United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION AND/OR A NEW TRIAL
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE
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 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.
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
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.
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.
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.
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.
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.
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.
STANDARD UNDER RULE 33.
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).
Compliance with Rule 33's Time Limits.
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.
motion falls under the second category. Because Gear filed
his motion 89 days after the jury ...