United States v. Rehaif

• Decision Date: 26 March 2018
• Docket Number: No. 16-15860,16-15860
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Hamid Mohamed Ahmed Ali REHAIF, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

888 F.3d 1138

UNITED STATES of America, Plaintiff–Appellee,
v.
Hamid Mohamed Ahmed Ali REHAIF, Defendant–Appellant.

No. 16-15860

United States Court of Appeals, Eleventh Circuit.

March 26, 2018

Jillian M. Jewell, Colin P. McDonell, Linda Julin McNamara, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Christina Romero Downes, Shawn P. Napier, U.S. Attorney's Office, Orlando, FL, for Plaintiff–Appellee.

Robert Godfrey, Federal Public Defender's Office, Orlando, FL, Warren W. Lindsey, Law Office of Warren W. Lindsey, PA, Winter Park, FL, for Defendant–Appellant.

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and DUBINA, Circuit Judges.

DUBINA, Circuit Judge:

We sua sponte vacate our prior published opinion, United States v. Rehaif , 868 F.3d 907 (11th Cir. 2017), and substitute this revised opinion in lieu thereof.

Hamid Mohamed Ahmed Ali Rehaif ("Rehaif"), a citizen of the United Arab Emirates, appeals his convictions for possessing a firearm and ammunition while being illegally or unlawfully in the United States, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). Rehaif argues that the district court erred by instructing the jury that the government did not have to prove that he knew he was in the United States unlawfully. Rehaif further argues that the district court abused its discretion by failing to instruct the jury that an alien is not unlawfully in the United States until the U.S. Citizenship and Immigration Services ("USCIS") or an immigration judge has declared him unlawfully present. After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we affirm the convictions.

I. BACKGROUND

The United States issued Rehaif an F-1 nonimmigrant student visa to study mechanical engineering at the Florida Institute of Technology ("FIT") on the condition that he pursue a full course of study—except as otherwise authorized by a "Designated School Official"—or engage in training following graduation. When applying for his F-1 student visa, Rehaif signed a Certificate of Eligibility for Nonimmigrant Student Status, certifying that he agreed to comply with the terms and conditions of his admission and that he sought "to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study."

After three semesters at FIT, Rehaif was academically dismissed on December 17, 2014. One month later, on January 21, 2015, FIT sent Rehaif an email stating that he had been academically dismissed

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and that his "immigration status will be terminated on February 5, 2015, unless you transfer out before that date, or you notify our office that you have already left the United States." Rehaif did not take any action. As such, according to the Department of Homeland Security's foreign student database, Rehaif's status was officially terminated on February 23, 2015.

On December 2, 2015, Rehaif went to a shooting range. He purchased a box of ammunition and rented a firearm for one hour. Videos from the shooting range show Rehaif firing two different firearms. The firearms were manufactured in Austria and then imported into the United States through Georgia. The ammunition was manufactured in Idaho.

Six days later, an employee at the Hilton Rialto Hotel in Melbourne, Florida, called the police to report that a guest at the hotel—Rehaif—had been acting suspiciously. Special Agent Tom Slone with the Federal Bureau of Investigation went to the hotel to speak with Rehaif. Rehaif admitted, in an unrecorded interview, that he had fired two firearms at the shooting range and that he was aware that his student visa was out of status because he was no longer enrolled in school. Rehaif consented to a search of his hotel room, where the agents found the remaining ammunition that he had purchased at the shooting range.

A federal grand jury charged Rehaif with two counts of violating § 922(g)(5)(A). That statute provides that:

(g) It shall be unlawful for any person—

...

(5) who, being an alien—

(A) is illegally or unlawfully in the United States ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition. ...

18 U.S.C. § 922(g)(5)(A). Section 922(g) does not itself provide for any punishment. That gap is filled by § 18 U.S.C. § 924(a)(2), which states that:

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).

Before trial, both parties submitted proposed jury instructions to the district court. During the charge conference, the government requested an instruction stating that "[t]he United States is not required to prove that the defendant knew that he was illegally or unlawfully in the United States." Rehaif disagreed, arguing that the United States had to prove both that he had knowingly possessed a firearm and that he had known of his prohibited status—that he was illegally or unlawfully in the United States when he had possessed the firearm. The district court overruled Rehaif's objection.

The government also requested an instruction stating that "[t]he alien's presence becomes unlawful upon the date of the status violation." Rehaif, on the other hand, proposed an instruction stating that "[a] person admitted to the United States on a student visa does not become unlawfully present until an Immigration Officer or an Immigration Judge determines that [he] ha[s] violated [his] student status." The district court gave an instruction closer to the government's request, telling the jury that "[a]n alien illegally or unlawfully in the United States is an alien whose presence within the United States is forbidden or not authorized by law." Rehaif then perfected this appeal, challenging the district court's jury instructions with respect to the "knowingly" requirement and

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the "illegal or unlawful" requirement, as well as the constitutionality of § 922.¹

II. STANDARD OF REVIEW

This court will review the district court's jury instructions "de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party." United States v. James , 642 F.3d 1333, 1337 (11th Cir. 2011) (quotation omitted).

III. ANALYSIS

On appeal, Rehaif challenges the district court's jury instructions regarding the "knowingly" requirement and the "illegal or unlawful" requirement.

With respect to the "knowingly" requirement, Rehaif argues that the district court erred by instructing the jury that the government need not prove that he knew he was in the United States illegally or unlawfully, because the phrase "knowingly violates," in 18 U.S.C. § 924(a)(2), modifies § 922(g) to require proof that the defendant knew at the time that he possessed the firearm that he was in the United States illegally or unlawfully. Rehaif further argues that, although several courts have ruled that knowledge of one's status as a convicted felon is not necessary for a conviction under § 922(g)(1), the question of whether knowledge is necessary for a conviction under § 922(g)(5)(A) is not settled. As such, Rehaif argues, the district court's jury instruction misstated the law and eviscerated his planned defense that he did not know he was in the United States illegally or unlawfully.

The government argues that a violation of § 922(g) only requires that the defendant knowingly possessed a firearm, not that the defendant had knowledge of his status, and that nothing in the statute indicates that § 922(g)(5)(A) has a different mens rea requirement. For support, the government points to the fact that no circuit has required proof of the defendant's knowledge of his prohibited status under any subsection of § 922(g). The government also argues that § 922(g) consolidates previously separate sections that did not contain mens rea provisions but that had been interpreted to require knowledge of the firearm possession, and that Congress did not intend to expand the mens rea requirement when it consolidated the statutes.

With respect to the "illegal or unlawful" requirement, Rehaif argues that federal immigration law defines "unlawful presence" as presence in the United States after the expiration of the period of stay authorized by the Attorney General. This definition, he argues, supports his position that a person is not unlawfully in the United States until a USCIS official or an immigration judge declares him to be so. Additionally, Rehaif argues that both his position and the government's position have a basis in case law or statute and that the ambiguity in the statute requires the application of the rule of lenity.

The government responds that, although this court has not addressed this issue, five other circuits have held that an alien who is permitted to remain in the United States only for the duration of his status becomes illegally or unlawfully in the United States under § 922(g)(5)(A) upon the violation of his status. Therefore, Rehaif became unlawfully in the United States the moment he failed to comply with the conditions

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