United States v. Benamor

• Decision Date: 06 June 2019
• Docket Number: No. 17-50308,17-50308
• Citation: 937 F.3d 1182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samir BENAMOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

937 F.3d 1182

UNITED STATES of America, Plaintiff-Appellee,

v.Samir BENAMOR, Defendant-Appellant.

No. 17-50308

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2019 Pasadena, California

Filed June 6, 2019

Amended September 5, 2019

ORDER

The opinion filed June 6, 2019, and published at 925 F.3d 1159, is amended by the opinion filed concurrently with this order.

With these amendments, the panel has voted to deny Appellant’s petition for panel rehearing. Judges Graber and Bybee have voted to deny Appellant’s petition for rehearing en banc, and Judge Harpool has so recommended.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

Appellant’s petition for panel rehearing and rehearing en banc is DENIED . No further petitions for panel rehearing or rehearing en banc will be entertained.

GRABER, Circuit Judge:

Defendant Samir Benamor appeals his conviction for knowingly possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). He possessed an old shotgun that might have been manufactured as early as 1915. Because firearms manufactured in or before 1898 do not qualify as "firearms" under § 922, Defendant argues that the district court erred by refusing to instruct the jury that, to convict, they had to find that Defendant knew that his firearm was manufactured after 1898. Defendant also argues that his conviction cannot stand because the government did not prove his knowledge of his status as a felon. Finally, Defendant raises a Confrontation Clause challenge. We affirm.

BACKGROUND

At the time of his arrest in this case, Defendant was a felon, and law enforcement had authority to conduct warrantless searches of his car and residence. After the local police department received tips that Defendant had engaged in illegal activity, two detectives, Anthony Chavez and Matthew Concannon, conducted surveillance outside the house in the garage of which Defendant resided. Concannon saw two vehicles, a Volvo and a minivan, parked in front of the house. Concannon also saw Defendant appear from the back of the property and walk to the street, where he opened the sliding door on the minivan’s passenger side, climbed into the driver’s seat, and moved the van a short distance down the road. Defendant left the van through the same door and returned to the house. At that point, Concannon ran the van’s license plate and learned that it was Defendant’s.

Several minutes later, Concannon saw Defendant re-emerge from the back of the house, accompanied by a man named Angel Vasquez and an unidentified woman. All three individuals got into the Volvo and drove away. Chavez and Concannon then searched the garage. They found, among other things, keys to the minivan and an ammunition belt containing four shotgun rounds. Concannon used the keys to open the minivan’s locked doors. Next to the sliding door that Defendant used to enter and exit the minivan, Concannon found a shotgun on the floor. The ammunition found in the garage did not match Defendant’s shotgun.

Defendant’s landlord arrived at the property during the search and confirmed that Defendant was the only person living in the garage. Because Defendant was a felon and because the detectives had found the ammunition and the shotgun, Chavez directed that Defendant be arrested. Officers arrested Defendant, Vasquez, and the unidentified woman that same day, and jailed Defendant. Four days later, while Chavez was transporting Defendant to a different jail, Defendant asked Chavez how much prison time he might serve. After Chavez responded, Defendant said that he had not intended to use the shotgun but, instead, wanted only to sell it or give it away.

Defendant went to trial on two counts of violating § 922(g)(1) —one for the shotgun and one for the ammunition. An agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") testified that the shotgun could not have been manufactured before 1915, given certain engravings on the gun. The agent also testified that the shotgun’s model and serial number indicated that it was likely manufactured in the 1920s. The government did not introduce any evidence that Defendant knew the gun’s age. A different ATF agent, Daniel Thompson, testified about his interview of Defendant’s landlord, who did not testify at trial. Other evidence established that, although only Defendant lived in the garage, the house’s other occupants stored items there.

After the government rested, Defendant moved for acquittal. The district court denied his motion. The court also denied Defendant’s request for an instruction that the government must prove that he knew that the shotgun was manufactured after 1898. The jury found Defendant guilty on the shotgun count but acquitted him on the ammunition count. Defendant then moved for a new trial, arguing that Thompson’s testimony about his interview with the landlord violated the Confrontation Clause. The district court denied the motion.

DISCUSSION

A. The "Antique Firearm" Exception

Defendant argues that the district court should have instructed the jury that, to find Defendant guilty, they had to find that he knew that his firearm was manufactured after 1898. For the same reason, he argues that the government presented insufficient evidence to convict him. We review de novo "whether jury instructions omit or misstate elements of a statutory crime," and we review de novo the sufficiency of the evidence. United States v. Kaplan , 836 F.3d 1199, 1211, 1214 (9th Cir. 2016) (internal quotation marks and alteration omitted).

To convict someone under § 922(g)(1), the government must prove four elements: (1) the defendant was a felon; (2) the defendant knew he was a felon; (3) the defendant knowingly possessed a firearm or ammunition; and (4) the firearm or ammunition was in or affecting interstate commerce. Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 2194, 204 L.Ed.2d 594 (2019) ;¹ United States v. Nevils , 598 F.3d 1158, 1163 (9th Cir. 2010) (en banc) (internal quotation marks omitted). We begin with Defendant’s challenge to the third element. To prove that a defendant knowingly possessed a firearm, the government must "prove that the defendant consciously possessed what he knew to be a firearm." United States v. Beasley , 346 F.3d 930, 934 (9th Cir. 2003). "Firearm" has a broad definition, found in 18 U.S.C. § 921(a)(3). But § 921(a)(3) also carves out a narrow exception: "Such term does not include an antique firearm." An "antique firearm" is any firearm "manufactured in or before 1898." 18 U.S.C. § 921(a)(16)(A).

Although Defendant’s shotgun was old, it was not "antique" within the statutory definition, because it was manufactured after 1898. Defendant does not dispute that his shotgun met § 921(a)(3) ’s definition of a firearm. Yet he argues that the government was required to prove his knowledge that the shotgun lacked the antiquity that would have placed it beyond § 922(g) ’s reach.

Every circuit to address the "antique firearm" exception in the criminal context has held that the exception is an affirmative defense to a § 922(g) prosecution, not an element of the crime. See United States v. Royal , 731 F.3d 333, 338 (4th Cir. 2013) (collecting cases); Gil v. Holder , 651 F.3d 1000, 1005 n.3 (9th Cir. 2011) (same), overruled in part on other grounds by Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013). This uniform holding flows from "the longstanding principle that ‘an indictment or other pleading founded on a general provision defining the elements of an offense need not negative the matter of an exception made by a proviso or other distinct clause.’ " Royal , 731 F.3d at 338 (alteration omitted) (quoting McKelvey v. United States , 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301 (1922) ). Thus, because the "antique firearm" exception "stands alone as a separate sentence untethered to the general definition of ‘firearm,’ " courts consistently "place the burden on defendants to raise it as an affirmative defense." Id.

Defendant acknowledges the line of cases holding that a firearm’s antique status is an affirmative defense, but he argues that United States v. Aguilera-Rios , 769 F.3d 626 (9th Cir. 2014), overrides those cases. There, we held that, after the Supreme Court’s decision in Moncrieffe , the categorical approach requires courts to consider "a definitional element of a criminal offense, like the antique firearms exception." Aguilera-Rios , 769 F.3d at 635. But that "definitional element" label matters only in the context of the categorical approach, not in the context of a criminal prosecution. See id. at 636 (noting that, in some cases, "a conviction must necessarily establish the presence of certain factors that are not themselves elements of the crime" to qualify as a categorical match (emphasis added) (internal quotation marks omitted)). Our concern here is whether "the defendant bears the burden in a criminal trial" of proving that the firearm was an antique, which is "irrelevant to the ‘more focused, categorical inquiry.’ " Id. (quoting Moncrieffe , 569 U.S. at 197, 133 S.Ct. 1678 ). Aguilera-Rios ’ holding about how to conduct the categorical approach did not convert a firearm’s age into a traditional element of a § 922(g) crime. Aguilera-Rios does not control here.

Defendant also argues that Staples v. United States , 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), requires that the government prove his knowledge of every characteristic of his shotgun that made it incriminating, including its age. Staples addressed certain provisions of the National Firearms Act ("NFA"), which criminalizes possessing an unregistered or improperly registered firearm. Id. at 602, 114 S.Ct. 1793. The NFA defines "firearm" to include a "machinegun," meaning "any weapon which shoots ... or can be readily restored to shoot, automatically more than one shot, without manual reloading,...