United States v. 2020-09-17 | 18-10483 | USA V. OMAR QAZI | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

O
MAR QAZI,
Defendant-Appellant.
No. 18-10483

D.C. No.
2:15-cr-00014-
APG-VCF-1

OPINION

Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding

Submitted May 11, 2020
*

Pasadena, California

Filed September 17, 2020

Before: Kim McLane Wardlaw, Deborah L. Cook,
**
and
Danielle J. Hunsaker, Circuit Judges.

Opinion by Judge Hunsaker

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Deborah L. Cook, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 UNITED STATES V. QAZI

SUMMARY
***

Criminal Law

The panel reversed a conviction for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g),
and remanded with instructions to dismiss the indictment, in
a case in which the pro-se defendant moved before trial to
dismiss the indictment for failure to state an offense.

While the defendant’s appeal was pending, the Supreme
Court held in Rehaif v. United States, 139 S. Ct. 2191 (2019),
that a defendant’s knowledge of his felony status is a
required element under Section 922(g). The defendant’s
indictment did not contain this element. Under United States
v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), an indictment
missing an essential element challenged before trial must be
dismissed regardless of whether the omission prejudiced the
defendant.

Liberally construing the defendant’s pro-se objection to
the indictment, the panel held that because the defendant
identified the specific legal theory for why his indictment
was deficient—that it was missing a required element—he
did enough to trigger Du Bo’s automatic-dismissal rule.

***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

UNITED STATES V. QAZI 3

COUNSEL

Michael Tanaka, Los Angeles, California, for Defendant-
Appellant.

Nicholas A. Trutanich, United States Attorney; Elizabeth O.
White, Appellate Chief; Adam Flake, Assistant United
States Attorney; United States Attorney’s Office, Las Vegas,
Nevada; for Plaintiff-Appellee.

OPINION
HUNSAKER, Circuit Judge:
In this circuit an indictment missing an essential element
that is properly challenged before trial must be dismissed.
United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999).
There is no dispute that pro se defendant Omar Qazi’s
indictment was missing a required element. The question is
whether Qazi properly challenged his indictment pre-trial,
thereby triggering the Du Bo rule. Following our well-
established obligation to construe pro se filings liberally, we
hold that Qazi did properly challenge his indictment, and we
direct the district court to dismiss his indictment, as we must.
I. Background
Qazi was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). Well before his
trial, Qazi filed a “Motion to Dismiss Indictment for Failure
to State Offense” in the district court, stating “[t]he
Defendant . . . moves . . . to dismiss the Indictment with
prejudice, for failure to allege all the elements of a Federal
Crime.” It continued: “This motion is based on the following
Memorandum of Points and Authorities, the Indictment, and

4 UNITED STATES V. QAZI

any other evidence or oral argument the Court may
entertain.” Qazi did not clearly identify which elements he
believed were missing. Instead, he quoted various
precedents from this court with little analysis beyond
labeling the indictment “vaguely worded” and “deficient”
for failing to include an “essential element.”
The government opposed Qazi’s motion, arguing that
“the indictment tracks the language of 18 U.S.C. 922(g), sets
forth the elements of the offense and clearly apprises the
defendant of the charge that he must defend against.” The
magistrate judge agreed with the government and concluded:
“Here, the indictment tracks the language of 18 U.S.C.
922(g), sets forth the elements of the offense. This is
sufficient.” The government’s response and the magistrate
judge’s Report and Recommendation (R&R) demonstrate
that they viewed Qazi’s motion as objecting that the
indictment failed to allege all the elements of the crime
charged.
The government now characterizes Qazi’s objections
more narrowly on appeal based on Qazi’s objections to the
R&R—not his original motion challenging the indictment.
Qazi argued the R&R was wrong for several reasons. First,
he contended his indictment should be dismissed because it
failed to describe how he “knowingly possessed a firearm”
and failed to explain how he “possessed in or affected
commerce.” He argued the indictment needed to be more
“precise and specific regarding these two issues” and that
these “fatal flaws show how the indictment does not have
clarity and is not consistent with the statute itself.” He also
reiterated that the indictment was vague and concluded:
“Therefore the indictment is deficient and defective for it’s
[sic] failure to correclty [sic] recite an essential element of
the charged offense.” The district court accepted the R&R in

UNITED STATES V. QAZI 5

full, overruled Qazi’s objections, and denied his motion to
dismiss.
Qazi was convicted following a jury trial in August 2018.
Nearly a year later, while Qazi’s appeal was pending, the
Supreme Court recognized for the first time that the
defendant’s knowledge of his felon status is a required
element under Section 922(g). See Rehaif v. United States,
139 S. Ct. 2191, 2200 (2019). Qazi’s indictment did not
contain this element.
II. The Du Bo rule
If a defendant properly challenges an indictment before
trial and, on de novo appellate review, we determine the
indictment omitted an essential element, Du Bo requires
automatic dismissal regardless of whether the omission
prejudiced the defendant. 186 F.3d at 1179. Although Du
Bo’s automatic-dismissal rule conflicts with the harmless-
error standard adopted by several other circuits, it remains
the law in this circuit. See United States v. Omer, 429 F.3d
835 (9th Cir. 2005) (Graber, J., dissenting from denial of
rehearing en banc).
1
Indeed, following this rule, we have

1
The Supreme Court granted certiorari in United States v. Resendiz-
Ponce, 549 U.S. 102 (2007), to resolve this split but decided the case on
other grounds. In dissent, Justice Scalia noted that he would have agreed
with the Ninth Circuit and held that an indictment lacking an essential
element is structural error. See id. at 116–17 (Scalia, J., dissenting). The
circuits that disagree with our view have held that Neder v. United States,
527 U.S. 1 (1999); Apprendi v. New Jersey, 530 U.S. 466 (2000); and
United States v. Cotton, 535 U.S. 625 (2002), undermine the rationale
for automatic dismissal. See, e.g., United States v. Robinson, 367 F.3d
278, 283–86 (5th Cir. 2004). We have limited Du Bo’s reach after
Cotton. See, e.g. United States v. Salazar-Lopez, 506 F.3d 748, 752 (9th
Cir. 2007). For example, we apply harmless-error review when an
indictment omits an Apprendi-element even when it was timely

6 UNITED STATES V. QAZI

dismissed an indictment and reversed the district court even
when the missing element was proven beyond a reasonable
doubt at trial. See, e.g., United States v. Carbajal, 42 F.
App’x 954, 956 (9th Cir. 2002) (Silverman, J., concurring).
Whether an indictment challenge triggers Du Bo’s de
novo review depends, in large part, on timing. See United
States v. Salazar-Lopez, 506 F.3d 748, 752–53 (9th Cir.
2007) (noting we “continue[] to apply . . . Du Bo to dismiss
indictments in the face of timely challenges” (emphasis
added)); United States v. Rodriguez, 360 F.3d 949, 958 (9th
Cir. 2004) (explaining that de novo review is proper when
the defendant had unsuccessfully filed a pre-trial motion to
dismiss the indictment); United States v. Leos-Maldonado,
302 F.3d 1061, 1064 (9th Cir. 2002) (same); United States v.
Omer, 395 F.3d 1087, 1088 (9th Cir. 2005) (per curiam)
(same). Pre-trial indictment challenges are reviewed de novo
and post-trial challenges are reviewed for plain error. See,
e.g., Salazar-Lopez, 506 F.3d at 753; Rodriguez, 360 F.3d
at 958; Leos-Maldonado, 302 F.3d at 1064; Omer, 395 F.3d
at 1088.
Beyond timing, our cases do not explain what constitutes
a “proper challenge” under Du Bo. No doubt, some
specificity is required to facilitate our review. United States
v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006). Here, the
question of specificity is informed by the requirement that
we construe pro se pleadings liberally.

challenged. See id.; see also United States v. Kaplan, 836 F.3d 1199,
1216 (9th Cir. 2016).

UNITED STATES V. QAZI 7

III. Duty to construe pro se pleadings liberally
It is an entrenched principle that pro se filings “‘however
inartfully pleaded’ are held ‘to less stringent standards than
formal pleadings drafted by lawyers.’” Hughes v. Rowe,
449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Kerner,
404 U.S. 519, 520 (1972)); Hamilton v. United States,
67 F.3d 761, 764 (9th Cir. 1995). We are specifically
directed to “construe pro se pleadings liberally.”
2
Hamilton,
67 F.3d at 764. This duty applies equally to pro se motions
and with special force to filings from pro se inmates. See,
e.g., Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010);
Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001).
In Zichko, we explained what liberal construction
demands in a situation like Qazi’s. There, we considered a
pro se habeas petition where the defendant made a broad
ineffective-assistance-of-counsel argument to the district
court and then specified on appeal that his counsel was
ineffective because counsel had failed to file an appeal.
247 F.3d at 1020–21. The government argued we could not
consider Zichko’s more focused appellate argument because
he did not raise it before the district court. Id. at 1020. We
agreed that Zichko did not “specifically identify” the failure-
to-appeal theory in the district court, but, citing our duty to
construe pro se motions liberally, we held that the general
statements in his motion to the district court sufficed to raise
the issue. Id. at 1020–21. We explained: “The district court
could have looked to the entire petition to see if the

2
Although the Supreme Court has described our duty regarding pro
se pleadings as “settled law,” it has not clearly articulated its purpose.
See generally Rory K. Schneider, Illiberal Construction of Pro Se
Pleadings, 159 U. Pa. L. Rev. 585, 604 (2011). But whatever its purpose,
it has deep roots. See, e.g., Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th
Cir. 1985) (en banc) (affording pro se litigant “the benefit of any doubt”).

8 UNITED STATES V. QAZI

ineffective assistance of counsel claim had any merit; had it
done so, the court would have found the allegation that
[counsel] failed to appeal.” Id. at 1021.
IV. Qazi’s challenge
Qazi’s pre-trial indictment challenge was timely. The
only question is whether it was specific enough to trigger Du
Bo. We conclude it was.
Qazi challenged his indictment for “fail[ing] to allege all
the elements of a Federal Crime.” While his supporting
memorandum was not a model of clarity, as most pro se
pleadings aren’t, Qazi specifically argued his indictment was
deficient because it “failed to include a necessary element of
the offense at issue.” Du Bo, 186 F.3d at 1181. Federal Rule
of Criminal Procedure 12(b)(3)(B) details five reasons why
an indictment may be defective. “[F]ailure to state an
offense,” the reason cited by Qazi in his motion, is but one
of them. Fed. R. Crim. P. 12(b)(3)(B)(v). Thus, Qazi did not
challenge his indictment at the highest level of generality, he
identified a specific reason for deficiency that is provided in
the Federal Rules themselves. But that is not all—his motion
and memorandum further assert the indictment failed to state
an offense because it omitted an essential element—one of
at least two reasons why an indictment may fail to state an
offense. See 5 Wayne R. LaFave, Jerold H. Israel, Nancy J.
King & Orin S. Kerr, Crim. Proc. § 19.3(a)–(b) (4th ed.).
Considering our liberal-construction mandate, Qazi’s
motion and his attached memorandum satisfy Du Bo, even if
he did not “specifically identify” the element he believed
was missing. See Zichko, 247 F.3d at 1020. Had Qazi moved
to dismiss without relying on a reason from 12(b)(3)(B),
perhaps that would not trigger Du Bo. Had Qazi only
claimed that his indictment failed to state an offense, without
further arguing an essential element was missing, maybe that

UNITED STATES V. QAZI 9

too would not trigger Du Bo. But where he identified the
specific legal theory for why his indictment was deficient—
it was missing a required element—he did enough, as a pro-
se defendant, to trigger Du Bo.
Indeed, the purpose of requiring litigants to raise specific
errors to the district court in the first instance is to give the
opposing party an opportunity to respond and the district
court an opportunity to correct the error. See Santiago,
466 F.3d at 803. That purpose was served here. Although the
government did not know which element Qazi believed was
missing, it knew it was one of only a few elements required
under Section 922(g)(1), (9). And in response to Qazi’s
motion, the government affirmatively asserted that all
elements were present, indicating it had sufficient
opportunity to address Qazi’s objection. Moreover, the
district court apparently viewed Qazi’s motion as an
objection that the indictment omitted an essential element.
Thus, it had the opportunity to—and did—consider whether
all required elements were present when it concluded: “the
indictment tracks the language of 18 U.S.C. 922(g), sets
forth the elements of the offense. This is sufficient.”
After Rehaif, we know this conclusion was wrong.
139 S. Ct. at 2200. Qazi’s indictment neither “track[ed] the
language of 18 U.S.C. 922(g)” nor “set[] forth the elements
of the offense,” because it did not allege that he had
knowledge of his felon status. That the district court had
little reason before Rehaif (aside from the plain text of
Sections 922 and 924) to recognize that omitting Qazi’s
knowledge of his felon status from the indictment was a
material error is irrelevant.
3
The fact remains that Qazi did

3
When the Supreme Court interprets a criminal statute in a way that
narrows the scope of criminal conduct, we view the statute as always

10 UNITED STATES V. QAZI

enough to give the government a chance to respond to his
deficiency theory and to give the district court the
opportunity to correct the error in the first instance.
At first glance, our conclusion that Qazi’s pro se
challenge triggers Du Bo may seem to place Qazi in a better
position than he would have been in had he been represented
by counsel. But how could we ever know? We cannot say
what arguments an attorney would have raised or how
specific they would have been. And, in any event, this is
beside the point. Qazi was not represented by an attorney
and, therefore, we have a duty to construe his motion
liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). And, of course, our duty is not confined to
circumstances where a liberal construction makes no
difference to the outcome. See, e.g., Jackson v. Barnes,
749 F.3d 755, 763–64, 767 (9th Cir. 2014).
Having concluded that Qazi’s pre-trial indictment
challenge triggers Du Bo, applying that rule here is
straightforward. On de novo review, Qazi’s indictment “fails
to recite an essential element of the charged offense.” Omer,
395 F.3d at 1088. This “is a fatal flaw requiring dismissal of
the indictment.” Id. at 1089.
* * *
This case is simple. When Qazi insisted his indictment
“fail[ed] to allege all the elements of a Federal Crime,” he
was right. When the district court concluded “the indictment

having meant what the Supreme Court now says it does. See, e.g., United
States v. McClelland, 941 F.2d 999, 1001 (9th Cir. 1991). To do
otherwise would violate the principle that it is Congress, not the courts,
who criminalizes conduct. Bousley v. United States, 523 U.S. 614, 620–
21 (1998).

UNITED STATES V. QAZI 11

tracks the language of 18 U.S.C. 922(g), [and] sets forth the
elements of the offense,” it was wrong. Liberally construed,
Qazi’s objection to the indictment was sufficient to trigger
Du Bo’s dismissal rule.
REVERSED and REMANDED with instructions to
dismiss the indictment.
4

4
As Du Bo requires dismissal of the defective indictment, we need
not reach the other issues raised on appeal. United States v. Pernillo-
Fuentes, 252 F.3d 1030, 1032 n.1 (9th Cir. 2001). We note, however,
that Qazi presented a strong argument the district court erred in failing
to hold an evidentiary hearing on his motion to suppress.