United States v. Boyd

• Decision Date: 28 May 2021
• Docket Number: No. 19-2989,19-2989
• Citation: 999 F.3d 171
• Parties: UNITED STATES of America v. Jeffrey BOYD, Appellant
• Court: U.S. Court of Appeals — Third Circuit

999 F.3d 171

UNITED STATES of America

v.Jeffrey BOYD, Appellant

No. 19-2989

United States Court of Appeals, Third Circuit.

Argued on September 23, 2020

Opinion filed: May 28, 2021

Heidi R. Freese, Frederick W. Ulrich (Argued), Tammy L. Taylor, Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant

David J. Freed, Michelle L. Olshefski (Argued), Office of United States Attorney, 235 North Washington Avenue, P.O. Box 309, Suite 311, Scranton, PA 18503, Counsel for Appellee

Before: AMBRO, PORTER, and ROTH, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

A state court in Oklahoma ordered Jeffrey Boyd to stay away from his ex-wife and his son, surrender his firearms, and undergo a mental health evaluation. After his arrest in Pennsylvania with a loaded handgun, a jury convicted Boyd of possessing a firearm while subject to a domestic violence protective order, in violation of 18 U.S.C. § 922(g)(8). He appeals, contending (1) his trial was tainted by (a) improper jury instructions, (b) unduly prejudicial evidence, and (c) prosecutorial misconduct, and (2) the firearm prohibition violates his Second Amendment right of gun possession. We conclude that any trial errors were harmless and that Congress can constitutionally disarm those subject to certain protective orders, including Boyd. We thus affirm his conviction.

Just months after Boyd's trial, the Supreme Court issued Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), a decision on the proof required for a conviction under § 922(g). After Rehaif , the Government must show not only that a defendant was subject to a qualifying protective order at the time he possessed a gun, but also that he knew about the protective order. The District Court had not instructed the jury on this knowledge element, and Boyd now claims this error entitles him to a new trial. But we will not order a new trial when an error is harmless, and here the trial record contains overwhelming evidence of Boyd's knowledge, including his own admissions in a letter to the state court.

Next, Boyd argues the District Court erred by admitting into evidence statements that he made about harming then-President Trump's family. Given the limited scope of facts needed to prove a violation of § 922(g)(8), we are concerned by the decision to admit this clearly prejudicial evidence. Nonetheless, introduction of the statements did not contribute to the verdict, leaving any error harmless.

Third, Boyd points to repeated statements in the prosecution's closing argument that accused the defense of "misleading" the jury, hence alleging they amount to prosecutorial misconduct worthy of a mistrial. Without opining on the appropriateness of these statements, we conclude that the context, jury instructions, and weight of the evidence make any error harmless.

Finally, Boyd contends § 922(g)(8) violates the Second Amendment as applied to him and others whose protective orders were issued without an explicit finding that they pose a credible threat to their intimate partners or their children. But we hold that Boyd has failed to distinguish himself from a class of presumptively dangerous persons who have historically been excluded from the Second Amendment's protections. And even if he could distinguish himself from this class, the Government's application of § 922(g)(8) would survive heightened scrutiny, as the statute is substantially related to the goal of reducing domestic violence, an indisputably important state interest. In upholding § 922(g)(8) against this as-applied constitutional challenge, we now join the other circuits to have considered the issue.

I. Background

In October 2017, Connor Manley first began noticing symptoms of mental health issues in his father, Jeffrey Boyd. Boyd's appetite became nearly nonexistent, and he lost considerable weight. He experienced seizures, panic attacks, and bouts of paranoia, believing that people were carrying out experiments on him. In February 2018, Connor fled from his father's home.

One month later, Connor, Jennifer Manley (Boyd's ex-wife and Connor's mother),¹ and Eric Hatheway (Jennifer's new husband) each applied for and were granted ex parte protective orders in Oklahoma state court.² The information in the trial record surrounding the protective order is limited, as Boyd successfully petitioned the District Court to exclude any evidence of the events that spawned its entry. We know by Jennifer's admission that Boyd had never physically injured her, nor could she recall his ever threatening her with physical injury. Yet, based on his father's behavior and statements, Connor believed that Boyd "could strike out violently towards [his] mother ... during an episode [of] psychosis

" and posed a "moderate danger" to the general public. App. at 487. Jennifer knew that Boyd possessed firearms, which made obtaining a protective order that prohibited firearm possession of "[a]bsolute importance" to her. Id. at 283.

The Tulsa County Sheriff's Office personally served Boyd with the protective order. Two weeks later, an Oklahoma state judge held a hearing on whether the order should continue. According to the docket, the hearing took place, Boyd appeared, and the court took testimony. Both Jennifer and Connor recounted that Boyd had the opportunity to make his case to the judge. Jennifer recalled that Boyd unequivocally objected to everything in the order, and Connor recalled that his father characterized Connor's letter to the court as "the craziest thing he had ever read." App. at 296.

The judge then continued the order of protection until September 2018. It contained eleven prewritten terms, of which she checked three to apply as written, including a term prohibiting Boyd from having "any contact" with Jennifer and two other terms that prohibited him from:

injuring, abusing, sexually assaulting, molesting, harassing, stalking, threatening, or otherwise interfering with [Jennifer,] and from use, attempted use or threatened use of physical force against [her] that would reasonably be expected to cause bodily injury [; and]

engaging in other conduct that would place [her] in reasonable fear of bodily injury to [her or her] household members or relatives.

App. at 550. The judge also applied a fourth prewritten term to Boyd—that he "shall immediately surrender all firearms and other dangerous weapons within [his] possession or control and any concealed carry license," with the written-in modification that this surrender was to be to law enforcement. Id. at 551. Finally, in an open box, the judge applied two customized terms to Boyd. First, he was to stay 100 yards away from Jennifer. Second, in addition to these terms, which were also present in the earlier order served on him prior to the hearing, the judge ordered that Boyd undergo a mental health assessment and follow all recommendations. Finally, the order repeated a warning present in the earlier order: "Possession of a firearm or ammunition by a defendant while an order is in effect may subject the defendant to prosecution for a violation of federal law ...." Id. at 547, 552.

In July 2018, while the continued protective order was still in effect, Boyd drove from Oklahoma to Pennsylvania to meet with Kathryn Kelchner, a woman he followed on Twitter and had conversed with only a few times. Boyd showed up unexpectedly in Kelchner's driveway, and she met him for lunch the following day. Kelchner testified that at lunch Boyd stated that he was receiving messages from the CIA and hearing voices that told him to kill then-President Trump and three members of his family.

Kelchner recorded some of Boyd's statements and reported her encounter to the Pennsylvania State Police. Troopers searched for Boyd and found him sleeping in his parked truck. On waking him, they asked whether he had any weapons in the vehicle, and he replied that he had a gun. After speaking with Boyd further, the troopers took him into custody and searched the car, finding a loaded handgun and two additional magazines. Due to Boyd's threats against the then-President, the subsequent investigation was conducted jointly with the Secret Service.

Charges of terroristic threats under Pennsylvania law followed. Though those charges were dropped, a federal grand jury indicted Boyd on one count of possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which makes it a crime for

any person ... who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury ...

to ... possess in or affecting commerce, any firearm or ammunition ....

While in jail pending trial in federal court, Boyd wrote a letter to the Oklahoma state court judge to alert her that he would be missing his court date for the protective order. This letter was entered into evidence at the federal trial.

At trial, his counsel conceded that it was "essentially undisputed" that Boyd possessed a firearm in interstate commerce and that he was subject to a restraining order containing the provisions required by § 922(g)(8). App. at 199. He even suggested that Boyd "would be a misdemeanant in the State of Oklahoma" because he violated the order to surrender his firearms. App. at 200, 361. Instead of challenging these elements, the...