Firearm Offenses/922(g) – “A person knows he is a domestic-violence misdemeanant, for Rehaif purposes, if he knows all of the following: 1) that he was convicted of a misdemeanor crime, 2) that to be convicted of that crime, he must have engaged in at least “the slightest offensive touching,” and 3) that the victim of the misdemeanor crime was his spouse.
Deangelo Lenard Johnson appealed his conviction for possession of a firearm by a person convicted of a misdemeanor involving domestic violence under 18 U.S.C. 922(g)(9). On appeal, Johnson argued that, under Rehaif, his conviction should be vacated because the indictment failed to allege that he knew his prohibited status and the government failed to present sufficient evidence of that knowledge.
First, the Court concluded that Johnson had not “invited error” by stipulating at trial that he had previously been convicted of a misdemeanor crime of domestic violence, holding that “Johnson’s acknowledgement that the evidence he stipulated to was sufficient to satisfy the elements of the crime as laid out by then-binding precedent does not preclude him from asserting that the stipulation is not sufficient in light of the Supreme Court’s subsequent issuance of Rehaif.”
Applying plain error review, the Court concluded that the indictment’s failure to allege an essential element and the lack of evidence at the bench trial were plain errors. However, the Court held that these plain errors did not affect Johnson’s substantial rights, which in these Rehaif cases is based on whether the defendant actually knew of his prohibited status and whether the outcome of the trial may have come out differently.
The Court explained that 922(g)(9) now requires that, “at the time he
possessed the firearm, the defendant must have known that he was convicted of a misdemeanor, and he must have known the facts that made that crime qualify as a misdemeanor crime of domestic violence,” which in turn must categorically require the use or threatened use of force. The Court further concluded that “the government does not have an affirmative obligation to prove or disprove the applicability” of the affirmative defenses to whether a defendant’s prior conviction qualifies as a misdemeanor involving domestic violence “unless the defendant first brings forward evidence suggesting that his prior conviction is excepted.”
Looking at the record, including the undisputed facts in the PSR, the Court concluded that there was sufficient evidence of Johnson’s knowledge that he was a “domestic-violence misdemeanant.” The Court recounted that Johnson knew he had been convicted of “domestic battery” under Florida law after being charged with a felony initially, that he served six months in jail for that conviction, and his admission that he knew he was a misdemeanant but did not know misdemeanants could not possess firearms. This was sufficient were the victim was Johnson’s wife and “Obviously, Johnson knew she was his wife.”
On appeal from the Middle District of Florida
Opinion by Rosenbaum, joined by Martin and Tallman (by designation from the 9th Cir.)
Click here to read the opinion.