Firearm Offenses

Upon remand from the United States Supreme Court, the Seventh Circuit reconsidered the defendant’s conviction under 18 U.S.C. § 922(g)(3) in light of Rehaif v United States (2019) where the knowledge requirement applied to both elements including possession of a firearm and defendant belonging to a barred category. The Court vacated the defendant’s conviction for unlawful drug user in possession of a firearm and held that the record established that the defendant knew he was a drug user but did not sufficiently establish that the defendant knew his use was illegal.

The Eleventh Circuit upheld a sentencing guideline enhancement for possessing a firearm under § 2K2.1(b)(6)(B) because the evidence showed that the defendant planned on selling the firearm to purchase drugs he intended to distribute.

The Ninth Circuit reversed one of the defendant’s assault convictions and corresponding § 924(c) convictions as multiplicitous because the defendant, although charged with shooting at five officers, only shot at them four times. The Court also held that multiple shots fired in quick succession do not necessarily mean the firearm was only used once under 924(c).

The Seventh Circuit reversed the defendant’s conviction under 922(g) based on his prior misdemeanor conviction for family violence battery. Under Rehaif, the Government would have had to prove that the defendant knew that his prior conviction prohibited him from possessing firearms, and the defendant established a reasonable probability that he would not have pleaded guilty had he known the Government’s burden, especially given the circumstances of his prior misdemeanor conviction, which involved a guilty plea without counsel or being thoroughly advised of the collateral consequences.

The Court affirmed the defendant’s conviction for armed bank robbery and related firearm charges, holding that the a trial court’s admission of unduly suggestive out-of-court identifications is not reversible error where the identification is otherwise reliable, there was sufficient evidence that the bank was federally insured, and new DNA testimony regarding deviations between the witness’s testimony and the FBI’s guidelines on DNA evidence would not likely change the outcome of the trial.

The Court affirmed the defendant’s convictions for unlawful possession of unauthorized access devices and aggravated identity fraud, holding that it was not an abuse of discretion for the court to admit evidence of a firearm owned by the defendant. The evidence was relevant to the defendant’s possession of the unauthorized access devices because the firearm was found within close proximity of the access devices and within the same small area, and the probative value outweighed any undue prejudice, especially since the government did not indicate to the jury that the firearm was unlawfully owned.

Evidence/Expert Testimony – An officer is not testifying as an expert when he testifies that firearms are often involved in drug activity where such lay opinion testimony is based on his professional experiences. Evidence/Rule 403 – Evidence of drug distribution and possession is relevant in unlawful possession of firearm cases where the element of knowledge …

United States v. Dustin McLellan (11th Cir. May 2020) Read More »

The Court affirmed the defendant’s sentence under the Armed Career Criminal Act, holding that his prior Florida convictions for strong-arm robbery and felony battery were “violent felonies” under the ACCA’s elements clause.

The Court vacated the defendant’s conviction for unlawful possession of a firearm by an unlawful immigrant. The Court held that the district court’s pre-Rehaif order excluding the defendant’s immigration applications and evidence that he believed he was legally in the U.S. amounted to plain error given the Supreme Court’s opinion in Rehaif. The Court further held that the defendant was prejudiced by not being able to introduce this evidence given his consistent arguments in pre-trial and sentencing proceedings that he believed he was legally in the U.S.

The Court affirmed the district court’s finding that officers’ warrantless search of a home was justified under the “emergency aid exception.” The Court held that the officers had a reasonable belief that a dog’s whimpering inside the house was a human in need of emergency aid based on their initially responding to a 911 regarding gun shots, the defendant’s belligerent behavior prior to his arrest, and the officers’ belief that someone else may have been in the house.