United States Court of Appeals For the First Circuit
No. 20-1903
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIE RICHARD MINOR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Barron, Chief Judge, Lynch, Thompson, Kayatta, Gelpí, and Montecalvo, Circuit Judges.
Karen A. Pickett for appellant. Joshua K. Handell, Attorney, Criminal Division, U.S. Department of Justice, with whom Darcie N. McElwee, United States Attorney, Benjamin M. Block, Assistant United States Attorney, Kenneth A. Polite, Jr., Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, were on brief, for appellee. Laura A. Foggan, Preetha Chakrabarti, and Crowell & Moring LLP on brief for amici curiae Battered Women's Justice Project, Illinois Coalition Against Domestic Violence, Indiana Coalition to End Domestic Violence, Kentucky Coalition Against Domestic Violence, Maine Coalition to End Domestic Violence, Maryland Network Against Domestic Violence, National Coalition Against Domestic Violence, and Standpoint. Iman K. Kholdebarin, Alan E. Schoenfeld, Emily Barnet, Joe D. Zabel, and Wilmer Cutler Pickering Hale and Dorr LLP on brief for amicus curiae Everytown for Gun Safety.
Opinion En Banc
March 24, 2023 KAYATTA, Circuit Judge. A jury convicted Willie Richard
Minor under 18 U.S.C. § 924(a)(2) of knowingly violating 18 U.S.C.
§ 922(g), which prohibits nine categories of persons from
possessing a firearm. On appeal, Minor asserts that the
proceedings below were tainted by a series of errors relating to
the mens rea required to establish a knowing violation of
section 922(g).
In a divided opinion, a panel of this court vacated
Minor's conviction on grounds of instructional error. United
States v. Minor, 31 F.4th 9 (1st Cir. 2022), vacated, 49 F.4th 22.
The panel focused its decision on Rehaif v. United States, 139
S. Ct. 2191 (2019), in which the Supreme Court held that
convictions under section 924(a)(2) for knowingly violating
section 922(g) require "the Government [to] prove both that the
defendant knew he possessed a firearm and that he knew he belonged
to the relevant category of persons barred from possessing a
firearm." Id. at 2200. The "relevant category" in this instance
is the category of persons who have been convicted of a
"misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9).
The government charged Minor with belonging to this category based
on his 2010 no-contest plea to a simple assault charge under Maine
law, which he entered after refusing to plead guilty to a charge
of domestic violence assault. The panel vacated Minor's conviction
because "the jury was allowed to convict [him] of knowingly
- 3 - 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." Minor, 31 F.4th at
11.
We granted the government's petition for rehearing en
banc in order to reconsider the mens rea required for a conviction
under sections 924(a)(2) and 922(g)(9), as well as whether the
jury instructions here properly described the elements of that
offense. United States v. Minor, 49 F.4th 22 (1st Cir. 2022). We
once again vacate Minor's conviction and remand for a new trial
due to instructional error, but we modify and clarify what type of
knowledge equates to knowing -- for purposes of a conviction under
sections 924(a)(2) and 922(g)(9) -- that he was in the category of
persons convicted of a misdemeanor crime of domestic violence.
I.
We first discuss the procedural path leading to Minor's
trial and the largely undisputed facts presented to the jury. We
then describe the parties' debate concerning how best to apply
Rehaif's holding to adjudicating a charge that a person knowingly
violated section 922(g)(9), which effectively sets the stage for
the issues raised in this appeal.
- 4 - A.
Minor's federal case began with a November 2016
interview with members of the Auburn, Maine Police Department,1 in
which Minor told the officers that he owned a Lorcin firearm, which
the officers later seized. In February 2017, a federal grand jury
charged Minor under sections 924(a)(2) and 922(g)(9) with
possession of a firearm by a person who had previously been
convicted of a misdemeanor crime of domestic violence. The
predicate offense supporting this status was a June 2010 Maine
conviction for Assault, Class D, committed against Minor's then-
spouse. Minor was convicted on the federal gun possession charge
after a trial in December 2017.
While his appeal from that conviction was pending, the
Supreme Court issued its decision in Rehaif construing
sections 924(a)(2) and 922(g) to require the prosecution to show
that the defendant knew he belonged to the relevant category of
persons prohibited from possessing a gun (thus articulating what
we have called the "scienter-of-status" requirement, see United
States v. Burghardt, 939 F.3d 397, 400 (1st Cir. 2019)). In light
of that ruling, the parties agreed that Minor's conviction should
be vacated and the case remanded for a new trial. The government
then filed a superseding indictment that included the allegation
1 The reason for this interview was not elicited at Minor's trial and does not appear to bear on the instant appeal.
- 5 - that Minor "knew that he had been previously convicted of th[e]
misdemeanor crime of domestic violence."
Minor's case proceeded to his second trial, at which he
stipulated to most elements of the offense charged. He agreed
that the gun was recovered from his home, was operable, and had
been moved in interstate commerce; he further agreed that he had
"knowingly possessed" it. Minor also stipulated to several details
regarding his prior Maine assault conviction, including that the
victim named in the 2009 assault complaint was his spouse at the
time. As on appeal, his defense homed in on what he knew about
his prior conviction, since he had "stipulated to literally every
other aspect of the crime."
Also focusing on the mens rea issue, the government
introduced some state-court records of Minor's prior offense.
These records show that Minor was initially charged with a
"Domestic Violence Assault" that occurred on August 23, 2009. The
state-court complaint alleged that Minor "did intentionally,
knowingly or recklessly cause bodily injury or offensive physical
contact to Betty Minor." It then stated, "This conduct was
committed against a family or household member as defined by [Maine
law]." The judicial advice-of-rights video played at Minor's
state-court arraignment on the charge of Domestic Violence Assault
instructed him:
- 6 - If you are convicted of certain specific crimes, you may lose your right to purchase, possess, or own a firearm or any type of ammunition. These specific crimes include offenses that involve the use of force, or even the attempt to use physical force, or offensive physical contact, or the use, or threat to use, a deadly weapon and . . . and the victim was either your spouse [or another specified relation]. The judge can tell you whether you are charged with such a crime. If you are, I would strongly suggest you speak with an attorney before entering a plea of guilty or no contest.
In the wake of that admonition, Minor refused to plead
guilty to the domestic violence charge on which he was arraigned.
Subsequently, the state prosecutor agreed to amend the complaint
to reduce the charge to "Assault, Class D" and to strike the
sentence stating, "This conduct was committed against a family or
household member . . . ." The docket entries characterized the
revision as a motion to amend "to delete DV reference." The
revised charge thus eliminated any express allegation of domestic
violence, claiming only that Minor "did intentionally, knowingly
or recklessly cause bodily injury or offensive physical contact to
Betty Minor." The judgment and commitment form had initially been
printed with the offense "Domestic Violence Assault," but the words
"Domestic Violence" had been crossed out by hand. The state-court
records show that Minor then pleaded no contest to the assault
charge in June 2010. The record of this case contains no tape or
transcript of the colloquy at the acceptance of Minor's plea.
- 7 - In his own trial testimony in 2020 on the federal gun-
possession charge, Minor described his understanding of his 2010
state-court conviction: "I was convicted of a simple assault."
But, he said, "I wasn't convicted of a domestic. . . . They removed
any language . . . that it was a domestic." Minor then related
that he had told his prior counsel, "I want to make sure I'm not
pleading to a domestic," "because it would have meant that I
couldn't have firearms." Minor testified that he believed he could
possess a firearm and that this result had been arranged in his
plea, but the court struck that testimony on the government's
objection, and it denied on relevance and unfair-prejudice grounds
Minor's counsel's entreaty for further inquiry into Minor's belief
that he could own a firearm.
Minor also sought to introduce testimony from George
Hess, the lawyer who had represented him in the Maine state
proceedings. As proffered, Hess would purportedly have testified
about Minor's desire "to possess a firearm" and that Minor was
"unwilling to plead to a domestic violence offense." Minor further
proffered that Hess would testify to representations made to him
by Assistant District Attorney Nicholas Worden, who prosecuted
Minor's misdemeanor. Specifically, ADA Worden allegedly told Hess
"that Mr. Minor would still be able to possess a firearm if he
pled guilty to the Class D simple assault." The district court
excluded this evidence on relevance grounds.
- 8 - B.
Before trial, Minor sought jury instructions on the
knowledge requirement imposed by Rehaif. He requested the jury be
instructed that: "In order to find the Defendant guilty of the
charged offense you must find beyond a reasonable doubt that he
acted knowingly in possessing the firearm and that he knew he
belonged to the relevant category of persons barred from possessing
a firearm." Later, Minor revised the latter portion of the request
so that he sought instructions requiring the jury to find, for a
guilty verdict, "that at the time [Minor] possessed the firearm,
he knew that he had been previously convicted of a misdemeanor
crime of domestic violence" and "that he knew that he belonged to
the status of individuals convicted of a crime of domestic violence
as defined by federal law." Minor later supplemented the "as
defined by federal law" portion of that request by asking that the
court read out the statutory definition of "misdemeanor crime of
domestic violence," which states:
[T]he term "misdemeanor crime of domestic violence" means an offense that --
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is
- 9 - cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
18 U.S.C. § 921(a)(33)(A).2
The district court denied all of Minor's requested
versions of the Rehaif instruction and ultimately instructed the
jury that to find Minor guilty, it must find:
that Willie Richard Minor knew that he had been convicted of [the specified Maine assault Class D offense], that he knew the conviction subjected him to incarceration of up to 364 days, that he knew the conviction was for causing bodily injury or offensive physical contact to another person, and that he knew the victim of the crime was his spouse at the time.3
2 All references and citations to section 921(a)(33)(A) in this opinion are to the provision as it existed at the time of Minor's charged conduct. The Bipartisan Safer Communities Act, Pub. L. No. 117-159, § 12005, 136 Stat. 1313, 1332 (2022), has since added "a person who has a current or recent former dating relationship with the victim" to the list of relevant domestic relations. Additionally, the Violence Against Women Act Reauthorization Act of 2022, Pub. L. No. 117-103, § 1104, 136 Stat. 840, 921–22, added misdemeanors under local law to the definition. 3 The complete instruction for the elements of the charged section 922(g)(9) offense explained that, to find Minor guilty, the jury must find: First, that Willie Richard Minor had been convicted as charged in the superseding indictment of assault Class D in the Maine Superior Court on June 14, 2010.
Second, that the victim of that crime was Willie Richard Minor's spouse at the time.
- 10 - At the government's request, in light of Minor's
testimony, the district court also charged the jury that Minor's
"belief that he could possess a firearm is not itself a defense."
The jury returned a guilty verdict, and the district court
subsequently sentenced Minor to time served with three years'
supervised release. Minor timely appealed, and a divided panel of
Minor has stipulated that he and Betty[] Minor were married from June 8, 2008, until October 4, 2016, and that the victim listed in the complaint filed on October 14, 2009, Betty Minor, was his spouse at the time.
Third, that Willie Richard Minor knew that he had been convicted of that crime, that he knew the conviction subjected him to incarceration of up to 364 days, that he knew the conviction was for causing bodily injury or offensive physical contact to another person, and that he knew the victim of the crime was his spouse at the time.
Fourth, that on about November 27, 2016, Willie Richard Minor knowingly possessed the firearm described in the superseding indictment. Minor has stipulated that is so.
Fifth, that the firearm satisfied the federal definition of firearm and was connected with interstate commerce. Minor has stipulated that that is so.
The word knowingly means that the act was done voluntarily and intentionally, not because of mistake or accident. The Government does not have to prove that Willie Richard Minor knew that his conduct in possessing a firearm was illegal or that he knew that he was prohibited from possessing a firearm, and his belief that he could possess a firearm is not itself a defense.
- 11 - this court vacated his conviction on grounds of instructional
error. Minor, 31 F.4th at 21. The government then petitioned for
rehearing en banc. In granting the government's petition, we
requested supplemental briefing focusing on Rehaif's application
to section 922(g)(9) and the jury instructions here.
II.
Minor argues that the district court misapprehended
Rehaif's requirement throughout the proceedings below, leading to
his being convicted on improper jury instructions and insufficient
evidence. We review this preserved contention of legal error de
novo. See United States v. Norris, 21 F.4th 188, 193–95 (1st Cir.
2021) (applying de novo standard of review to preserved challenges
to sufficiency of the evidence and jury instructions). To conduct
this review, we first address the application of Rehaif to
section 922(g)(9) and the jury instructions, and then discuss
where that analysis leaves Minor's sufficiency challenge.
A.
We confront the often daunting task of trying to apply
Congress's use of categorical descriptions to define certain
crimes, convictions for which serve as elements of separate federal
crimes. See De Lima v. Sessions, 867 F.3d 260, 268 (1st Cir. 2017)
("Even a single such categorical analysis is an arduous task,
requiring a close analysis of the specific statutory language put
at issue [and] of the case law interpreting that language . . . .
- 12 - The ensuing categorical evaluation is often difficult and time
consuming." (citations omitted)). Our task here is doubly
difficult because in this instance Congress has expressly required
that proof of a gun possession crime under section 924(a)(2) turns,
in part, on whether the defendant knows that a particular prior
crime of conviction fits Congress's categorical description of
that which is required to render the possession unlawful. See
Rehaif, 139 S. Ct. at 2197.
Minor was convicted in Maine state court on a Class D
assault charge in 2010. Section 922(g)(9) provides that if that
crime was a "misdemeanor crime of domestic violence," he could not
lawfully buy or possess a gun. Whether a simple assault offense
like Maine's Class D offense satisfies Congress's categorical
description of misdemeanor crimes of domestic violence split the
federal courts for many years until a divided Supreme Court settled
the question in Voisine v. United States, 579 U.S. 686 (2016), by
finding that Maine's statute did so qualify. Id. at 689–90, 698–
99.
In the wake of Voisine, both parties agree that Minor's
possession of a firearm following his state conviction violated
section 922(g)(9). The charge in this case, however, is brought
under section 924(a)(2), which makes it a serious crime to
"knowingly violate[]," among other things, section 922(g). 18
- 13 - U.S.C. § 924(a)(2).4 Minor, in turn, has contended from the outset
of this criminal prosecution that he did not knowingly violate
section 922(g)(9) because he did not know what he would have known
had he read Voisine -- i.e., that Maine's Class D assault offense
can be a misdemeanor crime of domestic violence. The government,
in turn, argues that it need only prove that Minor knew those
"features" of his prior conviction that qualify it as a misdemeanor
crime of domestic violence, by which the government means "every
aspect of his prior conviction necessary to render it a
'misdemeanor crime of domestic violence' under 18 U.S.C.
§ 921(a)(33)(A)," which defines the term "misdemeanor crime of
domestic violence." That knowledge, asserts the government,
"includes (1) that the defendant's prior offense was 'a
misdemeanor under Federal[,] State[,] or Tribal law,' (2) that it
'ha[d], as an element, the use or attempted use of physical force,
or the threatened use of a deadly weapon,' and (3) that it was
committed against a person of domestic relation to the
perpetrator."
4 All references and citations to section 924(a)(2) in this opinion are to the provision as it existed at the time of Minor's charged conduct. The Bipartisan Safer Communities Act, Pub. L. No. 117-159, § 12004, 136 Stat. 1313, 1329 (2022), has since moved the penalty provision for section 922(g) from section 924(a)(2) to 924(a)(8), which provides for a longer maximum period of imprisonment.
- 14 - The panel opinion in this case held that Minor's
conviction need be set aside 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." Minor, 31 F.4th at 11. In particular, the panel held
that "the government here need prove that Minor knew that he had
been convicted of a misdemeanor crime of domestic violence." Id.
at 17. We now reaffirm those holdings. In so doing, however, we
modify and clarify what it means to prove that Minor knew that he
had been convicted of a misdemeanor crime of domestic violence.
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.
1.
Our reasoning begins with section 922(g). That section
deems unlawful the possession of a firearm by any person who falls
into any one or more of nine specified categories. For example,
- 15 - it is unlawful for an alien who is "illegally or unlawfully in the
United States" to possess a firearm. 18 U.S.C. § 922(g)(5)(A).
We then turn to section 924(a)(2), the section under
which Minor was convicted. That section provides for criminal
penalties, of up to ten years in prison, for "[w]hoever knowingly
violates [section 922(g)]." 18 U.S.C. § 924(a)(2). Focusing on
the word "knowingly," the Supreme Court held in Rehaif that an
alien who is "unlawfully" in the United States cannot be convicted
under section 924(a)(2) for possessing a gun unless the government
proves "both that the defendant knew he possessed a firearm and
that he knew he belonged to the relevant category of persons barred
from possessing a firearm." 139 S. Ct. at 2199–2200. More
generally, the Court pronounced that "by specifying that a
defendant may be convicted only if he 'knowingly violates'
§ 922(g), Congress intended to require the Government to establish
that the defendant knew he violated the material elements of
§ 922(g)." Id. at 2196.
Of particular relevance to the Court was the fact that
the conduct at issue -- possessing a firearm -- "can be entirely
innocent." Id. at 2197. So it is the defendant's "status" as
belonging to one of the categories listed in section 922(g) which
serves as the "'crucial element' separating innocent from wrongful
conduct." Id. (quoting United States v. X-Citement Video, Inc.,
513 U.S. 64, 73 (1994)). Additionally, even though the Court
- 16 - recognized that "whether an alien is 'illegally or unlawfully in
the United States' is a question of law," it rejected the
government's "appeal[] to the well-known maxim that 'ignorance of
the law' (or a 'mistake of law') is no excuse." Id. at 2198. The
Court explained that that "maxim does not normally apply where a
defendant has a mistaken impression concerning the legal effect of
some collateral matter and that mistake results in his
misunderstanding the full significance of his conduct, thereby
negating an element of the offense." Id. (quotation marks
omitted); see also id. ("[A] mistake of law is a defense if the
mistake negates the 'knowledge . . . required to establish a
material element of the offense.'" (alteration in original)
(quoting Model Penal Code § 2.04)). Accordingly, although "[t]he
defendant's status as an alien 'illegally or unlawfully in the
United States' refers to a legal matter," "[a] defendant who does
not know that he is an alien 'illegally or unlawfully in the United
States' does not have the guilty state of mind that the statute's
language and purposes require." Id.
Crucially, for our purposes, Rehaif does not explain
exactly what type of knowledge equates to knowing that one
"belonged to the relevant category of persons barred from
possessing a firearm." Id. at 2200. The Court did offer some
guidance. It observed that in a case involving an alleged knowing
violation of section 922(g)(1) -- which prohibits firearm
- 17 - possession after being convicted of "a crime punishable by
imprisonment for a term exceeding one year"5 -- a defendant who
was convicted of a crime that was so punishable might nevertheless
be innocent if, for example, he was "sentenced only to probation"
and did not actually know that the crime was so punishable. Id.
at 2198. In other words, knowing in such a case that one has been
convicted of Crime X is not sufficient merely because Crime X is
punishable by more than a year in prison; one must actually know
that Crime X is punishable by more than a year in prison.
Here, "the relevant category of persons barred from
possessing a firearm" is those "convicted in any court of a
misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9).
Pointing to Rehaif's treatment of charges under sections 922(g)(1)
(those convicted of a crime punishable by more than one year in
prison) and 922(g)(5)(A) (aliens illegally or unlawfully present)
as closely controlling analogies, Minor first argues that the
government must prove that he knew that the assault crime of which
he had been convicted was classified as a misdemeanor crime of
5 In 2021, 79% of all defendants sentenced under U.S.S.G. § 2K2.1 -- which covers offenses involving the unlawful possession of firearms, among other firearm-related crimes -- were convicted under section 922(g)(1), compared to 1.8% convicted under section 922(g)(9). See U.S. Sent'g Comm'n, What Do Federal Firearms Offenses Really Look Like? 24 (July 2022), https://www.ussc.gov/sites/default/files/pdf/research-and- publications/research-publications/2022/20220714_Firearms.pdf.
- 18 - domestic violence, not just that he had been convicted of a crime
that was, unbeknownst to him, so classified.
We disagree. To explain why, we point first to Rehaif's
caution that its holding does not necessarily dictate how best to
consider convictions under subsections of section 922(g) not at
issue in Rehaif itself. 139 S. Ct. at 2200. We then consider a
hypothetical example. Suppose Congress had included as a tenth
category of section 922(g) something like, "any person . . . who
has received a lengthy sentence for a crime of which he was
convicted in any court." A large number of defendants could
plausibly argue that they could not tell whether they belonged to
that category. But if Congress added to the end of that
hypothetical subsection something along the lines of "for purposes
of this subsection, the term 'lengthy sentence' means any sentence
in excess of one year," then, in order to have the mens rea required
to establish a knowing violation of hypothetical
section 922(g)(10), defendants would only need to know that they
had received a sentence longer than one year.
To a large extent, Congress followed a similar approach
here by providing in section 921 a list of definitions of terms
"as used in" the U.S. Code chapter in which section 922 appears.
That list includes the definition of "misdemeanor crime of domestic
violence." That definition, as noted above, reads as follows:
- 19 - [T]he term "misdemeanor crime of domestic violence" means an offense that --
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
18 U.S.C. § 921(a)(33)(A).
Of course, in our hypothetical we posited that the
definition of the shorthand description appeared right in the same
hypothetical subsection of 922(g), whereas here the definition
appears in a different section of the Code. But we are not engaged
in an inquiry that presumes the defendant looked at the statute.
We are asking instead whether Minor knew that he belonged to the
category of persons convicted of a misdemeanor crime of domestic
violence. And where Congress provided a definition of that term
"as used in" the relevant chapter of the U.S. Code, we think that
if Minor's knowledge about his prior conviction included
everything necessary to satisfy that same definition, then -- for
purposes of a conviction under sections 924(a)(2) and 922(g)(9) -
- 20 - - he knew that he was in the category of persons convicted of a
crime so defined.6
2.
That leaves the following question: Did the instruction
here convey that the jury must find that Minor's knowledge about
his prior offense included everything necessary to satisfy the
definition of "misdemeanor crime of domestic violence"? Framing
such an instruction poses a special challenge where, as here, the
definition is technical and complex, yet a conviction requires
knowledge by a layperson of all its necessary parts, which we
discuss below. On the one hand, a trial court might find it
helpful to further describe the statutory definition so that the
jury can better understand it. See United States v. Woodward, 149
F.3d 46, 69 (1st Cir. 1998) ("Clear, accurate, easily understood
jury instructions are 'vitally important in assuring that jurors
grasp subtle or highly nuanced legal concepts.'" (quoting United
States v. DeStefano, 59 F.3d 1, 4 (1st Cir. 1995))). On the other
hand, one must proceed with caution in crafting a bespoke rewrite
6 Proof beyond a reasonable doubt of this type of knowledge is sufficient to prove that a defendant knew that he belonged to the relevant category, but it is not always necessary. If, for example, the government proved that a defendant knew that a previous conviction was classified under federal law as a misdemeanor crime of domestic violence -- perhaps in part because he had been informed of this classification during previous judicial proceedings -- it would not matter if he did not understand exactly why his conviction was so classified.
- 21 - of the statutory definition. The risk is that the effort to
clarify introduces a misdescription that allows the jury to convict
without finding that the defendant actually knew he belonged to
the relevant section 922(g) category.
In this instance, Minor asked the trial court to tell
the jury verbatim how the statute defined "misdemeanor crime of
domestic violence." The trial court opted instead to paraphrase
what Congress required Minor to know in order to be convicted. In
the jury instruction, the court listed what the government had
argued at the time were the relevant features of Minor's underlying
conviction that made it a misdemeanor crime of domestic violence.
The court explained that the instruction adopted certain language
from United States v. Castleman, 572 U.S. 157 (2014). Castleman
held that the term "physical force" as used in the definition of
"misdemeanor crime of domestic violence" includes "offensive
touching," and thus crimes that have as an element mere "offensive
touching" satisfy the "physical force" requirement of that
definition. Id. at 162–63. The court also noted that the
instruction incorporated language from Minor's underlying statute
of conviction, which prohibited "intentionally, knowingly or
recklessly caus[ing] bodily injury or offensive physical contact
to another person." Me. Rev. Stat. Ann. tit. 17-a, § 207(1)(A).
But the result was a material misdescription. To show why this is
- 22 - so, we set forth the statutory definition followed by the relevant
part of the court's instruction, with the key phrases underlined.
Statutory Text
[T]he term "misdemeanor crime of domestic violence" means an offense that --
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
Jury Instruction As Given
Third, that Willie Richard Minor knew that he had been convicted of that crime, that he knew the conviction subjected him to incarceration of up to 364 days, that he knew the conviction was for causing bodily injury or offensive physical contact to another person, and that he knew the victim of the crime was his spouse at the time.
As the government concedes in its supplemental brief,
the jury needed to find that Minor knew that his prior conviction
"ha[d], as an element, the use or attempted use of physical force,
or the threatened use of a deadly weapon" (quoting
section 921(a)(33)(A)) (emphases added). Comparing this
- 23 - requirement to the portion of the instruction block-quoted above
reveals two key omissions, each of which was error.7
First, the definition given to the jury omitted any need
to find that Minor knew that the Maine offense "ha[d], as an
element, the use or attempted use of physical force." Nor did the
instruction otherwise convey the concept of an "element." The
district court could have, for example, told jurors they must find
that Minor knew that, in order for him to have been convicted of
the Maine offense at a trial, the government would have had to
prove beyond a reasonable doubt that he "use[d] or attempted [to]
use . . . physical force." Instead, the instruction simply
required that Minor knew what his conviction was "for."
Second, the jury instruction eliminated the "use"
requirement in favor of relying on a passive requirement of an
offensive touching, which a defendant might "cause." While the
Supreme Court has held that intentionally, knowingly, or
recklessly causing bodily injury or offensive physical contact
necessarily involves the "use" of force, the district court failed
to include any of those key adverbs. See Castleman, 572 U.S. at
170 ("[T]he knowing or intentional application of force is a 'use'
7 We do not address the portion of the instruction regarding Minor's requisite knowledge that the crime was a misdemeanor, as Minor raises no specific challenge to it. On this point, the instruction did not use the word "misdemeanor," instead providing that the jury must find "that he knew the conviction subjected him to incarceration of up to 364 days."
- 24 - of force."); Voisine, 579 U.S. at 698–99 (holding that the
"'use . . . of physical force' . . . encompasses acts of force
undertaken recklessly").
The government nevertheless defends the instruction by
claiming that the Supreme Court in Castleman defined "use of force"
under section 921(a)(33)(A) without using the words "use" or
"force," referring to it in the same way the jury instruction did
here -- "causing bodily injury or offensive physical contact to
another person." This is simply wrong. In the pages cited by the
government, the Supreme Court was describing the requisite force,
not the requirement that it be used. Castleman, 572 U.S. at 162–
63. Indeed, after having defined force to include mere "offensive
touching," the Court in Castleman proceeded to discuss the
requirement that the defendant "use" that force, noting that "the
word 'use' conveys the idea that the thing used (here, 'physical
force') has been made the user's instrument," and that "the 'use'
of force must entail 'a higher degree of intent than negligent or
merely accidental conduct.'" Id. at 170–71 (quoting Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004)). Notably, the Court then found
that the underlying conviction in Castleman -- "intentionally or
knowingly caus[ing] bodily injury to the mother of his child" --
qualified as a misdemeanor crime of domestic violence in part
because the indictment "ma[de] clear that the use of physical force
was an element of his conviction." Id. at 169, 171 (quotation
- 25 - marks omitted). That is to say, the conviction sufficed because
it made clear exactly that which was omitted from the instruction
in this case.
The government further argues that "the district court's
knowledge instruction appropriately 'convert[ed] legal jargon into
a digestible definition for the jurors' without omitting any
necessary aspects" (quoting Minor, 31 F.4th at 27 n.11 (Lynch, J.,
dissenting)). But the instruction here did not merely clarify
"legal jargon" with synonyms or definitions; it rather altered
what the government was required to prove.
3.
As noted above, Minor preserved his objection to this
misdescription of the required elements in the instruction. The
government initially proposed instructions requiring the jury to
find that Minor knew "the crime involved the use or attempted use
of physical force." Once the government changed its position and
the district court settled on instructions requiring only a finding
that Minor knew "the conviction was for causing bodily injury or
offensive physical contact to another person," Minor's counsel
specifically requested that the phrase "use or attempted use of
physical force" be incorporated into the instruction in order to
"bring[] in . . . the language of the federal statute." Minor
additionally requested that the court simply read out the statutory
definition of "misdemeanor crime of domestic violence," including
- 26 - the crucial provision here that the predicate offense must have
"as an element, the use or attempted use of physical force."
Minor repeated these arguments in his opening brief in
this appeal: "[T]he [trial] judge found that he did not need to
instruct the jury that the Government prove that the defendant
knew that the offense for which he had been convicted 'has [as] an
element, the use or attempted use of physical force[,]' even though
that is required in the definition of 'misdemeanor crime of
domestic violence.'" In response, the government did not challenge
this argument as unpreserved. To the contrary, in its own
responsive opening brief, the government expressly agreed with
Minor that we should review the instructional challenges as
"preserved claims of instructional error."
Under that standard of review, we could overlook the
error if the government could show that it was harmless. United
States v. McLellan, 959 F.3d 442, 466 (1st Cir. 2020). An
instructional error regarding an element of the offense "is
harmless if 'it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.'" Id.
(quoting United States v. Wright, 937 F.3d 8, 30 (1st Cir. 2019)).
The government, though, does not even attempt to argue that an
instructional error here was harmless.
- 27 - 4.
The government asks that, if we reject the instruction
given at trial, we provide clear guidance for the district court
on remand. This is a sensible request. Congress's attempt to
tailor prohibitions on gun possession by providing what laypersons
might regard as unclear categories while simultaneously requiring
that violations of the prohibitions must be knowing creates great
opportunities for confusion, as shown by the history of this case.
Even the overly simplified instruction fashioned by the district
court appeared to confuse the jurors.8
We therefore provide the following guidance for the
district court and parties on remand.
First, as the district court correctly held, the
government need not prove that Minor knew that his knowing
possession of a firearm was a crime. It need only prove that he
knew he possessed a firearm and, at the time he possessed it, he
8 During deliberations, the jury submitted a note to the district judge asking, "why does it say that he was convicted of a misdemeanor crime of domestic violence? Is this a mistake? Does this matter?" The judge subsequently explained, "it does not say that he was convicted of a misdemeanor crime of domestic violence. It's describing the charge against him in this federal court." When asked if the jury had remaining questions, the foreperson responded, "when we read the top part and it's in large letters and it says possession of a firearm by a person previously convicted of a misdemeanor crime of domestic violence, . . . we were like we thought he was convicted of simple assault, which is written as assault, and we weren't sure, is domestic violence and assault and simple assault all the same and do they carry the same weight."
- 28 - knew that he belonged to the category of persons convicted of a
misdemeanor crime of domestic violence.
Second, to prove that he knew that he belonged to that
category, the government need not prove that he knew that his prior
offense bore under federal law the label "misdemeanor crime of
domestic violence." Instead, borrowing from Congress's definition
of "misdemeanor crime of domestic violence," the court can instruct
the jury that the government must prove that Minor knew, at the
time he possessed a gun, that: (i) he had been previously convicted
of an offense that "is a misdemeanor under Federal, State, or
Tribal law"; (ii) in order for him to have been convicted of the
prior offense at a trial, the government would have had to prove
beyond a reasonable doubt that he "use[d] or attempted [to]
use . . . physical force"; and (iii) the victim of that offense
was, at the time of the offense, his "current or former spouse."
18 U.S.C. § 921(a)(33)(A).9
Third -- in accordance with Castleman and Voisine -- the
district court should, if asked by either party, explain that the
"use . . . of physical force" means intentionally, knowingly, or
recklessly causing bodily injury or offensive physical contact to
another person. See Castleman, 572 U.S. at 170; Voisine, 579 U.S.
at 698–99. This language would align with the definition of
9 Cf. supra note 2.
- 29 - Minor's predicate offense -- "intentionally, knowingly or
recklessly caus[ing] bodily injury or offensive physical contact
to another person." Me. Rev. Stat. Ann. tit. 17-a, § 207(1)(A).10
Such an explanation would also be consistent with the Eleventh
Circuit's decision in United States v. Johnson, 981 F.3d 1171 (11th
Cir. 2020), which held that, to be convicted under
sections 924(a)(2) and 922(g)(9), "the evidence must establish
that [the defendant] knew: . . . to be convicted of [the predicate]
misdemeanor, he must have knowingly or recklessly engaged in at
least 'the slightest offensive touching.'" Id. at 1183.
B.
Our conclusion that the jury instruction missed the mark
in a manner that the government does not claim was harmless beyond
a reasonable doubt requires that we vacate the verdict. Minor,
though, asks that we go one step further and order the entry of an
acquittal because, he says, the evidence was insufficient to prove
that he had the knowledge we have just explained he needed to have
to establish his guilt. The government concedes that this
challenge to the conviction is preserved, but contends that its
As discussed above, the district court here described that 10
the jury instruction incorporated "the definition of [Maine] Section 207 assault"; but the court omitted from the definition the crucial phrase under Voisine -- "intentionally, knowingly or recklessly."
- 30 - own proof was at least minimally sufficient. For the following
reasons, we agree with the government.
We review Minor's challenge to the sufficiency of the
evidence de novo, evaluating the evidence "in the light most
favorable to the verdict" to decide "whether 'that evidence,
including all plausible inferences drawn therefrom, would allow a
rational factfinder to conclude beyond a reasonable doubt that the
defendant committed the charged crime.'" United States v. Torres
Monje, 989 F.3d 25, 27 (1st Cir. 2021) (quoting United States v.
Santos-Rivera, 726 F.3d 17, 23 (1st Cir. 2013)). In so doing, "we
do not view each piece of evidence separately, re-weigh the
evidence, or second-guess the jury's credibility calls." United
States v. Acevedo-Hernández, 898 F.3d 150, 161 (1st Cir. 2018).
Here, Minor stipulated to or conceded most elements of
the offense, including that he knowingly possessed the gun, that
it had traveled in interstate commerce, that he had been convicted
of a misdemeanor assault offense, and that the named victim in his
assault complaint was his spouse at the time. On appeal, Minor
disputes only the government's proof that he knew of his prohibited
status as a domestic violence misdemeanant.
On that element, the government introduced some of the
Maine state-court records, which included the initially charged
offense of "domestic violence assault" against Betty Minor.
According to the transcript of Minor's arraignment on that initial
- 31 - charge, which the government also introduced, Minor testified he
understood that he had been charged with "domestic violence
assault," that it was for "intentionally, knowingly or recklessly
caus[ing] bodily injury or offensive physical contact to
Betty . . . Minor," and that the assault was alleged to have been
"committed against a family or household member." The judicial
advice-of-rights video played at that arraignment further informed
Minor that he could lose the right to possess firearms for certain
offenses involving force against a spouse. Thereafter, the parties
agreed to amend the state-court complaint by reducing the charge
to simple assault, striking the language alleging that "[t]his
conduct was committed against a family or household member as
defined by [Maine law]." The amendment did not disturb the
allegation that Minor "intentionally, knowingly or recklessly
cause[d] bodily injury or offensive physical contact to Betty
Minor."
It is true that a layperson in Minor's position might
not necessarily understand that every allegation in a criminal
complaint must be proved to sustain a conviction, especially given
the possibility that a complaint may contain surplusage. But under
our standard for reviewing challenges to the sufficiency of the
evidence, " we evaluate the sum of all the evidence and inferences
drawn therefrom in the light most favorable to the government . . .
and 'determine whether that sum is enough for any reasonable jury
- 32 - to find all the elements of the crime proven beyond a reasonable
doubt, even if the individual pieces of evidence are not enough
when viewed in isolation.'" Acevedo-Hernández, 898 F.3d at 161
(quoting United States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir.
2015)). Especially where Minor negotiated the excision of other
language from the complaint, jurors could infer that Minor knew
that the government would have had to prove the unchanged
allegation that he "intentionally, knowingly or recklessly
cause[d] bodily injury or offensive physical contact to Betty
Minor." Accordingly, a reasonable jury could find that Minor had
the knowledge required for a conviction under sections 924(a)(2)
and 922(g)(9), and thus we reject Minor's sufficiency challenge.
III.
Finally, Minor argues that the district court
erroneously excluded two categories of evidence: first, testimony
by Minor regarding "what he believed about whether he was allowed
to possess a gun after the simple assault conviction"; and second,
testimony from his state-court counsel regarding ADA Worden's
purported representation that Minor would still be able to possess
firearms if he pleaded to the reduced simple assault charge.
Without knowing the precise context in which such
testimony might be proffered in a new trial, we eschew opining
preemptively on its admissibility beyond observing that -- as we
have explained above -- a conviction under section 924(a)(2) for
- 33 - knowingly violating section 922(g)(9) does not require proof that
the defendant knew that he could not possess a gun. As to the
alleged lack of that knowledge, ignorance of the law is no defense.
IV.
For the foregoing reasons, we vacate Minor's conviction
under sections 924(a)(2) and 922(g)(9) and remand for further
proceedings in accordance with this opinion.
- 34 -