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United States v. Gear

United States District Court, D. Hawaii

September 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MELVYN GEAR, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION AND/OR A NEW TRIAL

          SUSAN OKI MOLLWAY, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION.

         Defendant Melvyn Gear was convicted by a jury of being an alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(B). That statute prohibits aliens “admitted to the United States under a nonimmigrant visa” from possessing firearms that have been shipped or transported in interstate or foreign commerce. Gear now moves for a new trial[1] on the ground that the instructions to the jury and one of the court's in limine rulings are inconsistent with Rehaif v. United States, 139 S.Ct. 2191 (2019), decided after the trial had concluded. Neither the jury instructions nor the pretrial ruling warrant a new trial, and the court denies Gear's motion.

         II. BACKGROUND.

         Gear, an Australian citizen, bought a Lithgow .22 caliber rifle when he lived in Australia. ECF No. 125-4, PageID # 1397-98. In 2013, Gear began working in the United States under what became a series of nonimmigrant visas. ECF No. 125-5, PageID # 1410; ECF No. 125-11, PageID # 1471; ECF No. 125-6, PageID # 1417.

         In August 2016, Gear's ex-wife, who resides in Australia, sent the Lithgow .22 caliber rifle to the residence that Gear shared with his new wife in Kailua-Kona on the Big Island. See ECF No. 125-7, PageID # 1435; ECF No. 125-6, PageID # 1421. The rifle was delivered on August 23, 2016, and it remained in Gear's residence until July 18, 2017. ECF No. 125-6, PageID # 1421-22. At the time, Gear had an H-1B nonimmigrant visa that he had received on January 5, 2017. See ECF No. 125-11, PageID # 1471.

         On May 31, 2017, Australian authorities informed United States law enforcement personnel that the rifle might have been shipped to Gear's residence in Hawaii. ECF No. 125-6, PageID # 1416. On July 18, 2017, after obtaining a warrant, four federal agents searched Gear's residence. ECF No. 125-6, PageID # 1422. One of the agents, Christopher Kobayashi, testified that Gear initially claimed that he had thrown the rifle in a dump. ECF No. 125-7, PageID # 1435-36. When the agents confronted him with the search warrant, however, Gear admitted that the rifle was in the garage. ECF No. 125-7, PageID # 1436.

         During their search, the agents also found evidence concerning Gear's immigration status. Agent Kobayashi stated that, during his initial conversation with Gear, Gear acknowledged that “he couldn't possess a firearm in the State of Hawaii, because he was not a U.S. citizen.” ECF No. 125-7, PageID # 1434. Gear gave Agent Kobayashi a copy of his passport. Gear's H-1B nonimmigrant visa was attached to a page in the passport. ECF No. 125-7, PageID # 1455. The opposite page of the passport included stamps indicating that Gear had been admitted to the United States on January 9, 2017, on an H-1B visa. ECF No. 125-11, PageID # 1471.

         At trial, the parties agreed on instructions the court should give the jury as to the elements of the crime of possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(B). This court instructed the jury that the Government had to prove: (1) that Gear “knowingly possessed a Lithgow .22 rifle, ” (2) that “at some point before July 18, 2017, the Lithgow .22 rifle had been shipped and/or transported in foreign commerce from Australia to the United States, ” and (3) that Gear was “an alien who had been admitted into the United States under a ‘nonimmigrant visa.'” The parties stipulated that Gear had been admitted into the United States under a nonimmigrant visa. ECF No. 125-7, PageID # 1458. However, the Supreme Court had not yet decided Rehaif, and the jury was not instructed that the Government had to prove that Gear knew that he had been admitted to the United States under a nonimmigrant visa. On May 10, 2019, the jury found Gear guilty of possessing a firearm in violation of § 922(g)(5)(B). ECF No. 108.

         On June 21, 2019, the Supreme Court issued its Rehaif decision. The Court examined the interaction between 18 U.S.C. § 922(g), which prohibits certain classes of individuals (such as aliens admitted to the United States on nonimmigrant visas) from possessing firearms, and 18 U.S.C. § 924(a)(2), which states that “whoever knowingly violates” § 922(g) is subject to penalties of up to 10 years of imprisonment. The Court held that, for a conviction under § 922(g), the Government had to establish both that the defendant knowingly possessed a firearm and that the defendant knew his or her status. Rehaif, 139 S.Ct. at 2195-96, 2200. As the Government now concedes, the instruction given to the jury did not include any mention of the need to prove that Gear knew that he had been admitted to the United States under a nonimmigrant visa. ECF No. 125, PageID # 1338.

         On August 7, 2019, Gear moved for a new trial. He appears to argue that, under Rehaif, he is entitled to a new trial for two reasons: (1) the jury instructions omitted one of the elements of the offense, and (2) he should have been allowed to argue to the jury that he could not be convicted if he possessed the rifle for an innocent purpose. ECF No. 122, PageID # 1280 & n.1.

         III. STANDARD UNDER RULE 33.

         Rule 33(a) of the Federal Rules of Criminal Procedure provides: “Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.” A motion for new trial “is directed to the discretion of the judge” and should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (quotation marks omitted); accord United States v. Mack, 362 F.3d 597, 600 (9th Cir. 2004) (reviewing the denial of a motion for new trial under Rule 33(a) under an abuse of discretion standard). A district court's power to grant a motion for new trial is much broader than its power to grant a motion for judgment of acquittal, United States v. Alston, 974 F.2d 1206, 1211 (9th Cir. 1992); a new trial may be granted when the “interest of justice so requires.” Fed. R. Crim. P. 33(a).

         IV. ANALYSIS.

         A. Compliance with Rule 33's Time Limits.

         Rule 33(b) provides time limits for filing a motion for new trial:

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

         Gear's motion falls under the second category. Because Gear filed his motion 89 days after the jury ...


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