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

   Taking antique shotguns for granted?

   Fine for the government.

   (Less fine with Vinnie Jones).

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

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

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

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

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

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

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

  “We affirm.” Id. at *1.

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

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

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

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

  (1) the defendant was a felon;

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

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

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

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

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

                                               

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

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

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

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

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