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.