United States v. Melvyn Gear (9th Cir. August 2021)

The Federal Docket

September 7, 2021

Firearm Offense – To convict a person for possession of a firearm by non-immigrant visa holder the Government must prove that either that the defendant knew his visa was classified as a “nonimmigrant visa” or that his visa possessed characteristics that constitute a non-immigrant visa.

Melvyn Gear was convicted of unlawful possession of a firearm by a non-immigrant visa holder under 18 U.S.C. §922(g)(5). The Ninth Circuit amended its decision of February 1, 2021, which held that, for a conviction under this subsection, the Government must prove either that the defendant knew that his visa was classified as a “nonimmigrant visa” or that his visa was issued to him as an alien entering the country for a specialty occupation.

The Circuit Court’s amended opinion clarified that the reason for upholding Gear’s conviction was because the record showed that Gear knew he had a non-immigrant visa with an explicitly temporary authorization to enter the country for his work. Gear’s knowledge regarding the characteristics of his visa was sufficient to convict him under 922(g)(5). The Court reiterated that it was insufficient for the Government to show the defendant knew he had an “H-1B” visa, which is a temporary work visa, to obtain a conviction, since a “visa’s label…is not a fact that makes it a nonimmigrant visa.”

Judge Silver wrote in concurrence. In her own amendment she clarified the reasons that she felt that only the per curiam opinion’s second path was sufficient under Rehaif.

Judge Bumatay concurred in part and dissented in part. The substance of his argument remained unchanged—that the case should have been remanded for re-trial with jury instructions consistent with the court’s opinion.

Appeal from the District of Hawaii
Per Curiam Opinion by Lee, Bumatay, and Silver (by designation from D. Arizona)
Concurrence by Judge Silver
Partial Concurrence and Partial Dissent by Judge Bumatay

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

Scroll to Top