Thursday, August 17, 2017

11th Circuit vs. then-Judge Gorsuch

The 11th Circuit, per Judge Dubina, issued an opinion today disagreeing with then-Judge Gorsuch in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). The Gorsuch opinion was defendant friendly on the issue of mens rea. Unsurprisingly, the 11th Circuit opinion is not:
As Rehaif points out, the strongest argument in favor of requiring proof of mens rea with respect to the status element is laid out in then-Judge, now Justice Gorsuch’s concurrence in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). Acknowledging that prior precedent dictated that the mens rea requirement does not apply to the status element, then-Judge Gorsuch concluded that the plain language of the statute compelled the opposite conclusion. Id. (“[Prior precedent] reads the word “knowingly” as leapfrogging over the very first § 922(g) element and touching down only at the second. This interpretation defies linguistic sense—and not a little grammatical gravity.”). In drawing such a conclusion, then-Judge Gorsuch noted that, “Congress gave us three elements in a particular order. And it makes no sense to read the word “knowingly” as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.” Id. at 1144. He also pointed out that “[t]he Supreme Court has long held that courts should presum[e] a mens rea requirement attaches to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 1145 (quotations omitted) (alteration in original).
While then-Judge Gorsuch opined that § 922(g) “is a perfectly clear law as it is written, plain in its terms, straightforward in its application,” id., there is evidence to suggest otherwise. The fact that § 924(a)(2) only punishes defendants who “knowingly violate” § 922(g) begs the question “what does it mean to knowingly violate the statute?” Does the statute proscribe merely conduct, or both conduct and the surrounding circumstances that make the conduct a federal crime? See United States v. Langley, 62 F.3d 602, 613 (4th Cir. 1995) (en banc) (Phillips, J., concurring in part and dissenting in part) cert. denied, 516 U.S. 1083, 116 S. Ct. 797 (1996). While the defendant’s status might be inextricably tied to the violation, the actual violation occurs when the defendant knowingly possesses a firearm.


Anonymous said...

Totally agree horrible decision! We should make it as hard as possible to convict illegal aliens and felons for unlawfully possessing guns. I mean, who *really* knows for sure if they're an illegal alien or a felon anyways?? We're all just people! Not surprised either that the 11th just doesn't get it! The more people who have guns the better!

Anonymous said...

I can't speak for federal criminal law. But, in federal immigration law, it is very easy for one to not know he is a felon. The definition of conviction for immigration purposes includes withholds of adjudication, and other lesser dispositions through case law. Thus, you can have a state court judge tell you that you are not "convicted" of a felony, but ICE comes and pick you up right after and tells you, "Umm, yes, that's a conviction for our limited purposes." Client after client gets surprised and then the post-conviction motions start getting filed. It's a mess.

I wouldn't be surprised if state court withholds are treated as convictions for federal sentencing purposes, so please chime in on that if you can.