RECOMMENDED FOR FULL-TEXT PUBLICATION
8 United States v. Beavers No. 99-1829 Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0058P (6th Cir.)
File Name: 00a0058p.06
law until September 30, 1996. Second, the state of Michigan
is under no obligation to update state-law violators on recent
additions to federal law. Finally, the pistol returned by the
state was only one of three firearms found in Beavers’s UNITED STATES COURT OF APPEALS
possession on November 20, 1997. We therefore find FOR THE SIXTH CIRCUIT
Beavers’s argument that § 922(g)(9) should not be applied to _________________
him because of the state of Michigan’s lack of notice to be
without merit.
;
III. CONCLUSION UNITED STATES OF AMERICA,
Plaintiff-Appellee,
For all of the reasons set forth above, we AFFIRM the
judgment of the district court. No. 99-1829
v.
>
JEFFREY BEAVERS,
Defendant-Appellant.
1
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-81410—Paul D. Borman, District Judge.
Argued: December 7, 1999
Decided and Filed: February 16, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*
*
The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
2 United States v. Beavers No. 99-1829 No. 99-1829 United States v. Beavers 7
_________________ prohibitum, and requiring the government to prove that the
defendant knew that his conduct was a crime would unduly
COUNSEL reward those who plead ignorance of the law as a defense.
ARGUED: R. Steven Whalen, Detroit, Michigan, for Based on the reasoning in Baker and Meade, and the
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED majority opinion in Wilson, we conclude that Beavers’s
STATES ATTORNEY, Detroit, Michigan, for Appellee. conviction on a domestic violence offense sufficiently placed
ON BRIEF: R. Steven Whalen, Detroit, Michigan, for him on notice that the government might regulate his ability
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED to own or possess a firearm. As noted in Baker and Meade,
STATES ATTORNEY, Detroit, Michigan, for Appellee. domestic abuse is a well-known problem, and it should not
surprise anyone that the government has enacted legislation
_________________ in an attempt to limit the means by which persons who have
a history of domestic violence might cause harm in the future.
OPINION Compare Lambert, 355 U.S. at 229 (noting that the Los
_________________ Angeles ordinance requiring felons to register was primarily
a bookkeeping aid for law enforcement). When Beavers
RONALD LEE GILMAN, Circuit Judge. This is an appeal committed the domestic violence offense, he “removed
from the district court’s order denying Jeffrey Beavers’s himself from the class of ordinary and innocent citizens” who
motion to withdraw his guilty plea and to dismiss his would expect no special restrictions on the possession of a
indictment for the possession of firearms in violation of 18 firearm. See Bostic, 168 F.3d at 722. We therefore conclude
U.S.C. § 922(g)(9). Section 922(g)(9) prohibits a person that § 922(g)(9) is constitutional, even though it does not
previously convicted of “a misdemeanor crime of domestic require the government to prove that the defendant had actual
violence” from possessing a firearm. Beavers argues that this knowledge that his possession of a firearm was illegal.
section violates his due process rights under the Fifth
Amendment because it does not require the government to C. Section 922(g)(9) is constitutional as applied to
prove, as an element of the offense, that he knew that his Beavers
possession of a firearm was illegal. The district court rejected
Beavers’s ignorance-of-the-law defense. For the reasons set Beavers also argues that § 922(g)(9) is unconstitutional as
forth below, we AFFIRM the judgment of the district court. applied to the facts in the present case because the state of
Michigan misled him by returning one of his pistols in July of
I. BACKGROUND 1996 without telling him about the future applicability of
§ 922(g)(9). The government initially argues that Beavers
On December 23, 1998, Beavers pled guilty to the charge failed to preserve the issue for appeal. This is incorrect,
of possessing a firearm in violation of § 922(g)(9). As part however, because the district court stated “that the plea is
of the factual basis underlying his plea, Beavers admitted that made under 11(a)(2), which will allow him to appeal the
he had pled guilty in 1995 to a misdemeanor domestic assault constitutionality of the statute and the application to him.”
charge. He further admitted that on November 20, 1997 he (Emphasis added.)
had possession of two pistols and a shotgun at his home in
Lambertville, Michigan. At his change-of-plea hearing, On the other hand, we agree with the government’s position
Beavers made the following statement: “And I did have the that Beavers’s “as applied” argument lacks merit. First of all,
three firearms at the time that--of the original Indictment, and- § 922(g)(9) did not exist in July of 1996. It did not become
6 United States v. Beavers No. 99-1829 No. 99-1829 United States v. Beavers 3
his conduct was subject to increased government -[h]owever, I would like to add I didn’t know that the law
scrutiny. Because it is not reasonable for someone in his existed. Nevertheless, I am guilty of having the firearms.”
position to expect to possess dangerous weapons free
from extensive regulation, Baker cannot successfully On July 6, 1999, Beavers moved to withdraw his guilty plea
claim a lack of fair warning with respect to the and to dismiss the indictment on the ground that § 922(g)(9)
requirements of § 922(g)(8). violated his due process rights under the Fifth Amendment.
At the hearing on Beavers’s motion, the parties agreed that (1)
Baker’s rejection of the ignorance of the law defense is well- in 1995, Beavers was placed on state probation for the
reasoned and highly persuasive on the similar issue before us. misdemeanor offense of domestic assault, (2) a condition of
the probation was that he was not allowed to possess a firearm
The First Circuit has also addressed a challenge to while on probation, (3) Beavers was discharged from
§ 922(g)(8), setting forth its analysis as follows: probation in 1996, (4) the state order prohibiting him from
possessing firearms was no longer effective once he was
[Defendant] nevertheless tries to bring his case within the discharged, (5) after Beavers was discharged, the state
Lambert exception by arguing that firearms possession is returned one of his pistols to him, (6) the pistol was returned
an act sufficiently innocent that no one could be expected in July of 1996, approximately three months before the
to know that he would violate the law merely by effective date of § 922(g)(9), and (7) Beavers continued to
possessing a gun. . . . But possession of firearms by have possession of the guns after September 30, 1996, the
persons laboring under the yoke of anti-harassment or effective date of the federal statute. After considering the
anti-stalking restraining orders is a horse of a different parties’ arguments, the district court denied Beavers’s motion.
hue. The dangerous propensities of persons with a
history of domestic abuse are no secret, and the Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
possibility of tragic encounters has been too often Procedure, the parties, with the approval of the district court,
realized. We think it follows that a person who is subject agreed that Beavers would enter a conditional guilty plea,
to such an order would not be sanguine about the legal reserving his constitutional issue for appeal. Beavers was
consequences of possessing a firearm, let alone of being then sentenced to a term of two months of incarceration,
apprehended with a handgun in the immediate vicinity of followed by two months of home confinement and two years
his spouse. . . . We therefore reject the appellant’s of supervised release, and fined $2,000.
contention that the statute, on its face, violates due
process rights of notice. II. ANALYSIS
United States v. Meade, 175 F.3d 215, 226 (1st Cir. 1999); A. Standard of review
see Baker, 197 F.3d at 220 (adopting the reasoning in Meade).
The main issue before the court is whether § 922(g)(9) is
Although Chief Judge Posner’s dissent in Wilson has a unconstitutional in light of the fact that it does not require the
certain surface appeal, in the end it proves too much. He government to prove, as an element of the offense, that
argues that the statute is malum prohibitum, “that is, it is not Beavers knew that his possession of a firearm was illegal.
the kind of law that a lay person would intuit existed because We review de novo a challenge to the constitutionality of a
the conduct it forbade was contrary to the moral code of his federal statute. See, e.g., United States v. Brown, 25 F.3d
society.” Wilson, 159 F.3d at 294. But the lack of intuitive 307, 308 (6th Cir. 1994).
wrongfulness is the hallmark of all laws that are malum
4 United States v. Beavers No. 99-1829 No. 99-1829 United States v. Beavers 5
B. Section § 922(g)(9) is constitutional despite the fact rights under the Fifth Amendment because he had no notice
that it does not require the government to prove that that his possession of a firearm was a federal offense.
Beavers knew that his conduct was illegal Beavers points out that prior to the effective date of the
statute, a person convicted of a misdemeanor domestic
Section § 922(g)(9) provides, in pertinent part, as follows: violence offense was not prohibited from possessing firearms
“It shall be unlawful for any person . . . who has been under § 922.
convicted in any court of a misdemeanor crime of domestic
violence . . . to . . . possess . . . any firearm . . . .” The mens In Wilson, the Seventh Circuit held that § 922(g)(8) does
rea requirement for § 922(g)(9) is contained in § 924(a)(2), not violate the Fifth Amendment. That subsection prohibits
which states that “[w]hoever knowingly violates . . . the possession of a firearm by anyone subject to a domestic
[§ 922(g)(9)] shall be fined as provided in this title, restraining order, which is a companion provision to
imprisoned not more than 10 years, or both.” In an analogous § 922(g)(9) in question here. The majority held that a person
context, other circuits have held that the term “knowingly” could “knowingly” violate § 922(g)(8) even if he did not
only requires that the accused know that he possessed a know that his conduct was illegal. See Wilson, 159 F.3d at
firearm, not that he knew that such possession was illegal. 293. In dissent, Chief Judge Posner wrote that the
See United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir. government should be required to show that the defendant
1999) (holding that, although the term “willfully” as used in knew that his act of possessing the firearms after the issuance
parts of § 922 does have such a requirement, “knowingly” of the restraining order was illegal. See id. at 296.
under § 924(a)(2) does not require the defendant to be aware
that his conduct is illegal); United States v. Capps, 77 F.3d Chief Judge Posner, however, did not find that § 922(g)(8)
350, 352 (10th Cir. 1996) (“No circuit has extended the violated the Fifth Amendment. Instead, he reasoned that it
knowledge component of § 922 beyond the act of possession was a “linguistically permissible interpretation of the statute”
itself.”). to conclude that the government had to prove that the
defendant knew that his conduct was a crime. See id. Based
Beavers acknowledges that ignorance of the law does not upon Chief Judge Posner’s dissent, a district court in Texas
generally excuse criminal conduct. See Cheek v. United held that § 922(g)(8) “is an obscure, highly technical statute
States, 498 U.S. 192, 199 (1991). He argues, however, that with no mens rea requirement” that violates the Fifth
§ 922(g)(9) is an exception because it is a highly technical Amendment. See United States v. Emerson, 46 F.Supp.2d
statute that could ensnare individuals engaged in apparently 598, 613 (N.D. Tex. 1999); but see United States v. Spruill,
innocent conduct. See generally Lambert v. California, 355 61 F. Supp.2d 587, 589 (W.D. Tex. 1999) (rejecting
U.S. 225 (1957) (declaring unconstitutional a city ordinance Emerson’s analysis and noting that three other circuit courts
that punished felons who failed to register with the police have found that § 922(g)(8) is constitutional despite not
department, even if they had no knowledge of the requiring actual knowledge of illegality).
requirement).
In the recent case of United States v. Baker, 197 F.3d 211,
Relying upon the dissenting opinion in United States v. 220 (6th Cir. 1999), this court addressed whether § 922(g)(8)
Wilson, 159 F.3d 280, 293 (7th Cir. 1998), and the case of violates a defendant’s due process rights, concluding as
United States v. Emerson, 46 F. Supp.2d 598 (N.D. Tex. follows:
1999), Beavers argues that his indictment under § 922(g)(9)
should have been dismissed as a violation of his due process The fact that Baker had been made subject to a domestic
violence protection order provided him with notice that