps was unauthorized, for
example, the Government need not show that he had knowledge of
specific regulations governing food stamp acquisition or
possession . . . Rather, as in any other criminal prosecution
requiring mens rea, the Government may prove by reference to facts
and circumstances surrounding the case that petitioner knew that
his conduct was unauthorized or illegal.").
B.
The majority incorrectly holds -- in the same breath
that it acknowledges ignorance of the law is no defense -- that
the jury should have been required to find further that Minor knew
the "legal import" of his prior state conviction for unlawful
possession purposes. In support, the majority states that the
Rehaif Court treated the prohibited status specified in section
922(g)(5)(A) -- "an alien . . . illegally or unlawfully in the
United States" -- as a collateral legal matter, knowledge of which
the defendant was required to have.12 Rehaif, 139 S. Ct. at 2198.
12 The majority states that "in Rehaif, the defendant clearly knew
that he was in the United States, and he knew all the facts that
rendered that presence unlawful. . . . Yet the Court found that
the government must show that he knew the legal import of those
facts." This is misleading. The issue in Rehaif was that the
trial court explicitly instructed that the jury need not find the
- 45 -
The majority misreads Rehaif. The Court had "express[ed] no view
. . . about what precisely the [jury must find as to] a defendant's
knowledge of status in respect to other [section] 922(g) provisions
not at issue [in that case]," noting the dissent's criticism of
applying this rule to the other statuses listed in section 922(g).
Id. at 2200.
The majority's position as to section 922(g)(9) is
untenable. The majority may be correct that Rehaif's knowledge-
of-status element for section 922(g)(9) requires that the
defendant know some collateral legal issues, such as that his prior
conviction was a misdemeanor, and that an element of the offense
was the use of physical force. See Hayes, 555 U.S. at 421.
Requiring knowledge of such legal facts would help prevent against
convicting "innocent minds" similar to the "alien who was brought
into the United States unlawfully as a small child" that the Rehaif
majority was concerned about. Rehaif, 139 S. Ct. at 2198. But
Rehaif does not require for a section 922(g)(9) conviction the
government to prove, and the jury to find, that the defendant had
specific legal knowledge that his prior state conviction fell
defendant knew he was in the country unlawfully. 139 S. Ct. at
2194. In holding this was error, the Supreme Court did not state
specifically what the jury was required to find as to the
knowledge-of-status element, nor did it conduct the harmless error
analysis to determine whether the record showed the defendant had
such knowledge. Id. at 2200.
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within the definition of "misdemeanor crime of domestic violence"
set forth in section 921(a)(33)(A).
i.
Supreme Court precedent dictates that a defendant
typically is charged only with knowing "the facts that make his
conduct fit the definition of the offense," and not "that those
facts give rise to a crime." Elonis, 575 U.S. at 735 (quoting
Staples, 511 U.S. at 608 n.3). Yet the majority's unfortunate
holding will require the government to prove in a section 922(g)(9)
prosecution the defendant knew his prior state conviction barred
him from possessing a firearm. Cf. Austin, 991 F.3d at 59 (holding
a defendant need not know he is a prohibited person to be convicted
of unlawful possession under section 922(g)). It cannot reasonably
be said in a section 922(g)(9) prosecution that a defendant's
status as a domestic violence misdemeanant is itself "collateral"
to the offense. Unlike the legality of an alien's presence in the
United States, a defendant's status as a domestic violence
misdemeanant under section 922(g)(9) is tied specifically to the
unlawful possession statute. See 18 U.S.C. §§ 921(a)(33)(A),
922(g)(9). The status (as opposed to its elements) has no legal
import other than to prohibit certain individuals from possessing
firearms.
The majority tries to avoid this reasoning by misreading
Liparota v. United States. 471 U.S. 419. The Court in Liparota
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held that the offense of "knowingly us[ing], transfer[ing],
acquir[ing], alter[ing], or possess[ing] [Food Stamps] in any
manner not authorized by [law]" required proof the defendant knew
his use of food stamps was unauthorized. Id. at 420, 423–25. The
Court there clarified that the government could establish such
knowledge "by reference to facts and circumstances surrounding the
case," and that the defendant need not have "knowledge of specific
regulations governing food stamp acquisition or possession." Id.
at 434. The Rehaif majority relied on Liparota for the premise
that a criminal defendant can be charged with knowledge of certain
collateral legal matters without violating the maxim that
ignorance of the law is no defense, 139 S. Ct. at 2198, and the
Court in Elonis construed Liparota as requiring "knowledge of the
facts that made the use of the food stamps unauthorized," 575 U.S.
at 736.
After Liparota,13 the Supreme Court considered in Staples
whether there was a knowledge element in the offense of unlawful
possession of an unregistered machinegun, and what proof the
element would require. 511 U.S. at 602. The Court held there
was, stating the government must prove the defendant knew only
that "the weapon he possessed had the characteristics that brought
13 The majority analyzes these precedents in reverse chronological
order.
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it within the statutory definition of a machinegun." 511 U.S. at
602. The Court did not hold the defendant needed to know the
statutory definition of a machinegun. Id. at 619; see also id. at
622 n.3 (Ginsburg, J., concurring) ("The mens rea presumption
requires knowledge only of the facts that make the defendant's
conduct illegal, lest it conflict with the related
presumption . . . that, ordinarily, 'ignorance of the law or a
mistake of law is no defense to criminal prosecution.'" (quoting
Cheek v. United States, 498 U.S. 192, 1999 (1991))).
The majority contends Rehaif's reading of Liparota
required the government to prove, and the district court to have
instructed the jury it must find, that Minor knew his prior state
conviction qualified specifically as a misdemeanor crime of
domestic violence under federal law. This is incorrect. The
correct approach to the knowledge-of-status element under the
precedents just described is the one taken by the Eleventh Circuit
in United States v. Johnson. 981 F.3d 1171.
In Johnson, the defendant was found guilty of violating
section 922(g)(9) for possessing a firearm despite having been
previously convicted of a misdemeanor battery against his wife.
Id. at 1176. Similar to here, it was stipulated in Johnson that
the defendant knew he previously had been convicted of "a
misdemeanor for engaging in physical violence against his wife."
Id. at 1178. The defendant nonetheless brought a sufficiency-of-
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the-evidence challenge as to Rehaif's knowledge requirement
because he did not know he was legally prohibited from possessing
the firearm. Id. at 1178, 1188–89. The Eleventh Circuit rejected
the challenge. "Applying the principles from the teachings of
Rehaif, Liparota, Elonis, and Staples to Section 922(g)(9)'s
status requirement," the Eleventh Circuit concluded the defendant
"must have known that he was convicted of a misdemeanor, and he
must have known the facts that made that crime qualify as a
misdemeanor crime of domestic violence." Id. at 1182. This
requires the defendant to know a collateral legal matter, i.e.,
that his prior conviction was a misdemeanor, without requiring the
defendant know of the specific statute defining "misdemeanor crime
of domestic violence." Cf. Liparota, 471 U.S. at 434. Knowledge
of the facts surrounding the prior misdemeanor conviction would be
sufficient. Cf. id.In line with Rehaif and the other controlling Supreme
Court law, the court then held that
a person knows he is a domestic-violence
misdemeanant, for Rehaif purposes, if he knows
all the following: (1) that he was convicted
of a misdemeanor crime, (2) that to be
convicted of that crime, he must have engaged
in at least "the slightest offensive
touching," United States v. Castleman, 572
U.S. 157, 163, 134 S. Ct. 1405, 188 L. Ed. 2d
426 (2014) (internal citations omitted), and
(3) that the victim of his misdemeanor crime
was, as relevant here, his wife.
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Johnson, 981 F.3d at 1175. The defendant in Johnson, just as
Minor, knew these material facts, so the court affirmed his
conviction and sentence.
This case is distinguishable from our decisions in
United States v. Guzmán-Merced, 984 F.3d 18 (1st Cir. 2020) and
United States v. Patrone, 985 F.3d 81 (1st Cir. 2021) upon which
the majority relies. The question in both those cases was whether
there was a "reasonable probability" the defendant "would not have
pled guilty had he been advised of th[e] essential [mens rea]
element of the government's burden of proof," Guzmán-Merced, 984
F.3d at 19; see also Patrone, 985 F.3d at 83, not what was required
to prove the essential mens rea element.14
This court vacated the defendant's guilty plea,
conviction, and sentence in Guzmán-Merced because it found the
record lacking as to whether the defendant knew he previously was
convicted of felonies as required for conviction under
section 922(g)(1). There was doubt as to whether the defendant
knew the material collateral issue that made his predicate offenses
felonies, namely, that they were punishable by more than one year
14 This court held in Patrone that the Rehaif error would have no
effect on the defendant's decision to plead guilty because he also
had been charged with a "related and more serious drug charge, for
which the government's proof was overwhelming," leaving the
defendant with "no reasonable option but to plead guilty." 985
F.3d at 86.
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in prison. The doubt was because the defendant had not served any
time in prison for his prior offenses, he was eighteen years old
when convicted, and "he ha[d] a limited education and diagnosed
learning disabilities." Guzmán-Merced, 984 F.3d at 20. Here, the
district court's instructions did not leave room for such doubt.
The charge required the jury to determine whether Minor knew the
material elements (collateral legal issues and otherwise) that
made his prior state conviction a misdemeanor crime of domestic
violence. The district court asked the jury whether Minor knew he
previously was convicted of a misdemeanor, whether the offense
involved the use of physical force to another, and whether the
victim happened to be a domestic relation. The jury found that
Minor had such knowledge,15 as it was undisputed at trial that, at
the time he possessed a firearm, Minor knew he previously was
convicted of a misdemeanor crime of violence under Maine law, and
that the victim of the offense was his then-wife.16
15 Noteworthy, unlike the defendant in Guzmán-Merced who had
limited education, Minor has an associate's degree in applied
science.
16 For similar reasons, United States v. Triggs, 963 F.3d 710 (7th
Cir. 2020), the out-of-circuit opinion on which Minor relies, is
inapposite and unpersuasive. Unlike Minor, who was found guilty
by a jury on remand after the Supreme Court rendered its decision
in Rehaif, the defendant in Triggs had pled guilty to violating
section 922(g)(9) before Rehaif and, afterwards, the government
conceded a Rehaif error. Id. at 714, 716. Also notable, in
vacating the defendant's conviction, the Seventh Circuit primarily
relied on the "comparative complexity" of the misdemeanor crime of
violence definition in 18 U.S.C. § 921(a)(33), id. at 716, but
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ii.
As the majority admits, the definition of "misdemeanor
crime of domestic violence" is "quite complex." The jury here was
properly instructed, and found beyond a reasonable doubt, that
Minor knew he had been convicted of a crime of violence, to wit:
assault; that the crime was a misdemeanor; that the person he
assaulted was his wife; and thus, that he knew he had been
convicted of a misdemeanor crime of domestic violence. The
majority rules this was not enough, and that the instructions had
to provide Minor knew more than that.17 The majority's rule risks
rendering section 922(g)(9) a near nullity, and defeating
Congress's intent to prevent domestic violence from escalating to
murder. As Justice Alito has commented, this is not "what Congress
had in mind when it added this category in 1996 to combat domestic
violence[.]" Rehaif, 139 S. Ct. at 2208 (Alito, J., dissenting).
The "practical considerations" discussed in Hayes also
undercut the majority's reasoning.18 As the Court acknowledged,
failed to explain how a criminal defendant is expected to
understand that complexity. The court also failed to discuss the
controlling Supreme Court precedents described above, i.e., Hayes
or Voisine, which help clarify the definition.
17 The majority's rule will result in a loss of the protections
found in section 922(g)(9) in situations where state prosecutors,
in order to secure convictions, accept plea bargains of "assaults"
in cases of domestic violence.
18 The district court also did not abuse its discretion in
excluding Minor's self-serving testimony that he did not know he
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Congress extended the federal firearm prohibition to domestic
violence misdemeanants to "keep[] firearms out of the hands of
domestic abusers" because "[f]irearms and domestic strife are a
potentially deadly combination nationwide." 555 U.S. at 426–27;
see also Voisine, 136 S. Ct. at 2281 ("Congress passed [section]
922(g)(9) to take guns out of the hands of abusers convicted under
the misdemeanor assault laws then in general use in the States.");
Kanter v. Barr, 919 F.3d 437, 466 (7th Cir. 2020) (Barrett, J.,
dissenting) ("'[N]o one doubts that the goal of [section]
922(g)(9), preventing armed mayhem, is an important governmental
objective' and '[b]oth logic and data establish a substantial
relation between [section] 922(g)(9) and this objective.'"
(quoting United States v. Skoien, 614 F.3d 638, 642 (7th Cir. 2010)
(en banc) and citing id. at 644 ("[N]o matter how you slice these
numbers, people convicted of domestic violence remain dangerous to
their spouses and partners."))). This purpose and the provision's
protection against further violence towards domestic violence
victims are frustrated by the majority's newfound rule.
II.
I dissent.
was prohibited from possessing a gun, as ignorance of the law is
no excuse.
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