Opposition Brief — Melvyn Gear, Petitioner v. United States

Supreme Court briefFeb 2, 2022

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No. 21-816

In the Supreme Court of the United States

MELVYN GEAR, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

JOSHUA K. HANDELL

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly determined on plain-error review that, in a prosecution for

possession of a firearm by a noncitizen admitted to the

United States under a nonimmigrant visa, in violation

of 18 U.S.C. 922(g)(5)(B) and 924(a)(2), the record evidence established that petitioner knew of his status.

2. Whether the court of appeals appropriately determined that petitioner failed to make an adequate representation on appeal that he would have rebutted at trial

the evidence that he knew of his status as a noncitizen

admitted under a nonimmigrant visa at the time he possessed a firearm.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 8

Conclusion ................................................................................... 21

TABLE OF AUTHORITIES

Cases:

Elonis v. United States, 575 U.S. 723 (2015) ...................... 12

Greer v. United States, 141 S. Ct. 2090 (2021) .... 7, 16, 18, 19

Liparota v. United States, 471 U.S. 419 (1985) ............ 12, 15

McFadden v. United States, 576 U.S. 186 (2015) ................. 6

Molina-Martinez v. United States,

578 U.S. 189 (2016)................................................................ 5

Rehaif v. United States,

139 S. Ct. 2191 (2019) ....................................... 4, 5, 9, 11, 12

Staples v. United States, 511 U.S. 600 (1994) ....... 6, 9, 12, 13

United States v. Balde, 943 F.3d 73 (2d Cir. 2019) ...... 17, 18

United States v. Benton,

988 F.3d 1231 (10th Cir. 2021) ........................................... 17

United States v. Johnson,

981 F.3d 1171 (11th Cir. 2020),

cert. denied, 142 S. Ct. 567 (2021) ............................... 15, 17

United States v. Lavalais,

960 F.3d 180 (5th Cir. 2020),

cert. denied, 141 S. Ct. 2807 (2021) ................................... 16

United States v. Olano, 507 U.S. 725 (1993) ....................... 18

Statutes and rule

8 U.S.C. 1101(a)(15) ................................................................. 4

8 U.S.C. 1101(a)(15)(E)(iii) ..................................................... 2

(III)

Statutes and rule—Continued:

Page

8 U.S.C. 1101(a)(15)(H)(1)(b)............................................ 4, 10

8 U.S.C. 1101(a)(15)(H)(i)(B) .................................................. 2

8 U.S.C. 1101(a)(26) ..................................................... 4, 10, 11

18 U.S.C. 922(g) ................................................3, 4, 5, 8, 14, 15

18 U.S.C. 922(g)(1) ................................................................. 16

18 U.S.C. 922(g)(5) ............................................................. 3, 14

18 U.S.C. 922(g)(5)(A) ............................................................. 9

18 U.S.C. 922(g)(5)(B) .................................................. passim

18 U.S.C. 922(g)(9) ........................................................... 16, 17

18 U.S.C. 924(a)(2) ........................................................ passim

Fed. R. Crim. P. 52(b) ........................................................... 18

In the Supreme Court of the United States

No. 21-816

MELVYN GEAR, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The amended opinion of the court of appeals (Pet.

App. 3-26) is reported at 9 F.4th 1040. An earlier, superseded opinion is reported at 985 F.3d 759.

JURISDICTION

The judgment of the court of appeals was entered on

January 19, 2021. A petition for rehearing was denied

(Pet. App. 1-2), and an amended opinion was filed (Pet.

App. 3-26), on August 30, 2021. On March 19, 2020, this

Court extended the time within which to file any petition for a writ of certiorari due on or after that date to

150 days from the date of the lower-court judgment, order denying discretionary review, or order denying a

timely petition for rehearing. The petition for a writ of

certiorari was filed on November 29, 2021. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the District of Hawaii, petitioner was convicted on one count of possessing a firearm as a noncitizen admitted to the United States under a nonimmigrant visa, in violation of 18 U.S.C. 922(g)(5)(B) and

924(a)(2). Judgment 1. Petitioner was sentenced to 15

months of imprisonment. Judgment 2. The court of appeals affirmed. Pet. App. 1-26.

1. In 2013, petitioner, a citizen of Australia, moved

to Hawaii to work for a solar-power company. Pet. App.

4. Petitioner was admitted to the United States under

an “E-3 visa,” ibid. (citing 8 U.S.C. 1101(a)(15)(E)(iii)),

a type of visa that permits a national of Australia to enter the United States to perform a “specialty occupation” in the United States if certain requirements are

satisfied, ibid. (quoting 8 U.S.C. 1101(a)(15)(E)(iii)).

Petitioner’s E-3 visa was later renewed, and he subsequently obtained an “H-1B” visa, another type of

nonimmigrant visa tied to a noncitizen’s employment in

the United States in a specialty occupation. Ibid. (citing

8 U.S.C. 1101(a)(15)(H)(i)(B)).

In 2016, petitioner traveled to Australia and retrieved certain property he had left there, including

parts of a Lithgow .22-caliber rifle, which he brought

with him when he returned to Hawaii. Pet. App. 4. Petitioner’s then-wife shipped to petitioner in Hawaii the

remaining rifle parts and a gun safe. Ibid.

Petitioner subsequently was terminated from his job

and accordingly lost his nonimmigrant H-1B visa. Pet.

App. 4. He applied for and obtained a new one, and in

January 2017 he was admitted to the United States under that new H-1B visa. Id. at 4-5.

In 2017, the Department of Homeland Security

(DHS) was advised by Australian law enforcement that

petitioner was an Australian citizen present in the

United States on a nonimmigrant H-1B visa who might

be in possession of a Lithgow rifle. Pet. App. 5; see

Presentence Investigation Report (PSR) ¶ 5. After confirming petitioner’s immigration status and investigating, DHS agents executed a search warrant at his residence in Hawaii. Pet. App. 5-6; PSR ¶¶ 6-13. In response to questioning by the agents, petitioner initially

denied possessing a firearm, stating that “he couldn’t

possess a firearm in the State of Hawaii because he was

not a U.S. citizen.” Pet. App. 5-6. Petitioner ultimately

admitted, however, that the rifle and gun safe were in

his garage, and the agents recovered them there. Id. at

6; PSR ¶ 14.

2. a. A grand jury in the District of Hawaii returned

an indictment charging petitioner with one count of

knowingly possessing a firearm as a noncitizen admitted to the United States under a nonimmigrant visa, in

violation of 18 U.S.C. 922(g)(5)(B). Indictment 2. Under 18 U.S.C. 924(a)(2), “[w]hoever knowingly violates,”

inter alia, Section 922(g) “shall be fined as provided in

this title, imprisoned not more than 10 years, or both.”

Ibid.

Section 922(g)(5) provides, subject to limited exceptions not at issue here, that

[i]t shall be unlawful for any person * * * who, being

an alien * * * , has been admitted to the United

States under a nonimmigrant visa (as that term is

defined in section 101(a)(26) of the Immigration and

Nationality Act (8 U.S.C. 1101(a)(26))) * * * to ship

or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition

which has been shipped or transported in interstate

or foreign commerce.

18 U.S.C. 922(g)(5)(B). Under 8 U.S.C. 1101(a)(26), the

term “nonimmigrant visa” is defined as “a visa properly

issued to an alien as an eligible nonimmigrant by a competent officer as provided in this chapter.” Section

1101(a)(15) lists “classes of nonimmigrant aliens,” including “an alien * * * who is coming temporarily to

the United States to perform services * * * in a specialty occupation.” 8 U.S.C. 1101(a)(15)(H)(1)(b).

Petitioner proceeded to a jury trial. Pet. App. 6. At

trial, petitioner stipulated that he was a noncitizen who

had been admitted to the United States under a nonimmigrant visa. Ibid. The jury found petitioner guilty. Ibid.

b. Following petitioner’s trial but before he was sentenced, this Court decided Rehaif v. United States,

139 S. Ct. 2191 (2019), which held that, in a prosecution

of a prohibited person who possessed a firearm in violation of Sections 922(g) and 924(a)(2), “the Government

* * * must show that the defendant knew he possessed

a firearm and also that he knew he had the relevant status when he possessed it,” id. at 2194.

Petitioner thereafter moved for a new trial, contending that, under Rehaif, the jury must be instructed that,

to find petitioner guilty, it had to find that petitioner

knew he had been admitted to the United States under

a nonimmigrant visa. Pet. App. 7. The district court

denied the motion. Ibid. The court explained that “the

omitted element (that [petitioner] knew that he had entered the United States on a nonimmigrant visa) was

supported by overwhelming evidence,” and that the instructional error was therefore “harmless.” D. Ct. Doc.

138, at 14 (Sept. 13, 2019); see id. at 14-20.

The district court sentenced petitioner to 15 months

of imprisonment. Judgment 2.

3. The court of appeals affirmed in a per curiam

opinion. Pet. App. 3-26.

a. On plain-error review, the court of appeals rejected petitioner’s contention that his conviction must

be vacated on the theory that the jury instructions had

failed to require the jury to find that petitioner knew he

had been admitted under a nonimmigrant visa. Pet.

App. 8-16. The court recognized that, after the verdict

was returned in petitioner’s case, this Court had held in

Rehaif that a conviction under Sections 922(g) and

924(a)(2) requires “that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” 139 S. Ct. at 2194;

see id. at 2195-2200; see also Pet. App. 8-14. The court

of appeals reasoned that, to be convicted under Section

922(g)(5)(B), “[a] defendant must therefore know that he

was admitted into the country under a ‘nonimmigrant

visa.’ ” Pet. App. 10. The court concluded that petitioner

had therefore shown an error that was plain, satisfying

the first two elements of plain-error review. Id. at 14.

The court of appeals determined, however, that petitioner was not entitled to relief because he had not satisfied the third plain-error element: “show[ing] that the

error affected his substantial rights,” which required

him to “ ‘show a reasonable probability that, but for the

error, the outcome of the proceeding would have been

different.’ ” Pet. App. 14-15 (quoting Molina-Martinez

v. United States, 578 U.S. 189, 194 (2016)). The court

explained that the government may prove that a defendant “knew his particular visa was ‘nonimmigrant’ ”

either “by demonstrating [petitioner] knew that his visa

was classified as a ‘nonimmigrant visa,’ or by showing

he knew his visa possessed the components that constitute a nonimmigrant visa.” Id. at 11. The court observed, in particular, that it is “well established” under

this Court’s precedent that “the government may prove

a defendant’s knowledge of a given statutory designation by proving his knowledge of the ‘offending characteristics’ that undergird that designation.” Id. at 12

(quoting Staples v. United States, 511 U.S. 600, 620

(1994), and citing McFadden v. United States, 576 U.S.

186, 196 (2015)). And the court determined that the record in this case “overwhelmingly” demonstrated “that

[petitioner] knew that he had a nonimmigrant visa.” Id.

at 15.

The court of appeals observed that “piles of evidence

showed that [petitioner] was aware of th[e] fact” that he

was in the country on a nonimmigrant visa, including

that the visa “explicitly stated” that it was time-limited,

“making clear that [petitioner] could not remain permanently in the United States”; petitioner “was aware of

his temporary status because he had sent a prior email

to his then-wife discussing his ‘visa extension’ ”; petitioner had previously “had to obtain a new visa after being fired from his prior job”; petitioner had “worked with

his wife to obtain” the visa using a form that “prominently states on the first page that it is a ‘Petition for a

Nonimmigrant Worker’ ”; and petitioner “admitted to

[DHS] agents that he was barred from firearm possession because he was not a U.S. citizen.” Pet. App. 15.

The court of appeals further observed that, “on appeal[,]” petitioner had “largely failed to articulate how

he would have proceeded differently at trial other than

to argue that he lacked the intent and that the government did not meet its burden.” Pet. App. 15. The court

found that generic assertion insufficient to create “a

‘reasonable probability’ that the outcome at trial would

have been different but for the error.” Id. at 15-16

(quoting Greer v. United States, 141 S. Ct. 2090, 2097

(2021)).

b. District Judge Silver, sitting by designation, filed

a concurring opinion. Pet. App. 16-18. Judge Silver

“agree[d]” that petitioner’s “conviction should be affirmed.” Id. at 16. Judge Silver wrote separately to express her view that “it would not be enough” to establish

the requisite knowledge under Sections 922(g)(5)(B)

and 924(a)(2) “for the government to prove solely that a

defendant knew his particular visa was a ‘nonimmigrant

visa,’ ” if he were unaware of what made it a nonimmigrant visa. Id. at 17. Instead, in Judge Silver’s view,

the government must prove that the defendant was

aware that “his visa possessed the components that constitute a nonimmigrant visa”—namely, that it was “issued to (1) an alien, (2) who came temporarily to the

United States to perform services . . . in a specialty occupation, and (3) who met the requirements for the occupation specified in section 1184(i)(2) of Title 8.” Id. at

16-17 (brackets, citation, and internal quotation marks

omitted). Judge Silver, like the majority, observed that

“the jury was presented with overwhelming evidence”

that petitioner knew each of those facts. Id. at 17-18.

c. Judge Bumatay filed an opinion concurring in

part and dissenting in part. Pet. App. 19-26. Judge

Bumatay agreed with the panel’s holding that Section

922(g)(5)(B)’s “knowledge requirement can be established in two ways: (1) by demonstrating [petitioner]

knew that his visa was classified as a nonimmigrant

visa; or (2) by showing he knew his visa possessed the

components that constitute a nonimmigrant visa. ” Id.

at 21 (brackets, citation, and internal quotation marks

omitted). In Judge Bumatay’s view, however, the state

of the evidence was such that petitioner had shown a

reasonable probability that the outcome of the trial

would have been different absent the Rehaif error.

Ibid.; see id. at 20-26.

ARGUMENT

Petitioner renews his contention (Pet. 2, 13-16,

19-21) that he is entitled to relief because the jury instructions did not require the jury to find that petitioner

knew he was a noncitizen “admitted to the United States

under a nonimmigrant visa,” 18 U.S.C. 922(g)(5)(B), at

the time he possessed a firearm. The court of appeals

correctly denied such relief, and its decision does not

conflict with any decision of this Court or of another

court of appeals. This Court has recently denied petitions for writs of certiorari presenting similar questions

as to the knowledge required for another category of

persons prohibited from possessing a firearm under

Section 922(g). See Johnson v. United States, No. 21-5432

(Nov. 22, 2021); Brown v. United States, No. 21-5060 (Oct.

12, 2021). The Court should follow the same course here.

Petitioner additionally contends (Pet. 23-27) that the

court of appeals deprived him of an adequate opportunity to demonstrate that the alleged instructional error affected his substantial rights. That contention

lacks merit. Petitioner did not avail himself of multiple

opportunities to show how he might have countered the

evidence, which both courts below found “overwhelming[ ],” Pet. App. 15; D. Ct. Doc. 138, at 14, that he had

the requisite knowledge of his nonimmigrant-visaholder status. In any event, the court of appeals’ casespecific, factbound consideration of the record in this

case would not warrant this Court’s review.

1. a. Federal law prohibits possession of a firearm or

ammunition by certain categories of people, including

noncitizens who “ha[ve] been admitted to the United States

under a nonimmigrant visa.” 18 U.S.C. 922(g)(5)(B). A

separate provision, 18 U.S.C. 924(a)(2), specifies criminal penalties for anyone who “knowingly violates” one

of the prohibitions contained in Section 922(g).

In Rehaif v. United States, 139 S. Ct. 2191 (2019),

this Court held that the word “knowingly” in Section

924(a)(2) modifies “both * * * the defendant’s conduct”—

i.e., his possession of a firearm—“and * * * the defendant’s status” as a member of a particular restricted

group, id. at 2194. The petitioner in Rehaif had challenged his conviction for possessing a firearm as a member of a different group than the one at issue here—

namely, noncitizens who are “illegally or unlawfully in

the United States.”

Ibid. (quoting 18 U.S.C.

922(g)(5)(A)). The Court reversed the judgment affirming the defendant’s conviction under that provision, but

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 not at issue here.” Id. at 2200. The Court expressed “doubt,” however, “that the obligation to prove

a defendant’s knowledge of his status” would be particularly “burdensome,” because “ ‘knowledge can be inferred from circumstantial evidence.’ ” Id. at 2198

(quoting Staples v. United States, 511 U.S. 600, 615 n.11

(1994)).

b. The court of appeals properly applied Rehaif to

the circumstances of this case in determining that the

district court’s omission of a jury instruction on the

knowledge-of-status element did not affect petitioner’s

substantial rights because the trial evidence “over–

whelmingly” established that he had such knowledge.

Pet. App. 15.

Section 922(g)(5)(B) employs the term “nonimmigrant visa” “as that term is defined in * * * 8 U.S.C.

1101(a)(26).” 18 U.S.C. 922(g)(5)(B). That provision

defines a nonimmigrant visa 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). Among the “classes of nonimmigrant”

listed in that section is “an alien * * * who is coming

temporarily to the United States to perform services

* * * in a specialty occupation” under an H-1B visa.

8 U.S.C. 1101(a)(15)(H)(1)(b).

As the court of appeals observed, the record evidence amply demonstrated that petitioner—who has

not contested his knowledge that he is a noncitizen—

knew all the facts that rendered his entry visa “nonimmigrant.” Pet. App. 15-16. Specifically, petitioner’s

“visa explicitly stated that it expired on November 14,

2019, making clear that he could not remain permanently in the United States”; petitioner “had sent a

prior email to his then-wife discussing his ‘visa extension’ ”; petitioner “had to obtain a new visa after being

fired from his prior job and thus losing his prior temporary visa”; and petitioner “worked with his wife to obtain a[n] H-1B visa,” the application form for which

“prominently states * * * that it is a ‘Petition for a

Nonimmigrant Worker.’ ” Id. at 15. Judge Silver recounted additional evidence of petitioner’s knowledge,

including the testimony of petitioner’s new wife that she

and petitioner “established a limited liability company

that would employ” him, and that his visa application

identified his existing visa status as “H1B—Specialty

Occupation” and sought to continue that status. Id. at

18.

In addition, when petitioner initially (and falsely) denied to DHS agents that he possessed a firearm, he explained that he knew he was not permitted to a possess

a firearm in Hawaii. Pet. App. 5-6 (petitioner stated to

investigators that “he couldn’t possess a firearm in the

State of Hawaii because he was not a U.S. citizen” and

had thrown away the rifle that his ex-wife had sent to

him “ ‘because he didn’t want the rifle, he couldn’t have

it’ ” (brackets omitted)). In his partial dissent, Judge

Bumatay discounted those statements because, in his

view, they “suggest[ed] that [petitioner] thought only

citizens could possess a gun—which isn’t the law—and

demonstrate[d] only that he knew was not a citizen.” Id.

at 22. But even if petitioner’s statements did not precisely describe the ambit of noncitizens restricted from

firearm possession, petitioner’s subjective belief that he

was not legally permitted to possess a firearm because

of his immigration status supports his having “the

guilty state of mind that the statute’s language and purposes require.” Rehaif, 139 S. Ct. at 2198.

c. Petitioner appears to contend (Pet. 13-16) that the

government was required to prove not only that he

knew of all of the facts that caused his visa to qualify as

a nonimmigrant visa, but also that he understood the legal consequences of those facts. Under that theory, a

jury must find that a defendant was aware of the definition of “nonimmigrant visa” contained in 8 U.S.C.

1101(a)(26), had compared his visa to that statutory definition, and had concluded that he was part of the category of persons described in Section 922(g)(5)(B). Petitioner’s contention lacks merit.

As the court of appeals explained, this Court’s decisions have drawn a clear line between a defendant’s

knowledge of the facts that make his conduct criminal

and knowledge that the conduct gives rise to criminal

liability upon conviction. See Pet. App. 12-13. The

Court has, in particular, “explained that,” under its

mens rea precedents, “a defendant generally must

‘know the facts that make his conduct fit the definition

of the offense,’ ” but need “not know that those facts give

rise to a crime.” Elonis v. United States, 575 U.S. 723,

735 (2015) (quoting Staples, 511 U.S. at 608 n.3)); see id.

at 735-736 (discussing prior cases).

For example, in Liparota v. United States, 471 U.S.

419 (1985), on which Rehaif relied, see 139 S. Ct. at 2198,

the Court addressed the mens rea required under a

statute prescribing criminal penalties for someone who

“knowingly uses, transfers, acquires, alters, or possesses” food stamps “in any manner not authorized by”

applicable statutes or regulations, Liparota, 471 U.S. at

420 (citation omitted). The Court held that the statute

required proof that the defendant knew that those provisions did not authorize his conduct, see id. at 423-433,

but made clear that the government need not prove that

the defendant knew that his unauthorized possession

was a crime, see id. at 425 n.9. The Court emphasized

that “the Government need not show that [the defendant] had knowledge of specific regulations governing

food stamp acquisition or possession,” nor need it “introduce any extraordinary evidence that would conclusively

demonstrate [his] state of mind.” Id. at 434. Instead, the

Court explained that “the Government may prove by reference to facts and circumstances surrounding the case

that petitioner knew that his conduct was unauthorized

or illegal.” Ibid.

Similarly, in Staples v. United States, supra, the Court

concluded that, to support a conviction for possession of a

machinegun that is not properly registered with the

federal government, the government must prove only

that the defendant “knew the weapon he possessed had

the characteristics that brought it within the statutory

definition of a machinegun.” 511 U.S. at 602; see id. at

604-619. As the court of appeals recognized, Staples

held “that the government may prove a defendant’s

knowledge of a given statutory designation by proving

his knowledge of the ‘offending characteristics’ that undergird that designation,” even if he is not aware that

those characteristics trigger a particular statutory definition. Pet. App. 12 (quoting Staples, 511 U.S. at 620).

Likewise here, for a defendant to be convicted under

Sections 922(g)(5)(B) and 924(a)(2), “the government

must show that the defendant knew” at least that “his

visa possessed the components that constitute a nonimmigrant visa,” meaning that he “knew his visa was issued to him as (1) ‘an alien,’ (2) ‘who came temporarily

to the United States to perform services . . . in a specialty occupation,’ and (3) ‘who met the requirements

for the occupation specified in section 1184(i)(2)’ of Title

8.” Pet. App. 11 (brackets omitted). As the court of appeals explained, “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.” Id. at 13. A defendant in possession of a firearm

who contemporaneously knows the facts that bring him

within the category of persons prohibited from such

possession has the requisite knowledge under Rehaif.

Contrary to petitioner’s contention, the court of appeals’ commonsense application of Rehaif and the precedents upon which it was based did not abrogate the

principle that a defendant’s “mistake of law—as to [a]

collateral legal matter—is a defense” where that legal

matter bears on his prohibited status. Pet. 15 (emphasis omitted). Had petitioner demonstrated his ignorance or mistake as to some legal aspect of his visa necessary to bring it within the scope of “nonimmigrant”

visas—such as its temporary duration or the purpose

for which it was granted—he could have negated the

knowledge-of-status element. A misapprehension along

those lines would have been consistent with the type of

collateral mistakes of law that this Court identified in

Rehaif as precluding liability under Section 922(g). See

139 S. Ct. at 2197-2198 (doubting that Congress intended to expose to criminal liability “an alien who was

brought into the United States unlawfully as a small

child and was therefore unaware of his unlawful status”;

“a person who was convicted of a prior crime but sentenced only to probation, who does not know that the

crime is ‘punishable by imprisonment for a term exceeding one year’ ”; or a defendant whose “trial judge had

told him repeatedly—but incorrectly—that he would

‘leave this courtroom not convicted of a felony.’ ” (emphasis omitted)). But the record here instead showed

“overwhelming[ ]” evidence that petitioner knew the relevant facts. Pet. App. 15; D. Ct. Doc. 138, at 14.

Petitioner contends (Pet. 20) that even a defendant

who “was aware of [the] underlying factual circumstances that give rise to his status” cannot be convicted

under Sections 922(g)(5) and 924(a)(2) without an additional showing that the defendant had analyzed and apprehended the resulting statutory classification of his

visa. That assertion reflects “the misimpression that

Rehaif requires technical knowledge of the law. It

doesn’t.” United States v. Johnson, 981 F.3d 1171, 1182

(11th Cir. 2020), cert. denied, 142 S. Ct. 567 (2021). It is

implausible that Congress confined criminal liability for

possession of a firearm by a noncitizen admitted under

a nonimmigrant visa to a small, possibly null, subset of

defendants with the perspicacity and legal acumen to

consult federal immigration law, apply the statutory

definition of “nonimmigrant visa” to their entry visas,

and subjectively recognize that they fall within the

category of prohibited persons identified in Section

922(g)(5)(B). Not only would that approach unrealistically constrict the scope of the provision, but it would

impose an “unduly heavy burden on the Government” in

proving offenses under that provision—a burden of the

kind this Court has repeatedly disavowed. Liparota,

471 U.S. at 433-434; see Rehaif, 139 S. Ct. at 2198.

d. Petitioner errs in contending (Pet. 17-23) that this

Court’s review is warranted to resolve a conflict in the

courts of appeals as to whether, in certain circumstances, “Rehaif requires knowledge of law.” As anticipated by this Court in Rehaif, “what precisely the Government must prove to establish a defendant’s

knowledge of status in respect to other § 922(g) provisions” varies according to the prohibited category at issue. 139 S. Ct. at 2200. Petitioner points to no conflict

among the courts of appeals with respect to the

knowledge required for nonimmigrant-visa-holders under Section 922(g)(5)(B).

Petitioner cites decisions addressing other categories of persons prohibited by Section 922(g) from possessing a firearm, but he identifies no conflict concerning those categories either. Petitioner observes that, in

prosecutions of persons who possessed a firearm following a felony conviction, in violation of Sections 922(g)(1)

and 924(a)(2), “federal circuits have generally held that

a defendant must be aware of his status as a felon.” Pet.

18 (citations omitted); see Rehaif, 139 S. Ct. at 2194 (indicating “that the Government must prove that a defendant knew * * * that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)”). But courts have consistently recognized that the government may satisfy its burden of

proving knowledge of status in Section 922(g)(1) prosecutions by, inter alia, demonstrating that the defendant

knew that he had been imprisoned for longer than a

year—and thus that his prior offense had been “punishable by imprisonment for a term exceeding one year,”

18 U.S.C. 922(g)(1); see, e.g., United States v. Lavalais,

960 F.3d 180, 187 (5th Cir. 2020), cert. denied, 141 S. Ct.

2807 (2021); cf. Greer v. United States, 141 S. Ct. 2090,

2102 (2021) (Sotomayor, J., concurring in part and dissenting in part) (observing that a defendant’s having

“served * * * two separate sentences of well over a

year” was “relevant to whether [he] ha[d] shown an effect on his substantial rights” from the omission of a

knowledge-of-status element at trial). Thus, consistent

with the decision below, courts reviewing convictions

under Section 922(g)(1) have permitted “the government [to] prove a defendant’s knowledge of a given statutory designation by proving his knowledge of the ‘offending characteristics’ that undergird that designation.” Pet. App. 12.

Petitioner also cites (Pet. 18-19) cases applying Rehaif to prosecutions of domestic-violence misdemeanants

under Section 922(g)(9), but he again identifies no circuit conflict. As petitioner acknowledges, the Eleventh

Circuit has recognized that “knowledge of facts constituting [domestic-violence-misdemeanant] status can be

sufficient.” Pet. 21-22 (citing Johnson, 981 F.3d at

1182). Petitioner cites (Pet. 18) United States v. Benton, 988 F.3d 1231 (10th Cir. 2021), but it does not support his approach. In Benton, the Tenth Circuit denied

relief on plain-error review of a defendant’s claim that

Rehaif required the government to prove that he knew

he was barred from possessing firearms. Id. at 1239.

The defendant there did “not dispute he had the requisite mental state in respect to the elements of the

crime—that is, he d[id] not dispute that he knowingly

possessed a firearm and that he knew at the time of his

possession he was a person convicted of a misdemeanor

crime of domestic violence.” Ibid. The court accordingly did not address how the government may prove

a defendant’s knowledge of his domestic-violencemisdemeanant status under Section 922(g)(9).

Finally, petitioner cites (Pet. 18-19) isolated statements from other decisions, but he identifies no holding

that conflicts with the decision below. For example, petitioner quotes (Pet. 19) the Second Circuit’s statement

in United States v. Balde, 943 F.3d 73 (2019), that it is

insufficient for the government to prove “that the defendant knew the facts that the law deems constitute ‘illegal’ status.” Id. at 96 (citation omitted). But the court

in that case vacated the defendant’s conviction in light

of confusion about a fact relevant to his immigration status—specifically, whether he had been “paroled into the

country when he was released from detention.” Id. at

84. That “hotly contested” question enabled the defendant to plausibly maintain that he had been ignorant of

or mistaken as to a predicate fact underlying his membership in the prohibited group. Id. at 97. The court

noted that a differently situated defendant—such as

“a defendant who had crossed the border into the

United States surreptitiously and without inspection”—

“would have no realistic defense that he in good faith

believed that he was legally present in the United

States,” without regard to whether he had consulted the

immigration statutes and arrived at a firm assessment

of his status. Ibid.

2. Petitioner alternatively contends (Pet. 23-27) that

review is warranted to clarify what opportunity an appellate court applying plain-error review to a forfeited

omitted-element claim should afford to a defendant to

demonstrate how he would have contested the element.

That contention does not warrant review.

a. In Greer v. United States, supra, this Court applied

the traditional plain-error framework under Federal

Rule of Criminal Procedure 52(b) to forfeited omittedelement claims in cases predating Rehaif. 141 S. Ct. at

2096-2100. To prevail on appellate review of an error

that “was not brought to the [district] court’s attention,”

the defendant must show, inter alia, that the error “affect[ed his] substantial rights.” Fed. R. Crim. P. 52(b);

see United States v. Olano, 507 U.S. 725, 734 (1993)

(Under Rule 52(b), “[i]t is the defendant rather than the

Government who bears the burden of persuasion with

respect to prejudice.”). Greer explained that, in the context of a Rehaif claim, the defendant has the burden of

showing that, but for the omission, “he would have presented evidence in the district court that he did not in

fact know he was a [prohibited person] when he possessed firearms.” 141 S. Ct. at 2097. The Court observed that, “if a defendant does not make such an argument or representation on appeal, the appellate court

will have no reason to believe that the defendant would

have presented such evidence to a jury, and thus no basis to conclude that there is a ‘reasonable probability’

that the outcome would have been different absent the

Rehaif error.” Ibid. Because neither defendant at issue

in Greer had made such an assertion on appeal, the Court

upheld their convictions. Id. at 2097-2098.

Petitioner asserts (Pet. 24) that he “had no opportunity to present any evidence on the Rehaif knowledge

element at trial” and “also had no opportunity to make

such a showing on appeal.” That assertion lacks merit.

Petitioner was afforded multiple opportunities to raise

such an argument, yet he failed to do so until after the

panel’s opinion issued. In his post-Rehaif motion for a

new trial, petitioner argued that he was “entitled to a

new trial for the government to establish [his] guilt on

all elements,” but he did not assert that he was ignorant

of his status as a noncitizen admitted under a nonimmigrant visa and was prepared to offer evidence to that

effect. D. Ct. Doc. 122, at 10 (Aug. 7, 2019). In his opening brief in the court of appeals, petitioner asserted

that, as the law stood at the time of his trial, he “would

not have been permitted to testify to his ignorance that

his legal status as a non-immigrant alien prohibited him

from possessing a firearm,” Pet. C.A. Br. 19; but he did

not assert that he was unaware of the nonimmigrantvisa-holder status itself, or that he could have offered

testimony to that effect. See Pet. C.A. Reply Br. 22.

Indeed, it was the government that sought unsuccessfully to enlarge the record to facilitate plain-error

review of petitioner’s claim of Rehaif error. While petitioner’s appeal was pending, the government filed a motion in the district court seeking to expand the record

on appeal, in anticipation that the Ninth Circuit would

“consider[ ] evidence from outside the trial record” in

evaluating petitioner’s Rehaif claim, D. Ct. Doc. 157, at

3 (Dec. 26, 2019). Petitioner opposed that motion, D. Ct.

Doc. 161 (Dec. 30, 2019), and the district court denied it,

D. Ct. Doc. 165, at 13 (Jan. 27, 2020).

Only after the panel issued its initial opinion affirming his conviction did petitioner assert that he “would

welcome the opportunity to submit new evidence on the

Rehaif element” and “would deny that he knew he was

a prohibited person,” C.A. Pet. for Reh’g 14-15. When

the panel denied rehearing, it amended its opinion to

note that petitioner “on appeal largely failed to articulate how he would have proceeded differently at trial

other than to argue that he lacked the intent and that

the government did not meet its burden.” Pet. App. 15.

Petitioner contends (Pet. 26) that the court of appeals

should have afforded him a further opportunity to develop the record or to make a proffer. But petitioner

was not entitled to a second chance after his conviction

was upheld on plain-error review to carry his burden of

showing how the district court’s error affected his substantial rights.

b. Petitioner does not contend that the court of appeals’ case-specific, factbound determination that he

failed adequately to show how he would have proceeded

differently at trial but for the omission of the knowledgeof-status element from the jury instruction conflicts

with any decision of another court of appeals. And although petitioner asserts (Pet. 26) that the court of appeals failed properly to apply this Court’s decision in

Greer, he acknowledges (Pet. 27) that Greer did not

specify any particular procedure for defendants to show

on appeal how they would have proceeded differently

but for an error. Further review is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.