Case No. 17-9560 | 11th Cir.
Preview by Sean Lowry*
Rehaif involves statutory interpretation of the government’s burden in demonstrating mens rea when prosecuting certain classes of individuals that are prohibited from possessing firearms.
Under federal law, persons of various statuses are prohibited from “possess[ing] in or affecting commerce, any firearm or ammunition.” 18 U.S.C § 922(g) (2012). Among the types of individuals covered are aliens “illegally or unlawfully in the United States.” Id. § 922(g)(5)(A). “Whoever knowingly violates subsection . . . (g) . . . of section 922 . . . shall be fined . . . imprisoned . . . or both.” 18 U.S.C. § 924(a)(2).
Mr. Rehaif, a citizen of the United Arab Emirates, was admitted as a student to the Florida Institute of Technology in 2013. He attended school there for three semesters. On January 21, 2015, the school sent Mr. Rehaif an email academically dismissing him and notifying him that his immigration status would be terminated unless he transferred or notified the school that he had already left the United States by February 5, 2015. Mr. Rehaif remained in the United States after his student visa expired. On December 2, 2015, he went to a shooting range in Florida, where he purchased a box of ammunition and rented a firearm for one hour of shooting. On December 8, law enforcement responded to a suspicious person complaint at the hotel where he was staying. FBI agents on the scene spoke with Mr. Rehaif, who acknowledged that he visited a shooting range. Soon after, he was indicted as an alien illegally and unlawfully in the United States who knowingly possessed a firearm and ammunition in violation of §§ 922 and 924(a)(2).
The trial judge instructed the jury that the government did not need to prove that Mr. Rehaif knew that he was in the United States illegally or unlawfully. Counsel for Mr. Rehaif opposed that instruction, arguing that the statute required the government to prove scienter of his illegal status at the time he possessed the firearm. The district judge overruled Mr. Rehaif’s objection and the jury found him guilty on both charges. The Eleventh Circuit affirmed.
The public defenders representing Rehaif are using the “Gorsuch brief,” hoping to swing the justice based on a prior opinion and his penchant for grammar-based textualism. In United States v. Games-Perez, 667 F.3d 1136 (10th Cir 2012), the defendant was charged with violating § 922 based on its prohibition of federal convicts’ possession of firearms. The defendant thought the prohibition did not apply to him because his conviction had been expunged. Then–Judge Gorsuch begrudgingly joined the majority to uphold, based on stare decisis, that the scienter requirement of § 924(a)(2) applied only to the possession element of the statute, even though he felt that the proper statutory interpretation would have been to carry the mens rea through to each material element of the crime. See Games-Perez, 667 F.3d at 1145 (Gorsuch, J., concurring). Plaintiffs here are hoping that Justice Gorsuch might be willing to carry out his view that “we might be better off applying the law Congress wrote . . . [i]t is a perfectly clear law as it is written, plain in its terms, straightforward in its application.” Id.
*Sean Lowry is a 2LE (Class of 2021) and Analyst in Public Finance at the Congressional Research Service (CRS). The views expressed are those of the author and are not necessarily those of the Library of Congress or CRS.