United States v. Jeffrey Boyd ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-2989
________________
UNITED STATES OF AMERICA
v.
JEFFREY BOYD,
Appellant
________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 4-18-cr-00281-001)
District Judge: Honorable Matthew W. Brann
________________
Argued on September 23, 2020
Before: AMBRO, PORTER, and ROTH, Circuit Judges
(Opinion filed: May 28, 2021)
Heidi R. Freese
Frederick W. Ulrich (Argued)
Tammy L. Taylor
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
David J. Freed
Michelle L. Olshefski (Argued)
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
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OPINION OF THE COURT
________________
AMBRO, Circuit Judge
A state court in Oklahoma ordered Jeffrey Boyd to stay
away from his ex-wife and his son, surrender his firearms, and
undergo a mental health evaluation. After his arrest in
Pennsylvania with a loaded handgun, a jury convicted Boyd of
possessing a firearm while subject to a domestic violence
protective order, in violation of 18 U.S.C. § 922(g)(8). He
2
appeals, contending (1) his trial was tainted by (a) improper
jury instructions, (b) unduly prejudicial evidence, and (c)
prosecutorial misconduct, and (2) the firearm prohibition
violates his Second Amendment right of gun possession. We
conclude that any trial errors were harmless and that Congress
can constitutionally disarm those subject to certain protective
orders, including Boyd. We thus affirm his conviction.
Just months after Boyd’s trial, the Supreme Court issued
Rehaif v. United States, 139 S. Ct. 2191 (2019), a decision on
the proof required for a conviction under § 922(g). After
Rehaif, the Government must show not only that a defendant
was subject to a qualifying protective order at the time he
possessed a gun, but also that he knew about the protective
order. The District Court had not instructed the jury on this
knowledge element, and Boyd now claims this error entitles
him to a new trial. But we will not order a new trial when an
error is harmless, and here the trial record contains
overwhelming evidence of Boyd’s knowledge, including his
own admissions in a letter to the state court.
Next, Boyd argues the District Court erred by admitting
into evidence statements that he made about harming then-
President Trump’s family. Given the limited scope of facts
needed to prove a violation of § 922(g)(8), we are concerned
by the decision to admit this clearly prejudicial evidence.
Nonetheless, introduction of the statements did not contribute
to the verdict, leaving any error harmless.
Third, Boyd points to repeated statements in the
prosecution’s closing argument that accused the defense of
“misleading” the jury, hence alleging they amount to
prosecutorial misconduct worthy of a mistrial. Without
3
opining on the appropriateness of these statements, we
conclude that the context, jury instructions, and weight of the
evidence make any error harmless.
Finally, Boyd contends § 922(g)(8) violates the Second
Amendment as applied to him and others whose protective
orders were issued without an explicit finding that they pose a
credible threat to their intimate partners or their children. But
we hold that Boyd has failed to distinguish himself from a class
of presumptively dangerous persons who have historically
been excluded from the Second Amendment’s protections.
And even if he could distinguish himself from this class, the
Government’s application of § 922(g)(8) would survive
heightened scrutiny, as the statute is substantially related to the
goal of reducing domestic violence, an indisputably important
state interest. In upholding § 922(g)(8) against this as-applied
constitutional challenge, we now join the other circuits to have
considered the issue.
I. Background
In October 2017, Connor Manley first began noticing
symptoms of mental health issues in his father, Jeffrey Boyd.
Boyd’s appetite became nearly nonexistent, and he lost
considerable weight. He experienced seizures, panic attacks,
and bouts of paranoia, believing that people were carrying out
experiments on him. In February 2018, Connor fled from his
father’s home.
4
One month later, Connor, Jennifer Manley (Boyd’s ex-
wife and Connor’s mother),1 and Eric Hatheway (Jennifer’s
new husband) each applied for and were granted ex parte
protective orders in Oklahoma state court. 2 The information in
the trial record surrounding the protective order is limited, as
Boyd successfully petitioned the District Court to exclude any
evidence of the events that spawned its entry. We know by
Jennifer’s admission that Boyd had never physically injured
her, nor could she recall his ever threatening her with physical
injury. Yet, based on his father’s behavior and statements,
Connor believed that Boyd “could strike out violently towards
[his] mother . . . during an episode [of] psychosis” and posed a
“moderate danger” to the general public. App. at 487. Jennifer
knew that Boyd possessed firearms, which made obtaining a
protective order that prohibited firearm possession of
“[a]bsolute importance” to her. Id. at 283.
The Tulsa County Sheriff’s Office personally served
Boyd with the protective order. Two weeks later, an Oklahoma
state judge held a hearing on whether the order should
continue. According to the docket, the hearing took place,
Boyd appeared, and the court took testimony. Both Jennifer
and Connor recounted that Boyd had the opportunity to make
his case to the judge. Jennifer recalled that Boyd
unequivocally objected to everything in the order, and Connor
recalled that his father characterized Connor’s letter to the
court as “the craziest thing he had ever read.” App. at 296.
1
We refer to these persons by their first names to avoid
confusion because Jennifer and Connor share a last name.
2
Each of the three protective orders was docketed separately.
We generally cite only to Jennifer Manley’s order and our
references to a singular “order” refer to that order.
5
The judge then continued the order of protection until
September 2018. It contained eleven prewritten terms, of
which she checked three to apply as written, including a term
prohibiting Boyd from having “any contact” with Jennifer and
two other terms that prohibited him from:
injuring, abusing, sexually assaulting, molesting,
harassing, stalking, threatening, or otherwise
interfering with [Jennifer,] and from use,
attempted use or threatened use of physical force
against [her] that would reasonably be expected
to cause bodily injury [; and]
engaging in other conduct that would place [her]
in reasonable fear of bodily injury to [her or her]
household members or relatives.
App. at 550. The judge also applied a fourth prewritten term
to Boyd—that he “shall immediately surrender all firearms and
other dangerous weapons within [his] possession or control
and any concealed carry license,” with the written-in
modification that this surrender was to be to law enforcement.
Id. at 551. Finally, in an open box, the judge applied two
customized terms to Boyd. First, he was to stay 100 yards
away from Jennifer. Second, in addition to these terms, which
were also present in the earlier order served on him prior to the
hearing, the judge ordered that Boyd undergo a mental health
assessment and follow all recommendations. Finally, the order
repeated a warning present in the earlier order: “Possession of
a firearm or ammunition by a defendant while an order is in
effect may subject the defendant to prosecution for a violation
of federal law . . . .” Id. at 547, 552.
6
In July 2018, while the continued protective order was
still in effect, Boyd drove from Oklahoma to Pennsylvania to
meet with Kathryn Kelchner, a woman he followed on Twitter
and had conversed with only a few times. Boyd showed up
unexpectedly in Kelchner’s driveway, and she met him for
lunch the following day. Kelchner testified that at lunch Boyd
stated that he was receiving messages from the CIA and
hearing voices that told him to kill then-President Trump and
three members of his family.
Kelchner recorded some of Boyd’s statements and
reported her encounter to the Pennsylvania State Police.
Troopers searched for Boyd and found him sleeping in his
parked truck. On waking him, they asked whether he had any
weapons in the vehicle, and he replied that he had a gun. After
speaking with Boyd further, the troopers took him into custody
and searched the car, finding a loaded handgun and two
additional magazines. Due to Boyd’s threats against the then-
President, the subsequent investigation was conducted jointly
with the Secret Service.
Charges of terroristic threats under Pennsylvania law
followed. Though those charges were dropped, a federal grand
jury indicted Boyd on one count of possession of a firearm in
violation of 18 U.S.C. § 922(g)(8), which makes it a crime for
any person . . . who is subject to a court order
that—
(A) was issued after a hearing of which
such person received actual notice, and at
which such person had an opportunity to
participate;
7
(B) restrains such person from harassing,
stalking, or threatening an intimate
partner of such person or child of such
intimate partner or person, or engaging in
other conduct that would place an
intimate partner in reasonable fear of
bodily injury to the partner or child; and
(C) (i) includes a finding that such
person represents a credible threat
to the physical safety of such
intimate partner or child; or
(ii) by its terms explicitly prohibits
the use, attempted use, or
threatened use of physical force
against such intimate partner or
child that would reasonably be
expected to cause bodily injury . . .
to . . . possess in or affecting commerce, any
firearm or ammunition . . . .
While in jail pending trial in federal court, Boyd wrote
a letter to the Oklahoma state court judge to alert her that he
would be missing his court date for the protective order. This
letter was entered into evidence at the federal trial.
At trial, his counsel conceded that it was “essentially
undisputed” that Boyd possessed a firearm in interstate
commerce and that he was subject to a restraining order
containing the provisions required by § 922(g)(8). App. at 199.
He even suggested that Boyd “would be a misdemeanant in the
State of Oklahoma” because he violated the order to surrender
8
his firearms. App. at 200, 361. Instead of challenging these
elements, the counsel mounted a narrow defense that focused
primarily on the “hearing” and “opportunity to participate”
requirements of § 922(g)(8)(A). He stressed that there was no
transcript of the hearing before the Oklahoma court and
suggested that Connor and Jennifer’s testimony about what
went on at the hearing was biased. Boyd’s counsel contrasted
the continued protective order’s statement that Boyd “has been
or will be provided with reasonable notice and opportunity to
be heard” with the “final” Oklahoma protective order’s
definitive statement that he “has been” provided with the same.
Compare App. at 476 with App. at 480 (emphasis added). A
further contention was that, although another hearing from the
same day noted on the docket that an order was issued “without
objection” from the defendant, the docket for Boyd was silent
on whether he had an opportunity to object. Compare App. at
496 with App. at 502.
In line with this strategy, Boyd’s proposed jury
instructions included a requirement that he “knew that he was
subject to a court order that . . . [w]as issued after a hearing of
which [he] received actual notice, and at which [he] had an
opportunity to participate.” App. at 103. The District Court
declined to include this instruction, and the jury found Boyd
guilty of the one count charged. His sentence was time served,
which amounted to just over one year of imprisonment, and
three years of supervised release.
9
II. Discussion3
A. The Failure to Include a Rehaif Jury Instruction
It is a felony for a person “knowingly” to violate
§ 922(g)(8); to do so is punishable by up to ten years in prison.
18 U.S.C. 924(a)(2). As Boyd acknowledges, the District
Court was following established precedent when it interpreted
this knowledge requirement to apply only to gun possession.
See, e.g., United States v. Huet, 665 F.3d 588, 596 (3d Cir.
2012). The Supreme Court subsequently 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.”
Rehaif, 139 S. Ct. at 2200. The Government concedes that lack
of a jury instruction stating that Boyd must know he was
subject to a qualifying protective order was technically an
error. But failing to include that element in the jury instruction
was not a structural error that requires automatic reversal. See
United States v. Vazquez, 271 F.3d 93, 103 (3d Cir. 2001) (en
banc).
1. The standard and scope of our review
If a party timely objects to a missing jury instruction,
we ask whether the omission was harmless, which here means
we may not reverse if the Government shows “beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Neder v. United States, 527
3
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
10
U.S. 1, 15 (1999) (quoting Chapman v. California, 386 U.S.
18, 24 (1967)); Vazquez, 271 F.3d at 103; Fed. R. Crim. P.
52(a). Otherwise, reversal is permitted, in our discretion, only
if the error is plain and the defendant shows it affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732–
36 (1993); Vazquez, 271 F.3d at 99; Fed. R. Crim. P. 52(b).
To his credit, counsel for Boyd objected to the exclusion
of the knowledge element. Was that missing element, though
an error, harmless? The Supreme Court has upheld convictions
on harmless error review, for example, where “the omitted
element was uncontested and supported by overwhelming
evidence.” Neder, 527 U.S. at 17. We do not read
“uncontested” literally to restrict harmless error to cases where
the defendant made no attempt whatsoever to dispute the
element, but rather more generally to mean the missing piece
“is supported by uncontroverted evidence.” Id. at 18.
The search for “overwhelming evidence” is not
unlimited but confined to the trial record. United States v.
Nasir, 982 F.3d 144, 170 (3d Cir. 2020) (en banc) (holding the
same in the context of plain error review), petition for cert.
filed, No. 20-1522 (Apr. 30, 2021); id. at 197 (Porter, J.,
concurring in part and dissenting in part) (noting that the
substantial-rights portion of plain error review “is essentially
harmless-error analysis, and as the majority itself
acknowledges, all agree that it is based on the trial record”). 4
Boyd further cites the Fourth Circuit’s recent decision in
United States v. Medley, 972 F.3d 399, 413 (4th Cir. 2020),
4
Because there is overwhelming evidence in the trial record
alone, our conclusion would be the same if we were permitted
to consider the entire record.
11
reh’g en banc granted, 828 F. App’x 923 (4th Cir. 2020),
which declined to evaluate a pre-Rehaif conviction based on
the existing trial record because “it is inappropriate to speculate
whether a defendant could have challenged the element that
was not then at issue.” Id. (citing United States v. Brown, 202
F.3d 691, 700 n.18 (4th Cir. 2000)).
Medley, however, does Boyd no favors. For in that case
there “was not ‘overwhelming evidence’ of [the defendant’s]
knowledge of his prohibited status presented at trial and [he]
did not contest this knowledge.” Id. We are far afield here.
Boyd claims that, “in [his] case, his knowledge of his status
was hotly contested,” and “[a]t his trial, [his] defense hinged
on the argument that he did not ‘know’ that he was in the class
of prohibited persons.” Rule 28(j) letter, ECF No. 56; Boyd’s
Op. Br. at 16. And further, he proposed a Rehaif-style jury
instruction. We need not speculate how Boyd would defend
against a knowledge element, because by his own admission
he actually mounted such a defense. Cf. United States v.
Kaspereit, 994 F.3d 1202, 1208–09 (10th Cir. 2021) (rejecting
an argument that failure to include a Rehaif instruction required
a new trial where the omitted element was clearly at issue in
the trial, stressing that “the government offered ample evidence
that Defendant knew the order remained in place” and that the
jury had necessarily made a finding on the defendant’s
knowledge by finding him guilty of making a false statement
related to the protective order).
Accordingly, we can probe for “overwhelming
evidence” in the trial record.
12
2. Overwhelming record evidence establishes Boyd’s
knowledge.
In general, the Government must show that a defendant
knew he belonged to a category of persons described by
§ 922(g) at the time he possessed a firearm. Rehaif, 139 S. Ct.
at 2200. Within the facts of Rehaif, this meant simply that
Rehaif knew he was “illegally or unlawfully in the United
States.” Id. at 2194 (referring to § 922(g)(5)(A)). But not
every class of § 922(g) is described so succinctly, and the
Supreme Court was careful to note that it “express[ed] no view
. . . about what precisely the Government must prove to
establish a defendant’s knowledge of status in respect to other
§ 922(g) provisions.” Id. at 2200.
In the context of § 922(g)(8), the knowledge
requirement is less straightforward. At a minimum, the
Government must prove that Boyd knew he was subject to a
protective order. But is there more? Must the Government
further prove, for example, that he knew that his order
explicitly prohibited the “use, attempted use, or threatened use
of physical force”? Cf. Rehaif, 139 S. Ct. at 2207–08 (Alito, J.
dissenting) (suggesting that § 922(g)(8) may require the
Government to prove knowledge of no fewer than six different
facts).
At the outset, we “doubt that the obligation to prove a
defendant’s knowledge of his status will be as burdensome” as
some may suggest, even under the most restrictive possible
formulations of the knowledge requirement. Rehaif, 139 S. Ct.
at 2198. We agree with the Government that the same evidence
that shows a defendant is objectively subject to a qualifying
order will often also provide sufficient circumstantial evidence
13
to infer the defendant’s subjective knowledge of his status.
Gov’t’s Br. at 22; see Rehaif, 139 S. Ct. at 2198 (citing to
Staples v. United States, 511 U.S. 600, 615 n.11 (1994), to
emphasize that “knowledge can be inferred from
circumstantial evidence”). For example, personal service of an
order that contains certain terms may alone be enough to infer
that a defendant knew he was subject to an order containing
those specific terms.5 See United States v. Baker, 641 F.2d
1311, 1316 (9th Cir. 1981) (holding that personal service “may
be desirable” in the contempt context, although it is not
necessary if there is other evidence of knowledge).
Nonetheless, we need not today grapple with all of the wrinkles
that § 922(g)(8) may present because Boyd does not
meaningfully dispute most aspects of his knowledge that
conceivably could have been raised, and in any event all of
them are supported by overwhelming record evidence.6
5
We are particularly disinclined, for example, to allow a
defendant to escape liability on a technicality by claiming that
he skipped over a sentence while reading the order or didn’t
know the exact words it contained. Cf. N.L.R.B. v. Sequoia
Dist. Council of Carpenters, AFL-CIO, 568 F.2d 628, 634 (9th
Cir. 1977) (concluding that “there was evidence [to] conclude
that [the parties] had actual notice of the order’s terms by virtue
of their long-standing relation to the underlying controversy”);
United States v. Christie Indus., Inc., 465 F.2d 1002, 1007 (3d
Cir. 1972) (holding that while an order may not be ambiguous,
“this is not to say that where an injunction does give fair
warning of the acts that it forbids, it can be avoided on merely
technical grounds”).
6
Items of evidence included personal service of the ex parte
order—a full two weeks before the state court hearing—that
listed the terms required by § 922(g)(8) and set the time and
14
Boyd’s limited argument, both at trial and on appeal, is
that he did not know that he had an “opportunity to participate”
at his hearing as required by § 922(g)(8)(A). On its face, this
argument is plausible in light of Rehaif, which held that a
defendant may rebut the knowledge requirement of § 922(g)
by arguing a bona fide mistake of law, meaning that he “has a
mistaken impression concerning the legal effect of some
collateral matter.” 139 S. Ct. at 2198 (quoting 1 W. LaFave &
A. Scott, Substantive Criminal Law § 5.1(a), p. 575 (1986)).
We need not decide whether a mistake-of-law defense is
available in this context because, even if it were, we conclude
that the Government has nonetheless provided overwhelming
evidence to demonstrate Boyd’s knowledge. See Liparota v.
place of the hearing. App. at 244–49, 544, 548. And any doubt
is resolved by evidence that Boyd was actually aware of the
order and its terms. A Secret Service agent testified that Boyd,
during the agency’s investigation, told him that Boyd’s family
had an order of protection against him. App. at 234. And
further, Boyd’s actions demonstrate knowledge of two terms
in the order: (1) he apparently attempted to sidestep the “no
contact” term by asking his sister to convey secret messages to
Connor because he could not communicate with him directly,
App. at 315, 571, 579, and (2) he acknowledged the protective
order’s mental health assessment term in a letter to the state
court judge. App. at 491. It is illogical to believe Boyd lacked
knowledge of terms #2 and #3 in the order (the § 922(g)(8)
prohibitions) when he demonstrated his knowledge of terms #1
and #11 (the “no contact” and mental health provisions).
Likewise, Boyd does not argue that he lacked knowledge that
Jennifer, his ex-wife and the mother of his son, qualified as an
“intimate partner,” nor does he present any evidence that
would disprove that reasonable inference.
15
United States, 471 U.S. 419, 434 (1985) (holding that the
Government is not required to “introduce any extraordinary
evidence that would conclusively demonstrate petitioner’s
state of mind . . . . [but rather] may prove [the defendant’s
knowledge] by reference to facts and circumstances
surrounding the case”).
The order that was served on Boyd prior to the
Oklahoma hearing stated explicitly that he would be provided
with an “opportunity to be heard.” App. at 544. And the same
evidence showing the court actually provided Boyd with an
opportunity to participate also convinces us he knew he had
that opportunity. Section 922(g)(8) does not require a final
order or a particular hearing scope or duration, and “the plain
text of the statute indicates that the ‘opportunity to participate’
requirement is a minimal one.” United States v. Young, 458
F.3d 998, 1009 (9th Cir. 2006). Here it means that “a
reasonable person in [Boyd’s] position would have understood
that he was permitted to interpose objections or make an
argument as to why an order of protection should not be
imposed.” United States v. Bramer, 956 F.3d 91, 98 (2d Cir.
2020); see also Kaspereit, 994 F.3d at 1212 (“The government
satisfies its burden if it presents legally sufficient evidence to
show that a reasonable person would have understood the
hearing as a chance to raise an objection, even if the defendant
agrees to the order or does not otherwise object.”); United
States v. Wilson, 159 F.3d 280, 292 (7th Cir. 1998) (concluding
that “[t]he terms ‘hearing’ and ‘opportunity to participate’ are
not arcane legal terms that the general public does not
understand”). Our sister circuits have found this low bar met
when, for example, the defendant and the judge “engaged in a
lengthy dialogue,” Young, 458 F.3d at 1009, but have found it
lacking when, for example, “[n]o evidence suggests that the
16
court engaged in any type of exchange with [the defendant],”
Bramer, 956 F.3d at 98.
Both Jennifer and Connor testified that Boyd was
present at the hearing, and they were able to hear him interact
with the judge. App. at 282, 295–96. Jennifer recounted that
Boyd unequivocally objected to everything in the orders and
had follow-up conversations with the judge. App. at 282.
Connor reported that his father disputed the allegations in
Connor’s letter to the court. App. at 296. Boyd presented no
evidence to rebut their accounts of the hearing other than
questioning their purported biases, and their accounts comport
with the docket’s notation that he was sworn in and testimony
was taken. Indeed, in his letter to the state court judge Boyd
acknowledged that he “appeared in [her] court for a hearing
related to three emergency protective orders.” App. at 524.7
In fact, the evidence in this case—including that Boyd’s
order required him to surrender his firearms and alerted him
that keeping them may violate federal law—is so strong it
could conceivably support a finding that Boyd knew he could
not legally possess a firearm, a bar far higher than the
Government’s actual burden. See Rehaif, 139 S. Ct. at 2198
7
We are not persuaded that Boyd’s knowledge is negated
merely because the hearing may have been short or by his
comparisons to his final order and an unrelated hearing before
the same court. Cf. Sunderland v. Zimmerman, 441 P.3d 179,
182–83 (Okla. Civ. App. 2019) (holding that, after a hearing,
“the trial court has discretion to issue or continue an emergency
temporary order” and that even though the continued order set
a date for a “final” hearing, the parties had nonetheless already
been provided a “full hearing”).
17
(distinguishing a defendant who is unaware of his status as
member of one of the classes set out in § 922(g) from one who
is “unaware of the existence of a statute proscribing his
conduct”); Kaspereit, 994 F.3d at 1208 (holding that “Rehaif
does not require that Defendant knew his status prohibited his
possession of a firearm, just that he knew of his status—in this
case that he was subject to a protective order such as the one
described in § 922(g)(8)”); United States v. Maez, 960 F.3d
949, 955 (7th Cir. 2020) (holding that Ҥ 922(g) requires
knowledge only of status, not knowledge of the § 922(g)
prohibition itself”); United States v. Bowens, 938 F.3d 790, 797
(6th Cir. 2019) (holding that such a broad reading of Rehaif
“runs headlong into the venerable maxim that ignorance of the
law is no excuse”).
To us “the jury verdict would have been the same” even
if the jurors were instructed to consider Boyd’s knowledge that
he was subject to a qualifying protective order, including that
he had an opportunity to participate in the hearing. Neder, 527
U.S. at 17.
B. Evidentiary Errors
The District Court rejected Boyd’s attempt to exclude,
under Rule of Evidence 404(b), evidence of the statements he
made about killing the then-President or then-First Family
members. We address de novo whether, as a matter of law,
evidence falls within the scope of Rule 404(b), which provides
that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with
the character.” Fed. R. Evid. 404(b)(1); see United States v.
18
Cruz, 326 F.3d 392, 394 (3d Cir. 2003).8 If the evidence could
be admissible, we only review its admission for abuse of
discretion. Cruz, 326 F.3d at 394. Even if that bar is met, this
error can be harmless “when there is a ‘high probability’ that
the discretionary error did not contribute to the verdict.”
Langbord v. U.S. Dep’t of the Treasury, 832 F.3d 170, 196 (3d
Cir. 2016) (en banc) (citation omitted).
Admitting this evidence, which is clearly prejudicial to
Boyd and provides little-to-no value in proving the limited
elements of § 922(g)(8), is arguably an error. See United States
v. Green, 617 F.3d 233, 249–52 (3d Cir. 2010) (holding that
even evidence that has some value in “complet[ing] the story
of the crime” or “explain[ing] why [the defendant] was under
investigation” must satisfy the requirements of Rule 403,
which “permits a trial judge to exclude relevant evidence if its
probative value is substantially outweighed by the danger of
unfair prejudice.” (internal quotation marks omitted)). But we
need not hold whether the District Court abused its discretion
in admitting this evidence, for if there was an error we believe
that it would be harmless.
As we explained in Section II.A, supra, this was not a
difficult case to prove guilt. The elements that the Government
8
We note that this rule was revised between Boyd’s trial and
the filing of this opinion. Relevant to us, “the word ‘other’ is
restored to the location it held before restyling in 2011, to
confirm that Rule 404(b) applies to crimes, wrongs and acts
‘other’ than those at issue in the case.” Fed. R. Evid. 404(b)(1),
advisory committee’s note to 2020 amendment. This revision,
for which “[n]o substantive change [was] intended,” id., has no
bearing on our analysis and conclusion on this issue.
19
needed to prove a § 922(g)(8) violation (gun possession while
under a qualifying protective order and Boyd’s knowledge of
the same) were supported by “abundant evidence” in the
record. United States v. Bailey, 840 F.3d 99, 124 (3d Cir. 2016)
(concluding that the District Court had erred in admitting a
substantially prejudicial video of a graphic murder, but that
even this error was harmless in light of the strength of the
evidence). The Government accordingly “was able to clearly
and convincingly prove the elements of its case without
reliance on the tainted evidence.” Langbord, 832 F.3d at 196.
Even a jury predisposed to find in Boyd’s favor would struggle
to find any way to escape the clear and overwhelming evidence
of his guilt.
C. Prosecutorial Misconduct
In its closing the Government argued that Boyd had
attempted to “mislead” the jury by suggesting that the
protective order hearing was ex parte (meaning with only one
side present). App. at 358. And it did not do so in passing;
counsel for the Government used the term “mislead” or
“misleading” five times in her closing, as well as twice urging
the jury not to be “misled.” App. at 358–61, 369. Counsel for
Boyd stated three times that he objected “as to misconduct,”
and once he simply objected without explanation. Id. The
District Court overruled each objection. Id. On appeal, Boyd
argues the prosecution’s statements in closing amounted to
misconduct and warrant a mistrial.
At the outset, we digress to a slight disagreement over
our standard of review. The Government states the standard is
abuse-of-discretion review over “a district court’s decision to
deny a motion for mistrial.” Gov’t’s Br. at 4–5 (quoting United
20
States v. Wood, 486 F.3d 781, 786 (3d Cir. 2007)). By contrast,
Boyd agrees with an abuse-of-discretion standard but suggests
the review should be of “a contemporaneous objection” to the
closing argument rather than a denial of a mistrial motion.
Boyd’s Op. Br. at 14 (citing United States v. Berrios, 676 F.3d
118, 134 (3d Cir. 2012)). The latter formulation better hits the
mark here, as the District Court never ruled on an explicit
request for a mistrial but it did overrule objections to
misconduct.
Yet we would reach the same result no matter which
standard of review applied, as either formulation of the
standard incorporates a harmless-error component and, once
again, no error affected the outcome. See, e.g., Wood, 486 F.3d
at 789 (“[W]e still will not reverse[,] for [a] mistrial is not
required where improper remarks were harmless”) (internal
quotation marks omitted) (third alteration in original); United
States v. Lore, 430 F.3d 190, 210 (3d Cir. 2005) (holding that
“we review the district court’s ruling on any contemporaneous
objections for an abuse of discretion[,] . . . . [and if] an
appellate court finds that there has been prosecutorial
misconduct, it should reverse unless the error is harmless”)
(citations omitted).
Under harmless-error review we affirm if “it is highly
probable that the error did not contribute to the judgment,”
which our en banc Court has held requires we have a “sure
conviction that the error did not prejudice the defendant.”
United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)
(en banc) (emphasis omitted).9 To determine whether there
9
Technically this is the standard for non-constitutional errors.
Neither party argues for constitutional error, and our review
21
was prejudice, we consider “the scope of the objectionable
comments and their relationship to the entire proceeding, the
ameliorative effect of any curative instructions given, and the
strength of the evidence supporting the defendant’s
conviction.” Id. As the Supreme Court has stated, and our
Court sitting en banc has emphasized, “a criminal conviction
is not to be lightly overturned on the basis of a prosecutor’s
comments standing alone, for the statements or conduct must
be viewed in context.” Id. (quoting United States v. Young,
470 U.S. 1, 11 (1985)).
Here, the prosecution’s comments about the defense
“misleading” the jury were related to the defense’s argument
that Boyd lacked knowledge he had a full and fair hearing in
Oklahoma state court and his focus on an unrelated hearing
before that same court. While we need not opine whether this
defense theory was “misleading,” it was certainly weak for the
reasons we stated in Section II.A, supra. Even if the
prosecution unfairly tainted the jury’s perception of that
suggests that the purported attacks on defense counsel’s
honesty alleged here are analogous to situations where a
prosecutor vouches for the credibility of a witness based on
evidence outside of the record, which we have analyzed as non-
constitutional. See United States v. Rivas, 493 F.3d 131, 139
(3d Cir. 2007) (noting that “the prohibition against personal
attacks on attorneys is rooted less in a sense of decorum than
in the same rule underlying the prohibition on vouching: one
cannot make arguments unsupported by record evidence”);
United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 286 (3d
Cir. 1999) (“[V]ouching that is aimed at the witness’s
credibility and is based on extra-record evidence is deemed
non-constitutional error.”).
22
theory, it would have little effect on the overall weakness of
Boyd’s case. And although this allegation was repeated
multiple times, it made up only a small fraction of the
prosecution’s twenty-one-page closing argument. App. at
356–61. Cf. Zehrbach, 47 F.3d at 1267 (noting that “the
comments at issue were but two sentences in a closing
argument that filled forty pages of transcript”).
On the other hand, the District Court overruled each of
Boyd’s objections and did not immediately issue any curative
instructions to the jury. But, in its final instructions to the jury,
the Court did make clear that several things “are not evidence,”
including “statements and arguments of the lawyers for the
parties in this case,” thus providing at least some saving effect
for any errors. App. at 370. And the clincher, as we have stated
repeatedly, is that the strength of the evidence supporting
Boyd’s conviction was overwhelming. Hence we are assured
any error was harmless.
D. The As-Applied Constitutional Challenge to
§ 922(g)(8)10
Over the past decade we have faced numerous as-
applied challenges to § 922 generally, and § 922(g)
specifically, though none before now to subsection (8). Each
challenge we have analyzed under the two-part test set out in
United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010).
See, e.g., Folajtar v. Att’y Gen., 980 F.3d 897, 901 (3d Cir.
2020); Holloway v. Att’y Gen., 948 F.3d 164, 171 (3d Cir.
10
As a constitutional challenge to the application of the statute,
this is a question we review de novo. United States v.
Marzzarella, 614 F.3d 85, 88 n.2 (3d Cir. 2010).
23
2020); Binderup v. Att’y Gen., 836 F.3d 336, 346 (3d Cir.
2016) (en banc). That framework applies with equal force
here.
At Step One, Boyd bears the burden of showing that
§ 922(g)(8) “imposes a burden on conduct falling within the
scope of the Second Amendment’s guarantee,” Marzzarella,
614 F.3d at 89, meaning that he must (i) “identify the
traditional justifications for excluding from Second
Amendment protections the class of which he appears to be a
member,” and then (ii) “present facts about himself and his
background that distinguish his circumstances from those of
persons in the historically barred class.” Binderup, 836 F.3d at
347 (citations omitted). If he succeeds at Step One, then at
Step Two the burden shifts to the Government to show that
§ 922(g)(8) satisfies a heightened scrutiny analysis. Id.
We note that both of our sister circuits to face as-applied
challenges to § 922(g)(8) have held it to be constitutionally
sound, though resting that conclusion on different grounds.
United States v. Reese, 627 F.3d 792, 801–05 (10th Cir. 2010)
(holding that § 922(g)(8) burdened the defendant’s Second
Amendment right at Step One but nonetheless that the law
survived the heightened scrutiny analysis of Step Two); United
States v. Mahin, 668 F.3d 119, 124 (4th Cir. 2012) (holding
that § 922(g)(8) survives heightened scrutiny without
addressing whether it burdens a Second Amendment right);
United States v. Chapman, 666 F.3d 220, 225 (4th Cir. 2012)
(same).
We touch on both steps and hold that Boyd cannot
distinguish himself from a class of presumptively dangerous
persons who have been historically excluded from the Second
24
Amendment’s protections. Thus his challenge fails at
Marzzarella Step One. In the alternative, we also hold that
even if Boyd could distinguish himself from the historically
barred class, § 922(g)(8) survives under a heightened scrutiny
analysis (Step Two).
1. Boyd cannot distinguish himself from a class of
presumptively dangerous persons historically
excluded from the Second Amendment’s protections.
In District of Columbia v. Heller, 554 U.S. 570 (2008),
the Supreme Court held that the Second Amendment provided
an individual right to bear arms, at least for the core purpose of
allowing “law-abiding, responsible citizens to use arms in
defense of hearth and home.” Id. at 635; Folajtar, 980 F.3d at
900. Yet that right “is not unlimited.” Heller, 554 U.S. at 626.
The Court identified several “presumptively lawful regulatory
measures” that include “longstanding prohibitions on the
possession of firearms by felons and the mentally ill[.]” Id. at
626, 627 n.26; see also McDonald v. City of Chicago, 561 U.S.
742, 786 (2010) (same). And it emphasized that these
prohibitions, along with two others explicitly listed in Heller
(and not relevant here), were merely “examples” rather than an
exhaustive list, leaving future courts to flesh out the contours
of the Second Amendment right. Heller, 554 U.S. at 626, 627
n.26.
For felony convictions we have held that the Second
Amendment does not protect those who have committed
serious crimes. Folajtar, 980 F.3d at 902; Binderup, 836 F.3d
at 349. Though we have declined to limit the reach of
§ 922(g)(1) to only those felons who were presumptively
dangerous, Folajtar, 980 F.3d at 907, that baseline
25
determination no doubt suffices to remove a person from the
scope of the Second Amendment’s protections. Id. (observing
that “dangerousness was one reason to restrict firearm
possession”). The primal fear of dangerous persons with guns
is backed by longstanding historical support “demonstrat[ing]
that legislatures have the power to prohibit dangerous people
from possessing guns,” including “dangerous people who have
not been convicted of felonies[.]” Kanter v. Barr, 919 F.3d
437, 451, 454 (7th Cir. 2019) (Barrett, J., dissenting); see also
Folajtar, 980 F.3d at 911 (Bibas, J., dissenting); Binderup, 836
F.3d at 368 (Hardiman, J., concurring). These include persons
who are mentally ill, as they potentially pose a “danger to
themselves or to others.” Beers v. Attorney General, 927 F.3d
150, 158 (3d Cir. 2019), judgment vacated on other grounds,
Beers v. Barr, 140 S. Ct. 2758 (mem.) (2020); see also Doe v.
Governor of Pa., 977 F.3d 270, 274 (3d Cir. 2020) (reasoning
that once a person has been involuntarily committed, “that
person has joined the class of those historically without Second
Amendment rights”).11 We have also considered danger to
determine whether a person who commits a DUI falls within
the Second Amendment’s protections. Holloway, 948 F.3d at
172–77.
11
For this reason, we also reject Boyd’s argument that he is
distinguishable from the historically barred class because the
procedures connected with his protective order are
comparatively less than for a criminal conviction. Boyd’s Op.
Br. at 30. The barred class is broader than convicted criminals,
and clearly was meant to include some who were not convicted
by a jury of their peers. The mentally ill, for example, do not
undergo full-scale criminal trials, yet are excluded from
firearm possession. See generally Doe, 977 F.3d 270; Beers,
927 F.3d 150.
26
We have not previously considered whether those who
are subject to domestic violence protective orders covered by
§ 922(g)(8) fall within the historical bar of presumptively
dangerous persons. The Eighth Circuit has and concluded that
“this statute—like prohibitions on the possession of firearms
by violent felons and the mentally ill—is focused on a threat
presented by a specific category of presumptively dangerous
individuals.” United States v. Bena, 664 F.3d 1180, 1184 (8th
Cir. 2011). We adopt that conclusion, which is based on scores
of reports reinforcing the dangers of gun possession by
domestic abusers. See, e.g., United States v. Skoein, 614 F.3d
638, 643–44 (7th Cir. 2010) (collecting myriad studies in a
case involving a domestic violence conviction under
§ 922(g)(9)); Reese, 627 F.3d at 802–03 (citing approvingly
these same studies in the context of § 922(g)(8)).
That said, the Eighth Circuit’s reasoning does not apply
squarely to this case. Bena dealt with a facial challenge to
§ 922(g)(8), arguing that on its face no circumstances exist
under which the provision would be valid as written. 664 F.3d
at 1182 (citing United States v. Salerno, 481 U.S. 739, 745
(1987)). It expressly declined to determine whether the statute
would be constitutional “as applied to a person who is subject
to an order that was entered without evidence of
dangerousness.” Id. at 1185. Boyd, whose order does not
contain an explicit finding of dangerousness, thus argues the
statute is unconstitutional as applied to him.
In attempting to distinguish himself from the
historically barred class, Boyd emphasizes that in Oklahoma
protective orders do not require a finding that a person poses a
credible threat to another’s safety, but rather a court “may
27
impose any terms and conditions . . . that [it] reasonably
believes are necessary to bring about the cessation of domestic
abuse . . . or harassment.” 22 Okl. St. Ann. § 60.4.C.1
(emphasis added); see also 22 Okl. St. Ann. § 60.3.A
(authorizing issuance of emergency ex parte orders “necessary
to protect the victim from immediate and present danger of
domestic abuse, stalking, or harassment”). We hesitate to
place such a formalistic requirement on the many state courts
across the country that operate under myriad procedures, and
we will not be so obtuse as to assume a court lacked credible
concerns about a defendant’s dangerousness merely because it
does not say so expressly. See United States v. Emerson, 270
F.3d 203, 263 (5th Cir. 2001) (“[W]e cannot say that section
922(g)(8)(C)(ii)'s lack of a requirement for an explicit, express
credible threat finding by the court issuing the order
. . . renders that section infirm under the Second Amendment[,]
. . . . [as] such findings can be as much ‘boilerplate’ or in error
as any other part of such an order.”); see also Sunuwar v. Att’y
Gen., 989 F.3d 239, 248 (3d Cir. 2021) (concluding in the
context of an immigration case that “the no-contact provisions
of a protection order inherently involve protection against
credible threats of violence, repeated harassment, or bodily
injury” because “the primary purpose of a no-contact order is
to protect the victims of domestic abuse by the offender”
(internal citations and quotation marks omitted)).
Here, for example, a state judge, after a hearing at which
Boyd participated, chose to continue the protective order
against him and found it necessary to order him to surrender
his firearms and undergo a mental health evaluation,12 plus she
12
We note in passing that Boyd’s attempt to distinguish
himself from the historically barred class may further be
28
included a term that prohibited Boyd “from injuring, abusing,
sexually assaulting, molesting, harassing, stalking, threatening,
or otherwise interfering with [Jennifer,] and from use,
attempted use or threatened use of physical force against
[her].” App. at 550. If the state court believed that Boyd posed
only a risk of harassment untethered from dangerousness, it
could have issued no order at all, it could have issued only a
“no contact” order, or it could have modified the above term to
strike out the physical injury component and leave in only the
directive with respect to harassment. It instead issued the type
of order we would expect when faced with a person who posed
a credible danger to his family.13
Given this context, we conclude that Boyd cannot
distinguish himself from the class of presumptively dangerous
persons who historically lack Second Amendment protections.
vulnerable on mental health grounds as a person who was
disarmed by a state court after a hearing and pending a further
mental health evaluation. See generally Doe, 977 F.3d 270;
Beers, 927 F.3d 150. But because the parties did not raise this
line of argument before us, and because we can affirm without
considering it, we do not rely on it in reaching our decision.
13
We note, as further support that Boyd cannot distinguish
himself from a class of presumptively dangerous persons, that
Connor believed Boyd “could strike out violently towards [his]
mother and her husband during an episode [of] psychosis” and
posed a “moderate danger” to the general public. App. at 487.
29
2. In any event, § 922(g)(8) survives a heightened
scrutiny analysis.
Even if Boyd could distinguish himself from the
historically barred class, we hold that § 922(g)(8) survives
heightened scrutiny, meaning review for more than whether a
statute bears a rational connection to a legitimate state interest.
Two types of heightened scrutiny apply: strict and
intermediate. In determining whether a law is unconstitutional,
laws that “severely burden” the “core” right of “law-abiding,
responsible citizens to use arms in defense of hearth and home”
are subject to strict scrutiny, Ass’n of N.J. Rifle & Pistol Clubs
v. Att’y Gen., 910 F.3d 106, 115, 117 (3d Cir. 2018) (quoting
Heller, 554 U.S. at 628–30, 635), meaning that they must be
“narrowly tailored to promote a compelling Government
interest,” Drake v. Filco, 724 F.3d 426, 436 (3d Cir. 2013).
Otherwise, intermediate scrutiny applies, meaning that the law
must be “substantially related” or have a “substantial fit” with
an important governmental interest. Binderup, 836 at 341,
356.14
Here, we conclude that intermediate scrutiny applies,
because those subject to a protective order of the type described
by § 922(g)(8) fall outside the core group of “law-abiding,
responsible citizens” that are most strongly protected by the
Second Amendment. See United States v. McGinnis, 956 F.3d
14We have sometimes alternatively characterized intermediate
scrutiny as requiring a “reasonable fit” between the restriction
and the important state interest. See N.J. Rifle, 910 F.3d at 119
(citing Drake, 724 F.3d at 436; Marzzarella, 614 F.3d at 98).
We use “substantial fit” here to follow the language used in our
en banc decision in Binderup.
30
747, 757 (5th Cir. 2020). And even if those subject to
protective orders were considered “responsible citizens,” we
are further reassured that the burden imposed by § 922(g)(8) is
not “severe” because the law “applies only to a narrow class of
persons, rather than to the public at large,” Reese, 627 F.3d at
802, and only for the discrete period of the protective order.
See McGinnis, 956 F.3d at 757.
The Government argues the relevant important interest
is “reducing domestic violence,” Gov’t’s Br. at 63, a claim not
seriously in dispute (indeed, Boyd does not waste even a single
word in his briefs contesting this point). See, e.g., United
States v. Castleman, 572 U.S. 157, 159–60 (2014) (observing
that the “country witnesses more than a million acts of
domestic violence, and hundreds of deaths from domestic
violence, each year”); Antonia C. Novello et al., From the
Surgeon General, U.S. Public Health Service: A Medical
Response to Domestic Violence, 267 JAMA 3132 (1992)
(concluding that “[d]omestic violence may touch as many as
one fourth of all American families”), cited in H.R. Rep. No.
103–395, at 25 (1993).
Boyd does dispute, however, the application of
intermediate scrutiny on the ground that there is no substantial
fit between the protective order prohibition and the objective
of reducing domestic violence. But Congress’s careful
tailoring, which carefully removes from the ambit of the statute
those who are least likely to pose a danger of domestic
violence, undermines this contention. The law protects against
sweeping in persons captured by meritless orders based on
false accusations that can easily be rebutted at a hearing. It
applies only to orders issued to protect intimate partners or
children, and only after a court has found it appropriate to enter
31
an order that explicitly prohibits the use, attempted use, or
threatened use of physical force against them. That is what
occurred here.
As further reinforcement, we note extensive evidence
supporting links between firearms and domestic violence on
the one hand, and protective orders and domestic violence on
the other. See Skoein, 614 F.3d at 643–44; Reese, 627 F.3d at802–03; see also Matthew R. Durose et al., Family Violence
Statistics, U.S. Dep’t of Just. Bureau of Just. Stat. 64 (2005)
(finding that nearly half of inmates convicted of family
violence and over two-thirds of those convicted of a violent
crime against their spouse were subject to a restraining order at
some time in their lives); Oklahoma Domestic Violence
Fatality Review Board, Domestic Violence Homicide in
Oklahoma 8 (2012) (finding, in the state that issued Boyd’s
protective order, that there was a protective order used in
nearly one quarter of all intimate partner homicides in 2011).
For an important state interest that may touch one in four
American families, it is hard to argue that a restriction
temporarily limiting the gun rights of only one in hundreds of
adults is impermissibly overbroad.15
15
A back-of-the-envelope conservative estimate suggests that
at any given time about one in every 100 adults may be subject
to a state protective order of some kind. See Becki R. Goggins
& Dennis A. DeBacco, Survey of State Criminal History
Information Systems, 2018, at t.3 (Nov. 2020),
https://www.ojp.gov/pdffiles1/bjs/grants/255651.pdf (a
Department-of-Justice-funded study reporting 2.2 million
protection orders in databases for 38 states and the District of
Columbia); U.S. Census Bureau, American Community
Survey Demographic and Housing Estimates t.K200104
32
* * * * *
Congress has chosen to address the searing issue of
domestic violence by disarming persons when a court has
found it necessary to issue a protective order that requires them
not to harm their intimate partners or their children. And
Congress has chosen to do so only after that person has had
notice and a hearing before a court. That limitation on gun
rights is clearly within the bounds of restrictions that the
Second Amendment contemplates.
Boyd nonetheless contends that his prosecution in
particular was tainted by multiple errors. Based on the strength
of the evidence presented at trial, however, we are convinced
that any reasonable jury would have convicted him even absent
all purported errors. Overwhelming evidence shows that Boyd
knew he was subject to a qualifying protective order when he
(reporting an estimated population of 218.5 million adults in
those 38 states and the District of Columbia in 2018). The true
number is probably smaller given that, as in Boyd’s case, there
may be multiple protective orders issued against the same
person. And the subset of protective orders captured by
§ 922(g)(8) likely is substantially smaller still. Cf. Becki
Goggins & Anne Gallegos, Nat’l Ctr. For St. Cts., State
Progress in Record Reporting for Firearm-Related
Background Checks: Protection Order Submissions at 9–10
(Apr. 2016), https://www.ojp.gov/pdffiles1/bjs/grants/249864.
pdf (noting that in New York, for example, only about 39% of
the orders the state reported to a particular federal index “were
federally disqualifying protection orders” when considering
“Section 922(g) (8) of the Brady Act”).
33
carried a loaded firearm across state lines. That is all that
§ 922(g)(8) requires. We thus affirm.
34