In United States v. Gear, --- F.3d ---, No. 19-10353 (9th Cir. 2021), a split panel applied plain-error review and affirmed a conviction for violating 18 U.S.C. § 922(g)(5)(B) by possessing a firearm while being an alien who had been admitted to the United States under a nonimmigrant visa.
The full panel held that after Rehaif v. United States, 139 S. Ct. 2191 (2019), the government must prove a defendant knew he was admitted into the country under a nonimmigrant visa. The panel wrote that establishing that the defendant knew he had an H-1B visa is not enough.
"A defendant must therefore know that he was admitted into the country under a nonimmigrant visa."
"So, under this statutory scheme, the government must show that the defendant knew his particular visa was 'nonimmigrant.' Such knowledge can be established by demonstrating Gear knew that his visa was classified as a “nonimmigrant visa,” or by showing he knew the “offending characteristics” of his visa—i.e., the facts that make his visa a nonimmigrant one."
"Establishing that Gear simply knew he had an H-1B visa is not enough. A visa’s label—that it is referred to as an “H1B visa”—is not a fact that makes it a 'nonimmigrant visa.'"
Although the jury instructions did not include this knowledge requirement, the per curiam majority concluded Mr. Gear could not establish plain error because the record overwhelmingly indicated that he knew it was illegal for him to possess a firearm.
Judge Bumatay dissented from this aspect of this opinion. His dissent contains excellent language on the right to a jury determination. Here's a sample:
"Gear has established that there is a reasonable probability that the outcome of his trial would be different if the jury were properly instructed. Rather than conjecture about his guilt from the bench, we should return the question to where it is constitutionally reserved: the jury box."
"Before upholding a conviction rendered on erroneous jury instructions, we demand “strong and convincing evidence” that the jury would’ve reached the same result even if it had been properly instructed."
"While skillful prosecutors may be able to convince a jury based on the evidence introduced at trial that Gear knew he had a nonimmigrant visa, reaching this conclusion on the jury’s behalf requires us to build a 'veritable fairyland castle' of government-friendly inferences. But a jury could reject these inferences and reach the opposite conclusion. Because the evidence on this question is thin, I cannot confidently say that no reasonable juror would have found sufficient doubt about Gear’s knowledge to vote for acquittal."
"Gear was deprived of his basic right to have the jury decide every element of the offense charged. The error also led him to forego possibly winning defenses and trial tactics. And the evidence that the jury would have convicted him anyway is too thin for us to say that close is close enough. Accordingly, allowing Gear’s conviction to stand poses a “greater threat to the integrity and fairness of judicial proceedings” than reversal would.
"'[T]he Constitution does not trust judges to make determinations of criminal guilt.' Judges—and federal judges in particular—are 'proper objects of that healthy suspicion of the power of government,' which prompted the people to 'reserve[] the function of determining guilt to themselves, sitting as jurors.' When a defendant can show a reasonable probability that the jury would have reached a different outcome, our role is to send the case back to the jury rather than 'reviewing the facts ourselves and pronouncing the defendant without-a-doubt guilty.'"
