Argument preview: Must an unauthorized immigrant in possession of a firearm know he is in the country illegally?

When the federal government prosecutes someone not legally in the United States for possessing a firearm, must the government prove that the person actually knew he was not legally in the country? Or need the government merely prove that the person knew he possessed the firearm? The U.S. Supreme Court will puzzle over this classic, yet novel, statutory question of “mens rea,” or criminal intent, when it hears argument on April 23 in Rehaif v. United States.

In August 2013, Hamid Mohamed Ahmed Ali Rehaif, a citizen of the United Arab Emirates, entered the United States on an F-1 student visa to study at the Florida Institute of Technology. Printed on the visa was an expiration date of July 2017. Under the law, however, Rehaif needed to remain enrolled as a full-time student in order to retain his student status. In December 2014, Florida Tech academically dismissed Rehaif for failing most of his classes. The school sent Rehaif emails notifying him that his immigration status would be terminated on February 5, 2015, unless he transferred to another school or left the United States.

Rehaif did not leave the United States, but instead took up residence at a hotel in Melbourne, Florida. On December 2, 2015, he visited a shooting range in Melbourne, where he bought a box of 9mm ammunition and rented a Glock to shoot for an hour at the range. A few days later, tipped off by a suspicious hotel employee, an FBI agent named Thomas Slone interviewed Rehaif. Slone later said that during this unrecorded interview Rehaif admitted to knowing he was out of immigration status because he had been academically dismissed.

Rehaif was indicted on two counts of possessing a firearm while being in the United States illegally, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). Over Rehaif’s objection, the district court instructed the jury that “the United States is not required to prove [Rehaif] knew that he was illegally or unlawfully in the United States.” He was convicted on both counts and sentenced to 18 months in prison, followed by two years of supervised release. The U.S. Court of Appeals for the 11th Circuit affirmed.

In most criminal cases, both sides roughly agree on which part or parts of the statute bear on the case. Not so here. Rehaif’s brief takes two pages to lay out what it says are the relevant provisions; the government’s brief dedicates an entire 53-page appendix to reciting the statute.

That discrepancy is at the heart of the case. Rehaif seeks to convince the Supreme Court that the correct mens rea standard is set forth straightforwardly in the two subsections giving rise to the convictions. The government seeks to convince the court that the correct level of mens rea can only be deduced by a holistic examination of the surrounding provisions.

Section 922(g) states, “It shall be unlawful for any person … [who fits into any of nine status categories] to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” The status categories include convicted felons, fugitives from justice, unlawful drug users, “mental defectives,” aliens who are in the United States illegally, people dishonorably discharged from the Armed Forces, those who have renounced their American citizenship, those subject to domestic restraining orders and those convicted of misdemeanor domestic violence. Section 922(g) contains neither a penalty nor an enumeration of a mens rea requirement.

Section 924(a)(2) contains the penalty and mens rea requirement. It states, “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both[.]” Both sides in this case agree that “knowingly” modifies the term “possess”; they do not agree whether it also modifies the seven status elements of Section 922 referenced in Section 924(a)(2).

According to Rehaif, this case involves the most elementary feat of ordinary statutory interpretation, leading to the “unambiguous” conclusion that the verb phrase “knowingly violates” applies to both the status and possession elements. “Section 922(g) first sets out the status element and then the possession element of the crime,” states Rehaif’s brief. “The ‘knowingly violates’ requirement for a § 922(g) violation does not somehow skip over the status element and apply only to the possession element.”

Rehaif further argues that Supreme Court precedent supports this reading. Citing the 2009 decision in Flores-Figueroa v. United States, Rehaif states that “ordinarily, as is the case here, introducing the elements of a crime with the word ‘knowingly’ means that mens rea requirement applies to all the ensuing substantive elements of the crime.” Note that Rehaif characterizes status elements as “substantive elements,” to distinguish them from merely “jurisdictional elements,” which generally require no proof of mens rea.

Although the government does not claim that the status elements of Section 922(g) are exactly jurisdictional in nature, it does seek to cast them in a different light than such “conduct” elements as transportation or possession. “[T]he defendant’s status — e.g., as a felon or as an unlawful alien — is ‘an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense.’” In other words, says the government, the crux of a crime is the defendant’s conduct, not the “background circumstances” behind the criminal event. (The Model Penal Code refers to such background facts as “attendant circumstances,” a term whose abstractness has paralyzed first-year law students for decades.)

The government also argues that reading the term “knowingly” into the status elements of Section 922(g) doesn’t mesh well with other subsections of Section 922, some of which already contain requirements that the defendant “know” or “have reasonable cause to believe” that the relevant attendant circumstance exists. The importation of “knowingly” into these subsections would produce either redundancy or conflict. According to the government, the term “knowingly” was only added to Section 924(a) in order to codify case law requiring proof of knowledge of the conduct element, not to extend that requirement to any attendant-circumstance elements, including status elements. Hence the government asks the court to zoom out and consider the context of the entire firearms section of the Federal Criminal Code.

Yet Rehaif protests that being in the United States illegally is not just “another” attendant-circumstance element. It is the only element that transforms the cherished American right to possess firearms into a serious federal felony. To “knowingly possess a firearm” garners no attention from the Federal Criminal Code until one adds one of the statutorily enumerated status elements to it, such as being an alien who is in the country illegally. Only then does it become an event worthy of criminal prosecution. Yet if criminality hangs so critically on the status of the firearm possessor, surely the possessor must know of the status to be punishable, argues Rehaif.

One would think that, in order to gain a reversal, Rehaif would need to persuade all four of the so-called “liberal” justices plus one. The one could well be Justice Neil Gorsuch. In the 2012 case of United States v. Games-Perez, Gorsuch, then a judge on the U.S. Court of Appeals for the 10th Circuit, expressed a view quite similar to Rehaif’s argument regarding a status element that stands between innocent conduct and criminal conduct. Games-Perez involved Section 922(g)(1), which covers the status of a convicted felon (“crime punishable by imprisonment for a term exceeding one year”).

It is “hardly crazy to think that in a § 922(g)(1) prosecution Congress might require the government to prove that the defendant had knowledge of the only fact (his felony status) separating criminal behavior from not just permissible, but constitutionally protected, conduct,” Gorsuch wrote. That said, he was unable to persuade his fellow circuit judges to reconsider the circuit precedent holding that an ex-felon who possesses a firearm need not know of his prior conviction in order to be guilty under Sections 922(g)(1) and 924(a)(2).