Acquittal in “I Didn’t Know I Was a Felon” Felon-in-Possession Case
Eugene Volokh • April 26, 2010 1:13 pm
I mentioned this Friday, but it was buried in a post on a slightly different facet of the case. And since I blogged about the case when it first arose, I thought I’d also note the result, which some of our readers might find surprising (judging by the comments to the original post). The jury verdict came down in late 2008, but to my knowledge it wasn’t widely reported at the time, and I wanted to note it here. It’s also a rare win in court for a Second Amendment claim, when the law involves something other than a total gun ban or a total handgun ban.
Here’s the issue: Federal law bans felons from possessing firearms, but doesn’t expressly say whether this applies only to people who know they are felons. Usually this doesn’t matter, since it is the rare felon who’s confused about whether he’s a felon. But U.S. v. Kitsch (E.D. Pa. Aug. 1, 2008) (Dalzell, J.), involves such a case:
[Footnote: The facts are largely undisputed. Because we must decide whether Kitsch’s version of the story would, if credited by the jury, justify acquittal, we resolve any factual disputes in his favor for purposes of this motion.] In 1988 and 1989, Kitsch was cooperating with law enforcement officials in Atlantic County, New Jersey in an investigation against a man named Dino Starn who was, among other things, growing marijuana in a barn on his property. As a means of helping the narcotics officer with whom he was working obtain evidence against Starn, Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department. When the fire department arrived, it found the marijuana growing in the barn and Starn was later charged.
As a result of the fire, Kitsch was charged with third-degree arson, a felony under both New Jersey and federal law. He pled guilty to the state offense after meeting with law enforcement officials who told him they would set aside the conviction and Kitsch could live as though the event had never happened. Although he served a thirty-day custodial sentence on Sundays, Kitsch avers that he truly and reasonably believed that his conviction had either been set aside or expunged. [More factual details omitted. –EV]
The district court concludes that under federal law Kitsch would be guilty only if he knowingly possessed a gun knowing that he was a felon, and that Kitsch is entitled to a jury instruction that “in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged.”
The district court’s reasoning chiefly rested on the general presumption against strict liability, to its reading of this statute, and to its reading of past precedents interpreting similar statutes; based on this, the court was willing to reject an out-of-circuit court of appeals precedent, United States v. Langley, 62 F.3d 602 (4th Cir. 1995), that held the contrary. But the court also suggested that the Second Amendment, as interpreted in D.C. v. Heller, supported its conclusion:
A statute that imposes criminal penalties for the exercise of an enumerated constitutional right despite defendant’s reasonable belief in good faith that he has complied with the law must, at the very least, raise constitutional doubts. Post–Heller, the Government’s desired construction of Section 922(g)(1) imposes just such a burden on defendants who, for whatever reason, reasonably believe that they are not felons within the statutory definition. Faced with a statute that raises this sort of doubt, it is “incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress.”
The defendant’s story seemed pretty dicey to some readers, and I take it to the prosecutor as well. But the jury, instructed in accordance with the judge’s ruling, acquitted the defendant. Based on the facts of the case as I understand them, the only rationale for the jury verdict — other than jury nullification, which I’ve heard no evidence of — would have been that the jury agreed that the prosecution hadn’t proved beyond a reasonable doubt that the defendant in fact knew that he was a felon or was willfully blind to that possibility.
Categories: Guns
7 Comments
1. PatHMV says:
Back when I was a prosecutor, gambling (“gaming”) had just arrived in Louisiana. Under the new laws, convicted felons had to disclose this status on the application forms to receive a gaming license (for anything from owning a riverboat to dealing cards on it). We received quite a few referrals from State Police (which issued the licenses), when they discovered that an applicant who checked “no” to the question of “have you ever been convicted of a felony” in fact DID have a record (often a lengthy one). As the form had to be prepared under penalty of perjury, we took a number of these to trial.
Louisiana has an interesting (to a lawyer, which translates as “confusing” to a layperson) collection of laws regarding to expungements, restoration of rights, and related matters. If you plead guilty under an “Art. 491? (or several similar provisions for different types of offenses), then you are officially recognized, once you’ve fulfilled all the terms of your probation, as not having been found guilty. Unfortunately, other laws and some court opinions don’t always recognize that “not guilty” status (an obvious one being for purposes of habitual offender-type statutes). Similarly, the Louisiana Constitution provides that upon completion of a sentence, all first offenders are automatically granted a pardon. But the state supreme court has held that the “first offender pardon” isn’t the same as a real, full-blown pardon issued by the governor.
So we had plenty of defendants who had been told, with some statutory support, by their lawyer that they could legally say they had never been convicted of a felony. Generally, if the individual appeared sincere to the judge, he or she was acquitted of the charges we brought.
Eventually, we got the state police to change the form, to indicate that you had to disclose all felony convictions, even if expunged, or if you had received a first offender pardon or been sentenced under Art. 491. They even added that you had to disclose all convictions even if a lawyer had advised you that you didn’t have to disclose it!
The language change didn’t always help with the actual prosecutions, but my recollection is that it did cut down significantly on the number of false answers given.
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