In United States v. Qazi, --- F.3d ---, No. 18-10483 (9th Cir. 2020), the Court vacated the defendant's conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and remanded with instructions to dismiss the indictment.
In the district court, before trial, the pro se defendant, filed a "Motion to Dismiss Indictment for Failure to State Offense," stating "[t]he Defendant . . . moves . . . to dismiss the Indictment with prejudice, for failure to allege all the elements of a Federal Crime."
Following its well-established obligation to construe pro se filings liberally, the Court determined this was sufficient to trigger the rule from United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), which holds an indictment missing an essential element challenged before trial must be dismissed regardless of whether the omission prejudiced the defendant.
Here, the indictment failed to alleged the defendant’s knowledge of his felon status. Following Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019), this is a required element under Section 922(g).
The Court explained: "This case is simple. When Qazi insisted his indictment 'fail[ed] to allege all the elements of a Federal Crime,' he was right. When the district court concluded 'the indictment tracks the language of 18 U.S.C. 922(g), [and] sets forth the elements of the offense,” it was wrong. Liberally construed, Qazi’s objection to the indictment was sufficient to trigger Du Bo’s dismissal rule."
