United States v. Gear, No. 19-10353 (9th Cir. 2021)
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Gear, a native of Australia, moved to Hawaii to work. Gear’s employer applied for, and Gear received, an “H-1B” nonimmigrant visa. Gear later returned from visiting Australia with a rifle. Gear was fired and needed a new visa. Gear created a new company and obtained a new H-1B visa. A DHS agent learned Gear was present on an H-1B visa and bragged about owning firearms, and obtained a search warrant. Before the search, Gear stated, “he couldn’t possess a firearm … because he was not a U.S. citizen.” Gear stated his ex-wife had shipped a rifle and gun safe to Hawaii but he claimed they had been discarded because “he couldn’t have it.” Gear eventually admitted that the gun and safe were in the garage.
He was charged under 18 U.S.C. 922(g)(5)(B) for possessing a firearm while being an alien who had been admitted under a nonimmigrant visa. The jury was instructed the government had to prove Gear “knowingly possessed” the rifle, that had been transported in foreign commerce, and that Gear had been admitted under a nonimmigrant visa. Before Gear was sentenced, the Supreme Court decided Rehaif, holding that under section 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”
The Ninth Circuit affirmed Gear’s conviction. While the government must prove the defendant knew he had a nonimmigrant visa, the erroneous jury instructions did not affect Gear’s substantial rights because the record overwhelmingly indicates that he knew it was illegal for him to possess a firearm.
Court Description: Criminal Law. The panel 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 panel held that after Rehaif v. United States, 139 S. Ct. 2191 (2019), the government must—in order to gain a conviction under § 922(g)(5)(B)—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. Reviewing the district court’s erroneous jury instructions—to which the defendant did not properly object—for plain error, the panel held that the error did not affect the defendant’s substantial rights because the record overwhelmingly indicates that the defendant knew it was illegal for him to possess a firearm. Concurring, Judge Silver agreed that the conviction should be affirmed but wrote separately to write that to the extent the per curiam opinion suggests the government could alternatively prove that the defendant knew his visa was statutorily classified as a “nonimmigrant visa,” she does not agree. UNITED STATES V. GEAR 3 Concurring in part and dissenting in part, Judge Bumatay wrote that the defendant showed a reasonable probability that the jury would have reached a different outcome if the jury had been properly instructed, and that the panel should therefore return the determination of the defendant’s guilt to the jury.
The court issued a subsequent related opinion or order on August 30, 2021.
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