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

The Federal Docket

Firearm Offenses/Prohibited Classes – In prosecuting a defendant for unlawful possession of a firearm by a nonimmigrant visa holder, the Government must do more than show that the visa was labeled for temporary aliens.

Melvyn Gear was convicted of unlawful possession of a firearm by a non-immigrant visa holder. Since the Supreme Court held in Rehaif that the government must prove a defendant knew they were part of a prohibited class, that meant Gear had to either 1) know his visa was classified as a nonimmigrant visa, or 2) knew the characteristics of his visa, as a temporary alien coming for a speciality occupation, that made his possession of a firearm prohibited.

In Gear’s case, the Ninth Circuit added that it is not enough for the Government to show that the visa is labeled as a nonimmigrant visa. However, Gear’s conviction as affirmed because he admitted that he knew it was illegal for him to possess a firearm.

Judge Silver partially dissented, arguing that it should not be enough for the Government to show the defendant knew how the visa was classified.

Butamay dissented, arguing this was prejudice and that Gear should receive a new trial.

Appeal from the District of Hawaii
Per Curiam Opinion by Silver, Lee, and 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.

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