United States of America v. MELVYN GEAR

St. Louis, MO - Criminal defense lawyer represented defendant with a possessing a firearm while "being an alien" who had been admitted to the United States under a nonimmigrant visa charge.

This case comes to us from down under. Melvyn Gear

is a native of Australia who moved to Hawaii in January

2013 to work for a solar power company. Gear entered the

United States under an "E-3 visa.” That visa is an Australian

"specialty occupation” visa. 8 U.S.C. § 1101(a)(15)(E)(iii).

Gear's initial E-3 visa was renewed for another two years.

At some point, Gear's employer applied for, and Gear

received, an "H-1B visa.” 8 U.S.C. § 1101(a)(15)(H)(i)(b).

During trial, Gear's employer testified that an H-1B visa is

"nonimmigrant,” but he also stated that he filed the

immigration paperwork "on behalf of Mr. Gear.” The

employer was not asked whether Gear was personally

involved in the process.

While in Hawaii, Gear told his wife Trudy, who was still

in Australia, that he wanted a divorce. In April 2016, Gear

returned to Australia to divide up the marital property and

bring property back with him to Hawaii. One of Gear's

possessions was a Lithgow .22 caliber bolt action rifle. Gear

disassembled the gun and brought some of its component

parts back to Hawaii with him. Trudy later shipped him the

gun safe and the remaining parts of the rifle.

6 UNITED STATES V. GEAR

In October 2016, Gear was fired from his job, which

meant that he would need a new visa. At trial, Gear's new

wife, Rhonda Kavanagh, explained that because H-1B visas

are tied to employment, Gear lost his visa when he was fired

in 2016. She also testified that she and Gear had created a

new company before Gear was fired and "we established . . .

a new visa for Mel under [that] company. And we worked

on that in October and November and into December and

January.” The visa application form stated it was a "Petition

for a Nonimmigrant Worker.” But that form was prepared

by an immigration attorney and signed by Gear's wife, not

by Gear.

In January 2017, Gear returned to Hawaii from a trip

abroad and was admitted under his new H-1B visa. On the

visa itself, the "Visa Type/Class” is indicated as "H1B” with

an issue date of January 5, 2017 and an expiration date of

November 14, 2019.1

Sometime later in 2017, DHS was advised that Gear

might have shipped a rifle from Australia to Hawaii. A DHS

agent in Hawaii began an investigation and learned Gear was

present in Hawaii on an H-1B visa. The agent then

interviewed Gear's former coworkers, who reported Gear

would "brag about owning firearms.” The agent obtained a

search warrant and, in July 2017, went with other agents to

Gear's home to execute that warrant.

Upon arriving, the agents told Gear they were there to

ask him about his visa. After a few questions related to his

1 Gear was admitted until November 24, 2019 because individuals

with H-1B visas may be "admitted to the United States” for the length of

the visa "plus a period of up to . . . 10 days.” 8 C.F.R.

§ 214.2(h)(13)(i)(A).

UNITED STATES V. GEAR 7

visa and his work, the agents began questioning Gear about

whether he owned a firearm. Gear told them "he couldn't

possess a firearm in the State of Hawaii because he was not

a U.S. citizen.” Gear also denied having a gun safe. The

agents informed him they had received information from

Australian officials that he owned a rifle. Gear admitted his

ex-wife had shipped a rifle and gun safe to Hawaii but he

claimed they had been thrown away "[b]ecause he didn't

want [the rifle], he couldn't have it.” The agents then told

Gear they had a search warrant which prompted Gear to say

"You know, guys, I want to be honest with you. The gun

and gun safe is in the garage.” The agents then went to the

garage, found the gun safe, and obtained the rifle.

In December 2017, the government returned a single

count indictment against Gear. The indictment alleged Gear

had violated 18 U.S.C. § 922(g)(5)(B) by possessing a

firearm while "being an alien who had been admitted to the

United States under a nonimmigrant visa.” The case

proceeded to a four-day trial in May 2019. During the trial,

the government and Gear stipulated that he had been

admitted under a nonimmigrant visa. That stipulation did

not, however, address Gear's knowledge of that fact.

At the close of evidence, the jury was instructed the

government had to prove Gear "knowingly possessed” the

rifle, that "had been shipped and/or transported in foreign

commerce,” and that Gear "was in the United States as an

alien who had been admitted into the United States under a

'nonimmigrant visa.'” These elements were all that Ninth

Circuit law required at the time. That is, the jury was merely

required to find Gear had been admitted under a

nonimmigrant visa but not that Gear was aware of anything

about his visa status. The jury found Gear guilty on May 10,

2019, and sentencing was set for four months later.

8 UNITED STATES V. GEAR

Before Gear was sentenced, the United States Supreme

Court decided Rehaif v. United States, 139 S. Ct. 2191

(2019). That case addressed a different provision within the

same statute at issue here, 18 U.S.C. § 922(g), which renders

it unlawful for "nine categories of individuals” to possess

firearms. Id. at 2194. The Supreme Court held that in a

prosecution under § 922(g), the government must prove the

defendant "knew he belonged to the relevant category of

persons barred from possessing a firearm.” Rehaif, 139 S.

Ct. at 2200. Based on Rehaif, Gear filed a motion for new

trial. Gear's central argument was that Rehaif required the

jury be instructed it had to find Gear knew he had been

"admitted to the United States under a nonimmigrant visa.”

18 U.S.C. § 922(g)(5)(B).

The trial court denied the motion for a new trial. The

court concluded Gear was not entitled to relief given the

evidence presented at trial. In the court's view,

the Government needed to establish that Gear

knew that he possessed an H-1B visa (a

question of fact), not that Gear knew that an

H-1B visa was a nonimmigrant visa (a

question of law). The distinction between

proving knowledge of what kind of visa Gear

had and knowledge that the visa is in the

category of "nonimmigrant visas” is a

distinction this court makes here.

Because the evidence was, in the district court's view,

overwhelming that Gear knew he had been admitted under

an H-1B visa, the court concluded any failure to instruct the

UNITED STATES V. GEAR 9

jury regarding Gear's knowledge was harmless.2

In

September 2019, Gear was sentenced to fifteen months'

imprisonment.

II.

In all cases of statutory interpretation, we start with the

text. Limtiaco v. Camacho, 549 U.S. 483, 488 (2007).

Gear's statute of conviction says that "[w]hoever knowingly

violates” 18 U.S.C. § 922(g) shall be subject to up to ten

years' imprisonment. 18 U.S.C. § 924(a)(2). In turn,

§ 922(g) provides that, subject to some exceptions, it "shall

be unlawful for any person . . . being an alien . . . admitted

to the United States under a nonimmigrant visa” to "possess

in or affecting commerce, any firearm or ammunition.”

18 U.S.C. § 922(g)(5)(B). Read together then, federal law

forbids a person from "knowingly” violating the prohibition

on "being an alien . . . admitted . . . under a nonimmigrant

visa” in possession of a firearm. 18 U.S.C. §§ 922(g)(5)(B),

924(a)(2).

The question here is: What does it mean to "knowingly”

violate this statute? Conveniently, the Supreme Court has

essentially supplied us the answer already. In Rehaif, the

Court analyzed an adjacent provision, § 922(g)(5)(A)—the

illegal-alien-in-possession prohibition—and told us how to

interpret it. 139 S. Ct. 2191. The Court was clear: "As a

matter of ordinary English grammar, we normally read the

statutory term 'knowingly' as applying to all the

subsequently listed elements of the crime.” Id. at 2196

2 The court chose to apply the "harmless error” standard instead of

the "plain error” standard because "harmless error” was more favorable

to Gear and, even under the favorable standard, Gear was not entitled to

relief.

10 UNITED STATES V. GEAR

(simplified). This means the government had to establish the

defendant knew he belonged to the "relevant category of

persons barred from possessing a firearm.” Id. at 2200.

Under § 922(g)(5)(A), the "relevant category” was being "an

alien . . . illegally or unlawfully in the United States,” so the

defendant had to know that he was such an alien. Id. at

2195–96. The Court reversed the judgment affirming

Rehaif's conviction because the government failed to prove

he knew he was an illegal alien. Id. at 2200.

Under a straightforward application of Rehaif's textual

command, the knowledge requirement must apply to the

"relevant category of persons” here—aliens who were

"admitted to the United States under a nonimmigrant visa.”

18 U.S.C. § 922(g)(5)(B). Thus, to gain a conviction here,

the government must prove Gear knew he was admitted into

the country "under a nonimmigrant visa.” It's really that

simple. As a matter of text and precedent, we need not go

any further.

Requiring knowledge of "nonimmigrant visa” status also

flows from the principles that animated Rehaif. There, the

Court recognized that it can be "entirely innocent” to possess

a firearm "[a]ssuming compliance with ordinary licensing

requirements.” Id. at 2197. What made such conduct

wrongful was not just that the defendant possessed a firearm,

but that he belonged to a group of prohibited possessors. The

Court applied the "longstanding presumption” that Congress

intends a defendant to have knowledge of each "element[]

that criminalize[s] otherwise innocent conduct.” Id. at 2195

(simplified). In Rehaif, it was the defendant's status as an

illegal alien that was the "crucial element separating

innocent from wrongful conduct.” Id. at 2197 (simplified).

Without knowing this status, "the defendant may well lack

the intent needed to make his behavior wrongful.” Id.

UNITED STATES V. GEAR 11

As in Rehaif, the crucial element that makes possession

of firearms wrongful here is that the possessor has the status

Congress sought to disfavor: "nonimmigrant visa” holders.

Like the other categories of prohibited possessors in

§ 922(g), Congress has made the legislative determination

that such visa holders should not possess firearms. But to

violate the statute a defendant must know he falls within the

category of prohibited possessors; otherwise, he "does not

have the guilty state of mind that the statute's language and

purposes require.” Rehaif, 139 S. Ct. at 2198.

A defendant must therefore know that he was admitted

into the country under a "nonimmigrant visa” as defined by

§ 922(g). That section borrows its definition of

"nonimmigrant visa” from the Immigration and Nationality

Act ("INA”). 18 U.S.C. § 922(g)(5)(B). In turn, the INA

defines the term as "a visa properly issued to an alien as an

eligible nonimmigrant by a competent officer as provided in

this chapter.” 8 U.S.C. § 1101(a)(26). We then go to

another provision of the INA to identify the "classes of

nonimmigrant aliens.” 8 U.S.C. § 1101(a)(15). Only one

class of nonimmigrant alien is relevant here: the class of "an

alien . . . who is coming temporarily to the United States to

perform services . . . in a specialty occupation . . . who meets

the requirements for the occupation specified in section

1184(i)(2) of this title.” 8 U.S.C. § 1101(a)(15)(H)(i)(b).

The visa for this class of nonimmigrants is what's known in

agency jargon as the "H-1B visa,” presumably so named

after the class's subsection in the INA. See 8 U.S.C.

§ 1101(a)(15)(H)(i)(b).3

3 See U.S. Citizenship and Immigration Services, H-1B Specialty

Occupations, DOD Cooperative Research and Development Project

Workers, and Fashion Models, https://www.uscis.gov/working-in-the-

12 UNITED STATES V. GEAR

So, under this statutory scheme, the government must

show that the defendant knew his particular visa was

"nonimmigrant.” Such knowledge can be established by

demonstrating Gear knew that his visa was classified as a

"nonimmigrant visa,” or by showing he knew his visa

possessed the components that constitute a nonimmigrant

visa. Under the second formulation, the government must

show Gear knew his visa was issued to him as (1) "an alien,”

(2) "who [came] temporarily to the United States to perform

services . . . in a specialty occupation,” and (3) "who [met]

the requirements for the occupation specified in section

1184(i)(2)” of Title 8. See id.

This isn't the only time we've held under Rehaif that the

government may prove a defendant's knowledge of his

membership in a disfavored group by proving his awareness

that the statutory language describing that group applies to

him. In United States v. Door, a defendant challenged his

conviction of being a felon convicted of a crime of violence

in possession of body armor. 996 F.3d 606 (9th Cir. 2021)

(analyzing 18 U.S.C. § 924(a)(7), which prohibits

"knowingly” violating 18 U.S.C. § 931)). We held that

"Rehaif requires the government to prove that a defendant

charged with violating § 931(a) knew he had a felony

conviction and that the felony of which he was convicted had

'as an element the use, attempted use, or threatened use of

physical force against the person or property of another.'”

Id. at 616 (quoting 18 U.S.C. § 16(a)). Thus, we directly

imported the statutory elements of a "crime of violence” to

the set of facts that the defendant must know in order to

united-states/temporary-workers/h-1b-specialty-occupations-dod-coope

rative-research-and-development-project-workers-and-fashion.

UNITED STATES V. GEAR 13

violate the statute. We do the same with the definition of the

"nonimmigrant visa” today.

The idea that the government may prove a defendant's

knowledge of a given statutory designation by proving his

knowledge of the "offending characteristics” that undergird

that designation is well established. See Staples v. United

States, 511 U.S. 600, 620 (1994) (holding that defendant

must know the "offending characteristics” of his gun that

brings it within the statutory definition of a "firearm”); see

also McFadden v. United States, 576 U.S. 186, 196 (2015)

(holding that defendant must know a substance's "physical

characteristics that give rise to [its] treatment” as a listed

controlled substance).

Yet, contrary to the government's position, establishing

that Gear simply knew he had an H-1B visa is not enough.

A visa's label—that it is referred to as an "H-1B visa”—is

not a fact that makes it a "nonimmigrant visa.” Instead, what

Congress proscribed was knowingly possessing a firearm

with a "nonimmigrant visa,” or, looking to what

"nonimmigrant visa” actually means: a visa issued to an

alien coming temporarily to the United States to perform

services in a specialty occupation. See 8 U.S.C.

§ 1101(a)(26), (a)(15)(H)(i)(b), § 1184(i)(1); see also

Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir. 2000)

(outlining requirements for an H-1B visa). Thus, the

government must prove Gear's knowledge of these facts—

not merely that Gear knew his visa was called an "H-1B

visa.”

The Supreme Court in Rehaif offered a hypothetical that

confirms our analysis. The Court addressed a hypothetical

firearm owner convicted of a crime "punishable by

imprisonment for a term exceeding one year,” which makes

him a felon under the felon-in-possession law. § 922(g)(1).

14 UNITED STATES V. GEAR

But what if this person received only probation, and not a

prison term, and didn't know the crime's maximum

penalties? Would he have the required mens rea to know

that he is in fact a felon? The Court suggested that such a

person "does not have the guilty state of mind that the

statute's language and purposes require.” Rehaif, 139 S. Ct.

at 2198.

That hypothetical probationer may be analogous to

someone who enters the United States on an H-1B visa.

Employers thus sometimes lure foreign employees with

promises of permanent residency, and employees may think

the H-1B visa confers immigrant status. Such a person may

know that he or she has an H-1B visa, without any

knowledge that it is a "nonimmigrant visa.” If true, then he

or she lacks the requisite guilty mind for violating § 922(g),

like the hypothetical probationer in Rehaif. This underscores

why a defendant must know that he or she has a

nonimmigrant visa, not just an H-1B visa, under the statute.

III.

Because Gear failed to properly object to the erroneous

instructions, our review is for "plain error.” Fed. R. Crim.

P. 30(d), 52(b). See also Greer v. United States, 593 U.S.

___ (2021) (holding that "unpreserved errors must be

analyzed for plain error under Rule 52(b)” in case involving

a Rehaif challenge). That means we may reverse where

"(1) there was error, (2) the error was plain, (3) the error

affected substantial rights, and (4) the error seriously

affected the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Becerra, 939 F.3d

995, 999 (9th Cir. 2019). Gear undisputedly satisfies the

first two plain error prongs. See United States v. Benamor,

937 F.3d 1182, 1186 (9th Cir. 2019) (holding the failure to

instruct on the knowledge requirement of a § 922(g) offense

UNITED STATES V. GEAR 15

is plainly erroneous). Thus, the key inquiry is whether Gear

showed that the error affected his substantial rights. To do

so, he must "show a reasonable probability that, but for the

error, the outcome of the proceeding would have been

different.” Molina-Martinez v. United States, 136 S. Ct.

1338, 1343 (2016) (cleaned up). See also Greer, 593 U.S.

__ (same).

Gear cannot make this showing because the record

indicates—indeed overwhelmingly so—that he knew that he

had a nonimmigrant visa. For starters, Gear stipulated

before trial that he was "an alien who had been admitted into

the United States under a 'nonimmigrant visa.'” And for

good reason: piles of evidence showed that he was aware of

this fact. His visa explicitly stated that it expired on

November 14, 2019, making clear that he could not remain

permanently in the United States. He was aware of his

temporary status because he had sent a prior email to his

then-wife discussing his "visa extension.” Indeed, Gear had

to obtain a new visa after being fired from his prior job and

thus losing his prior temporary visa. And while he did not

personally sign the I-129 form, he worked with his wife to

obtain a H-1B visa and the form prominently states on the

first page that it is a "Petition for a Nonimmigrant Worker.”

Finally, Gear admitted to Department of Homeland Security

agents that he was barred from firearm possession because

he was not a U.S. citizen. Gear on appeal largely failed to

articulate how he would have proceeded differently at trial

other than to argue that he lacked the intent and that the

government did not meet its burden. Simply put, Gear has

not shown a "reasonable probability” that the outcome at

trial would have been different but for the error.

Accordingly, Gear’s conviction is AFFIRMED