CRIMINAL DEFENSE: Rehaif v. United States (2019) – Does a defendant have to know they are illegally present in the Country to Illegally possess a firearm in violation of the law?

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The culpable mental state can only be formulated if the defendant both knows they are in the USA illegally and also knows they are illegally possessing a weapon.  This is another case about sentencing.  The question answered is whether a person has to KNOW they are in the United States illegally contemporaneously with KNOWING they are illegally in possession of a weapon (&/or in possession of an illegal weapon) to be sentenced under 18 U.S.C. § 924(a)(2) to up to 10 years for having violated 18 U.S.C. § 922(g)(5)(A).

Mr. Rehaif remained in the United States after his immigration status was terminated in 2015.  He went to a shooting range, rented a weapon and purchased ammunition.  6 days later an employee at the hotel where he was staying reported him as exhibiting “strange behavior”.  An FBI Agent went to the hotel, found Rehaif in possession of ammunition, and Rehaif said he was at a shooting range and had fired a weapon with the missing rounds from the ammunition box he still possessed.  He said his Student Visa had expired because he was no longer a student.

During his trial the US Government Attorney requested a Jury Instruction stating that a person did not have to know they were in the Country illegally to be in violation of 18 U.S.C. § 924(a)(2).  Mr. Rehaif’s Counsel objected and asserted that knowledge of the illegal immigration status was a requirement.  The parties to the case also disagreed as to when an a status violation became caused the person to be an unlawfully present individual.  The US Government argued immediately, Rehaif argued that an Immigration Officer or Immigration Judge had to first determine the status.

The district court overruled Rehaif’s objections.  The Eleventh Circuit affirmed during the appeal based on standing precedent within the Eleventh Circuit and other Circuits as well as the fact that Congress had not passed or altered any law to the contrary making the standing precedent what Congress intended.  Justice Breyer gave the 7-2 Opinion that without the knowledge of the status, the Appellant could not formulate the requisite mens rea.  This was based on the regular rules of grammar that dictate the word knowingly applies to both the status and the weapon possession.  Justices Alito and Thomas dissented, arguing that the scienter requirement (knowingly) was improperly applied based on the fact that the Court has never taken Congress to have delineated a mens rea element based on a Defendant’s own status in any other cases.

The links below are links to synopsis and full copies of the Supreme Court Case:

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James F. Polk

Senior Administrative Coordinating Paralegal for Apex Law Service