In United States v. Johnson, No. 19-10915 (Rosenbaum, Martin, Tallman (CA9)), the Court affirmed the defendant’s conviction under 18 U.S.C. 922(g)(9) for being a domestic-violence misdemeanant in possession of a firearm.
In a lengthy opinion, the Court held that, after Rehaif, the defendant must know three things to violate 922(g)(9): 1) he was convicted of a misdemeanor; 2) to be convicted of that crime, he had to knowingly or recklessly use at least the “slightest offensive touching”; and 3) he knew that the victim was his spouse. Those are the facts that render his offense a “misdemeanor crime of domestic violence.” And because the record—namely, a bench trial stipulation and undisputed PSI facts about a prior Florida battery conviction—established the defendant’s knowledge of all three points, he could not show that his substantial rights were affected under the third prong of plain-error review. Because he knew the facts that established his unlawful status, it was no defense that he did know that status prohibited his firearm possession. Nor was it a defense that his civil rights were never abrogated. The Court also found no plain error with respect to the defendant’s equal protection and commerce clause claims.
Judge Martin dissented. She believed that Rehaif requires the government to prove that the defendant knew his conviction qualified as a “misdemeanor crime of domestic violence” under federal law. She also believed that the government must prove knowledge of that status as the time of the firearm possession; by referring only to the stipulation and PSI facts, the majority instead looked to the defendant’s knowledge of that status at the time of the federal trial. Finally, she believed that, given the absence of such knowledge and the complexity of the “misdemeanor crime of domestic violence” analysis, plain error was satisfied, and the majority created a split with a Seventh Circuit decision.