United States District Court, W.D. Pennsylvania
Barry Fischer Senior United States District Judge.
March 29, 2016, Defendant was charged in a three-count
Indictment with the following: possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count One); possession with intent to
distribute a quantity of heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) (Count Two); and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count Three). (Docket No. 1).
August 6, 2019, Defendant filed a Motion to Dismiss Count One
of the Indictment for Failure to State an Offense and brief
in support of same (Docket Nos. 216, 217) asserting that
Count One is insufficient following the Supreme Court's
decision in Rehaif v. United States, 139 S.Ct. 2191
(2019), because it does not allege that Defendant knew he
belonged to the relevant category of persons barred from
possessing a firearm. On August 22, 2019, the Government
filed a Response thereto (Docket No. 220) indicating that it
intends to seek a superseding indictment which would include
the additional “knowing” element, thereby making
Defendant's motion moot. Any reply by Defendant would
have been due by September 5, 2019, but none was filed.
Accordingly, at that time, the Court took Defendant's
Motion to Dismiss under advisement and it is now ripe for
Federal Rules of Criminal Procedure require that an
indictment be a plain, concise and definite written statement
of the essential facts constituting the offense charged. Fed.
R. Crim. P. 7(c)(1). An indictment is sufficient if it
includes the elements of the offense intended to be charged,
apprises the defendant of what he must be prepared to defend
against at trial, and enables him to plead a former acquittal
or conviction in the event of a subsequent prosecution.
United States v. Rawlins, 606 F.3d 73, 78-79 (3d
Cir. 2010); United States v. Vitillo, 490 F.3d 314,
321 (3d Cir. 2007). An indictment that fails to charge all
elements of a crime must be dismissed. United States v.
Cochran, 17 F.3d 56, 57 (3d Cir. 1994).
to the Supreme Court's decision in Rehaif, to
establish the crime of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1), the
Government was required to allege and prove the following
elements: (1) the defendant was previously convicted of a
felony, that is, a crime punishable by imprisonment for a
term exceeding one year; (2) after this conviction, the
defendant knowingly possessed the firearm described in the
indictment; and (3) the defendant's possession was in or
affecting interstate or foreign commerce. See Third
Circuit Model Criminal Jury Instruction § 6.18.922G. In
Rehaif, the Supreme Court held that “in a
prosecution under 18 U.S.C. § 922(g) and [its associated
sentencing statute] § 924(a)(2), 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.” 139 S.Ct. at 2200.
case, Count One of the Indictment does not allege
Defendant's knowledge of his status. See Docket
No. 1. Following Rehaif, Count One therefore fails
to allege an element of the offense. The Government
apparently concedes this point, in view of its Response
indicating that it intends to seek a superseding indictment
which would include the additional “knowing”
element. As stated, the Government's response
was filed on August 22, 2019, and no superseding indictment
has been filed as of this date. Accordingly, Count One of the
Indictment will be dismissed for failure to allege the
element concerning Defendant's knowledge of his status.
on the foregoing, the Court enters the following Order:
NOW, this 4th day of October, 2019, IT IS HEREBY
ORDERED that Defendant's Motion to Dismiss Count One of
the Indictment for Failure to State an Offense (Docket No.
216) is GRANTED.
 Further, in recent cases charging a
defendant with a violation of 18 U.S.C. § 922(g)(1), the
Government has alleged as an element of the offense the
defendant's knowledge of his status. See e.g.,
United States v. Andre Joseph Taylor, Crim. No.
19-277 (Docket No. 3); United States v. Christian
Burrus, Crim. No. 19-284 (Docket No. 1) (alleging in
both cases that the defendant, “knowing he had
previously been convicted” of certain prior offenses
knowingly possessed, in and affecting interstate commerce, a
firearm, in violation of 18 U.S.C. § 922(g)(1)). The
Government also lists knowledge of status as an element ...