USA. v. Mitchell, 99-4008

• Citation: 209 F.3d 319
• Decision Date: 25 January 2000
• Docket Number: No. 99-4008,CR-98-295,99-4008
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WINSTON EUGENE MITCHELL, SR., Defendant-Appellant. (). . Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 319

209 F.3d 319 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WINSTON EUGENE MITCHELL, SR., Defendant-Appellant.

No. 99-4008 (CR-98-295).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: January 25, 2000.

Decided: March 27, 2000.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

COUNSEL ARGUED: Dale Warren Dover, Alexandria, Virginia, for Appellant. Kathleen Marie Kahoe, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States ttorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, Chief Judge, and WILLIAMS and TRAXLER, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Williams and Judge Traxler joined.

OPINION

WILKINSON, Chief Judge:

Winston Mitchell was convicted under 18 U.S.C. § 922(g)(9), which makes it unlawful for a person convicted of a misdemeanor crime of domestic violence to possess a firearm. He also was convicted of possessing a silencer in violation of 26 U.S.C. § 5861(d). On appeal, Mitchell challenges his convictions on a number of grounds. Finding no merit in any of his claims, we affirm.

I.

In February 1996 appellant Winston Eugene Mitchell purchased a .38 caliber handgun in Alexandria, Virginia. A month later, Mitchell was arrested for assaulting his wife, Verlette Mitchell. On June 5, 1996, Mitchell was convicted of misdemeanor assault and battery. Mitchell and his wife continued to live together after this incident. On September 30, 1996, Congress amended the Gun Control Act of 1968 to make it illegal for a person convicted of a misdemeanor crime of domestic violence to possess a firearm or ammunition. The amended provision states: "It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g)(9) (1994 & Supp. IV 1998). Congress determined that the possession of a gun by one convicted of domestic violence put the possessor's partner at undue risk. See, e.g., United States v. Lewitzke, 176 F.3d 1022, 1026-27 (7th Cir. 1999). The applicable penalty provision reads, "Whoever knowingly violates subsection [(g)] of section 922 shall be fined as provided in this title, imprisoned not more than 10 years or both." 18 U.S.C. § 924(a)(2) (1994).

On July 20, 1998, nearly two years after the enactment of § 922(g)(9), Verlette Mitchell notified the Alexandria City Police Department that her husband had threatened her. She also told the police that Mitchell possessed a handgun and a homemade silencer. She then gave the police permission to search her home in order to secure these items. That same day a warrant was issued for Mitchell's arrest on stalking charges.

At approximately 10:30 that evening, Officers Henry and Fard arrested Mitchell outside his home. Thinking Mitchell might be armed, the officers approached him with their weapons drawn, ordered him to the ground, and handcuffed him. They searched Mitchell for weapons and found none. Mitchell's adult daughter, Tecinda Mitchell, emerged from the Mitchell home to see what was going on. While Officer Henry stayed with Mitchell, Fard walked onto the Mitchell porch to talk with Tecinda. Shortly thereafter, Mr. Mitchell consented to a search of his home and told Henry exactly where to find the gun. Henry relayed this information to Fard. Fard testified that Tecinda also consented to the search. Tecinda allowed Fard into the home and took him up to her parents' bedroom. Here Fard found Mitchell's .38 caliber handgun as well as 23 rounds of ammunition. Fard also recovered a plastic bottle stuffed with carpet padding, a device the government argues is a homemade silencer.

On August 5, 1998, a grand jury returned a three-count indictment against Mitchell for (1) illegally possessing a firearm in violation of § 922(g)(9), (2) illegally possessing ammunition in violation of § 922(g)(9), and (3) illegally possessing a silencer in violation of 26 U.S.C. § 5861(d) (1994). Mitchell filed a number of pre-trial motions. The district court denied both his motion to dismiss the indictment as unconstitutional under the Ex Post Facto Clause and his motion to suppress the items seized from the Mitchell home.

On September 29, 1998, a jury convicted Mitchell on all three counts. He was sentenced to 48 months imprisonment. Mitchell now appeals his convictions, and we address his claims in turn.

II.

A.

Mitchell first argues that § 924(a)(2) required the government to prove that Mitchell knew that possessing a firearm was illegal. We disagree. Section 924(a)(2) provides: "Whoever knowingly violates subsection [(g)] of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both." The Supreme Court has noted that "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." Bryan v. United States, 524 U.S. 184, 192 (1998) (internal quotation marks omitted). The Bryan Court concluded, "unless the text of the statute dictates a different result, the term`knowingly' merely requires proof of knowledge of the facts that constitute the offense." Id. at 193. Bryan found that the text of 18 U.S.C. § 924(a)(1)(B), a sister provision of § 924(a)(2), did not dictate a different result. Id. Section 924(a)(1)(B) provides criminal penalties for"whoever knowingly violates subsection (a)(4), (f), (k), (r), (v), or (w) of section 922." As this mens rea language is identical to that in § 924(a)(2), the Bryan rule is applicable in the present context. Mitchell's reliance on Liparota v. United States, 471 U.S. 419 (1985), is thus misplaced because the statutory language in Liparota differs from that in Bryan and the instant case.

The rule in Bryan has been applied without exception by this and other circuits when interpreting § 924(a)(2)'s application to subsection (g) firearm possession crimes. See, e.g. , United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir.), cert. denied , 119 S. Ct. 2383 (1999); United States v. Beavers, 206 F.3d 706, (6th Cir. 2000); United States v. Meade, 175 F.3d 215, 226 n.5 (1st Cir. 1999); United States v. Wilson, 159 F.3d 280, 289 (7th Cir. 1998). Even before Bryan, circuit courts, including this one, understood this to be the rule. See, e.g., United States v. Langley, 62 F.3d 602, 605-06 (4th Cir. 1995) (en banc) ("[T]he only knowledge the government was required to prove in a prosecution under [§ 924(a)(2) and § 922(g)(1)] was knowledge of the possession . . . ."); United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996) ("[N]o circuit has extended the knowledge component of [§ 924(a)(2) and § 922(g)(1)] beyond the act of possession itself.").

B.

Mitchell next argues that as applied to him, § 922(g)(9) violates the Ex Post Facto Clause because both his firearm purchase and misdemeanor domestic violence conviction occurred prior to § 922(g)(9)'s enactment. See U.S. Const. art. I, § 9, cl. 3.

Again we disagree. "To fall within the ex post facto prohibition, a law must be retrospective -that is, it must apply to events occurring before its enactment -and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis , 519 U.S. 433, 441 (1997) (citations and internal quotation marks omitted). It is immaterial that Mitchell's firearm purchase and domestic violence conviction occurred prior to § 922(g)(9)'s enactment because the conduct prohibited by § 922(g)(9) is the possession of a firearm. See, e.g., United States v. Boyd, 52 F. Supp. 2d 1233, 1236-37 (D. Kan. 1999) ("This court, as have all others deciding such a challenge, have concluded that ... the illegal act in § 922(g)(9) is the possession of the firearm, not the misdemeanor domestic violence conviction . .. ."); National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564, 1575-76 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett , 155 F.3d 1276 (11th Cir. 1998). As it is undisputed that Mitchell possessed the firearm after the enactment of § 922(g)(9), the law's application to Mitchell does not run afoul of the ex post facto prohibition.

Courts addressing similar ex post facto challenges to § 922(g)(9) have all agreed with this conclusion. See, e.g. , Boyd, 52 F. Supp. 2d at 1236-37; McHugh v. Rubin, 49 F. Supp. 2d 105, 108 (E.D.N.Y. 1999); United States v. Hicks, 992 F. Supp. 1244, 1245-46 (D. Kan. 1997); United States v. Meade, 986 F. Supp. 66, 69 (D. Mass. 1997), aff'd, 175 F.2d 215 (1st Cir. 1999); Barrett , 968 F. Supp. at 1575-76. Analogous ex post facto challenges to other similarly worded firearm possession crimes have also failed. See, e.g. , United States v. D'Angelo, 819 F.2d 1062, 1065-66 (11th Cir. 1987) (Defendant "was in possession of the pistol after the enactment of the statute. Proof of [defendant's] possession obviated the need for proof of the date [defendant] received the pistol."); United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994); United States v. Gillies, 851 F.2d 492, 495 (1st Cir. 1988).

C.

Mitchell next contends that his conviction under§ 922(g)(9) violates the Due Process Clause of the Fifth Amendment. He specifically argues that he did not have notice that his continued possession of the firearm was illegal. The statute made perfectly clear, however, that Mitchell's possession of the firearm was unlawful. Mitchell's pleas for particularized notice thus run headlong into the fundamental principle that "ignorance of the law is no excuse." See, e.g., Barlow v. United States, 32 U.S. (7 Pet.) 404, 411 (...