The Ninth Circuit held in a per curiam opinion Tuesday that after a 2019 U.S. Supreme Court ruling, an H-1B visa holder must know that their visa is a nonimmigrant visa in order to be convicted under 18 U.S.C. § 922(g)(5)(B), which prohibits nonimmigrant visa holders from possessing a firearm.
After Rehaif v. United States (2019) 139 S.Ct. 2191, the court held, the government must prove the defendant knows they have a nonimmigrant visa in order to satisfy the statute’s mens rea requirement.
The case arises from the conviction of Melvyn Gear, an Australian native who moved to Hawaii in 2013 to work for a solar power company, eventually receiving an H-1B visa. While working in Hawaii, Gear decided he wanted to divorce his wife back in Australia. He returned to that country to divide up the marital property and brought his share back with him to Hawaii, including a Lithgow .22 caliber bolt action rifle.
The U.S. government indicted Gear in 2017 under § 922(g)(5)(B). During the trial, the jury was instructed that the government had to prove Gear “knowingly possessed” the rifle and was in the U.S. on a nonimmigrant visa, but not that Gear was aware of anything about his visa status. The jury returned a guilty verdict in 2019.
Before Gear was sentenced, the Supreme Court decided Rehaif, holding that in a prosecution under § 922(g), the government must prove the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm.”
Gear moved for a new trial based on Rehaif, and the trial court denied the motion, reasoning that “the Government needed to establish that Gear knew that he possessed an H-1B visa (a question of fact), not that Gear knew that an H-1B visa was a nonimmigrant visa (a question of law).” Gear was sentenced to 15 months in prison.
Disagreeing with the lower court, the Ninth Circuit held that under a “straightforward application” of Rehaif, the government had to prove Gear had to know he was admitted to the U.S. “under a nonimmigrant visa” in order to gain a conviction. “It’s really that simple,” the panel held. “As a matter of text and precedent, we need not go any further.”
Establishing only that Gear knew he had an H-1B visa, the panel held, “is not enough,” as a visa’s label “is not a fact that makes it a ‘nonimmigrant visa.'”
However, the court still affirmed Gear’s conviction, because Gear failed to object to the erroneous jury instructions and his appeal doesn’t survive plain error review.
Judge Patrick Bumatay dissented from the judgment affirming the conviction, writing that Gear has established that there is a reasonable probability that the outcome of his trial would be different if the jury were properly instructed. “Rather than conjecture about his guilt from the bench, we should return the question to where it is constitutionally reserved: the jury box,” Bumatay wrote.
Arguing counsel for the parties could not be immediately reached for comment on the ruling.
The case is U.S. v. Gear, case number 19-10353, in the U.S. Court of Appeals for the Ninth Circuit.
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