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United States v. Stoner

United States District Court, M.D. Pennsylvania

October 30, 2017

UNITED STATES OF AMERICA
v.
CHAD MICHAEL STONER and EMILY WINAND, Defendants

          MEMORANDUM

          Yvette Kane, District Judge

         Now before the Court are cross motions in limine filed by the Government (Doc. No. 77), and Defendant Stoner (Doc. No. 82). For the reasons set forth below, the Court will grant the Government's motion, and deny Defendant Stoner's motion without prejudice.

         I. BACKGROUND

         On August 2, 2017, a grand jury returned a multi-count Superseding Indictment against Defendants Chad Michael Stoner (“Stoner”), and Emily Winand (“Winand”). (Doc. No. 63.) The Superseding Indictment charged Stoner with transmitting threats in interstate commerce (Counts 1 and 2), mailing threatening communications (Counts 3 and 4), and being a felon in possession of firearms and ammunition (Counts 5, 6, 8, and 9). On September 18, 2017, the Government filed a motion in limine seeking to exclude any evidence or argument relating to an advice of counsel defense to the felon in possession charges, with a supporting brief. (Doc. Nos. 77, 78.) Defendant Stoner filed his own motion in limine to preclude certain evidence he expects the Government to offer at trial, with a supporting brief, on September 19, 2017. (Doc. Nos. 82, 83.)

         After a telephone conference with counsel regarding the motions, the Court scheduled an evidentiary hearing on the pending motions in limine for October 2, 2017. (Doc. No. 86.) On September 27, 2017, Defendant Stoner filed a brief in opposition to the Government's motion in limine. (Doc. No. 89.) On October 2, prior to the scheduled hearing, counsel requested a conference with the Court. At the conference Defendant Stoner's counsel represented that he had no evidence to offer on the advice of counsel defense to the felon in possession charge, but rather, intended to present a mistake of fact defense to those charges. Defendant Stoner's counsel also stated that he had not prepared any testimony to present at the scheduled hearing. In light of that representation, the Court cancelled the scheduled hearing and directed the Government to respond to Defendant Stoner's motion in limine, and in addition, to Defendant Stoner's arguments in opposition to the Government's motion in limine, by October 10, 2017. (Doc. No. 94.) The Court further directed Defendant Stoner to file a reply brief by October 16, 2017. (Id.)

         After receiving a one-day extension of time to file its brief, the Government filed its response to Defendant Stoner's motion in limine on October 11, 2017. (Doc. No. 105.) Defendant Stoner filed his brief in reply to the Government's brief on October 16, 2017, addressing only the Section 922(g) burden of proof issue raised by way of the Government's motion. (Doc. No. 106.) Accordingly, both motions in limine are ripe for disposition.

         II. The Government's Motion in Limine Seeking to Preclude Defendant from Introducing a Defense to the Felon in Possession Charges Based on Mistake of Fact

         In its motion in limine, the Government argues that a mistake of fact defense is unavailable with regard to the felon in possession charges asserted against Defendant Stoner, maintaining that such a defense is only available when a defendant is charged with a specific intent crime, which it asserts does not include a violation of 18 U.S.C. § 922(g)(1). (Doc. No. 105 at 15-16.)

         18 U.S.C. § 922(g)(1) provides, in relevant part, as follows:

It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition . . . which has been shipped or transported in interstate or foreign commerce.

         In 1986, Congress enacted the Firearms Owners' Protection Act (“FOPA”), Pub. L. 99-308, 100 Stat. 449. FOPA consolidated certain laws placing firearms restrictions on felons, and while it did not add a scienter requirement to the operative provisions of the statute (here, § 922(g)(1)), it modified the relevant penalty provision, 18 U.S.C. § 924(a)(2), by adding the word “knowingly.” Accordingly, 18 U.S.C. § 924(a)(2) now reads “[w]hoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” The issue raised in this case is whether the “knowingly” requirement of Section 924(a)(2)'s penalty provision extends to the element of Section 922(g)(1) regarding felony status, such that the Government must prove that the defendant “knew” of his felony status.

         In that regard, the Government argues that to prove a violation of Section 922(g)(1), it must prove beyond a reasonable doubt that (1) the defendant has been convicted of a felony, that is, a crime punishable by imprisonment for a term exceeding one year; (2) after the conviction, defendant knowingly possessed a firearm; and (3) defendant's possession of a firearm was in or affecting interstate or foreign commerce. (Doc. No. 78 at 1-2.) Stated differently, the Government, citing United States v. Dodd, 225 F.3d 340 (3d Cir. 2000), [1] maintains that, in order to prove a violation of Section 922(g)(1), it is required to prove only that a defendant who has been convicted of a felony knowingly possessed a firearm, not that a defendant possessed a firearm with knowledge that his or her possession was unlawful. (Id. at 2.) Further, the Government argues that, even assuming, after Dodd, it could be required to prove knowledge that a defendant's possession of a firearm was unlawful (or, in other words, that a defendant knew he was a felon), and therefore, that Stoner could properly proffer evidence seeking to cast doubt on proof of that element, Defendant Stoner has not clearly identified the basis for any alleged mistake of fact on that point here. (Doc. No. 105 at 16.)

         In opposition to the Government's motion, Defendant Stoner argues that Dodd is distinguishable from the instant case in that Dodd involved a defendant's assertion of justification as a affirmative defense, as opposed to a defense of lack of knowledge that a prior conviction was a felony. (Doc. No. 89 at 2.) Instead, Defendant Stoner relies on the United States Supreme Court's decisions in United States v. Staples, 511 U.S. 600 (1994), and United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), in support of his position that the word “knowingly” in 18 U.S.C. § 924(a)(2), the penalty provision applicable to violations of Section 922(g)(1), modifies both the elements of possession of the firearm and status as a convicted felon. (Id. at 1-2.) Accordingly, citing an unpublished decision from the Eastern District of Pennsylvania, United States v. Kitsch, No. 03-594-01, 2008 WL 2971548, at *5-*7 (E.D. Pa. Aug. 1, 2008), Defendant Stoner argues that the Government should be required to prove beyond a reasonable doubt that he knew he was a felon, and that he should be permitted to offer evidence that he had a good faith basis to believe he was not a felon. (Doc. No. 89 at 3.)

         In Kitsch, the court found that the word “knowingly” in Section 924(a)(2), when applied to Section 922(g)(1), modified both the elements of possession of a firearm and status as a convicted felon. Kitsch, 2008 WL 2971548, at *7. In doing so, the court in Kitsch relied on three propositions set forth in Staples and X-Citement Video:

First, where a particular element of a criminal statute separates criminal conduct from otherwise lawful conduct, there is a presumption, rebuttable only by clear evidence of congressional intent, that a scienter requirement should attach to that element. Second, where the potential criminal penalties for violation of the statute are severe, that presumption is heightened. Finally, where the lack of a scienter requirement would raise serious doubts about the constitutionality of a criminal statute, we should read the statute as containing such a requirement unless that reading is contrary to the statute's plain terms.

Kitsh, 2008 WL 2971548, at *3.

         At the conference held with counsel on October 2, 2017, the Government indicated its reliance on a decision from the United States Court of Appeals for the Fourth Circuit, UnitedStates v. Langley, 62 F.3d 602 (4th Cir. 1995), which held that Staples and X-Citement Video do not require the imposition of a scienter requirement as to 922(g)(1)'s felony conviction element.[2] The Government urges the Court to follow Langley on this point and hold that it bears the burden ...


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