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Date: 09-03-2021

Case Style:

United States of America v. MELVYN GEAR

Case Number: 19-10353



Plaintiff's Attorney: Judith A. Philips, Acting United States Attorney; Marion
Percell, Chief of Appeals; Marshall Silverberg, Assistant
United States Attorney; United States Attorney’s Office

Defendant's Attorney:

St. Louis, MO - Criminal defense Lawyer Directory


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.
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).
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.
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
jury regarding Gear’s knowledge was harmless.2
September 2019, Gear was sentenced to fifteen months’
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),
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
(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.
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,
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
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
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).
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.
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
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.

Outcome: Accordingly, Gear’s conviction is AFFIRMED

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