231 F.3d 557 (9th Cir. 2000), 99-10533, United States v. Hancock

Docket Nº:99-10533
Citation:231 F.3d 557
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY HANCOCK, Defendant-Appellant.
Case Date:October 26, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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231 F.3d 557 (9th Cir. 2000)



GARY HANCOCK, Defendant-Appellant.

No. 99-10533

United States Court of Appeals, Ninth Circuit

October 26, 2000

Argued and Submitted September 11, 2000

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[Copyrighted Material Omitted]

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Jane L. McClellan, Assistant Federal Public Defender, Phoenix, Arizona, for the defendant-appellant.

Frederick A. Battista, Assistant United States Attorney, Phoenix, Arizona, for the plaintiff-appellee.

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Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CR-98-00781-PGR

Before: Ruggero J. Aldisert,1 Susan P. Graber, and Raymond C. Fisher, Circuit Judges.

GRABER, Circuit Judge:

Defendant Gary Hancock was convicted of violating 18 U.S.C.§ 922(g)(9), which prohibits persons who have been convicted of "misdemeanor crime[s] of domestic violence" from possessing firearms. He appeals the district court's denial of his motion to dismiss the indictment on due process and equal protection grounds and the district court's refusal, at trial, to give two of his requested jury instructions. We affirm.


In 1994 and 1995, Defendant was convicted of four state misdemeanors involving violence or threats of violence against his wife, Patricia Hancock: Assault (Domestic Violence), Disorderly Conduct (Domestic Violence), Threatening and Intimidating (Domestic Violence), and Obstruction of Judicial Proceedings. Defendant received fines and probation for those convictions. Defendant and his wife later divorced.

On July 6, 1998, Patricia Hancock obtained an order of protection against Defendant in Flagstaff Municipal Court.2 That order specified that Defendant was not permitted to possess firearms. A Flagstaff deputy sheriff served Defendant with a copy of the order on July 9, while he was at work, and informed him that he was required to give any firearms in his possession to the Flagstaff police by the end of the day. When Defendant returned home from work, he telephoned the Flagstaff Police Department to arrange the surrender of his firearms. The department sent two officers to Defendant's house, and the officers removed 12 firearms from the house.

On September 27, 1998, the government filed a complaint charging Defendant with violating 18 U.S.C.§ 922(g)(9). The government later obtained a one-count indictment alleging violation of that statute. Defendant entered a plea of not guilty.

On January 15, 1999, Defendant filed a Motion to Dismiss Indictment Based on Unconstitutionality of Statute. In that motion, he argued that 18 U.S.C.§ 922(g)(9) violates constitutional guarantees of due process and equal protection. After hearings and briefing, the district court denied the motion.

On June 3, 1999, the government obtained a superseding indictment, which charged the same offense as the original indictment. Defendant again pleaded not guilty.

Before trial, Defendant submitted proposed jury instructions, including an instruction concerning the defense of entrapment by estoppel and an instruction concerning the elements of the charged offense. The district court refused to give an instruction on entrapment by estoppel and gave the government's, rather than Defendant's, requested instruction on the elements of the offense.

At trial, the parties stipulated that Defendant had been convicted of a misdemeanor crime of violence within the meaning of 18 U.S.C.§ 922(g)(9). After a two-day trial, the jury found Defendant guilty. At sentencing, the district court departed downward, on the ground that Defendant had possessed the firearms solely for sporting or collection purposes, and sentenced Defendant to five years' probation. Defendant timely appealed.

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We review de novo a district court's denial of a motion to dismiss based on a violation of constitutional rights. See United States v. Munsterman, 177 F.3d 1139, 1141 (9th Cir.), cert. denied , 120 S.Ct. 279 (1999). Whether a jury instruction misstates the elements of a statutory crime is a question of law that we review de novo. See United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999), cert. denied , 120 S.Ct. 1247 (2000). We also review de novo a district court's refusal to give an entrapment-by-estoppel instruction. See United States v. Brebner , 951 F.2d 1017, 1024 (9th Cir. 1991).


Defendant argues that the district court erred in refusing to dismiss the indictment on equal protection and due process grounds. He also argues that the court erred in refusing to give two of his requested jury instructions. Defendant's argument about the first of those requested instructions -concerning the elements of the offense -is intertwined with his due process argument, so we will discuss those arguments together.

A. The district court did not err in denying Defendant's motion to dismiss or in denying his request for a jury instruction on knowledge of the law.

Defendant was convicted of violating 18 U.S.C.§ 922(g)(9), which makes it unlawful for any person "who has been convicted in any court of a misdemeanor crime of domestic violence" to possess any firearm. The mental-state requirement for 18 U.S.C.§ 922(g)(9) is "knowingly." See 18 U.S.C.§ 924(a)(2). This court already has held that the requirement of knowledge in 18 U.S.C.§ 924(a) refers only to knowledge of possession: To obtain a conviction, the government must prove that a defendant "[knew] that he possessed the firearm." United States v. Miller , 105 F.3d 552, 555 (9th Cir. 1997); see also Bryan v. United States, 524 U.S. 184, 193 (1998) (to the same effect).

Defendant concedes that he was convicted of "misdemeanor crime[s] of domestic violence" in 1994 and 1995, that he possessed the 12 firearms for which he was prosecuted, and that he knew that he possessed those firearms. However, he argues that 18 U.S.C.§ 922(g)(9) is unconstitutional as applied to him.

1. Due Process

Defendant bought the 12 firearms in question between 1980 and 1982. In 1994 and 1995, when Defendant was amassing misdemeanor domestic violence convictions, persons with such convictions were not prohibited by federal law from owning firearms.

In 1996, Congress amended the Gun Control Act of 1968 by adding, among other things, 18 U.S.C.§ 922(g)(9). The effective date of that statute was September 30, 1996. Defendant asserts -and the government does not dispute -that he was unaware of 18 U.S.C.§ 922(g)(9) until he was arrested for violating it. On appeal, he argues that 18 U.S.C.§ 922(g)(9) violates the Due Process Clause of the Fifth Amendment when it is applied to him, because his indictment is based on possession of firearms that were purchased, and convictions for misdemeanors that were committed, before the statute's effective date, and because he did not learn of the statute until he was charged with violating it.

"The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system." Cheek v. United States, 498 U.S. 192, 199 (1991). The common-law rule that every person is presumed to know the law "has been applied by the Court in numerous cases construing criminal statutes." Id. (citations omitted).

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The rule "results from the extreme difficulty of ascertaining what is, bona fide, the interpretation of the party; and the extreme danger of allowing such excuses to be set up for illegal acts, to the detriment of the public. " Barlow v. United States, 32 U.S. (7 Pet.) 404, 411 (1833). For "there would be perpetual temptations to violations of the law, if men were not put upon extreme vigilance to avoid them." Id.

Defendant argues, however, that his case is an exception to that general rule. His argument combines two distinct challenges to this prosecution, which we will address separately. First , he argues that the government was, in fact, required to prove that he had actual knowledge of the requirements of 18 U.S.C.§ 922(g)(9). Alternatively, he argues that, if the government was not required to prove actual knowledge of the statute, then 18 U.S.C.§ 922(g)(9) violates due process as applied to him.

a. Mental State Under 18 U.S.C.§ 922(g)(9)

We turn first to Defendant's argument that the government had to prove that he knew that the statute prohibited him from possessing firearms. This argument also encompasses Defendant's first argument about jury instructions, in which he contends that the district court erred by refusing to give an instruction stating that the government had to prove that, "at the time defendant possessed the . . . firearms, he knew that it was illegal for him to possess firearms because he had a misdemeanor conviction for domestic violence." (Emphasis added.)

In support of this argument, Defendant quotes Bryan for the proposition that, in cases involving "highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct," the Court may " `carv[e] out an exception to the traditional rule' that ignorance of the law is no excuse." 524 U.S. at 194-95 (quoting Cheek , 498 U.S. at 200). However, the cases to which Bryan refers are cases in which the Supreme Court read the element of "actual knowledge of the law" into complex statutes that punished " willful" failures to perform statutory duties. See Ratzlaf v. United States, 510 U.S. 135, 149 (1994) (reading requirement of actual knowledge of legal duty into statute that punished "willfully" structuring financial transactions to avoid federal reporting requirements); Cheek, 498 U.S. at 201 (in prosecution for "willfully" failing to file income tax returns, stating that "the standard for the statutory willfulness requirement is the voluntary, intentional violation of a known legal duty" (internal quotation marks omitted)). Here,...

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