FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50308
Plaintiff-Appellee,
D.C. No.
v. 2:16-cr-00461-SJO-1
SAMIR BENAMOR,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted April 10, 2019
Pasadena, California
Filed June 6, 2019
Amended September 5, 2019
Before: Susan P. Graber and Jay S. Bybee, Circuit Judges,
and M. Douglas Harpool,* District Judge.
Order;
Opinion by Judge Graber
*
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
2 UNITED STATES V. BENAMOR
SUMMARY**
Criminal Law
The panel filed an amended opinion affirming a
conviction for knowingly possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g)(1); denied a petition for panel
rehearing; and denied on behalf of the court a petition for
rehearing en banc.
The defendant argued that because firearms manufactured
in or before 1898 do not qualify as “firearms” under § 922,
the district court erred by refusing to instruct the jury that, to
convict, they had to find that the defendant knew that his
firearm was manufactured after 1898. The panel rejected that
argument. The panel explained that United States v.
Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014) (concerning the
categorical approach), does not override the line of cases
holding that a firearm’s antique status is an affirmative
defense in a criminal prosecution; and that Staples v. United
States, 511 U.S. 600 (1994) (concerning the National
Firearms Act), does not help the defendant. The panel held
that the defendant failed to meet his burden of production
to put the “antique firearm” affirmative defense at issue,
and rejected the defendant’s sufficiency-of-the-evidence
argument that rested on the same contention.
The panel reviewed for plain error the defendant’s
argument that, in light of Rehaif v. United States , 139 S. Ct.
2191 (2019), the evidence was insufficient to sustain his
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BENAMOR 3
conviction because the government failed to prove that he
knew he was a felon. The panel held that the defendant’s
stipulation at trial – that, on the date when he was arrested in
this case for possession of a shotgun, he had been convicted
of a crime punishable by imprisonment for a term exceeding
one year – was binding, and relieved the government of the
burden to prove the defendant’s status as a felon. The panel
held that, assuming the stipulation does not end the
discussion, there was no plain error. The panel explained that
the absence of an instruction requiring the jury to find that the
defendant knew he was a felon was clear error under Rehaif,
but that there is no probability that, but for the error, the
outcome of the proceeding would have been different. The
panel wrote that, at a minimum, the prior convictions proved
beyond a reasonable doubt that the defendant had the
knowledge required by Rehaif and any error did not affect the
defendant’s substantial rights or the fairness, integrity, or
public reputation of the trial.
The panel held that the admission of an ATF agent’s
testimony that his interview with the defendant's landlord
confirmed the agent’s decision to arrest the defendant for the
firearm and ammunition violated the Confrontation Clause,
but that the error was harmless beyond a reasonable doubt.
4 UNITED STATES V. BENAMOR
COUNSEL
Michael Tanaka (argued), Los Angeles, California, for
Defendant-Appellant.
Matthew W. O’Brien (argued) and Consuelo S. Woodhead,
Assistant United States Attorneys; L. Ashley Aull, Chief,
Criminal Division; Nicola T. Hanna, United States Attorney,
Los Angeles, California; for Plaintiff-Appellee.
ORDER
The opinion filed June 6, 2019, and published at 925 F.3d
1159, is amended by the opinion filed concurrently with this
order.
With these amendments, the panel has voted to deny
Appellant’s petition for panel rehearing. Judges Graber and
Bybee have voted to deny Appellant’s petition for rehearing
en banc, and Judge Harpool has so recommended.
The full court has been advised of the petition for
rehearing en banc, and no judge of the court has requested a
vote on it.
Appellant’s petition for panel rehearing and rehearing en
banc is DENIED. No further petitions for panel rehearing or
rehearing en banc will be entertained.
UNITED STATES V. BENAMOR 5
OPINION
GRABER, Circuit Judge:
Defendant Samir Benamor appeals his conviction for
knowingly possessing a firearm as a felon, in violation of
18 U.S.C. § 922(g)(1). He possessed an old shotgun that
might have been manufactured as early as 1915. Because
firearms manufactured in or before 1898 do not qualify as
“firearms” under § 922, Defendant argues that the district
court erred by refusing to instruct the jury that, to convict,
they had to find that Defendant knew that his firearm was
manufactured after 1898. Defendant also argues that his
conviction cannot stand because the government did not
prove his knowledge of his status as a felon. Finally,
Defendant raises a Confrontation Clause challenge. We
affirm.
BACKGROUND
At the time of his arrest in this case, Defendant was a
felon, and law enforcement had authority to conduct
warrantless searches of his car and residence. After the local
police department received tips that Defendant had engaged
in illegal activity, two detectives, Anthony Chavez and
Matthew Concannon, conducted surveillance outside the
house in the garage of which Defendant resided. Concannon
saw two vehicles, a Volvo and a minivan, parked in front of
the house. Concannon also saw Defendant appear from the
back of the property and walk to the street, where he opened
the sliding door on the minivan’s passenger side, climbed into
the driver’s seat, and moved the van a short distance down the
road. Defendant left the van through the same door and
6 UNITED STATES V. BENAMOR
returned to the house. At that point, Concannon ran the van’s
license plate and learned that it was Defendant’s.
Several minutes later, Concannon saw Defendant re-
emerge from the back of the house, accompanied by a man
named Angel Vasquez and an unidentified woman. All three
individuals got into the Volvo and drove away. Chavez and
Concannon then searched the garage. They found, among
other things, keys to the minivan and an ammunition belt
containing four shotgun rounds. Concannon used the keys to
open the minivan’s locked doors. Next to the sliding door
that Defendant used to enter and exit the minivan, Concannon
found a shotgun on the floor. The ammunition found in the
garage did not match Defendant’s shotgun.
Defendant’s landlord arrived at the property during the
search and confirmed that Defendant was the only person
living in the garage. Because Defendant was a felon and
because the detectives had found the ammunition and the
shotgun, Chavez directed that Defendant be arrested.
Officers arrested Defendant, Vasquez, and the unidentified
woman that same day, and jailed Defendant. Four days later,
while Chavez was transporting Defendant to a different jail,
Defendant asked Chavez how much prison time he might
serve. After Chavez responded, Defendant said that he had
not intended to use the shotgun but, instead, wanted only to
sell it or give it away.
Defendant went to trial on two counts of violating
§ 922(g)(1)—one for the shotgun and one for the
ammunition. An agent from the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”) testified that the shotgun
could not have been manufactured before 1915, given certain
engravings on the gun. The agent also testified that the
UNITED STATES V. BENAMOR 7
shotgun’s model and serial number indicated that it was likely
manufactured in the 1920s. The government did not
introduce any evidence that Defendant knew the gun’s age.
A different ATF agent, Daniel Thompson, testified about his
interview of Defendant’s landlord, who did not testify at trial.
Other evidence established that, although only Defendant
lived in the garage, the house’s other occupants stored items
there.
After the government rested, Defendant moved for
acquittal. The district court denied his motion. The court
also denied Defendant’s request for an instruction that the
government must prove that he knew that the shotgun was
manufactured after 1898. The jury found Defendant guilty on
the shotgun count but acquitted him on the ammunition count.
Defendant then moved for a new trial, arguing that
Thompson’s testimony about his interview with the landlord
violated the Confrontation Clause. The district court denied
the motion.
DISCUSSION
A. The “Antique Firearm” Exception
Defendant argues that the district court should have
instructed the jury that, to find Defendant guilty, they had to
find that he knew that his firearm was manufactured after
1898. For the same reason, he argues that the government
presented insufficient evidence to convict him. We review de
novo “whether jury instructions omit or misstate elements of
a statutory crime,” and we review de novo the sufficiency of
the evidence. United States v. Kaplan, 836 F.3d 1199, 1211,
1214 (9th Cir. 2016) (internal quotation marks and alteration
omitted).
8 UNITED STATES V. BENAMOR
To convict someone under § 922(g)(1), the government
must prove four elements: (1) the defendant was a felon;
(2) the defendant knew he was a felon; (3) the defendant
knowingly possessed a firearm or ammunition; and (4) the
firearm or ammunition was in or affecting interstate
commerce. Rehaif v. United States, 139 S. Ct. 2191, 2194
(2019);1 United States v. Nevils, 598 F.3d 1158, 1163 (9th
Cir. 2010) (en banc) (internal quotation marks omitted). We
begin with Defendant’s challenge to the third element. To
prove that a defendant knowingly possessed a firearm, the
government must “prove that the defendant consciously
possessed what he knew to be a firearm.” United States v.
Beasley, 346 F.3d 930, 934 (9th Cir. 2003). “Firearm” has a
broad definition, found in 18 U.S.C. § 921(a)(3). But
§ 921(a)(3) also carves out a narrow exception: “Such term
does not include an antique firearm.” An “antique firearm”
is any firearm “manufactured in or before 1898.” 18 U.S.C.
§ 921(a)(16)(A).
Although Defendant’s shotgun was old, it was not
“antique” within the statutory definition, because it was
manufactured after 1898. Defendant does not dispute that his
shotgun met § 921(a)(3)’s definition of a firearm. Yet he
argues that the government was required to prove his
knowledge that the shotgun lacked the antiquity that would
have placed it beyond § 922(g)’s reach.
1
Shortly after we filed the original opinion in this case, the Supreme
Court decided Rehaif. Rehaif held that, in a prosecution under § 922(g),
the government must prove not only that the defendant had a certain
status—such as being a felon—that rendered his possession of a firearm
unlawful, but also that the defendant knew that he had the relevant status.
139 S. Ct. at 2194. We address Defendant’s Rehaif-based challenge to his
conviction in the next section.
UNITED STATES V. BENAMOR 9
Every circuit to address the “antique firearm” exception
in the criminal context has held that the exception is an
affirmative defense to a § 922(g) prosecution, not an element
of the crime. See United States v. Royal, 731 F.3d 333, 338
(4th Cir. 2013) (collecting cases); Gil v. Holder, 651 F.3d
1000, 1005 n.3 (9th Cir. 2011) (same), overruled in part on
other grounds by Moncrieffe v. Holder, 569 U.S. 184 (2013).
This uniform holding flows from “the longstanding principle
that ‘an indictment or other pleading founded on a general
provision defining the elements of an offense need not
negative the matter of an exception made by a proviso or
other distinct clause.’” Royal, 731 F.3d at 338 (alteration
omitted) (quoting McKelvey v. United States, 260 U.S. 353,
357 (1922)). Thus, because the “antique firearm” exception
“stands alone as a separate sentence untethered to the general
definition of ‘firearm,’” courts consistently “place the burden
on defendants to raise it as an affirmative defense.” Id.
Defendant acknowledges the line of cases holding that a
firearm’s antique status is an affirmative defense, but he
argues that United States v. Aguilera-Rios, 769 F.3d 626 (9th
Cir. 2014), overrides those cases. There, we held that, after
the Supreme Court’s decision in Moncrieffe, the categorical
approach requires courts to consider “a definitional element
of a criminal offense, like the antique firearms exception.”
Aguilera-Rios, 769 F.3d at 635. But that “definitional
element” label matters only in the context of the categorical
approach, not in the context of a criminal prosecution. See id.
at 636 (noting that, in some cases, “a conviction must
necessarily establish the presence of certain factors that are
not themselves elements of the crime” to qualify as a
categorical match (emphasis added) (internal quotation marks
omitted)). Our concern here is whether “the defendant bears
the burden in a criminal trial” of proving that the firearm was
10 UNITED STATES V. BENAMOR
an antique, which is “irrelevant to the ‘more focused,
categorical inquiry.’” Id. (quoting Moncrieffe, 569 U.S.
at 197). Aguilera-Rios’ holding about how to conduct the
categorical approach did not convert a firearm’s age into a
traditional element of a § 922(g) crime. Aguilera-Rios does
not control here.
Defendant also argues that Staples v. United States,
511 U.S. 600 (1994), requires that the government prove his
knowledge of every characteristic of his shotgun that made it
incriminating, including its age. Staples addressed certain
provisions of the National Firearms Act (“NFA”), which
criminalizes possessing an unregistered or improperly
registered firearm. Id. at 602. The NFA defines “firearm” to
include a “machinegun,” meaning “any weapon which shoots
. . . or can be readily restored to shoot, automatically more
than one shot, without manual reloading, by a single function
of the trigger.” 26 U.S.C. § 5845(a)(6), (b). But “virtually
any semiautomatic weapon may be converted, either by
internal modification or, in some cases, simply by wear and
tear, into a machinegun within the meaning of the Act.”
Staples, 511 U.S. at 602. The Court expressed concern that,
in many cases, such “a gun may give no externally visible
indication that it is fully automatic,” rendering people
vulnerable to imprisonment under the NFA “despite absolute
ignorance” of a gun’s automatic firing capabilities. Id.
at 615. Thus, the Court read a mens rea requirement into the
NFA and held that “the Government should have been
required to prove that petitioner knew of the features of his
[rifle] that brought it within the scope of the Act.” Id. at 619.
Staples does not help Defendant. The characteristics of
a “firearm” at issue in Staples were located in the general
provision defining the term, not, as here, in a “‘distinct
UNITED STATES V. BENAMOR 11
clause’” that stands alone as an exception “to the general
definition of ‘firearm.’” Royal, 731 F.3d at 338 (quoting
McKelvey, 260 U.S. at 357). Thus, unlike the NFA, § 922(g)
cannot be read “to make outlaws of gun owners who were
wholly ignorant of the offending characteristics of their
weapons.” Staples, 511 U.S. at 620. Indisputably,
Defendant’s shotgun was a “firearm” under § 921(a)(3). And
Defendant cannot reasonably dispute that he knew the
shotgun “to be a firearm.” Beasley, 346 F.3d at 934.
Although he did not know the gun’s age, he knew that the gun
was a weapon “which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive.”
§ 921(a)(3).
That leaves Defendant with only the affirmative defense
of the “antique firearm” exception on which to rely.
Defendant had the burden of production to put that
affirmative defense at issue. Royal, 731 F.3d at 338; United
States v. Cruz, 554 F.3d 840, 850 n.16 (9th Cir. 2009). We
need not, and do not, decide whether the affirmative defense
is objective (meaning that the firearm’s date of manufacture,
alone, provides the answer) or subjective (meaning that a
reasonable belief, even if mistaken, that the firearm was
manufactured before 1899 could suffice). Either way,
Defendant failed to meet his burden of production. He did
not dispute the government’s evidence that his gun could not
have been manufactured before 1915, and he offered no
evidence that he reasonably believed that the gun was
manufactured before 1899.
Thus, the district court correctly declined to give
Defendant’s proposed jury instruction. Defendant’s
sufficiency-of-the-evidence argument rests entirely on the
12 UNITED STATES V. BENAMOR
argument that we have just rejected, so we also reject the
sufficiency argument.
B. Defendant’s Knowledge of His Status as a Felon
After the Supreme Court decided Rehaif, Defendant filed
a petition for rehearing, arguing that the evidence was
insufficient to sustain his conviction because the government
failed to prove that he knew he was a felon. We review for
plain error when a sufficiency-of-the-evidence claim was not
raised before the district court. United States v. Flyer,
633 F.3d 911, 917 (9th Cir. 2011). Defendant does not meet
that stringent standard here.
Defendant stipulated at trial that, on the date when he was
arrested in this case for possession of the shotgun, he had
been convicted of a crime punishable by imprisonment for a
term exceeding one year. That factual stipulation was
binding, and it relieved the government of the burden to
prove Defendant’s status as a felon. See Christian Legal
Soc’y Chapter of Univ. of Cal. v. Martinez, 561 U.S. 661,
677–78 (2010) (stating that factual stipulations “have the
effect of withdrawing a fact from issue and dispensing wholly
with the need for proof of the fact” (internal quotation marks
omitted)).
Assuming, however, that the stipulation does not end the
discussion as to Defendant’s knowledge of his status as a
felon, there was no plain error. See United States v. Olano,
507 U.S. 725, 734, 736 (1993) (holding that, to establish
plain error, a defendant must show: (1) an error (2) that was
obvious and (3) that affected the defendant’s substantial
rights and (4) that seriously affected the fairness, integrity, or
public reputation of judicial proceedings). Here, the absence
UNITED STATES V. BENAMOR 13
of an instruction requiring the jury to find that Defendant
knew he was a felon was clear error under Rehaif. See
Henderson v. United States, 568 U.S. 266, 273 (2013)
(holding that the first two elements of plain error are satisfied
if the error is obvious when the case is on appeal); Griffith v.
Kentucky, 479 U.S. 314, 321 n.6, 328 (1987) (providing that
Supreme Court decisions in criminal cases apply to all cases
pending on direct review).
But the third and fourth prongs of the plain-error test are
not met. Here, there is no probability that, but for the error,
the outcome of the proceeding would have been different.
See Molina-Martinez v. United States, 136 S. Ct. 1338, 1343
(2016) (articulating the standard of a “reasonable probability”
of a different result). When Defendant possessed the
shotgun, he had been convicted of seven felonies in
California state court, including three felonies for which
sentences of more than one year in prison were actually
imposed on him. The felonies included one case in which
Defendant sustained convictions for being a felon in
possession of a firearm and a felon in possession of
ammunition; he was sentenced to five years and eight months
in prison. Defendant spent more than nine years in prison on
his various felony convictions before his arrest for possessing
the shotgun. At a minimum, the prior convictions for being
a felon in possession of a firearm and being a felon in
possession of ammunition proved beyond a reasonable doubt
that Defendant had the knowledge required by Rehaif and that
any error in not instructing the jury to make such a finding
did not affect Defendant’s substantial rights or the fairness,
integrity, or public reputation of the trial.
14 UNITED STATES V. BENAMOR
C. Confrontation Clause Issue
After Defendant’s arrest, Thompson interviewed
Defendant’s landlord, who told him that she had seen
Defendant “with a very old or antique firearm.” At trial, the
government sought to introduce the landlord’s statement
through Thompson. The government gave advance notice of
its intent, and Defendant objected to the testimony. He
argued both that the testimony violated the Confrontation
Clause and that the government’s stated purpose for
introducing the testimony was irrelevant. The district court
sustained Defendant’s objection: “The agent will not be able
to testify that [the landlord] told the agent that she had seen
the defendant with a very old long gun.” When the
government asked for clarification, the court said: “Well, the
fact that there was an interview can be elicited. The
substance of what was discussed at the interview, depending
on what you intend to refer to, is probably prohibited.”
Thompson testified later that morning. On redirect, the
government asked him about Vasquez, the man who left the
house with Defendant and was arrested with Defendant.
Vasquez was also a felon at the time of the arrest. That line
of questioning led to Thompson’s interview with the landlord:
Q: And then you interviewed the landlady,
Ms. Ewen, on July 13th; is that right?
A: That’s correct.
Q: And did your discussion with Ms. Ewen
have any effect on your decision on whether
to investigate Vasquez?
UNITED STATES V. BENAMOR 15
A: It did.
Q: Did your discussion with Ms. Ewen
confirm your decision to arrest Mr. Benamor
for the firearm and ammunition?
A: Yes, it did
Q: Did anything—without getting into the
specifics about what Ms. Ewen told you, did
anything from that interview cause you to
suspect that Mr. Vasquez had anything to do
with that shotgun?
A: No. To the contrary, it made me believe
more that he did not.
Defendant did not object during the testimony. In its closing
argument, the government brought up the landlord’s
statement again: “Special Agent Thompson testified that that
interview with the landlady confirmed his suspicions, his
knowledge, that it was defendant’s gun and defendant’s
ammunition.”
1. Presence of Error
We review de novo whether a Confrontation Clause
violation occurred. United States v. Tuyet Thi-Bach Nguyen,
565 F.3d 668, 673 (9th Cir. 2009). The Sixth Amendment
guarantees that, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses
against him.” In Crawford v. Washington, 541 U.S. 36, 59
(2004), the Supreme Court held that this guarantee requires
that a “testimonial” statement of a witness absent from trial
16 UNITED STATES V. BENAMOR
meet two conditions for admission: (1) the declarant must be
unavailable at trial; and (2) the defendant must have had a
prior opportunity to cross-examine the declarant. The
government does not dispute that the landlord’s statements
were testimonial and did not meet Crawford’s requirements.
But the government argues that no Confrontation Clause
violation occurred because it offered a summation of her
statements to show their effect on Thompson, not for the truth
of the statements. We disagree.
The government’s argument carries little weight for the
following exchange:
Q: Did your discussion with Ms. Ewen
confirm your decision to arrest Mr. Benamor
for the firearm and ammunition?
A: Yes, it did.
In context, that answer implied that the landlord confirmed
that Defendant possessed the shotgun and the ammunition.
The government made that implication unmistakable during
closing argument by again emphasizing the landlord’s
statement. If the government’s argument prevailed here, then
“every time a person says to the police ‘X committed the
crime,’ the statement (including all corroborating details)
would be admissible to show why the police investigated X.
That would eviscerate the constitutional right to confront and
cross-examine one’s accusers.” United States v. Silva,
380 F.3d 1018, 1020 (7th Cir. 2004).
The brevity of Thompson’s testimony did not prevent it
from violating Defendant’s rights. “To the contrary, it would
be an unreasonable application of the core Confrontation
UNITED STATES V. BENAMOR 17
Clause principle underlying Crawford to allow police officers
to testify to the substance of an unavailable witness’s
testimonial statements as long as they do so descriptively
rather than verbatim or in detail.” Ocampo v. Vail, 649 F.3d
1098, 1109 (9th Cir. 2011). Indeed, a brief description might
be even more harmful to Crawford’s principle than a
verbatim recitation. “With the language actually used by the
out-of-court witness obscured, any clues to its truthfulness
provided by that language—contradictions, hesitations, and
other clues often used to test credibility—are lost, and
instead, a veneer of objectivity conveyed.” Id.
The parties dispute what level of error would require
reversal here. Defendant argues for harmless error, while the
government argues that plain error applies because Defendant
failed to renew his objection to Thompson’s testimony. W e
need not resolve the parties’ dispute because the error is
harmless even under the more lenient standard of harmless
error.
2. Harmlessness
Assuming, as we do, that harmless error applies, the
government bears the burden of proving beyond a reasonable
doubt that an error was harmless. United States v. Esparza,
791 F.3d 1067, 1074 (9th Cir. 2015). To assess whether
Thompson’s testimony was harmless, we must consider “a
variety of factors, including whether the testimony was
cumulative, the presence or absence of [evidence]
corroborating or contradicting the testimony on material
points, the extent of cross-examination, and of course, the
overall strength of the prosecution’s case.” Tuyet Thi-Bach
Nguyen, 565 F.3d at 675 (quoting United States v. Mayfield,
189 F.3d 895, 906 (9th Cir. 1999)). But we cannot consider
18 UNITED STATES V. BENAMOR
“whether the witness’ testimony would have been unchanged,
or the jury’s assessment unaltered, had there been
confrontation.” Id. (quoting Coy v. Iowa, 487 U.S. 1012,
1021–22 (1988)).
Here, Defendant spontaneously confessed to possessing
the gun by telling Chavez that he did not intend to use it, but
wanted only to sell it or give it away. And the detectives
found the shotgun in Defendant’s locked minivan, after they
observed Defendant entering and exiting the van right next to
the spot where the shotgun rested on the floor. The evidence
differed with respect to the ammunition: Defendant did not
confess to owning the ammunition, it did not match the
shotgun, and it was found in a common area of the house
rather than in Defendant’s locked vehicle. Indeed, the jury’s
decision to acquit on the ammunition charge shows that it
likely did not rely on the landlord’s statement, because both
Thompson and the government, in closing argument, stated
that the landlord said that Defendant possessed the gun and
the ammunition. In sum, the testimony was harmless beyond
a reasonable doubt.
AFFIRMED.