United States v. Melvyn Gear ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10353
Plaintiff-Appellee,
D.C. No.
v. 1:17-cr-00742-
SOM-1
MELVYN GEAR,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Argued and Submitted July 16, 2020
San Francisco, California
Filed January 19, 2021
Before: Kenneth K. Lee and Patrick J. Bumatay, Circuit
Judges, and Roslyn O. Silver, * District Judge.
Per Curiam Opinion;
Concurrence by Judge Silver;
Partial Concurrence and Partial Dissent by Judge Bumatay
*
The Honorable Roslyn O. Silver, United States District Judge for
the District of Arizona, sitting by designation.
2 UNITED STATES V. GEAR
SUMMARY **
Criminal Law
The panel affirmed a conviction for violating 18 U.S.C.
§ 922(g)(5)(B) by possessing a firearm while being an alien
who had been admitted to the United States under a
nonimmigrant visa.
The panel held that after Rehaif v. United States, 139
S. Ct. 2191 (2019), the government must—in order to gain a
conviction under § 922(g)(5)(B)—prove a defendant knew
he was admitted into the country under a nonimmigrant visa.
The panel wrote that establishing that the defendant knew he
had an H-1B visa is not enough.
Reviewing the district court’s erroneous jury
instructions—to which the defendant did not properly
object—for plain error, the panel held that the error did not
affect the defendant’s substantial rights because the record
overwhelmingly indicates that the defendant knew it was
illegal for him to possess a firearm.
Concurring, Judge Silver agreed that the conviction
should be affirmed but wrote separately to write that to the
extent the per curiam opinion suggests the government could
alternatively prove that the defendant knew his visa was
statutorily classified as a “nonimmigrant visa,” she does not
agree.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GEAR 3
Concurring in part and dissenting in part, Judge Bumatay
wrote that the defendant showed a reasonable probability
that the jury would have reached a different outcome if the
jury had been properly instructed, and that the panel should
therefore return the determination of the defendant’s guilt to
the jury.
COUNSEL
Ted Sampsell-Jones (argued), Dennis P. Riordan, and
Donald M. Horgan, Riordan & Horgan, Oakland, California,
for Defendant-Appellant.
Marshall Silverberg (argued), Assistant United States
Attorney; Marion Percell, Chief of Appeals; Kenji M. Price,
United States Attorney; United States Attorney’s Office,
Honolulu, Hawaii; for Plaintiff-Appellee.
OPINION
PER CURIAM:
Along with felons, illegal aliens, and other specified
groups, Congress proscribed nonimmigrant-visa holders
from lawfully possessing a firearm. 18 U.S.C.
§ 922(g)(5)(B). But to be penalized for violating this law
under 18 U.S.C. § 924(a)(2), Congress also required the
nonimmigrant-visa holder’s knowledge of his “relevant
status” as a prohibited possessor. Rehaif v. United States,
139 S. Ct. 2191, 2194 (2019).
In this case, it is uncontested that Melvyn Gear owned a
gun. It is also uncontested that he entered the United States
4 UNITED STATES V. GEAR
under an “H-1B” visa, and that such a visa is a nonimmigrant
visa. The parties’ dispute centers on whether the
government had to prove that Gear knew his H-1B visa was
a nonimmigrant visa. We hold that after Rehaif, the
government must prove a defendant knew he had a
nonimmigrant visa to satisfy the statute’s mens rea
requirement. But because Gear cannot show that he was
prejudiced by the erroneous jury instructions, we
nevertheless affirm his conviction.
I.
This case comes to us from down under. Melvyn Gear
is a native of Australia who moved to Hawaii in January
2013 to work for a solar power company. Gear entered the
United States under an “E-3 visa.” That visa is an Australian
“specialty occupation” visa. 8 U.S.C. § 1101(a)(15)(E)(iii).
Gear’s initial E-3 visa was renewed for another two years.
At some point, Gear’s employer applied for, and Gear
received, an “H-1B visa.” 8 U.S.C. § 1101(a)(15)(H)(i)(b).
During trial, Gear’s employer testified that an H-1B visa is
“nonimmigrant,” but he also stated that he filed the
immigration paperwork “on behalf of Mr. Gear.” The
employer was not asked whether Gear was personally
involved in the process.
While in Hawaii, Gear told his wife Trudy, who was still
in Australia, that he wanted a divorce. In April 2016, Gear
returned to Australia to divide up the marital property and
bring property back with him to Hawaii. One of Gear’s
possessions was a Lithgow .22 caliber bolt action rifle. Gear
disassembled the gun and brought some of its component
parts back to Hawaii with him. Trudy later shipped him the
gun safe and the remaining parts of the rifle.
UNITED STATES V. GEAR 5
In October 2016, Gear was fired from his job, which
meant that he would need a new visa. At trial, Gear’s new
wife, Rhonda Kavanagh, explained that because H-1B visas
are tied to employment, Gear lost his visa when he was fired
in 2016. She also testified that she and Gear had created a
new company before Gear was fired and “we established . . .
a new visa for Mel under [that] company. And we worked
on that in October and November and into December and
January.” The visa application form stated it was a “Petition
for a Nonimmigrant Worker.” But that form was prepared
by an immigration attorney and signed by Gear’s wife, not
by Gear.
In January 2017, Gear returned to Hawaii from a trip
abroad and was admitted under his new H-1B visa. On the
visa itself, the “Visa Type/Class” is indicated as “H1B” with
an issue date of January 5, 2017 and an expiration date of
November 14, 2019. 1
Sometime later in 2017, DHS was advised that Gear
might have shipped a rifle from Australia to Hawaii. A DHS
agent in Hawaii began an investigation and learned Gear was
present in Hawaii on an H-1B visa. The agent then
interviewed Gear’s former coworkers, who reported Gear
would “brag about owning firearms.” The agent obtained a
search warrant and, in July 2017, went with other agents to
Gear’s home to execute that warrant.
Upon arriving, the agents told Gear they were there to
ask him about his visa. After a few questions related to his
1
Gear was admitted until November 24, 2019 because individuals
with H-1B visas may be “admitted to the United States” for the length of
the visa “plus a period of up to . . . 10 days.” 8 C.F.R.
§ 214.2(h)(13)(i)(A).
6 UNITED STATES V. GEAR
visa and his work, the agents began questioning Gear about
whether he owned a firearm. Gear told them “he couldn’t
possess a firearm in the State of Hawaii because he was not
a U.S. citizen.” Gear also denied having a gun safe. The
agents informed him they had received information from
Australian officials that he owned a rifle. Gear admitted his
ex-wife had shipped a rifle and gun safe to Hawaii but he
claimed they had been thrown away “[b]ecause he didn’t
want [the rifle], he couldn’t have it.” The agents then told
Gear they had a search warrant which prompted Gear to say
“You know, guys, I want to be honest with you. The gun
and gun safe is in the garage.” The agents then went to the
garage, found the gun safe, and obtained the rifle.
In December 2017, the government returned a single
count indictment against Gear. The indictment alleged Gear
had violated 18 U.S.C. § 922(g)(5)(B) by possessing a
firearm while “being an alien who had been admitted to the
United States under a nonimmigrant visa.” The case
proceeded to a four-day trial in May 2019. During the trial,
the government and Gear stipulated that he had been
admitted under a nonimmigrant visa. That stipulation did
not, however, address Gear’s knowledge of that fact.
At the close of evidence, the jury was instructed the
government had to prove Gear “knowingly possessed” the
rifle, that “had been shipped and/or transported in foreign
commerce,” and that Gear “was in the United States as an
alien who had been admitted into the United States under a
‘nonimmigrant visa.’” These elements were all that Ninth
Circuit law required at the time. That is, the jury was merely
required to find Gear had been admitted under a
nonimmigrant visa but not that Gear was aware of anything
about his visa status. The jury found Gear guilty on May 10,
2019, and sentencing was set for four months later.
UNITED STATES V. GEAR 7
Before Gear was sentenced, the United States Supreme
Court decided Rehaif v. United States, 139 S. Ct. 2191(2019). That case addressed a different provision within the
same statute at issue here, 18 U.S.C. § 922(g), which renders
it unlawful for “nine categories of individuals” to possess
firearms. Id. at 2194. The Supreme Court held that in a
prosecution under § 922(g), the government must prove the
defendant “knew he belonged to the relevant category of
persons barred from possessing a firearm.” Rehaif, 139 S.
Ct. at 2200. Based on Rehaif, Gear filed a motion for new
trial. Gear’s central argument was that Rehaif required the
jury be instructed it had to find Gear knew he had been
“admitted to the United States under a nonimmigrant visa.”
18 U.S.C. § 922(g)(5)(B).
The trial court denied the motion for a new trial. The
court concluded Gear was not entitled to relief given the
evidence presented at trial. In the court’s view,
the Government needed to establish that Gear
knew that he possessed an H-1B visa (a
question of fact), not that Gear knew that an
H-1B visa was a nonimmigrant visa (a
question of law). The distinction between
proving knowledge of what kind of visa Gear
had and knowledge that the visa is in the
category of “nonimmigrant visas” is a
distinction this court makes here.
Because the evidence was, in the district court’s view,
overwhelming that Gear knew he had been admitted under
an H-1B visa, the court concluded any failure to instruct the
8 UNITED STATES V. GEAR
jury regarding Gear’s knowledge was harmless. 2 In
September 2019, Gear was sentenced to fifteen months’
imprisonment.
II.
In all cases of statutory interpretation, we start with the
text. Limtiaco v. Camacho, 549 U.S. 483, 488 (2007).
Gear’s statute of conviction says that “[w]hoever knowingly
violates” 18 U.S.C. § 922(g) shall be subject to up to ten
years’ imprisonment. 18 U.S.C. § 924(a)(2). In turn,
§ 922(g) provides that, subject to some exceptions, it “shall
be unlawful for any person . . . being an alien . . . admitted
to the United States under a nonimmigrant visa” to “possess
in or affecting commerce, any firearm or ammunition.”
18 U.S.C. § 922(g)(5)(B). Read together then, federal law
forbids a person from “knowingly” violating the prohibition
on “being an alien . . . admitted . . . under a nonimmigrant
visa” in possession of a firearm. 18 U.S.C. §§ 922(g)(5)(B),
924(a)(2).
The question here is: What does it mean to “knowingly”
violate this statute? Conveniently, the Supreme Court has
essentially supplied us the answer already. In Rehaif, the
Court analyzed an adjacent provision, § 922(g)(5)(A)—the
illegal-alien-in-possession prohibition—and told us how to
interpret it. 139 S. Ct. 2191. The Court was clear: “As a
matter of ordinary English grammar, we normally read the
statutory term ‘knowingly’ as applying to all the
subsequently listed elements of the crime.” Id. at 2196
2
The court chose to apply the “harmless error” standard instead of
the “plain error” standard because “harmless error” was more favorable
to Gear and, even under the favorable standard, Gear was not entitled to
relief.
UNITED STATES V. GEAR 9
(simplified). This means the government had to establish the
defendant knew he belonged to the “relevant category of
persons barred from possessing a firearm.” Id. at 2200.
Under § 922(g)(5)(A), the “relevant category” was being “an
alien . . . illegally or unlawfully in the United States,” so the
defendant had to know that he was such an alien. Id. at
2195–96. The Court reversed the judgment affirming
Rehaif’s conviction because the government failed to prove
he knew he was an illegal alien. Id. at 2200.
Under a straightforward application of Rehaif’s textual
command, the knowledge requirement must apply to the
“relevant category of persons” here—aliens who were
“admitted to the United States under a nonimmigrant visa.”
18 U.S.C. § 922(g)(5)(B). Thus, to gain a conviction here,
the government must prove Gear knew he was admitted into
the country “under a nonimmigrant visa.” It’s really that
simple. As a matter of text and precedent, we need not go
any further.
Requiring knowledge of “nonimmigrant visa” status also
flows from the principles that animated Rehaif. There, the
Court recognized that it can be “entirely innocent” to possess
a firearm “[a]ssuming compliance with ordinary licensing
requirements.” Id. at 2197. What made such conduct
wrongful was not just that the defendant possessed a firearm,
but that he belonged to a group of prohibited possessors. The
Court applied the “longstanding presumption” that Congress
intends a defendant to have knowledge of each “element[]
that criminalize[s] otherwise innocent conduct.” Id. at 2195(simplified). In Rehaif, it was the defendant’s status as an
illegal alien that was the “crucial element separating
innocent from wrongful conduct.” Id. at 2197 (simplified).
Without knowing this status, “the defendant may well lack
the intent needed to make his behavior wrongful.” Id.10 UNITED STATES V. GEAR
As in Rehaif, the crucial element that makes possession
of firearms wrongful here is that the possessor has the status
Congress sought to disfavor: “nonimmigrant visa” holders.
Like the other categories of prohibited possessors in
§ 922(g), Congress has made the legislative determination
that such visa holders should not possess firearms. But to
violate the statute a defendant must know he falls within the
category of prohibited possessors; otherwise, he “does not
have the guilty state of mind that the statute’s language and
purposes require.” Rehaif, 139 S. Ct. at 2198.
A defendant must therefore know that he was admitted
into the country under a nonimmigrant visa. Gear’s statute
of conviction incorporates the definition of “nonimmigrant
visa” from another statute, which defines the term as “a visa
properly issued to an alien as an eligible nonimmigrant by a
competent officer as provided in this chapter.” 8 U.S.C.
§ 1101(a)(26); 18 U.S.C. § 922(g)(5)(B). Another provision
in the Immigration and Nationality Act identifies the
“classes of nonimmigrant aliens.” 8 U.S.C. § 1101(a)(15).
One class of nonimmigrant aliens includes “an alien . . . who
is coming temporarily to the United States to perform
services . . . in a specialty occupation . . . who meets the
requirements for the occupation specified in section
1184(i)(2) of this title.” 8 U.S.C. § 1101(a)(15)(H)(i)(b).
The visa for this class of nonimmigrants is what’s known in
agency jargon as the “H-1B visa,” presumably so named
after the class’s subsection in the INA. See 8 U.S.C.
§ 1101(a)(15)(H)(i)(b). 3
3
See U.S. Citizenship and Immigration Services, H-1B Specialty
Occupations, DOD Cooperative Research and Development Project
Workers, and Fashion Models, https://www.uscis.gov/working-in-the-
UNITED STATES V. GEAR 11
So, under this statutory scheme, the government must
show that the defendant knew his particular visa was
“nonimmigrant.” Such knowledge can be established by
demonstrating Gear knew that his visa was classified as a
“nonimmigrant visa,” or by showing he knew the “offending
characteristics” of his visa—i.e., the facts that make his visa
a nonimmigrant one. See Staples v. United States, 511 U.S.
600, 620 (1994) (holding that defendant must know the
“offending characteristics” of his gun that brings it within
the statutory definition of a “firearm”); see also McFadden
v. United States, 576 U.S. 186, 196 (2015) (holding that
defendant must know a substance’s “physical characteristics
that give rise to [its] treatment” as a listed controlled
substance).
Establishing that Gear simply knew he had an H-1B visa
is not enough. A visa’s label—that it is referred to as an “H-
1B visa”—is not a fact that makes it a “nonimmigrant visa.”
Instead, what Congress proscribed was knowingly
possessing a firearm with a “nonimmigrant visa,” or, looking
to what “nonimmigrant visa” actually means: a visa issued
to an alien coming temporarily to the United States to
perform services in a specialty occupation. See 8 U.S.C.
§ 1101(a)(26), (a)(15)(H)(i)(b), § 1184(i)(1); see also
Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir. 2000)
(outlining requirements for an H-1B visa). Thus, the
government must prove Gear’s knowledge of these facts—
not merely that Gear knew his visa was called an “H-1B
visa.”
The Supreme Court in Rehaif offered a hypothetical that
confirms our analysis. The Court addressed a hypothetical
united-states/temporary-workers/h-1b-specialty-occupations-dod-
cooperative-research-and-development-project-workers-and-fashion.
12 UNITED STATES V. GEAR
firearm owner convicted of a crime “punishable by
imprisonment for a term exceeding one year,” which makes
him a felon under the felon-in-possession law. § 922(g)(1).
But what if this person received only probation, and not a
prison term, and didn’t know the crime’s maximum
penalties? Would he have the required mens rea to know
that he is in fact a felon? The Court suggested that such a
person “does not have the guilty state of mind that the
statute’s language and purposes require.” Rehaif, 139 S. Ct.
at 2198.
That hypothetical probationer may be analogous to
someone who enters the United States on an H-1B visa.
Employers thus sometimes lure foreign employees with
promises of permanent residency, and employees may think
the H-1B visa confers immigrant status. Such a person may
know that he or she has an H-1B visa, without any
knowledge that it is a “nonimmigrant visa.” If true, then he
or she lacks the requisite guilty mind for violating § 922(g),
like the hypothetical probationer in Rehaif. This underscores
why a defendant must know that he or she has a
nonimmigrant visa, not just an H-1B visa, under the statute.
III.
Because Gear failed to properly object to the erroneous
instructions, our review is for “plain error.” Fed. R. Crim.
P. 30(d), 52(b). That means we may reverse where “(1) there
was error, (2) the error was plain, (3) the error affected
substantial rights, and (4) the error seriously affected the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Becerra, 939 F.3d 995, 999
(9th Cir. 2019). Gear undisputedly satisfies the first two
plain error prongs. See United States v. Benamor, 937 F.3d
1182, 1186 (9th Cir. 2019) (holding the failure to instruct on
the knowledge requirement of a § 922(g) offense is plainly
UNITED STATES V. GEAR 13
erroneous). Thus, the key inquiry is whether Gear showed
that the error affected his substantial rights. To do so, he
must “show a reasonable probability that, but for the error,
the outcome of the proceeding would have been different.”
Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (cleaned up).
Gear cannot make this showing because the record
overwhelmingly indicates that he knew it was illegal for him
to possess a firearm, and thus, had the mens rea sufficient to
violate § 922(g). For example, Gear admitted to Department
of Homeland Security agents that he was barred from
firearm possession because he was not a U.S. citizen. He
tries to sidestep this admission by claiming that it constitutes
hearsay and was untested during trial. But Gear fails to
articulate how he would have proceeded differently at trial.
Accordingly, Gear’s conviction is AFFIRMED.
SILVER, District Judge, concurring:
I agree Melvyn Gear’s conviction should be affirmed but
write separately to explain one type of knowledge the per
curiam opinion identifies that goes beyond what is required
by 18 U.S.C. § 922(g)(5)(B) and Rehaif v. United States,
139 S. Ct. 2191 (2019). The per curiam opinion states the
necessary “knowledge can be established” in two ways.
First, “by demonstrating Gear knew that his visa was
classified as a ‘nonimmigrant visa.’” Second, by showing
Gear “knew the ‘offending characteristics’ of his visa—i.e.,
the facts that make his visa a nonimmigrant one.” The
“offending characteristics” are identified as “a visa issued to
an alien coming temporarily to the United States to perform
services in a specialty occupation.” To the extent the per
curiam opinion suggests the government could alternatively
14 UNITED STATES V. GEAR
prove the first type of knowledge, i.e. Gear knew his visa
was statutorily classified as a “nonimmigrant visa,” I do not
agree.
After Rehaif, and pursuant to the statute, an alien cannot
possess a firearm if he knew he was admitted “under a
nonimmigrant visa (as that term is defined in section
101(a)(26) of the Immigration and Nationality Act).”
18 U.S.C. § 922(g)(5)(B). However, the referenced
definition is unclear in that it states “[t]he term
‘nonimmigrant visa’ means a visa properly issued to an alien
as an eligible nonimmigrant by a competent officer as
provided in this chapter.” 8 U.S.C. § 1101(a)(26).
Unfortunately, there is not a clear and straightforward
definition of “nonimmigrant.” Instead, the statutory scheme
dictates that every alien is an “immigrant . . . except an alien
who is within one of the following classes of nonimmigrant
aliens.” 8 U.S.C. § 1101(a)(15). See Korab v. Fink, 797
F.3d 572, 576 n.5 (9th Cir. 2014) (“The Immigration and
Nationality Act defines ‘nonimmigrant’ as any alien who has
been admitted pursuant to one of the various visas set out in
8 U.S.C. § 1101(a)(15).”). The listed “classes of
nonimmigrant aliens” includes the class relevant here,
defined as aliens “coming temporarily to the United States
to perform services . . . in a specialty occupation. 8 U.S.C.
§ 1101(a)(15)(H)(i)(b).
By tracing the statutory language and definitions
regarding “nonimmigrant visas” from beginning to end it is
possible to make sense of the statutory prohibition regarding
firearms. Combining the statutory definition of
“nonimmigrant visa” with the firearms statute means it is
unlawful for an alien to possess a firearm if he knew he was
admitted under a visa granted to an alien coming temporarily
to the United States to perform services in a specialty
UNITED STATES V. GEAR 15
occupation. 18 U.S.C. § 922(g)(5)(B), 8 U.S.C.
§ 1101(a)(15)(H)(i)(b). Thus, as relevant here, the post-
Rehaif knowledge requirement is that the individual knew he
1) was an alien; 2) who was admitted temporarily to the
United States; 3) to perform services in a specialty
occupation. The government must prove these facts, not that
the alien knew his visa was “classified” a “nonimmigrant
visa.” 1
Reviewing Gear’s knowledge of the characteristics of his
visa makes the “plain error” analysis straightforward. To
meet the third prong of the plain error analysis, Gear had to
show the error was “prejudicial” in the sense that it “affected
the outcome of the trial.” United States v. Marcus, 560 U.S.
258, 262 (2010) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)). Here, the jury was presented with
overwhelming evidence Gear knew the characteristics of his
visa.
First, Gear stipulated he was an alien. Second, Gear’s
passport, which was in his possession, noted he was admitted
to the United States only “until November 24, 2019.” Gear’s
visa, also in his possession, stated it expired in November
2019. Accordingly, Gear knew he was an alien coming to
1
This reasoning prevents a conflict with the recent opinion United
States v. Singh, 979 F.3d 697 (9th Cir. 2020). There, the panel affirmed
a conviction for violating the same firearms statute. In Singh, the
defendant had been admitted under B1/B2 visas which are nonimmigrant
visas granted to an alien with “a residence in a foreign country which he
has no intention of abandoning and who is visiting the United States
temporarily for business [or] pleasure.” 8 U.S.C. § 1101(15)(B). The
conviction was affirmed because there was overwhelming evidence the
defendant had a foreign residence he did not intend to abandon and he
was visiting the United States only temporarily for business or pleasure.
There is no discussion in Singh of evidence the defendant knew his visas
statutorily qualified as “nonimmigrant visas.”
16 UNITED STATES V. GEAR
the United States temporarily. As for the third requirement
that Gear knew he would be performing a “specialty
occupation,” there was more than enough evidence.
The jury heard from Gear’s wife that she and Gear had
recently established a limited liability company. Gear’s wife
testified she and Gear “established” the “new visa for Mel
under our company.” She also testified “we,” meaning she
and Gear, “worked on [obtaining the new visa] in October
and November and into December and January.” Thus, Gear
was heavily involved in applying for the visa. The
application form completed by Gear’s wife on behalf of their
joint company identified Gear’s then-current status as “H1B
- Specialty Occupation” with Gear seeking to continue the
classification of “H-1B Specialty Occupation” under the
new company. In addition, the application identified Gear
as “Chief Technical Engineer” for a company devoted to
“[i]nstallation of solar and other renewable energy systems”
with an annual salary of $100,000. Given these facts, Gear
knew he was involved in a “specialty occupation.”
The government was not required to prove Gear knew
his visa was classified as a “nonimmigrant visa.” Instead,
the government had to prove Gear knew the relevant
characteristics of his visa. Because there was overwhelming
evidence he knew those characteristics, I concur in the
judgment affirming his conviction.
BUMATAY, Circuit Judge, concurring in part and
dissenting in part:
No student of law or history can deny the paramount
importance of the right to a jury trial. This essential right is
the only guarantee found in both the articles of the
UNITED STATES V. GEAR 17
Constitution and the Bill of Rights. U.S. Const. Art. III, § 2,
cl. 3 (“The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury[.]”); U.S. Const. amend. VI,
§ 2 (“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed[.]”). The denial of this right was specifically
cited in the Declaration of Independence, which indicted
King George III “for depriving [the People] in many cases,
of the benefits of Trial by Jury.” And as Alexander Hamilton
explained, “[t]he friends and adversaries of the plan of the
convention, if they agree in nothing else, concur at least in
the value they set upon the trial by jury: Or if there is any
difference between them, it consists in this, the former
regard it as a valuable safeguard to liberty, the latter
represent it as the very palladium of free government.” See
Federalist No. 83.
The constitutional right to a jury trial includes the right
“to have a jury determine, beyond a reasonable doubt, [a
defendant’s] guilt of every element of the crime with which
he is charged.” United States v. Gaudin, 515 U.S. 506, 522–
23 (1995) (emphasis added). This right requires that “the
truth of every accusation . . . be confirmed by the unanimous
suffrage of twelve of [the defendant’s] equals and
neighbors.” 4 W. Blackstone, Commentaries on the Laws of
England 343 (1769). So while harmless and plain error
might be necessary doctrines, see Neder v. United States,
527 U.S. 1, 8 (1999), we must tread carefully before
overtaking the jury’s role to determine guilt on every
element.
Here, Gear has established that there is a reasonable
probability that the outcome of his trial would be different if
the jury were properly instructed. Rather than conjecture
18 UNITED STATES V. GEAR
about his guilt from the bench, we should return the question
to where it is constitutionally reserved: the jury box.
Because we fail to do so, I respectfully dissent from Part III
of the court’s decision and the judgment affirming the
conviction.
I.
The court applies plain-error analysis to this claim.
Under that review, the defendant is entitled to reversal when
“(1) there was error, (2) the error was plain, (3) the error
affected substantial rights, and (4) the error seriously
affected the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Becerra, 939 F.3d
995, 999 (9th Cir. 2019).
A.
Since the first two prongs of plain-error review are
clearly satisfied here, the key inquiry is whether Gear
showed that the error affected his substantial rights. See
United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir.
2019). This means he must “show a reasonable probability
that, but for the error, the outcome of the proceeding would
have been different.” Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016) (simplified).
And since a three-judge panel is no substitute for twelve
of Gear’s peers, our review is not simply whether we think
the result would’ve been different. Instead, we review the
case through makeshift juror glasses. We “‘conduct a
thorough examination’ of the evidence in the record and ask
whether ‘it is clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the
error.’” United States v. Conti, 804 F.3d 977, 981 (9th Cir.
2015) (quoting Neder, 527 U.S. at 17) (emphasis added).
UNITED STATES V. GEAR 19
Before upholding a conviction rendered on erroneous jury
instructions, we demand “strong and convincing evidence”
that the jury would’ve reached the same result even if it had
been properly instructed. United States v. Alferahin,
433 F.3d 1148, 1158 (9th Cir. 2006).
Far from meeting this standard, the record here reveals
only weak and debatable evidence that Gear knew he was
“admitted . . . under a nonimmigrant visa.” See 18 U.S.C.
§§ 922(g)(5)(B), 924(a)(2). As the court articulates,
§ 922(g)(5)(B)’s knowledge requirement can be established
in two ways: (1) “[b]y demonstrating Gear knew that his visa
was classified as a ‘nonimmigrant visa;’” or (2) “by showing
he knew the ‘offending characteristics’ of his visa—i.e., the
facts that make his visa a nonimmigrant one.” Opinion at 11.
Regarding the first method, little evidence supports the
conclusion that Gear knew his “H-1B” visa was classified as
“nonimmigrant.” Crucially, Gear’s visa itself doesn’t say
“nonimmigrant” anywhere—it only says “H-1B.” But as we
explained, Gear’s knowledge that he has an H-1B visa
doesn’t satisfy the knowledge requirement. Opinion at 11.
The government states its strongest evidence showing this
knowledge is a visa-application form entitled “Petition for
Nonimmigrant Worker.” Sprinkled throughout the form,
including in its title, is the word “nonimmigrant.” There’s
just one problem: the record doesn’t show whether Gear
filled out this form himself, signed it, or even read it. On the
contrary, the form was prepared by a third party and signed
by Gear’s wife.
The evidence relied on by the court doesn’t change this
analysis. It points to Gear’s admission that he “couldn’t
possess a firearm in the State of Hawaii because he was not
a U.S. citizen.” But this is hardly ironclad evidence that
Gear knew he held a “nonimmigrant” visa. In fact, this
20 UNITED STATES V. GEAR
statement suggests that Gear thought only citizens could
possess a gun—which isn’t the law—and demonstrates only
that he knew was not a citizen.
The same deficiencies exist with the evidence regarding
Gear’s knowledge of the nonimmigrant visa’s
characteristics—the second way to satisfy this element.
Here, the only relevant nonimmigrant visa is an H-1B visa,
which goes to someone who is (1) an alien, (2) coming
temporarily to the United States, (3) to perform services in a
specialty occupation. See 8 U.S.C. § 1101(a)(15)(H)(i)(b).
I agree with the concurrence that the evidence readily proves
Gear’s knowledge of the first two H-1B characteristics. See
Silver Concurrence at 15–16. But I disagree that the
evidence sufficiently shows Gear knew the last fact—that he
was in the country to perform a “specialty occupation.” 1 The
only evidence in the record remotely establishing Gear’s
“specialty occupation” was the visa-application form, which
includes the words “Specialty Occupation” and identifies
Gear’s role as “Chief Technical Engineer.” But the
government never adduced evidence regarding Gear’s part
in filling out the visa-application form or corroborating the
information contained within it. The concurrence suggests
that “Gear was heavily involved in applying for the visa,” id.
at 16; yet, the only evidence for that is his wife’s use of the
word “we” while testifying about the application process in
general. This is not enough in my opinion.
Significantly, Gear’s wife’s testimony might have never
reached the jurors’ ears if the parties had been properly
1
The term “specialty occupation” means an occupation that requires
“(A) theoretical and practical application of a body of highly specialized
knowledge, and (B) attainment of a bachelor’s or higher degree in the
specific specialty (or its equivalent).” 8 U.S.C. § 1184(i)(1).
UNITED STATES V. GEAR 21
instructed on § 922(g)(5)(B)’s knowledge requirement. Had
this element been included in the jury instructions, Gear
could have altered his trial strategy. For example, Gear
would have refrained from putting his wife on as a witness
or encouraged her to invoke a spousal privilege if called by
the government. See United States v. Griffin, 440 F.3d 1138,
1143–44 (9th Cir. 2006) (explaining spousal privilege). Or
he could have challenged the introduction of the visa-
application form or his verbal admissions to law
enforcement. But none of this happened because the only
contested issue at trial (in light of the erroneous jury
instructions) was whether Gear knowingly possessed the
gun. This is the usual problem with our plain-error review
of omitted-element jury instructions. See United States v.
Jordan, 291 F.3d 1091, 1096 (9th Cir. 2002) (explaining that
in such cases courts “do not have the ability . . . simply to
determine whether a proper jury instruction would have
made any difference” because the element hasn’t been
litigated).
While skillful prosecutors may be able to convince a jury
based on the evidence introduced at trial that Gear knew he
had a nonimmigrant visa, reaching this conclusion on the
jury’s behalf requires us to build a “veritable fairyland
castle” of government-friendly inferences. Minnick v.
Mississippi, 498 U.S. 146, 166 (1990) (Scalia, J., dissenting).
But a jury could reject these inferences and reach the
opposite conclusion. Because the evidence on this question
is thin, I cannot confidently say that no reasonable juror
would have found sufficient doubt about Gear’s knowledge
to vote for acquittal.
B.
The fourth prong of plain-error review has also been met:
the missing element from the jury instructions “‘seriously
22 UNITED STATES V. GEAR
affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” United States v. Olano, 507 U.S.
725, 736 (1993) (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)). We’ve previously recognized that the
denial of a defendant’s “constitutional right to have all
elements of the crime submitted to the jury” is a “serious
concern[], going to the very heart of the criminal
proceeding.” United States v. Murphy, 824 F.3d 1197, 1205
(9th Cir. 2016).
I see no reason to depart from that conclusion here. Gear
was deprived of his basic right to have the jury decide every
element of the offense charged. The error also led him to
forego possibly winning defenses and trial tactics. And the
evidence that the jury would have convicted him anyway is
too thin for us to say that close is close enough. See id.(“[T]he strength of the evidence is a factor.”). Accordingly,
allowing Gear’s conviction to stand poses a “greater threat
to the integrity and fairness of judicial proceedings” than
reversal would. Alferahin, 433 F.3d at 1159.
II.
“[T]he Constitution does not trust judges to make
determinations of criminal guilt.” Neder, 527 U.S. at 32(Scalia, J., concurring in part and dissenting in part)
(emphasis omitted). Judges—and federal judges in
particular—are “proper objects of that healthy suspicion of
the power of government,” which prompted the people to
“reserve[] the function of determining guilt to themselves,
sitting as jurors.” Id. When a defendant can show a
reasonable probability that the jury would have reached a
different outcome, our role is to send the case back to the
jury rather than “reviewing the facts ourselves and
pronouncing the defendant without-a-doubt guilty.” Id.UNITED STATES V. GEAR 23
Because Gear has made this showing, we should leave the
determination of Gear’s guilt to the jury.
I respectfully dissent from the judgment of the court.