Earlier this week, we discussed the U.S. Supreme Court’s very recent grant of certiorari in Rehaif v. United States, No. 17-9560. In his petition for cert, Mr. Rehaif relied heavily on then-Judge Gorsuch’s concurrence in United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012). In that concurrence, then-Judge Gorsuch pointed out that “just because our precedent indubitably commands this result doesn’t mean this result is indubitably correct.” This concurring opinion deserves consideration in light of the Rehaif cert grant.
In Games-Perez, the court considered the situation of a man who had pleaded guilty in state court under a deferred-judgment arrangement. Less than a year after entering into that agreement, which included a two-year deferral, officers found the defendant with a firearm. The defendant then faced a federal felon-in-possession charge.
And the 10th Circuit came to face an issue very close to that which appears in Rehaif: whether §§ 922(g)(1) and 924(a)(2) require “knowing” possession of a firearm and “knowing” that one has sustained a felony conviction.
In considering the issue, then-Judge Gorsuch explained that § 922(g)(1) criminalizes possession of a firearm “when three elements are met—(1) the defendant was previously convicted of a felony, (2) the defendant later possessed a firearm, and (3) the possession was in or affecting interstate commerce.” He clarified that § 922(g) itself doesn’t send anyone to prison for violating its terms. Rather, § 924(a)(2) does that job, authorizing prison time for those who knowingly violate § 922(g).
While precedent has read “the word ‘knowingly’ as leapfrogging over the very first § 922(g) element and touching down only at the second,” this interpretation of the statutory language “defies linguistic sense—and not a little grammatical gravity,” then-Judge Gorsuch emphasized. Ordinarily, when a criminal statute introduces the elements of an offense with the word ‘knowingly,’ courts apply that word to each element of the offense.
Looking at §§ 922 and 924, then-Judge Gorsuch pointed out that “[t]his isn’t . . . a situation where ‘knowingly’ begins a long statutory phrase containing several elements and a reasonable question arises how far into the thicket the ‘knowingly’ adverbial modifier extends.” If, he explained, the statutes “had said ‘whoever knowingly possesses a firearm after being convicted of a crime,’” then “it might be possible to argue that ‘knowingly’ modifies only ‘possesses a firearm’ and not the later prepositional phrase, ‘after being convicted of a crime.’” But that language simply wasn’t the language at issue. Congress laid out “three elements in a particular order. And it makes no sense to read the word ‘knowingly’ as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.”
Then-Judge Gorsuch made another critical point: “How can it be that courts elsewhere read a mens rea requirement into statutory elements criminalizing otherwise lawful conduct, yet when Congress expressly imposes just such a mens rea requirement in §§ 922(g) and 924(a) we turn around and read it out of the statute?”