United States of America v. Gregg S. Stein

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2182
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGG S. STEIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-CR-184—William C. Griesbach, Chief Judge.
ARGUED DECEMBER 12, 2012—DECIDED MARCH 19, 2013
Before POSNER, ROVNER and WOOD, Circuit Judges.
PER CURIAM. Gregg Stein appeals his conviction for
possessing a firearm following a misdemeanor convic-
tion for a crime of domestic violence. See 18 U.S.C.
§ 922(g)(9). He argues that he should have been allowed
to introduce evidence at trial supporting a proposed
defense that his lawyer in the domestic-violence pros-
ecution had led him to believe that the misdemeanor
conviction would not disqualify him from possessing

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2 No. 12-2182
firearms. Because the district court correctly relied on
two decisions from this court in rejecting such evidence
as irrelevant, we affirm the judgment.
Stein pleaded guilty to misdemeanor battery in Wis-
consin, see WIS. STAT. § 940.19(1), after he struck his live-
in girlfriend in 2008, breaking two of her teeth and
bruising her face. As part of Stein’s plea bargain, the state
prosecutor dismissed a domestic-abuse surcharge that
normally would apply. See WIS. STAT. § 973.055. Stein’s
attorney stated at the plea hearing that he believed the
guilty plea without the surcharge would protect Stein
from the federal ban on gun possession for persons con-
victed of a misdemeanor domestic-violence crime. See 18
U.S.C. § 922(g)(9). Stein, an avid hunter, wanted to pre-
serve the ability to possess and use guns. His attorney
advised in open court that “he may have some dif-
ficulty purchasing a weapon” after his battery convic-
tion, but that he would not violate federal law by pos-
sessing and using the guns that he already owned. That
advice prompted the state judge to warn Stein, how-
ever, that “there’s no guarantees” he could possess
guns after his conviction.
Stein was sentenced to two years’ probation, and one
condition of his sentence was that he not possess guns
while on supervision. At a hearing in 2009 on his request
for early termination of his probation, Stein received
new information making it clear that his attorney had
given him bad advice. Stein had wanted the firearm ban
lifted in time for the upcoming hunting season, but the
prosecutor asserted that federal law still would prevent

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No. 12-2182 3
him from possessing guns after his probation ended. The
state judge agreed. In an apparent reference to United
States v. Hayes, 555 U.S. 415 (2009), the judge explained
that a decision released after Stein’s sentencing clarifies
that the predicate state offense need not denominate a
domestic relationship as a statutory element in order
to meet the requirements of § 922(g)(9). See Hayes, 555
U.S. at 425-26.
After his probation ended, Stein alerted federal authori-
ties to his prohibited status when he completed an
ATF Form 4473 in anticipation of taking possession of a
rifle he won at a sports banquet. One question on the
form asks whether the applicant has been convicted of
a misdemeanor crime of domestic violence, explaining
that such persons are prohibited by federal law from
possessing guns. Stein answered yes to this question.
He was denied permission to obtain the rifle, and a
special agent from the Bureau of Alcohol, Tobacco, Fire-
arms and Explosives visited his house to deliver a
letter confirming his prohibited status. Stein admitted to
the agent that he possessed other guns, and although
he was reluctant to relinquish possession, he agreed
to transfer the guns to his mother’s house. He later was
charged under § 922(g)(9) with unlawful possession of
firearms.
In preparing for trial Stein’s new attorney sought a
ruling that would allow him to introduce evidence and
have the jury instructed concerning Stein’s purported
ignorance of his prohibited status. Stein contended that
he could not be found guilty of “knowingly” violating the

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4 No. 12-2182
federal ban on gun possession, see 18 U.S.C. § 924(a)(2),
if he was unaware of his prohibited status under
§ 922(g)(9). He thought he could show that his lawyer
in the state case had misadvised him that he would
still be able to possess a gun without violating fed-
eral law, and thus he did not have the required mens
rea for unlawful possession. The district judge ruled,
however, that evidence concerning Stein’s knowledge
of his legal status was irrelevant and also rejected his
proposed jury instruction. Stein then proceeded to a
bench trial in order to preserve these issues for ap-
peal. He stipulated that his Wisconsin battery offense
meets the federal definition of a misdemeanor domestic-
violence crime and that the guns he possessed had
traveled in interstate commerce before they came into
his possession. The district court found Stein guilty and
sentenced him to 2 years’ probation.
On appeal Stein maintains that he should have been
allowed to present evidence concerning his lack of knowl-
edge about his prohibited status. He acknowledges
that two opinions from this court, United States v. Lee
Wilson, 437 F.3d 616, 620 (7th Cir. 2006) (interpreting
18 U.S.C. § 922(g)(1)), and United States v. Carlton
Wilson, 159 F.3d 280, 288-89 (7th Cir. 1998) (interpreting
§ 922(g)(8)), suggest that the mens rea element of § 922(g)
is satisfied by knowing possession of the gun and
does not require proof that the defendant was aware
of his status as a prohibited person. Stein neverthe-
less argues, citing the dissenting opinion in Carlton
Wilson, that § 922(g)(9) should be construed to require
knowledge that one’s gun possession violates the law.

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No. 12-2182 5
See 159 F.3d at 293 (Posner, C.J., dissenting) (“It is wrong
to convict a person of a crime if he had no reason to
believe that the act for which he was convicted was a
crime, or even that it was wrongful.”).
Stein seeks to distinguish both Wilson decisions by
differentiating persons convicted of a misdemeanor
crime of domestic violence, 18 U.S.C. § 922(g)(9), from
those who violate other subsections of § 922(g), including
felons, id. § 922(g)(1), fugitives, id. § 922(g)(2), unlawful
users of controlled substances, id. § 922(g)(3), and persons
committed to a mental institution, id. § 922(g)(4). He
argues that these other classes of prohibited persons
know about their status, either because the factual cir-
cumstances are obvious or because the judge is required
to engage in an extensive colloquy with the defendant.
Thus, he continues, persons convicted under other sub-
sections of § 922(g) are less likely to be unaware of the
collateral consequences and loss of certain rights. In
contrast, Stein asserts, he was affirmatively told during
his plea hearing in state court that his conviction would
not trigger the federal firearm ban. What is telling, how-
ever, is that Stein does not distinguish persons con-
victed of misdemeanor crimes of domestic violence from
those subject to a domestic-relations restraining order,
see 18 U.S.C. § 922(g)(8). The bases for disqualification
under subsections (g)(9) and (g)(8) are similar, and yet in
Carlton Wilson we rejected the same theory that Stein
presents here and concluded that for subsection (g)(8)
“knowingly” means knowledge of the facts constituting
the offense, not knowledge that those facts make gun
possession illegal. 159 F.3d at 288-89; see also United States

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6 No. 12-2182
v. Shelton, 325 F.3d 553, 563 (5th Cir. 2003) (“We perceive
no principled reason for drawing an analytical distinc-
tion between § 922(g)(8) and § 922(g)(9).”).
The Supreme Court has explained, in interpreting the
knowledge element of § 924(a), that “unless the text of the
statute dictates a different result, the term ‘knowingly’
merely requires proof of knowledge of the facts that
constitute the offense.” See Bryan v. United States, 524
U.S. 184, 192-93 (1998). We relied on Bryan when
analyzing § 922(g)(8), see Carlton Wilson, 159 F.3d at 288-89,
and Bryan equally supports the district court’s conclu-
sion in this case. Additionally, several other circuits have
held that § 922(g)(9) requires only knowledge of facts.
See Shelton, 325 F.3d at 563; United States v. Hancock, 231
F.3d 557, 562-63 (9th Cir. 2000); United States v. Hutzell,
217 F.3d 966, 967-68 (8th Cir. 2000); United States v.
Mitchell, 209 F.3d 319, 322 (4th Cir. 2000); United States
v. Beavers, 206 F.3d 706, 708-10 (6th Cir. 2000).
Ultimately, as a matter of statutory construction, there
is no reason to think Congress intended “knowingly” to
mean different things for different subsections of
§ 922(g). See Ratzlaf v. United States, 510 U.S. 135, 143
(1994) (“A term appearing in several places in a statutory
text is generally read the same way each time it ap-
pears. . . . We have even stronger cause to construe a
single formulation . . . the same way each time it is called
into play.”); United States v. Butler, 637 F.3d 519, 524 (5th
Cir. 2011) (concluding that “it would be illogical” to
impose a different mens rea requirement on different
subsections of § 922(g)). We have held repeatedly that

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No. 12-2182 7
the word “knowingly” made applicable to § 922(g) by
§ 924(a)(2) requires knowledge of the factual elements
of the offense and nothing more. See Lee Wilson, 437 F.3d
at 620 (felons); Carlton Wilson, 159 F.3d at 289 (persons
subject to a protective order); United States v. Ballentine,
4 F.3d 504, 506 (7th Cir. 1993) (fugitives); see also United
States v. Obiechie, 38 F.3d 309, 315 (7th Cir. 1994) (holding
that “ ‘knowingly’ in § 924(a)(1) refers only to the intent
to do the act that is proscribed by law, as opposed to
the intentional violation of a known legal duty”).
Accordingly, we AFFIRM the district court’s judgment.
3-19-13

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