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  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.
Estevez argued that the district court erred because the indictment was “duplicitous:” it “charged him with two crimes in its single count[.]” Id. He contended that “[t]he crime of possession [i]s complete in a single moment,’ and that the Indictment in its single count thus alleged that he committed ‘separate crimes’ on those two dates.” Id. at *6.
The Circuit disagreed. It stated that the crime of possession was complete at the moment of possession, only in the sense that a person “is subject to prosecution under § 922(g)” at that moment. But possession “is not the kind of instantaneous event that typically is concluded the moment it occurs,” but “normally spans some period of time.” Id. at *6.
This is because “possession of a firearm is a continuing offense” and “continues to be committed as long as the felon continues to be in possession.” Id. at *6. “As possession is a continuing offense, the continuous possession of the same gun does not amount to a series of crimes, but rather constitutes a single offense.” Id. (citation and internal quotation marks omitted) (emphasis added). Here, the evidence indicated that Estevez used the same gun on both of the dates alleged in the indictment. Id. at *1-*4, *7.
“[T]o convict a defendant on two separate counts of being a felon in possession, the government would have … to prove that [the accused] lost possession of the gun at some point between the two charged dates.” Id. at *6 (citations and internal quotation marks omitted) (ellipsis in original).
Thus, the Circuit held, “the instruction requested by Estevez would have incorrectly charged the jury that the Indictment charged him with two offenses rather than one.” Id. at *7. Because possession is a continuing offense, “the jury was not required unanimously to pinpoint a precise time at which Estevez possessed the Firearm within the period alleged.” Id. The jury only has to find “unanimously that the defendant possessed the firearm at any point” “during a specified time period.” Id. at *6.
The 4-level enhancement of § 2K2.1(b)(6)(B) for possessing a gun in connection with another “felony”
Estevez also argued the evidence was insufficient to warrant an enhancement for possessing a firearm under Sentencing Guidelines § 2K2.1(b)(6)(B), which provides a 4-level enhancement if the gun was possessed with “knowledge, intent, or reason to believe a gun would be used in commission of another felony.” The Application notes provide that the enhancement applies “regardless of whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1 Application Note 14(A).
Here, a cooperating witness testified at trial that the events resulting in the February 26th incident were precipitated by his and Estevez’s agreement to meet to rob a drug dealer. The Circuit, reviewing the facts presented at trial, concluded that the evidence supported the lower court’s finding that Estevez’s conduct met the requirements of “attempt[ed]” robbery under New York law. 2020 WL 3022983 at *7-*8.
Substantive reasonableness: The Circuit also held that the defendant’s 100-month sentence, which was within Sentencing Guidelines range, wasn’t substantively unreasonable. Id. *9.
The Opinion’s puzzling omission of Rehaif
A puzzling thing about this § 922(g) appeal is that the Opinion doesn’t mention Rehaif or its knowledge element in discussing the elements of a 922(g) offense. And no Rehaif claim was made on behalf of Estevez. See Rehaif v. United States, 139 S.Ct. 2191, 2194 (2019) (Section 922(g) requires proof, not only that the defendant knew he possessed a firearm, but “also that he knew he had the relevant status when he possessed it.”).
Estevez appears to have a viable argument that there was insufficient proof that, at the time he possessed the gun, he had knowledge of his prohibited status — that is, that he knew he was a person convicted of a crime punishable by more than one year of imprisonment. The Opinion says his prior felony conviction occurred only seven or eight months before he possessed the firearm — so he may not have been incarcerated at all or, in any event, for less than one year. According to the opinion, “Estevez and the government stipulated that he had been convicted of a felony in July 2015,” and the indictment alleged that he possessed the gun “from at on or about February 21, 2016, through on or about February 26, 2016.” 2020 WL 3022983 at *6 (emphasis added). And “he was only 19 years of age at the time of his present crime[.]”Id. at *9.
Per Rehaif, “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 (emphasis added).
The Estevez opinion, however, doesn’t mention Rehaif and omits the knowledge-of-prohibited-status element, in detailing the elements of a § 922(g) offense. Instead, it states: “The elements of the offense with which Estevez was charged are thus (1) his knowing prior conviction of a felony, (2) his knowing subsequent possession of a firearm, and (3) the firearm’s nexus with commerce.” Estevez, 2020 WL 3022983 at *6. Thus, giving no consideration to Rehaif’s knowledge element, the Opinion states: “As Estevez and the government stipulated that he had been convicted of a felony in July 2015 and that the Firearm had traveled in or affected interstate or foreign commerce, the disputed issue was possession.” Id. Rehaif, however, requires more; the accused also must know that he knew “he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S.Ct at 2200 (emphasis added).
So the puzzle is, why is there no mention of Rehaif or its knowledge element in the Circuit’s Opinion? And why was no such claim made on behalf of a defendant who doesn’t appear to have served one year in prison on the prior felony and was only 19 at the time of the instant possession offense? The record doesn’t say. But it appears that the Rehaif omissions weren’t the product of deliberation, but of timing. The oral argument in Estevez was on May 2, 2019; Rehaif was decided on June 21, 2019. In other words, Estevez’s case was briefed and argued before the decision in Rehaif, and the Circuit’s docket shows that neither party – not the U.S. attorney nor appellate counsel — made submissions to the Circuit after Rehaif about the implications of that Supreme Court decision on Estevez’s case.
Sounds like a strong basis for rehearing.