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Major change in federal gun charge laws
Hibu Websites • Jul 26, 2019
Change has dramatic impact on federal felon in possession of a firearm cases
A recent Supreme Court decision is sure to have some dramatic and long-term effects on the prosecution of certain federal gun and firearms charges. The June 21, 2019 decision in Rehaif v. United States, (at 131 S.Ct. 2191 (2019)) examined the conviction of a non-citizen student who was present in the United States unlawfully and during the period of his unlawful presence went to a shooting range and possessed a firearm. He was charged under 18 USC 924(a)(2), and 18 USC 922(g) with “knowingly” possessing a firearm as a person prohibited by law from doing so based on his status as an alien unlawfully present in the United States. At trial, the defendant was convicted without any proof that he knew he was present unlawfully in the U.S. The trial court instructed the jury that the government need only prove that he knowingly possessed the firearm. The government did not have to prove that Mr. Rehaif knew he was present unlawfully in the U.S.
The Supreme Court reversed his conviction holding that the term “knowingly” applies both to Mr. Rehaif’s actions (possessing the firearm) but also to his status (that he was in fact present in the United States unlawfully.) So, why is this a big deal? Because the statutes under which Rehaif was convicted apply to many people prosecuted for being unlawfully in possession of firearms. In particular Rehaif has overturned decades of 9th Circuit law applicable in the District of Oregon which previously had held that in a federal prosecution for being a felon in possession of a firearm, the government need not prove the person “knew” they were a felon. Hundreds if not thousands of such felon in possession of a firearm cases have been successfully prosecuted in the District of Oregon under what the Supreme Court has now held was an erroneous legal standard.
Rehaif makes it crystal clear that in a federal prosecution for being a felon in possession of a firearm, the government must prove both that the person “knowingly” possessed a firearm, and that he or she knew of their convicted felon-status. Rehaif’s holding also applies to other categories of persons prohibited from possessiong firearms under federal law including but not limited to: people facing pending felony charges; people with misdemeanor domestic violence convictions: people with mental health conditions, dishonorably discharged military veterans, and others.
The Law Office of Andrew M. Kohlmetz LLC Blog
The nation-wide COVID-19 health crisis has brought seemingly endless stories about people hoarding, and selling or reselling personal protective equipment (“PPE”) at huge price mark-ups. This type of hoarding or profiteering is no longer subject to the risk of social media and moral shaming. It can be criminal, and the FDA’s Office of Criminal Investigations (“FDA-OCI”)is aggressively pursuing people and business engaged in the distribution, sale and resale of PPE. On March 25, 2020, the federal Department of Health and Humans Services (“HHS”) by notice in the Code of Federal Regulations, designated a wide selection of PPE as “scarce materials or materials the supply of which would be threatened by accumulation in excess of reasonable demands of business, personal, or home consumption, or for the purpose of resale at prices in excess of prevailing market prices.” 85 Fed. Reg. 17592 . This designation includes many types of equipment including face masks, respirators, gowns, gloves, disinfecting supplies etc. The designation brings people or entities in the business of purchasing, selling or otherwise distributing PPE under the provisions of the federal Defense Production Act. (“DPA”) Under section 4512 of the DPA it is unlawful for anyone to “accumulate (1) in excess of the reasonable demands of business, personal, or home consumption, or (2) for the purpose of resale at prices in excess of prevailing market prices, materials which have been designated by the President as scarce materials or materials the supply of which would be threatened by such accumulation.” Violation of this section of the DPA is a class A misdemeanor and carries a potential sentence of up to one year in jail and a fine of $10,000. 50 U.S.C. §§ 4152, 4153 . The FDA-OCI and other federal civil and law enforcement agencies are actively looking for and investigating persons involved in the purchasing, selling or otherwise distributing PPE. In some cases it has been discovered that certain PPE was counterfeit, or rebranded and marketed for originally unauthorized – even patently false purposes such as a “COVID-19 cure” or “effective anti-viral protection.” The making of any such false or misleading claims or the sale of counterfeit and/or expired products could also give rise to far more serious federal wire and or mail fraud charges. If you are engaged in the purchase, distribution or sale of PPE such as N95 respirators, face shields, surgical masks, or other COVID-19 related-PPE, contact Andrew M. Kohlmetz , a federal criminal defense attorney familiar with the DPA and the recent COVID-19-related regulations, to discuss how to limit any potential liability. By the time the FDA-OCI reaches out, it might be too late.
Major change in federal criminal firearms laws
Over the years I have been retained by a few criminal defense clients after they had bad experience with a prior lawyer. The reasons for switching defense attorneys in midstream vary: sometimes it is concern over the lawyer’s competence, or concern that their case is not getting the attention it deserves, or even that they just don’t see eye to eye with their lawyer. One of the most common, and disturbing reasons though is that the client feels that their prior attorney ripped them off. These complaints generally involve “flat-fee” retainer agreements in which a lawyer and a client agree upon a fixed sum of money for the entire defense representation no matter whether it goes to trial or ends in a plea deal. I see cases all the time where a lawyer accepts a major felony case for a ridiculously low flat-fee just to land the client. Then, when it becomes obvious the case will require a lot of work, the attorney hits the client up for more money. I have even seen cases where the attorney threatens to withdraw from the case if the client does not come up with the additional funds. I call these “pump and dumps:” The lawyer pumps the client for a quick cash infusion and if the client balks, the lawyer tries to dump the client or the retainer agreement. When this happens, the client rightfully becomes upset and the situation quickly becomes untenable. What should a client do? They have (or should have) a written and enforceable fee agreement with the attorney. Then again, who wants a lawyer defending them from serious criminal charges when they claim they are being paid for their work? Defending clients charged with serious or complex felony cases in state and federal courts takes a great amount of work on the part of the criminal defense attorney, the client, and the defense team. These cases are expensive. To get an idea of how expensive, ask the attorney what their normal hourly fee is. The ask them how many hours they would expect to work in a case such as yours. What if it is a plea? What if it is a trial? If the lawyer’s retainer agreement sounds too good to be true, it probably is. The best thing a person can do when selecting a criminal defense attorney is to deal very clearly with this issue up-front. Hourly fee agreements will avoid the problem altogether. The attorney is paid only for the work performed. When negotiating an hourly fee agreement with a criminal defense attorney, be sure to ask the attorney to give a good faith estimate of the number of hours she or he thinks the case will consume depending on various outcomes like a plea agreement or a trial. If you are negotiating a flat-flee agreement make sure that both parties understand that regardless of how many hours the attorney must spend on the case, the fee agreement spells out the total amount to be paid in attorney fees. To protect both parties, flat fee agreements can be modified to suit the needs of each case. For example: The amount of the fee could be staggered to depend on at what stage of the proceedings the case is resolved: Pre-Indictment, with a plea agreement, after a trial etc. Regardless of the attorney and the fee structure you choose. I always recommend the potential client talk to as many knowledgeable and experienced criminal defense attorneys as the situation allows before settling on their pick. This will give the prospective client some idea of comparable fee agreements and rates. It will also allow both parties to get to know each other a little bit before signing up to work so closely together over so serious a matter. Switching attorneys in the middle of the case is sometimes unavoidable, but it is a situation best-avoided if possible.