Litigation Highlight: En Banc First Circuit Clarifies Rehaif’s Application to 922(g)(9) Prosecutions

In its March 24, 2023 en banc decision in United States v. Minor, the First Circuit wrestled with the application of Rehaif v. United States to Section 922(g)(9) charges – the heart and soul of the federal domestic violence initiative. In a nutshell, 922(g)(9) prohibits the possession of firearms and/or ammunition by a person convicted of a misdemeanor crime of domestic violence. The Supreme Court has upheld this statute in three separate challenges and noted that “[f]irearms and domestic strife are a potentially deadly combination nationwide.” United States v. Hayes, 555 U.S. 415, 427 (2009); see also Voisine v. United States, 579 U.S. 686 (2016); United States v. Castleman, 572 U.S. 157 (2014).

As described in earlier posts here and here, the 2019 opinion in Rehaif requires the government to prove in 922(g) cases that the defendant knew he belonged to the category of persons prohibited from possessing firearms. While this is normally less challenging in felon in possession cases brought under 922(g)(1), because the mere fact of conviction normally suffices to demonstrate such knowledge, it has been more problematic in 922(g)(9) cases where the government must show the defendant was aware that he had been convicted of a misdemeanor crime of domestic violence specifically. The major outstanding question under Rehaif is whether the defendant must know that their prior conviction was classified as a “misdemeanor crime of domestic violence” (MCDV) as defined in 921(a)(33)(A), or whether it is sufficient that the defendant knew their conduct met all the elements or features of this definition (without necessarily knowing that their crime fell within the statutory definition of a MCDV)?

Willie Minor, a habitual domestic violence offender, was prosecuted under 922(g)(9) and found guilty of possessing a firearm after being convicted of simple assault against his wife in Maine. While on appeal, Rehaif was decided and the government agreed to a remand and to re-try the case with jury instructions reflecting Rehaif. At the retrial, Minor was convicted based on jury instructions that required his knowledge of all the elements of (g)(9): that he had been convicted of a misdemeanor offense involving either causing bodily injury or offensive physical contact to his wife. On appeal, the Minor panel vacated the conviction, holding that the jury instructions were in error because the “jury was allowed to convict Minor of knowingly violating section 922(g)(9) without finding that he knew that his assault conviction placed him in the category of persons convicted of a misdemeanor crime of domestic violence….”

To clarify its holding, the panel continued: “[t]o establish that Minor ‘knowingly’ violated section 922(g)(9), the government need prove that he ‘knew he violated the material elements of § 922(g),’ which in this case means that he knew he had been convicted of a misdemeanor crime of domestic violence” (quoting Rehaif).  The Court minimized the repercussions of its ruling, stating that “[o]ur adherence to Rehaif creates no plausible defense for defendants convicted of an express charge of domestic violence.” This ignores the reality that defendants are often allowed to plead to lesser generic offenses, leading the Supreme Court to allow generic offenses (such as simple assault) to serve as predicate convictions for purposes of 922(g)(9). Willie Minor is a prime example of a defendant convicted under 922(g)(9) for a predicate offense not specifically categorized as a “domestic violence” offense under state law.

In a forceful dissent, Judge Sandra Lynch argued that the panel majority’s misreading of Rehaif created a circuit split and noted “the unfortunate consequence of impairing efforts to prevent instances of domestic violence within the jurisdictions which comprise the First Circuit.” In particular, the majority ignored Supreme Court precedent that “a defendant typically is charged only with knowing ‘the facts that make his conduct fit the definition of the offense,’ and not ‘that those facts give rise to a crime.’” Elonis v. United States, 575 U.S. 723, 735 (2015). Per Judge Lynch, by holding to the contrary, the majority imposed requirements that render it difficult to establish that the defendant was aware that a conviction qualified as a misdemeanor crime of domestic violence—a definition that it admits is “quite complex.” Thus the purpose of Section 922(g)9—keeping firearms out of the hands of domestic abusers—is “frustrated by the majority’s newfound rule.”

The Government successfully moved for en banc reconsideration, arguing that Rehaif requires the defendant’s knowledge of the “features” of the underlying predicate offense, but not necessarily that it is labeled a “domestic violence misdemeanor offense.” The panel opinion in Minor, the government argued, would render 922(g)(9) a nullity by requiring the defendant to know that a prior conviction was a MCDV. As Justice Alito noted in his Rehaif dissent, not only did the majority opinion in Rehaif “casually overturn the long-established interpretation of an important criminal statute, 18 U.S.C. §922” but it also imposed an almost insurmountable burden on the government.  Justice Alito further asked, “[i]f the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a ‘crime of domestic violence,’ would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified?”

The First Circuit’s unanimous en banc Minor decision (notably including those judges who were in the panel majority) walks back the difficult requirements imposed by the panel opinion, under the guise of modifying and clarifying “what type of knowledge equates to knowing . . . that a person was in the category of persons convicted of a misdemeanor crime of domestic violence.”  This “modification” is significant:

We hold that if Minor's knowledge about his prior conviction included everything necessary to satisfy the definition of ‘misdemeanor crime of domestic violence,’ see 18 U.S.C. § 921(a)(33)(A), then, for all purposes relevant here, he knew that he had been convicted of a misdemeanor crime of domestic violence. And that remains true even if he did not know that such an offense had been labeled in sections 922(g)(9) and 921(a)(33)(A) as a misdemeanor crime of domestic violence.

This position aligns with how the government has consistently interpreted Rehaif in 922(g)(9) cases since that decision was issued: to require proof that the defendant knew all facts necessary to satisfy the predicate conviction, but not necessarily that the defendant knew that those facts/features/elements amounted to a “misdemeanor crime of domestic violence” classification.

Even though the jury instructions adopted language from United States v. Castleman, 572 U.S. 157 (2014), the en banc court took issue with the instructions as given and remanded for retrial citing a “material misdescription.”  In a stark example of threading the needle too finely, the court held that an instruction that Minor knew his conviction was “for” causing bodily injury or offensive physical contact did not require a finding that the defendant “used” physical force as required by Section 921(a)(33)(ii).  Accepting the government’s request to provide “clear guidance” should the instructions be found faulty, the court explained that, in its view, “the government would have had to prove beyond a reasonable doubt that [Minor] ‘use[d] or attempted [to] use . . . physical force. . . .’”  The trial court could then explain that  “‘use . . . of physical force’ means intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.”

To this observer, the en banc court struggled to find error where there was none by quibbling with the jury instructions. However, the court’s retreat from a requirement that a defendant be aware that his conviction was classified as a “misdemeanor crime of domestic violence” is a victory that will preserve 922(g)(9) as an effective government tool to disarm domestic abusers.