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Eleventh Circuit adds a Rehaif element to its § 922(g)(1) instruction

Title 18 U.S.C. §§ 922(g) and 924(a)(2) combine to make it illegal for certain classes of individuals (notably felons and aliens) to possess firearms. In a 2019 case, Rehaif v. United States, the Supreme Court held that the government must show that a defendant knew that he or she had the relevant status when they possessed the firearm. Since then most circuits have revised their § 922(g) instructions accordingly.

The Eleventh Circuit is the latest to do so, having revised criminal instuction O34.6 (Possession of a Firearm or Ammunition by a Convicted Felon 18 U.S.C. § 922(g)(1) as follows:

  • The title now reads "Possession of a Firearm or Ammunition by a Convicted Felon 18 U.S.C. § 922(g)(1))," and all referernces to the crime in the body of the instruction are revised accordingly.
  • Element 3 now reads "at the time the Defendant possessed the firearm or ammunition, the Defendant knew [he][she] had previously been convicted of a felony."
  • A definition of "ammunition" has been added ("ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm").
  • The Annotation now concludes: "In a prosecution under 18 U. S. C. § 922(g), '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.' Rehaif v. United States, 139 S. Ct. 2191, 2200, 204 L. Ed. 2d 594 (2019)."

(08/11/21) (permalink)