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United States v. Benamor

United States Court of Appeals, Ninth Circuit

September 5, 2019

United States of America, Plaintiff-Appellee,
v.
Samir Benamor, Defendant-Appellant.

          Argued and Submitted April 10, 2019

          Appeal 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 Defendant-Appellant.

          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.

         ORDER AND AMENDED OPINION

         SUMMARY [**]

         Criminal Law

         The 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.

         The 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.

         The 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 the trial.

         The 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 doubt.

         ORDER

         The opinion filed June 6, 2019, and published at 925 F.3d 1159, is amended by the opinion filed concurrently with this order.

         With 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.

         The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

         Appellant's petition for panel rehearing and rehearing en banc is DENIED. No further petitions for panel rehearing or rehearing en banc will be entertained.

          OPINION

          GRABER, CIRCUIT JUDGE:

         Defendant 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.

         BACKGROUND

         At the 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 ...


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