United States of America v. Jeffrey Beavers

8 United States v. Beavers No. 99-1829
law until September 30, 1996. Second, the state of Michigan
is under no obligation to update state-law violators on recent
additions to federal law. Finally, the pistol returned by the
state was only one of three firearms found in Beavers’s
possession on November 20, 1997. We therefore find
Beavers’s argument that § 922(g)(9) should not be applied to
him because of the state of Michigan’s lack of notice to be
without merit.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
*The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0058P (6th Cir.)
File Name: 00a0058p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J EFFREY BEAVERS,
Defendant-Appellant.
;>

1
No. 99-1829
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-81410—Paul D. Borman, District Judge.
Argued: December 7, 1999
Decided and Filed: February 16, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*

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2 United States v. Beavers No. 99-1829
_________________
COUNSEL
ARGUED: R. Steven Whalen, Detroit, Michigan, for
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: R. Steven Whalen, Detroit, Michigan, for
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. This is an appeal
from the district court’s order denying Jeffrey Beavers’s
motion to withdraw his guilty plea and to dismiss his
indictment for the possession of firearms in violation of 18
U.S.C. § 922(g)(9). Section 922(g)(9) prohibits a person
previously convicted of “a misdemeanor crime of domestic
violence” from possessing a firearm. Beavers argues that this
section violates his due process rights under the Fifth
Amendment because it does not require the government to
prove, as an element of the offense, that he knew that his
possession of a firearm was illegal. The district court rejected
Beavers’s ignorance-of-the-law defense. For the reasons set
forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
On December 23, 1998, Beavers pled guilty to the charge
of possessing a firearm in violation of § 922(g)(9). As part
of the factual basis underlying his plea, Beavers admitted that
he had pled guilty in 1995 to a misdemeanor domestic assault
charge. He further admitted that on November 20, 1997 he
had possession of two pistols and a shotgun at his home in
Lambertville, Michigan. At his change-of-plea hearing,
Beavers made the following statement: “And I did have the
three firearms at the time that--of the original Indictment, and-
No. 99-1829 United States v. Beavers 7
prohibitum, and requiring the government to prove that the
defendant knew that his conduct was a crime would unduly
reward those who plead ignorance of the law as a defense.
Based on the reasoning in Baker and Meade, and the
majority opinion in Wilson, we conclude that Beavers’s
conviction on a domestic violence offense sufficiently placed
him on notice that the government might regulate his ability
to own or possess a firearm. As noted in Baker and Meade,
domestic abuse is a well-known problem, and it should not
surprise anyone that the government has enacted legislation
in an attempt to limit the means by which persons who have
a history of domestic violence might cause harm in the future.
Compare Lambert, 355 U.S. at 229 (noting that the Los
Angeles ordinance requiring felons to register was primarily
a bookkeeping aid for law enforcement). When Beavers
committed the domestic violence offense, he “removed
himself from the class of ordinary and innocent citizens” who
would expect no special restrictions on the possession of a
firearm. See Bostic, 168 F.3d at 722. We therefore conclude
that § 922(g)(9) is constitutional, even though it does not
require the government to prove that the defendant had actual
knowledge that his possession of a firearm was illegal.
C. Section 922(g)(9) is constitutional as applied to
Beavers
Beavers also argues that § 922(g)(9) is unconstitutional as
applied to the facts in the present case because the state of
Michigan misled him by returning one of his pistols in July of
1996 without telling him about the future applicability of
§ 922(g)(9). The government initially argues that Beavers
failed to preserve the issue for appeal. This is incorrect,
however, because the district court stated “that the plea is
made under 11(a)(2), which will allow him to appeal the
constitutionality of the statute and the application to him.”
(Emphasis added.)
On the other hand, we agree with the government’s position
that Beavers’s “as applied” argument lacks merit. First of all,
§ 922(g)(9) did not exist in July of 1996. It did not become

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6 United States v. Beavers No. 99-1829
his conduct was subject to increased government
scrutiny. Because it is not reasonable for someone in his
position to expect to possess dangerous weapons free
from extensive regulation, Baker cannot successfully
claim a lack of fair warning with respect to the
requirements of § 922(g)(8).
Baker’s rejection of the ignorance of the law defense is well-
reasoned and highly persuasive on the similar issue before us.
The First Circuit has also addressed a challenge to
§ 922(g)(8), setting forth its analysis as follows:
[Defendant] nevertheless tries to bring his case within the
Lambert exception by arguing that firearms possession is
an act sufficiently innocent that no one could be expected
to know that he would violate the law merely by
possessing a gun. . . . But possession of firearms by
persons laboring under the yoke of anti-harassment or
anti-stalking restraining orders is a horse of a different
hue. The dangerous propensities of persons with a
history of domestic abuse are no secret, and the
possibility of tragic encounters has been too often
realized. We think it follows that a person who is subject
to such an order would not be sanguine about the legal
consequences of possessing a firearm, let alone of being
apprehended with a handgun in the immediate vicinity of
his spouse. . . . We therefore reject the appellant’s
contention that the statute, on its face, violates due
process rights of notice.
United States v. Meade, 175 F.3d 215, 226 (1st Cir. 1999);
see Baker, 197 F.3d at 220 (adopting the reasoning in Meade).
Although Chief Judge Posner’s dissent in Wilson has a
certain surface appeal, in the end it proves too much. He
argues that the statute is malum prohibitum, “that is, it is not
the kind of law that a lay person would intuit existed because
the conduct it forbade was contrary to the moral code of his
society.” Wilson, 159 F.3d at 294. But the lack of intuitive
wrongfulness is the hallmark of all laws that are malum
No. 99-1829 United States v. Beavers 3
-[h]owever, I would like to add I didn’t know that the law
existed. Nevertheless, I am guilty of having the firearms.”
On July 6, 1999, Beavers moved to withdraw his guilty plea
and to dismiss the indictment on the ground that § 922(g)(9)
violated his due process rights under the Fifth Amendment.
At the hearing on Beavers’s motion, the parties agreed that (1)
in 1995, Beavers was placed on state probation for the
misdemeanor offense of domestic assault, (2) a condition of
the probation was that he was not allowed to possess a firearm
while on probation, (3) Beavers was discharged from
probation in 1996, (4) the state order prohibiting him from
possessing firearms was no longer effective once he was
discharged, (5) after Beavers was discharged, the state
returned one of his pistols to him, (6) the pistol was returned
in July of 1996, approximately three months before the
effective date of § 922(g)(9), and (7) Beavers continued to
have possession of the guns after September 30, 1996, the
effective date of the federal statute. After considering the
parties’ arguments, the district court denied Beavers’s motion.
Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
Procedure, the parties, with the approval of the district court,
agreed that Beavers would enter a conditional guilty plea,
reserving his constitutional issue for appeal. Beavers was
then sentenced to a term of two months of incarceration,
followed by two months of home confinement and two years
of supervised release, and fined $2,000.
II. ANALYSIS
A. Standard of review
The main issue before the court is whether § 922(g)(9) is
unconstitutional in light of the fact that it does not require the
government to prove, as an element of the offense, that
Beavers knew that his possession of a firearm was illegal.
We review de novo a challenge to the constitutionality of a
federal statute. See, e.g., United States v. Brown, 25 F.3d
307, 308 (6th Cir. 1994).

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4 United States v. Beavers No. 99-1829
B. Section § 922(g)(9) is constitutional despite the fact
that it does not require the government to prove that
Beavers knew that his conduct was illegal
Section § 922(g)(9) provides, in pertinent part, as follows:
“It shall be unlawful for any person . . . who has been
convicted in any court of a misdemeanor crime of domestic
violence . . . to . . . possess . . . any firearm . . . .” The mens
rea requirement for § 922(g)(9) is contained in § 924(a)(2),
which states that “[w]hoever knowingly violates . . .
[§ 922(g)(9)] shall be fined as provided in this title,
imprisoned not more than 10 years, or both.” In an analogous
context, other circuits have held that the term “knowingly”
only requires that the accused know that he possessed a
firearm, not that he knew that such possession was illegal.
See United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir.
1999) (holding that, although the term “willfully” as used in
parts of § 922 does have such a requirement, “knowingly”
under § 924(a)(2) does not require the defendant to be aware
that his conduct is illegal); United States v. Capps, 77 F.3d
350, 352 (10th Cir. 1996) (“No circuit has extended the
knowledge component of § 922 beyond the act of possession
itself.”).
Beavers acknowledges that ignorance of the law does not
generally excuse criminal conduct. See Cheek v. United
States, 498 U.S. 192, 199 (1991). He argues, however, that
§ 922(g)(9) is an exception because it is a highly technical
statute that could ensnare individuals engaged in apparently
innocent conduct. See generally Lambert v. California, 355
U.S. 225 (1957) (declaring unconstitutional a city ordinance
that punished felons who failed to register with the police
department, even if they had no knowledge of the
requirement).
Relying upon the dissenting opinion in United States v.
Wilson, 159 F.3d 280, 293 (7th Cir. 1998), and the case of
United States v. Emerson, 46 F. Supp.2d 598 (N.D. Tex.
1999), Beavers argues that his indictment under § 922(g)(9)
should have been dismissed as a violation of his due process
No. 99-1829 United States v. Beavers 5
rights under the Fifth Amendment because he had no notice
that his possession of a firearm was a federal offense.
Beavers points out that prior to the effective date of the
statute, a person convicted of a misdemeanor domestic
violence offense was not prohibited from possessing firearms
under § 922.
In Wilson, the Seventh Circuit held that § 922(g)(8) does
not violate the Fifth Amendment. That subsection prohibits
the possession of a firearm by anyone subject to a domestic
restraining order, which is a companion provision to
§ 922(g)(9) in question here. The majority held that a person
could “knowingly” violate § 922(g)(8) even if he did not
know that his conduct was illegal. See Wilson, 159 F.3d at
293. In dissent, Chief Judge Posner wrote that the
government should be required to show that the defendant
knew that his act of possessing the firearms after the issuance
of the restraining order was illegal. See id. at 296.
Chief Judge Posner, however, did not find that § 922(g)(8)
violated the Fifth Amendment. Instead, he reasoned that it
was a “linguistically permissible interpretation of the statute”
to conclude that the government had to prove that the
defendant knew that his conduct was a crime. See id. Based
upon Chief Judge Posner’s dissent, a district court in Texas
held that § 922(g)(8) “is an obscure, highly technical statute
with no mens rea requirement” that violates the Fifth
Amendment. See United States v. Emerson, 46 F.Supp.2d
598, 613 (N.D. Tex. 1999); but see United States v. Spruill,
61 F. Supp.2d 587, 589 (W.D. Tex. 1999) (rejecting
Emerson’s analysis and noting that three other circuit courts
have found that § 922(g)(8) is constitutional despite not
requiring actual knowledge of illegality).
In the recent case of United States v. Baker, 197 F.3d 211,
220 (6th Cir. 1999), this court addressed whether § 922(g)(8)
violates a defendant’s due process rights, concluding as
follows:
The fact that Baker had been made subject to a domestic
violence protection order provided him with notice that

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