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January 23, 2012

Doesn't Heller and McDonald impact old precedents concerning federal FIP crimes?

The question in the title of this post is prompted an interesting (and I think incorrect) ruling today by a Tenth Circuit panel in US v. Games-Perez, No. 11-1011 (10th Cir. Jan. 23, 2012) (available here).  The issue and basics of the ruling are explained in the majority opinions's first paragraph:  

Defendant and appellant Miguel Games-Perez was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).  Claiming that he was unaware that he was actually a felon, Mr. Games-Perez filed a motion inlimine, seeking a pre-trial ruling that the government was required to prove that he actually knew he was a felon.   When that motion was denied, Mr. Games-Perez filed a motion to enter a conditional guilty plea under Fed. R. Crim. P. 11(a)(2), asking to reserve the right to appeal the district court’s denial of his motion in limine. The district court granted Mr. Games-Perez’s motion, pursuant to which he entered a conditional guilty plea. The district court sentenced him to fiftyseven months’ imprisonment, followed by three years of supervised release. Mr. Games-Perez appeals his sentence, which we affirm.

The majority opinion affirms the ruling that the defendant need not know he was a felon in order to be guilty of the federal crime of "felon-in-possission" of a firearm by reaffirming a 1996 ruling of the circuit that no mens rea is required as to the "is a felon" element of this federal crime.  Whether that was a sound ruling in 1996 is debatable, but it strikes me that it is a constitutionally problematic ruling in the wake of the SCOTUS Second Amendment rulings in Heller and McDonald that certain persons have a constitutional right to possess a firearm in certain circumstances.

Notably, in a separate lengthy concurrence, Judge Gorsuch assails the soundness of the 1996 precedent stressed by the majority with reference to the Second Amendment:

Following the statutory text would simply require the government to prove that the defendant knew of his prior felony conviction. And there’s nothing particularly strange about that. After all, there is “a long tradition of widespread lawful gun ownership by private individuals in this country,” and the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly. Staples v. United States, 511 U.S. 600, 610 (1994); District of Columbia v. Heller, 554 U.S. 570 (2008). At the same time, of course, the Court has expressly indicated that laws dispossessing felons are consistent with the Constitution. Heller, 554 U.S. at 626; but see United States v. McCane, 573 F.3d 1037, 1048-49 (10th Cir. 2009) (Tymkovich, J., concurring) (questioning the Court’s analysis on this score). And given all this, it is hardly crazy to think that in a § 922(g)(1) prosecution Congress might require the government to prove that the defendant had knowledge of the only fact (his felony status) separating criminal behavior from not just permissible, but constitutionally protected, conduct.

But, despite this astute analysis, Judge Gorsuch feel compelled to follow the circuit's 1996 precedent rather than to conclude (as his own reasoning suggests) that Heller and McDonald makes this old precedent constitutionally suspect.  Curious -- and worrisome for anyone seriously committed to gun right and/or concerned about broad application of vague laws limiting gun possession.

January 23, 2012 at 02:44 PM | Permalink


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i have to agree these judges are retarded. after all just how much time would have been wasted PROVING he's a FELON...2 - 3 min's tops?

instead we've wasted years

Posted by: rodsmith | Jan 23, 2012 5:49:51 PM

Prof. B.,

While I want to agree with you on this, importing other similar sorts of situations I think cuts against any change here. For instance, my understanding is that the armed career criminal act does not require the government to prove to the jury that the person is indeed a felon, that such is within judicial notice. And the fact of being a felon not needing to be proven to the jury for purposes of increasing the possible sentence that someone is exposed to.

If my above understanding is correct (especially the ACCA part) then while I would like the government to be required to make such a proof I don't think Heller tips the balance.

This is in comparison to the recent 1st circuit case highlighted at the VC where the panel ruled that in order to work a permanent deprivation of the right at minimum an adversarial hearing is required. A felon had that (even if in many plea situations it is probably somewhat fictitious that the hearing is adversarial).

Posted by: Soronel Haetir | Jan 23, 2012 7:09:03 PM

Soronel, it almost sounds like you are coming around to my position expressed several years ago that Possession of Firearm by a Felon is not a crime, since an essential element is the existence of a prior conviction. As you say, prior convictions can increase sentence, (not be used to prove the existence of a crime) That is why the Apprendi Rule exempts prior convictions.

Can a felon in possession be punished? Yes, for contempt for doing something that he is prohibited from doing by virtue of the prior conviction of a felony.


Posted by: bruce cunningham | Jan 23, 2012 10:38:46 PM

i have to disagree if the crime being charged is "FELON in posession" then doesnt' seem like much of a NO BRAINER to require the state the PROVE the FELON part before procedding!

Posted by: rodsmith | Jan 24, 2012 12:14:56 AM

after all IF there is NO PROOF the individual is in FACT a FELON then there is NO VIOLATION! case is OVER!

IF on the other hand the state proves the individual is in fact and in law a felon THEN they can move on to PROVING THE POSESSION charge!

Posted by: rodsmith | Jan 24, 2012 12:16:13 AM

This is why most of America HATES lawyers. Arguing that the felon himself had to know (mens rea) he was a felon and prove that in court are you all mad. If he doesn't know he's a felon, who would? His mommy? Having to pull anything more than a rap sheet and presenting it in court is overkill. More of the nanny state attitude of its your fault not mine. The professor would dictate that every Judge now tell the convict that he is a felon and sign a piece of paper saying he acknowledges that before hauling him off to jail. Good grief.

Posted by: DeanO | Jan 24, 2012 7:53:16 AM

He received a deferred judgment for the crime the government considers the predicate felony. At the plea hearing, the court told him (quoted from appeals court opinion):

THE COURT: Here is what will happen today, if I accept your plea today, hopefully you will leave this courtroom not convicted of a felony.

As the concurring judge acknowledged, that seems to create a pretty clear triable issue. Unfortunately, he was constrained by (in his description) a rather poorly-thought and muddled precedential case.

I think the concurrence nailed this one on basic statutory interpretation grounds. It reads like a good outline for an appeal to the S.Ct.

Posted by: Anon23 | Jan 24, 2012 10:34:04 AM

Soronel, the government is required to prove to the jury that the person is a convicted felon because it is an element of the offense of being a felon in possession of a firearm. That being said, we often stipulate that the defendant is a felon because, under the Supreme Court's Old Chief case, the defendant has the right to stipulate instead of having the jury learn what his felony is through introduction of a conviction.

Posted by: defendergirl | Jan 24, 2012 10:36:21 AM

On a somewhat related note, the Fourth Circuit yesterday reversed and remanded a conviction under 18 USC § 922(g)(3) (drug user in possession of a firearm):

"Although we conclude, applying the intermediate scrutiny standard, that Congress had an important objective for enacting § 922(g)(3) to reduce gun violence and might have reasonably served that objective by disarming drug users and addicts, we nonetheless find that the government failed to make the record to substantiate the fit between its objective and the means of serving that objective. Therefore, we vacate the judgment and remand for further proceedings."

United States v. Carter, No. 09-5074 (4th Cir. Jan. 23, 2012).

Posted by: DEJ | Jan 24, 2012 11:33:39 AM

hmm if this is true the govt is dead meat!

"He received a deferred judgment for the crime the government considers the predicate felony. At the plea hearing, the court told him (quoted from appeals court opinion):

THE COURT: Here is what will happen today, if I accept your plea today, hopefully you will leave this courtroom not convicted of a felony."

sorry DeanO but when i JUDGE tells you that YOUR NOT A FELON you have a DAMN good reason NOT to consider yourself a felon!

which brings us to this statement of yours!

"Having to pull anything more than a rap sheet and presenting it in court is overkill."

based on the above statement they COUDN'T bring out his NON EXISTANCT RAP SHEET!

Posted by: rodsmith | Jan 24, 2012 12:14:49 PM

DeanO - Please state your full name in future comments. It really upsets Bill when people criticize Prof. Berman or other commentators without stating their full names.

Posted by: observer | Jan 24, 2012 7:25:44 PM

I am a student of the Bill of Rights. When McDonald fully incorporated the 14th Amendment to the 2nd Amendment, it made this Right applicable to the States, not in "watered-down fashion" as envisioned by other Courts, but FULLY APPLICABLE to the States--not some States, but ALL States, with exception so noted by the SCOTUS, one being that felons cannot be allowed to "keep and bear" arms. If the litigant is a felon, no; if he has not been "convicted" or "adjudicated" a felon, YES. He can have and carry; he-or-she can also vote. The mentally challenged, no gun; wife or child abusers, no gun, IF CONVICTED and ADJUDGED to be so.

Posted by: C T Sherwin | Feb 23, 2012 4:46:56 PM

What about entrapment by estoppel?

I have a real hard time with this area of law because you really have to be a lawyer to know when you are convicted or not for a ton of statutes. The feds don't always have to accept the state definition and one state doesn't necessarily have to accept another's state's definition. Many prosecutors and police so revile in the notion that an ex-con could ever own a gun that they will bend over backwards to charge someone no matter how much good faith the Defendant was operating under.

I have a client who has a full governor's pardon in my state. His record is expunged. Michigan wipes the stuff off the record and we have state case law which says a pardon "obliterates" the conviction and the Defendant is restored as near as practical to the State that he/she was before the conviction took places. The feds honor Michigan pardons and they are beyond tough to get. Between 1969 and today we issued a whopping 63 pardons. A pardoned felon can get a concealed carry permit in Michigan.

Michigan has concealed weapons reciprocity with most states. If my client goes to one of those states with his gun, the DA could easily try to charge him with being a felon in possession. I suspect both Tennessee and California would try.

If the convicting state tells you in writing or on records that your record doesn't count, I believe that other states should honor this. If they are excluded from such a requirement then I believe that they should be crystal clear about the requirements. Modern sex offender registration laws have provisions similar to this which could be consulted for a model.

Posted by: Stuart Friedman | Jul 6, 2012 2:30:47 PM

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