Federal Defenders of New York Blog
Serving the Second Circuit and the Eastern and Southern Districts of New York
The Solicitor General filed the government’s petition for a writ of certiorari on October 5, 2023. Respondent Bryan Range’s papers were filed on October 18, 2023. The Solicitor General filed its reply on November 1, 2023.
The Supreme Court docket is available at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-374.html…
Section 922(g)(1) of Title 18 bars anyone ever convicted of any felony from ever possessing a gun.
Judge Carlton Reeves of the Southern District of Mississippi just dismissed an indictment charging a violation of § 922(g)(1). He ruled that, in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), section 922(g)(1) is unconstitutional as applied to Jessie Bullock, a man with felony convictions for “aggravated assault and manslaughter.” United States v. Bullock, ___ F. Supp. 3d ___, 2023 WL 4232309, at *2 (S.D. Miss. June 28, 2023).
As the judge noted, “Bruen articulated a new legal standard applicable to all Second Amendment challenges.” Id. at *29. Namely: “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, . . . the government must demonstrate that the regulation is consistent …
In a prosecution under 18 U.S.C. § 922(g), “the Government must prove [] that the defendant . . . knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Usually, this means proving the defendant knew he’d previously been convicted of “a crime punishable by imprisonment for a term exceeding one year.” § 922(g)(1). Prior to Rehaif, no such knowledge was believed necessary– and scores of convictions were thus obtained without any allegation, evidence or finding of the Rehaif element.
What happens now in such cases (at least, the ones still on direct appeal)? The Supreme Court will tell us in two cases granted review this past Friday, United States v. Gary, Sup. Ct. 20-444 (guilty pleas) and Greer v. United States, Sup. Ct. 19-8709 (trial convictions).
As for pre-Rehaif guilty …
In Estevez, the sole count of the indictment alleged that Estevez possessed a firearm on two different dates: on February 21, 2016 and February 26, 2016. The charge was based on two separate shooting incidents, on those days. But a puzzling aspect of the Opinion is that it makes no reference to last years’ Supreme Court decision in Rehaif in discussing the elements of a § 922(g) offense. That hole in the Opinion is discussed at the end of this blog entry.
The unanimity instruction
At trial, Estevez requested “a particularized, rather than a general, unanimity instruction.” He insisted that “all [12] jurors needed to agree either that he possessed the Firearm on February 21 or that he possessed it on February 26 (or that he possessed it on both dates)[.]” 2020 WL 3022983 at *4. The district court denied the request and gave a “general unanimity instruction[.]” Id.…
In United States v. St. Hilaire, __F.3d__, 2020 WL 2563112 (2d Cir. May 21, 2020), the Second Circuit, in an opinion by Judge Jacobs (joined by Judges Calabresi and Chin), for the first time addressed the meaning of the four-level sentencing guideline enhancement for possessing a firearm with “an altered or obliterated serial number,” under U.S.S.G. § 2K2.1(b)(4)(B). Looking to the rulings of other Circuits, the Second Circuit ruled on two distinct issues pertaining to the enhancement. First, the Court concluded that although a gun may have its serial number on multiple locations, the enhancement applies even if the serial number is “altered or obliterated” in only one of multiple locations. Second, the Court held that for a serial number to be deemed “altered,” the number must be illegible to the naked eye and not merely defaced. The Court affirmed the application of the enhancement in this case based …
On April 27, 2020, the Second Circuit issued three summary orders in criminal matters.
In United States. v. Cuello, No. 19-2053, the Circuit affirmed a district court’s denial of suppression of a gun found during a traffic stop. This “traffic” stop was of a bike that did not have proper “head and tail lights,” in violation of New York Vehicle and Traffic Law § 1236(a). During the stop, police asked the bike rider for identification and his “bicycle registration.”
Did you know that “bicycle registration” is a thing? Apparently, the Syracuse Revised General Ordinances, Section 29-1 requires every person in the city of Syracuse who owns a bicycle operated in the city to register that bicycle “with the chief of police.” Well.
When the bike rider failed to produce his registration, police asked him about a black backpack he was wearing. Because how suspicious is it to be riding …
As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g). An element of that offense is that, at the time the defendant possessed a gun, he “knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). For most clients, that means knowing of a prior conviction for “a crime punishable by imprisonment for a term exceeding one year.” § 922(g)(1).
In United States v. Gary, ___ F.3d ___, 2020 WL 1443528 (4th Cir. Mar. 25, 2020), the court held the failure to advise a defendant of the Rehaif element at his guilty plea is “a structural error that requires …
The Supreme Court holds that, to convict a defendant of violating § 922(g) and § 924(a)(2), the government must show not only that the defendant knew he possessed a firearm, but “also that he knew he had the relevant status when he possessed it.” Opinion (“Op.”) at 1. The Court states: “We conclude 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.” See Opinion (“Op.”) at 11 (emphases added).
This holding was reached in a 7-2 decision in Rehaif v. United States, Sup. Ct. No. 17-9560, 2019, __S.Ct.__, WL 2552487 (June 21, 2019), authored by Justice Breyer. Justice Alito filed a dissenting opinion joined by Justice Thomas.
Petitioner Ali Rehaif came to the United States “on …
Yesterday, Southern District Judge Valerie Caproni dismissed an indictment for lack of venue. The indictment charged a defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Judge Caproni’s opinion, however, is valuable beyond the § 922(g) context as a concise primer on a difficult-to-parse set of venue cases.
The opinion and order are available here.
Section 922(g) makes it unlawful for a person convicted of a felony to “possess in or affecting commerce, any firearm or ammunition.” In this case, United States v. DeJesus, Port Authority police stopped the defendant at the New Jersey entrance to the George Washington Bridge and found a handgun while searching his car. The government conceded that Mr. DeJesus did not possess a firearm in New York, but contended that venue was proper in the Southern District because “he was about to use an instrumentality …
It looks like the work of dismantling the progress made under the Holder memo has begun.
Attorney General Jeff Sessions has issued a memo directing US Attorneys to work with local law enforcement to identify the ‘criminals’ in their districts who are driving violent crime and prosecute them federally using all available tools. You can read the memo here. An additional memo on charging decisions in all criminal cases will follow.…
Last week, the Third Circuit, sitting en banc, upheld two as-applied challenges to 18 U.S.C. 922(g)(1), holding that it was unconstitutional as applied to individuals who have not previously been convicted of a felony involving violence. You can read the decision in Binderup v. Attorney General, 14-4550, 14-4549, here.
The Court itself described the opinion as “fractured,” and helpfully included a Section IV with instructions for applying the case to future as-applied challenges to 922(g)(1). The Court explained that the steps to an as-applied challenge are governed by the Third Circuit decision in United States v. Marzarella, 614 F.3d 85 (3d Cir. 2010). A person challenging the constitutionality of 18 U.S.C. 922(g)(1) must first demonstrate that the law burdens conduct protected by the Second Amendment. To do so, the challenger must prove that he was not previously convicted of a serious crime. Evidence ofthe challenger’s rehabilitation or likelihood of …