Published on: Tuesday, December 1, 2020

A defendant who was convicted of being a felon in possession of a firearm is entitled to a new trial because the government didn’t show he knew his status prevented him from possessing a gun, the en banc Third Circuit said Tuesday.

In Rehaif v. United States , the U.S. Supreme Court held that to prove a felon-in-possession charge, the prosecution must show the defendant knew he was a felon and that he was barred from possessing a gun.

Malik Nasir was arrested for running a marijuana operation out of a storage unit he rented. He had prior convictions, and the felon-in-possession count was added after a gun was found in his car.

The prosecution argued at the time of trial, it did not know it had to prove Nasir knew he was barred from possessing a gun, because Rehaif was handed down while his conviction was on appeal. But if the Court of Appeals looked at the entire record, it was obvious Nasir knew he was a felon and was not supposed to have a gun, the prosecution argued.

The court noted that the Second, Sixth, Seventh, Eighth, and Eleventh circuits use varying methods to determine whether a defendant knew whether they could possess a gun, but all look beyond the trial record. Joining the Fourth Circuit in the circuit split, however, the court here said due process and the right to a jury trial required it to limit its review to the trial record.

Because the government put on no evidence about Nasir’s mens rea,  the court held the felon-in-possession count conviction must be vacated.

The case is United States v. Nasir, No. 18-2888, 3d Cir. en banc (Dec. 1, 2020).