and Submitted April 10, 2019
from the United States District Court for the Central
District of California No. 2:16-cr-00461-SJO-1 S. James
Otero, District Judge, Presiding
Michael Tanaka (argued), Los Angeles, California, for
Matthew W. O'Brien (argued) and Consuelo S. Woodhead,
Assistant United States Attorneys; L. Ashley Aull, Chief,
Criminal Division; Nicola T. Hanna, United States Attorney,
Los Angeles, California; for Plaintiff-Appellee.
Before: Susan P. Graber and Jay S. Bybee, Circuit Judges, and
M. Douglas Harpool, [*] District Judge.
AND AMENDED OPINION
panel filed an amended opinion affirming a conviction for
knowingly possessing a firearm as a felon, in violation of 18
U.S.C. § 922(g)(1); denied a petition for panel
rehearing; and denied on behalf of the court a petition for
rehearing en banc.
defendant argued that because firearms manufactured in or
before 1898 do not qualify as "firearms" under
§ 922, the district court erred by refusing to instruct
the jury that, to convict, they had to find that the
defendant knew that his firearm was manufactured after 1898.
The panel rejected that argument. The panel explained that
United States v. Aguilera-Rios, 769 F.3d 626 (9th
Cir. 2014) (concerning the categorical approach), does not
override the line of cases holding that a firearm's
antique status is an affirmative defense in a criminal
prosecution; and that Staples v. United States, 511
U.S. 600 (1994) (concerning the National Firearms Act), does
not help the defendant. The panel held that the defendant
failed to meet his burden of production to put the
"antique firearm" affirmative defense at issue, and
rejected the defendant's sufficiency-of-the-evidence
argument that rested on the same contention.
panel reviewed for plain error the defendant's argument
that, in light of Rehaif v. United States , 139
S.Ct. 2191 (2019), the evidence was insufficient to sustain
his conviction because the government failed to prove that he
knew he was a felon. The panel held that the defendant's
stipulation at trial - that, on the date when he was arrested
in this case for possession of a shotgun, he had been
convicted of a crime punishable by imprisonment for a term
exceeding one year - was binding, and relieved the government
of the burden to prove the defendant's status as a felon.
The panel held that, assuming the stipulation does not end
the discussion, there was no plain error. The panel explained
that the absence of an instruction requiring the jury to find
that the defendant knew he was a felon was clear error under
Rehaif, but that there is no probability that, but
for the error, the outcome of the proceeding would have been
different. The panel wrote that, at a minimum, the prior
convictions proved beyond a reasonable doubt that the
defendant had the knowledge required by Rehaif and
any error did not affect the defendant's substantial
rights or the fairness, integrity, or public reputation of
panel held that the admission of an ATF agent's testimony
that his interview with the defendant's landlord
confirmed the agent's decision to arrest the defendant
for the firearm and ammunition violated the Confrontation
Clause, but that the error was harmless beyond a reasonable
opinion filed June 6, 2019, and published at 925 F.3d 1159,
is amended by the opinion filed concurrently with this order.
these amendments, the panel has voted to deny Appellant's
petition for panel rehearing. Judges Graber and Bybee have
voted to deny Appellant's petition for rehearing en banc,
and Judge Harpool has so recommended.
full court has been advised of the petition for rehearing en
banc, and no judge of the court has requested a vote on it.
petition for panel rehearing and rehearing en banc is DENIED.
No further petitions for panel rehearing or rehearing en banc
will be entertained.
GRABER, CIRCUIT JUDGE:
Samir Benamor appeals his conviction for knowingly possessing
a firearm as a felon, in violation of 18 U.S.C. §
922(g)(1). He possessed an old shotgun that might have been
manufactured as early as 1915. Because firearms manufactured
in or before 1898 do not qualify as "firearms"
under § 922, Defendant argues that the district court
erred by refusing to instruct the jury that, to convict, they
had to find that Defendant knew that his firearm was
manufactured after 1898. Defendant also argues that his
conviction cannot stand because the government did not prove
his knowledge of his status as a felon. Finally, Defendant
raises a Confrontation Clause challenge. We affirm.
time of his arrest in this case, Defendant was a felon, and
law enforcement had authority to conduct warrantless searches
of his car and residence. After the local police department
received tips that Defendant had engaged in illegal activity,
two detectives, Anthony Chavez and Matthew Concannon,
conducted surveillance outside the house in the garage of
which Defendant resided. Concannon saw two vehicles, a Volvo
and a minivan, parked in front of the house. Concannon also
saw Defendant appear from the back of the property and walk
to the street, where he opened the sliding door on the
minivan's passenger side, climbed into the driver's
seat, and moved the van a short distance ...