United States v. Beavers

RECOMMENDED FOR FULL-TEXT PUBLICATION 8 United States v. Beavers No. 99-1829 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0058P (6th Cir.) File Name: 00a0058p.06 law until September 30, 1996. Second, the state of Michigan is under no obligation to update state-law violators on recent additions to federal law. Finally, the pistol returned by the state was only one of three firearms found in Beavers’s UNITED STATES COURT OF APPEALS possession on November 20, 1997. We therefore find FOR THE SIXTH CIRCUIT Beavers’s argument that § 922(g)(9) should not be applied to _________________ him because of the state of Michigan’s lack of notice to be without merit. ;  III. CONCLUSION UNITED STATES OF AMERICA,  Plaintiff-Appellee,  For all of the reasons set forth above, we AFFIRM the

 judgment of the district court. No. 99-1829 v.  > JEFFREY BEAVERS,  Defendant-Appellant.  1

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-81410—Paul D. Borman, District Judge. Argued: December 7, 1999 Decided and Filed: February 16, 2000 Before: COLE and GILMAN, Circuit Judges; CARR, District Judge.*

* The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation.

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_________________ prohibitum, and requiring the government to prove that the defendant knew that his conduct was a crime would unduly COUNSEL reward those who plead ignorance of the law as a defense. ARGUED: R. Steven Whalen, Detroit, Michigan, for Based on the reasoning in Baker and Meade, and the Appellant. Kathleen Moro Nesi, ASSISTANT UNITED majority opinion in Wilson, we conclude that Beavers’s STATES ATTORNEY, Detroit, Michigan, for Appellee. conviction on a domestic violence offense sufficiently placed ON BRIEF: R. Steven Whalen, Detroit, Michigan, for him on notice that the government might regulate his ability Appellant. Kathleen Moro Nesi, ASSISTANT UNITED to own or possess a firearm. As noted in Baker and Meade, STATES ATTORNEY, Detroit, Michigan, for Appellee. domestic abuse is a well-known problem, and it should not surprise anyone that the government has enacted legislation _________________ in an attempt to limit the means by which persons who have a history of domestic violence might cause harm in the future. OPINION Compare Lambert, 355 U.S. at 229 (noting that the Los _________________ Angeles ordinance requiring felons to register was primarily a bookkeeping aid for law enforcement). When Beavers RONALD LEE GILMAN, Circuit Judge. This is an appeal committed the domestic violence offense, he “removed from the district court’s order denying Jeffrey Beavers’s himself from the class of ordinary and innocent citizens” who motion to withdraw his guilty plea and to dismiss his would expect no special restrictions on the possession of a indictment for the possession of firearms in violation of 18 firearm. See Bostic, 168 F.3d at 722. We therefore conclude U.S.C. § 922(g)(9). Section 922(g)(9) prohibits a person that § 922(g)(9) is constitutional, even though it does not previously convicted of “a misdemeanor crime of domestic require the government to prove that the defendant had actual violence” from possessing a firearm. Beavers argues that this knowledge that his possession of a firearm was illegal. section violates his due process rights under the Fifth Amendment because it does not require the government to C. Section 922(g)(9) is constitutional as applied to prove, as an element of the offense, that he knew that his Beavers possession of a firearm was illegal. The district court rejected Beavers’s ignorance-of-the-law defense. For the reasons set Beavers also argues that § 922(g)(9) is unconstitutional as forth below, we AFFIRM the judgment of the district court. applied to the facts in the present case because the state of Michigan misled him by returning one of his pistols in July of I. BACKGROUND 1996 without telling him about the future applicability of § 922(g)(9). The government initially argues that Beavers On December 23, 1998, Beavers pled guilty to the charge failed to preserve the issue for appeal. This is incorrect, of possessing a firearm in violation of § 922(g)(9). As part however, because the district court stated “that the plea is of the factual basis underlying his plea, Beavers admitted that made under 11(a)(2), which will allow him to appeal the he had pled guilty in 1995 to a misdemeanor domestic assault constitutionality of the statute and the application to him.” charge. He further admitted that on November 20, 1997 he (Emphasis added.) had possession of two pistols and a shotgun at his home in Lambertville, Michigan. At his change-of-plea hearing, On the other hand, we agree with the government’s position Beavers made the following statement: “And I did have the that Beavers’s “as applied” argument lacks merit. First of all, three firearms at the time that--of the original Indictment, and- § 922(g)(9) did not exist in July of 1996. It did not become

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his conduct was subject to increased government -[h]owever, I would like to add I didn’t know that the law scrutiny. Because it is not reasonable for someone in his existed. Nevertheless, I am guilty of having the firearms.” position to expect to possess dangerous weapons free from extensive regulation, Baker cannot successfully On July 6, 1999, Beavers moved to withdraw his guilty plea claim a lack of fair warning with respect to the and to dismiss the indictment on the ground that § 922(g)(9) requirements of § 922(g)(8). violated his due process rights under the Fifth Amendment. At the hearing on Beavers’s motion, the parties agreed that (1) Baker’s rejection of the ignorance of the law defense is well- in 1995, Beavers was placed on state probation for the reasoned and highly persuasive on the similar issue before us. misdemeanor offense of domestic assault, (2) a condition of the probation was that he was not allowed to possess a firearm The First Circuit has also addressed a challenge to while on probation, (3) Beavers was discharged from § 922(g)(8), setting forth its analysis as follows: probation in 1996, (4) the state order prohibiting him from possessing firearms was no longer effective once he was [Defendant] nevertheless tries to bring his case within the discharged, (5) after Beavers was discharged, the state Lambert exception by arguing that firearms possession is returned one of his pistols to him, (6) the pistol was returned an act sufficiently innocent that no one could be expected in July of 1996, approximately three months before the to know that he would violate the law merely by effective date of § 922(g)(9), and (7) Beavers continued to possessing a gun. . . . But possession of firearms by have possession of the guns after September 30, 1996, the persons laboring under the yoke of anti-harassment or effective date of the federal statute. After considering the anti-stalking restraining orders is a horse of a different parties’ arguments, the district court denied Beavers’s motion. hue. The dangerous propensities of persons with a history of domestic abuse are no secret, and the Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal possibility of tragic encounters has been too often Procedure, the parties, with the approval of the district court, realized. We think it follows that a person who is subject agreed that Beavers would enter a conditional guilty plea, to such an order would not be sanguine about the legal reserving his constitutional issue for appeal. Beavers was consequences of possessing a firearm, let alone of being then sentenced to a term of two months of incarceration, apprehended with a handgun in the immediate vicinity of followed by two months of home confinement and two years his spouse. . . . We therefore reject the appellant’s of supervised release, and fined $2,000. contention that the statute, on its face, violates due process rights of notice. II. ANALYSIS United States v. Meade, 175 F.3d 215, 226 (1st Cir. 1999); A. Standard of review see Baker, 197 F.3d at 220 (adopting the reasoning in Meade). The main issue before the court is whether § 922(g)(9) is Although Chief Judge Posner’s dissent in Wilson has a unconstitutional in light of the fact that it does not require the certain surface appeal, in the end it proves too much. He government to prove, as an element of the offense, that argues that the statute is malum prohibitum, “that is, it is not Beavers knew that his possession of a firearm was illegal. the kind of law that a lay person would intuit existed because We review de novo a challenge to the constitutionality of a the conduct it forbade was contrary to the moral code of his federal statute. See, e.g., United States v. Brown, 25 F.3d society.” Wilson, 159 F.3d at 294. But the lack of intuitive 307, 308 (6th Cir. 1994). wrongfulness is the hallmark of all laws that are malum

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B. Section § 922(g)(9) is constitutional despite the fact rights under the Fifth Amendment because he had no notice that it does not require the government to prove that that his possession of a firearm was a federal offense. Beavers knew that his conduct was illegal Beavers points out that prior to the effective date of the statute, a person convicted of a misdemeanor domestic Section § 922(g)(9) provides, in pertinent part, as follows: violence offense was not prohibited from possessing firearms “It shall be unlawful for any person . . . who has been under § 922. convicted in any court of a misdemeanor crime of domestic violence . . . to . . . possess . . . any firearm . . . .” The mens In Wilson, the Seventh Circuit held that § 922(g)(8) does rea requirement for § 922(g)(9) is contained in § 924(a)(2), not violate the Fifth Amendment. That subsection prohibits which states that “[w]hoever knowingly violates . . . the possession of a firearm by anyone subject to a domestic [§ 922(g)(9)] shall be fined as provided in this title, restraining order, which is a companion provision to imprisoned not more than 10 years, or both.” In an analogous § 922(g)(9) in question here. The majority held that a person context, other circuits have held that the term “knowingly” could “knowingly” violate § 922(g)(8) even if he did not only requires that the accused know that he possessed a know that his conduct was illegal. See Wilson, 159 F.3d at firearm, not that he knew that such possession was illegal. 293. In dissent, Chief Judge Posner wrote that the See United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir. government should be required to show that the defendant 1999) (holding that, although the term “willfully” as used in knew that his act of possessing the firearms after the issuance parts of § 922 does have such a requirement, “knowingly” of the restraining order was illegal. See id. at 296. under § 924(a)(2) does not require the defendant to be aware that his conduct is illegal); United States v. Capps, 77 F.3d Chief Judge Posner, however, did not find that § 922(g)(8) 350, 352 (10th Cir. 1996) (“No circuit has extended the violated the Fifth Amendment. Instead, he reasoned that it knowledge component of § 922 beyond the act of possession was a “linguistically permissible interpretation of the statute” itself.”). to conclude that the government had to prove that the defendant knew that his conduct was a crime. See id. Based Beavers acknowledges that ignorance of the law does not upon Chief Judge Posner’s dissent, a district court in Texas generally excuse criminal conduct. See Cheek v. United held that § 922(g)(8) “is an obscure, highly technical statute States, 498 U.S. 192, 199 (1991). He argues, however, that with no mens rea requirement” that violates the Fifth § 922(g)(9) is an exception because it is a highly technical Amendment. See United States v. Emerson, 46 F.Supp.2d statute that could ensnare individuals engaged in apparently 598, 613 (N.D. Tex. 1999); but see United States v. Spruill, innocent conduct. See generally Lambert v. California, 355 61 F. Supp.2d 587, 589 (W.D. Tex. 1999) (rejecting U.S. 225 (1957) (declaring unconstitutional a city ordinance Emerson’s analysis and noting that three other circuit courts that punished felons who failed to register with the police have found that § 922(g)(8) is constitutional despite not department, even if they had no knowledge of the requiring actual knowledge of illegality). requirement). In the recent case of United States v. Baker, 197 F.3d 211, Relying upon the dissenting opinion in United States v. 220 (6th Cir. 1999), this court addressed whether § 922(g)(8) Wilson, 159 F.3d 280, 293 (7th Cir. 1998), and the case of violates a defendant’s due process rights, concluding as United States v. Emerson, 46 F. Supp.2d 598 (N.D. Tex. follows: 1999), Beavers argues that his indictment under § 922(g)(9) should have been dismissed as a violation of his due process The fact that Baker had been made subject to a domestic violence protection order provided him with notice that