St. Louis, MO - Criminal defense lawyer represented defendant with a
being a felon in possession of a firearm charge.
On March 10, 2017, Detectives William Hooley and David Kellgren with the
Kansas City, Missouri Police Department went to a used car lot and repair shop in
Kansas City to speak with a man named Davionne Harvey. When they arrived, the
detectives, who were not in uniform, spotted Harvey in the parking lot and
approached him. Harvey agreed to talk to them, but said he first wanted to give a ring
of keys to “one of his guys.” Harvey walked toward another man in the parking lot,
later identified as Robinson, and handed him the keys. As Harvey turned to walk
back toward the detectives, Robinson shoved him in the back, causing him to stumble
forward, and yelled, “Are we going to do this right here? Are we going to do this
right now?” As he yelled, Robinson motioned toward his waistband in a way the
detectives associated with a move to draw a weapon. The detectives identified
themselves and told Robinson to stop and back up. Robinson began to retreat but
kept his hand at his waistband the entire time. At that point, the detectives separated
Harvey and Robinson. Detective Kellgren frisked Robinson and found a gun in his
waistband. The detectives then ran a computer check on Robinson, learned that he
had previously been convicted of a felony, and arrested him.
Following his arrest, Robinson was indicted on one count of being a felon in
possession of a firearm. He moved to suppress evidence of the firearm, arguing it
2The Honorable Judge David Gregory Kays, United States District Judge for
the Western District of Missouri.
was seized as a result of an unlawful search. After an evidentiary hearing at which
both detectives and Harvey testified, the magistrate judge recommended the motion
be denied. The district court adopted the recommendation and denied the motion.
Robinson’s case proceeded to trial. Among other evidence, the government
introduced records of Robinson’s seven prior felony convictions.3
Harvey as a witness. After Harvey testified, the district court called a recess and
excused the jury from the courtroom. The court then discussed with Robinson his
right to testify. The following exchange occurred between Robinson and the court:
THE COURT: If you decide to testify, that doesn’t mean you get
to talk about anything you want to talk about, right? . . . [Y]ou
can’t just get up here and say whatever you want to say. Otherwise, you’re not going to be testifying.
THE DEFENDANT: I was going to say that I was – I was
instructed that my rights was reinstated, that my right to bear arms
was reinstated. I was instructed that there’s – that felons in
Missouri can possess weapons, that they can – that they got a
right to bear arms. This is all that I’ve – that I’ve – that I’ve
THE COURT: That’s not relevant.
THE DEFENDANT: I know. And it’s not relevant. So if I can’t
get up and say how come I believe me possessing a weapon is not
a crime, according to the law of Missouri law, then there’s no –
like I don’t have no out. If this is a federal crime to possess a
weapon – for a felon to possess a weapon and not a state crime,
then where do we draw the lines at?
3Robinson declined to stipulate that he had one or more prior felony
THE COURT: Let me orient you here a little bit. Let me talk to
you about – we have a thing called the elements of the crime. So
let me just go through this with you. Here is the elements that the
jury is going to consider. Number one, whether or not the
defendant had been previously convicted of a crime punishable by
imprisonment for a term exceeding one year. Right?
THE DEFENDANT: Yeah.
THE COURT: That’s the first element. Element two, whether the
defendant thereafter knowingly possessed a firearm, a Taurus
Model PT840C. They’re going to – they’re going to have to
decide that element. The third element, whether the firearm was
transported against – across a state line at some time during or
before the defendant’s possession of it. They’ll have to decide
that element. That’s what they’re going to decide. Anything else
is not really relevant to this. So I just want you to be – understand
what our inquiry is, because I feel like you’re trying to put some
more information in here that I’m not going to allow the jury to
consider. And if you say it, I’m going to go, ladies and gentlemen
of the jury, you can’t consider it.
THE DEFENDANT: You can’t consider my state of mind at the
time of the offenses which you –
THE COURT: Other than whether you knowingly possessed a
firearm. And by the way, it’s not legal in the state of Missouri for
felons to possess firearms. Okay? Just so we’re clear on that. So
anyway. Yes, sir.
Robinson complained that he would be limited in his testimony, and the district
court responded, “Yeah. Every defendant who testifies is limited.” Robinson then
explained again what he wanted to say on the stand:
THE DEFENDANT: [I want to testify that] according to my
knowledge of the law, that I wasn’t – I – felons can possess –
actually – after my paper – five years after my paper, I was told
that my Second Amendment right was automatically reinstated.
THE COURT: Okay.
THE DEFENDANT: They never did say on none of these
stipulations or these records that they got – they say stay away
from drugs. They never said that I would never be able to possess
– or bear arms again. They never said that.
THE COURT: Okay. So –
THE DEFENDANT: So –
THE COURT: Go ahead.
THE DEFENDANT: – until I got in federal custody again, I felt
like that was federal custody – that according to the federal
government, even if the state says a felon can possess a weapon,
the federal government can say you can’t. I just now realized this
during this case.
THE COURT: Okay.
THE DEFENDANT: So, yeah, according to my knowledge of the
law, yeah, felons in Missouri could possess weapons.
THE COURT: Okay. So this is a big decision. You – you
understand that I will not allow the testimony – your testimony
about you thought you had the right to possess a firearm, and we
will not allow the testimony that you were in fear and you had the
gun for personal protection. Those are not defenses to this
particular crime. And if I limit those two, it’s your choice not to
testify; is that a fair statement?
(Defendant conferred with counsel.)
THE DEFENDANT: If I can’t tell my side of the story, then I
don’t get to testify.
Robinson ultimately decided not to testify.
The district court instructed the jury that to find Robinson guilty, they had to
find, among other elements, that “the defendant had been previously convicted of a
crime punishable by imprisonment for a term exceeding one year.” The instruction
did not require the government to prove that Robinson knew that he fell into the
category of persons who “had been previously convicted of a crime punishable by
imprisonment for a term exceeding one year.” Neither party objected to this
instruction. The jury returned a guilty verdict, and Robinson now appeals.
First, Robinson appeals the district court’s denial of his motion to suppress.
He argues that, when they separated him from Harvey, the detectives lacked
reasonable suspicion to conduct a Terry stop and frisk. We review the district court’s
legal conclusions de novo and its factual findings for clear error. United States v.
Morris, 915 F.3d 552, 555 (8th Cir. 2019).
Under Terry v. Ohio, 392 U.S. 1 (1968), police officers may stop and briefly
question a person if they have “a reasonable, articulable suspicion” that the person
is engaged in criminal activity. United States v. Banks, 553 F.3d 1101, 1104 (8th Cir.
2009). During a Terry stop, officers may also conduct a pat-down if they “reasonably
suspect that the person stopped is armed and dangerous.” Arizona v. Johnson, 555
U.S. 323, 326–27 (2009). For such a frisk to be permissible under Terry, there must
be “specific and articulable facts which, taken together with the rational inferences
from those facts,” would lead a reasonable officer to believe that “the suspect is
dangerous and the suspect may gain immediate control of weapons.” United States
v. Rowland, 341 F.3d 774, 783 (8th Cir. 2003) (quoting Michigan v. Long, 463 U.S.
1032, 1049 (1983)).
Here, the detectives saw Robinson shove Harvey and shout threatening words
at him—itself potentially a crime under Missouri law. See Mo. Rev. Stat. § 565.056
(2020) (“A person commits the offense of assault in the fourth degree if . . . [t]he
person knowingly causes physical contact with another person knowing the other
person will regard the contact as offensive or provocative.”). Because the detectives
witnessed Robinson committing what looked like an assault, they had reasonable
suspicion to conduct a Terry stop. See Banks, 553 F.3d at 1104 (finding officers had
reasonable suspicion to make a Terry stop because they saw the defendant committing
a misdemeanor in their presence). To support his argument that the officers lacked
reasonable suspicion, Robinson cites Harvey’s testimony that the physical contact
between them was just “play.” But there is no reason the detectives would have
known that when they intervened. We view the circumstances of a Terry stop “under
an objective standard,” United States v. Ellis, 501 F.3d 958, 961 (8th Cir. 2007), and
Harvey’s explanation does not negate the detectives’ reasonable suspicion that
“criminal activity was afoot.” United States v. Williams, 929 F.3d 539, 545 (8th Cir.
2019). Because the shove was accompanied by Robinson keeping his hands by his
waistband, suggesting that he was preparing to draw a weapon, the detectives also
had sufficient reason to believe that Robinson was armed and posed a danger. Cf.
United States v. Cotton, 782 F.3d 392, 396 (8th Cir. 2015) (citing a suspect “mak[ing]
a motion with his hands to his front waistband” as partial support for officers’
reasonable suspicion that the suspect was dangerous).
The stop and protective frisk of Robinson were justified under Terry, and we
affirm the district court’s denial of his motion to suppress.
Second, Robinson argues that, in light of Rehaif v. United States, the evidence
presented at trial was insufficient to convict him. In Rehaif, the Supreme Court held
that “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government
must prove both that the defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from possessing a firearm.” 139
S. Ct. at 2200. At Robinson’s trial, which took place six months before Rehaif was
decided, the jury was not instructed that it had to find that Robinson “knew he
belonged to the relevant category of persons”—here, persons who have previously
been convicted of a crime punishable by a term of imprisonment exceeding one year.
In addition, the district court excluded as irrelevant his proffered testimony, by which
he sought to explain that at the time of his arrest he believed he was allowed to carry
a firearm. Robinson argues that, after Rehaif, this ruling was in error.
We construe Robinson’s challenge on appeal as one to the district court’s jury
instructions, cf. United States v. Hollingshed, 940 F.3d 410, 415 (8th Cir. 2019);
United States v. Owens, 966 F.3d 700, 706 (8th Cir. 2020), and we apply plain error
review. Hollingshed, 940 F.3d at 415 (“Because [the defendant] failed to challenge
the lack of a jury instruction regarding his knowledge of his felony status, we review
his claim for plain error.”). Plain error requires that a defendant show “(1) error, (2)
that is plain, (3) that affects substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Bonnell, 932 F.3d 1080, 1082 (8th Cir. 2019) (cleaned up).4
If we construe Robinson’s argument as a challenge to the district court’s
evidentiary ruling that Robinson’s proffered testimony was irrelevant, our review
would be “for clear abuse of discretion,” and we would “not reverse if the error was
harmless.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir. 2007). For the
reasons discussed in this opinion, the outcome would be the same.
The “absence of an instruction requiring the jury to find that [the defendant]
knew he was a felon” constitutes (1) an error (2) that is plain. Hollingshed, 940 F.3d
at 415 (quoting United States v. Benamor, 937 F.3d 1182, 1188–89 (9th Cir. 2019)).
Because the district court gave no such instruction, Robinson has met prongs one and
two of our plain error test.
The more difficult question is whether Robinson has demonstrated that the
error affected his substantial rights. To do so, Robinson “must show a reasonable
probability that, but for the error, the outcome of the proceeding would have been
different.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018)
(cleaned up). In this case, Robinson was convicted under 18 U.S.C. § 922(g)(1),
which prohibits any person “who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year” from possessing a
firearm. At trial, the government presented evidence that Robinson had been
convicted of seven such crimes. There is a limited exception, however, to the type
of conviction that qualifies under the statute. Specifically, the term “crime punishable
by imprisonment for a term exceeding one year” does not include “[a]ny conviction
which has been expunged, or set aside or for which a person has been pardoned or has
had civil rights restored.” 18 U.S.C. § 921(a)(20). Convictions that fall into this
category are not considered qualifying convictions under § 922(g)(1) “unless such
pardon, expungement, or restoration of civil rights expressly provides that the person
may not ship, transport, possess, or receive firearms.” Id. In other words, pursuant
to § 921(a)(20), a person who has been convicted of a felony but has had his rights
restored does not actually have a qualifying conviction for § 922(g)(1)—and is
therefore not in “the relevant category of persons barred from possessing a firearm.”
Rehaif, 139 S. Ct. at 2200.
After Rehaif, it may be that a defendant who genuinely but mistakenly believes
that he has had his individual rights restored has a valid defense to a felon-inpossession charge under this provision. See id. at 2198 (explaining that “where a
defendant has a mistaken impression concerning the legal effect of some collateral
matter and that mistake results in his misunderstanding the full significance of his
conduct,” such a showing can “negat[e] an element of the offense” (quotations
omitted)). Relying on this possibility, Robinson argues that his proffered testimony
is sufficient to meet his burden of demonstrating a reasonable probability that, but for
the jury instruction error, the result of his trial would have been different. Cf. United
States v. Crumble, 965 F.3d 642, 645 (8th Cir. 2020) (finding that, because the
defendant “offer[ed] no evidence to show” that he reasonably could have believed
that his prior conviction was excepted pursuant to § 921(a)(20), he failed to meet his
burden “to prove that his substantial rights were affected by the Rehaif error”); see
also United States v. Russell, 957 F.3d 1249, 1253–54 (11th Cir. 2020) (holding that,
where “the district court’s error effectively precluded [the defendant, who had
“consistently challenged the nature of his immigration status”] from mounting any
defense about his knowledge of his immigration status,” the defendant had met all
prongs of plain error review).
Even if we assume that this defense was available to Robinson, we disagree
with his characterization of his proffered testimony. In his colloquy with the district
court, Robinson repeatedly explained that he thought he was allowed to possess a
firearm because he believed that “felons in Missouri can possess weapons.” Rather
than going to Robinson’s knowledge of whether he in fact fell in the relevant category
of prohibited persons under § 922(g), these statements indicate that Robinson had
“the requisite mental state in respect to the elements of the crime, but claim[ed] to be
unaware of the existence of a statute proscribing his conduct.” Rehaif, 139 S. Ct. at
2198 (cleaned up). In other words, Robinson claimed ignorance of applicable law.
Id. While Rehaif makes clear that the government must prove that a defendant knew
he was in the category of persons prohibited under federal law from possessing
firearms, Rehaif did not alter the “well-known maxim that ‘ignorance of the law’ (or
a ‘mistake of law’) is no excuse.” Id.; cf. United States v. Maez, 960 F.3d 949, 954
(7th Cir. 2020) (“We do not read Rehaif as imposing a willfulness requirement on §
922(g) prosecutions.”); United States v. Singh, 979 F.3d 697, 727–28 (9th Cir. 2020)
(holding that, after Rehaif, “the Government must prove only that [the defendant]
knew, at the time he possessed the firearm, that he belonged to one of the prohibited
status groups enumerated in § 922(g)”—not that “he knew his status prohibited him
from owning a firearm”). Accordingly, even if the jury had been properly instructed
and Robinson had been permitted to present his proffered testimony, the jury’s verdict
would have remained the same.
Because Robinson has not shown that, but for the error in the jury instructions,
the outcome of his case would have been different, he cannot establish plain error
Outcome: The district court’s judgment is affirmed.