IzJanae Soler | Did Congress Intend Strict Liability Under a Federal Firearms Ban?
Background
In June 2018, plaintiff Luis Orlando Pérez-Greaux had his Arecibo, Puerto Rico home raided by the Puerto Rico Police Department (PRPD) after a period of surveillance. Pérez-Greaux was cooperative throughout the search, during which the PRPD found three kilograms (roughly 6.5 pounds) of cocaine, a digital scale, firearm periodicals, a gun holster, firearm magazines, separately packed bullets, and a .9mm Glock pistol that had been modified to function as a fully automatic machinegun. When questioned, Pérez-Greaux claimed that he had started drug trafficking earlier that year by packing cocaine with toys or various miscellaneous items and shipping it to the continental United States via the United States Postal Service. Although he provided two different accounts as to who gave him the firearm and how, in both he obtained the firearm from another individual who did not inform him that the firearm operated as a machinegun.
Pérez-Greaux’s charges included possession of a firearm under U.S.C. § 924(c)(1)(B)(ii), which outlaws possession of a machinegun or a destructive device, or firearm equipped with a silencer or muffler in furtherance of a drug-trafficking crime.
Pérez-Greaux filed a motion under Federal Rule 29 before trial on several grounds, but the one most relevant to the issue was that there was improper jury instruction; subsequently, he requested that the jury be instructed that the government needed to prove he “had knowledge of the characteristics that made the weapon a machinegun”. United States v. Pérez-Greaux, 83 F.4th 1, 8-9 (1st Cir. 2023). The district court declined both of these, concluding that, as a matter of law, § 924(c)(1)(B)(ii) did not include “an implicit subjective mens rea requirement”. Id. At his trial, Pérez-Greaux was charged with (1) possession with intent to distribute controlled substances, (2) possession of a firearm in furtherance of a drug trafficking crime, and (3) possession of a machinegun in furtherance of a drug trafficking crime. A jury convicted him on all three counts and he was sentenced to 438 months (36 and a half years) in prison.
After the verdict, Pérez-Greaux filed another Rule 29 motion that was once again denied by the district court, which concluded that a reasonable juror could infer that he knew the firearm was a machinegun based on the evidence provided and subsequently sentenced him to slightly over 35 years in prison, which Pérez-Greaux appealed. On appeal, he contested the denial of both the renewed Rule 29 motion and jury instruction requests.
Issue
Did Congress intend to make a conviction for possession of a firearm under 18 U.S.C. § 924(c)(1)(B)(ii) a strict liability crime?
The Split
First Circuit
In the case described above, United States v. Pérez-Greaux, the First Circuit held that possession of a firearm under 18 U.S.C. § 924(c)(1)(B)(ii) was intended to be a strict liability crime for several reasons.
First, the Supreme Court has ruled in the past on similar cases in a way that supports the First Circuit’s opinion. In the past, the Supreme Court has held that there may be a mens rea requirement for federal statute violations that include predicate crimes. Flores-Figueroa v. United States, 556 U.S. 646 (2009). The Supreme Court has also explicitly articulated that criminal offenses dispensing with a mens rea requirement are “disfavored”. Staples v. United States, 511 U.S. 600, 606 (1994).
Secondly, the court held that their reasoning is in accordance with basic principles of federal criminal law; hence, the same reasoning should apply here. This is especially important due to the harsh sentencing requirements associated with violations of 18 U.S.C. § 924(c)(1)(B)(ii) compared to other crimes covered under the statute or similar ones. Firearm violations under 18 U.S.C. § 924(c)(1)(A), which outlaws the use of any firearm in furtherance of a drug trafficking crime, carry a five-year minimum sentence; firearm violations under 18 U.S.C. § 924(c)(1)(B)(i), which outlaws possession of short-barreled rifles and shotguns or semiautomatic assault weapons in furtherance of drug trafficking crime, carry a 10 year minimum sentence; and violations of § 924(c)(1)(B)(ii), the crime Pérez-Greaux was convicted of, carry a minimum sentence of 30 years. Due to the drastic increase in penalty for 924(c)(1)(B)(ii), the court felt that interpreting the statute to have no mens rea requirement was illogical. “[W]e see no logic in dispensing with the requirement of a vicious will… This is particularly true where the type of firearm chosen can potentially result in a sixfold sentencing increase.” United States v. Pérez-Greaux, 83 F.4th at 18.
Third, the court’s ruling was in accordance with the Supreme Court jurisprudence on proportionality in very similar cases involving firearm violations. In the past, the Supreme Court has held that harsh penalties associated with certain crimes are significant considerations on whether or not the statute requires mens rea. Staples v. United States, 511 U.S. 600, 616. Since the violation in question in this case has a whopping 30-year minimum sentence attached to it, the First Circuit reasoned, there should be a presumed mens rea requirement.
Finally, in the First Circuit’s prior cases, the court has rendered opinions that point towards offenses like 18 U.S.C. § 924(c)(1)(B)(ii) as containing a mens rea requirement, with one of their past rulings openly saying that “knowing possession of a machine gun is an element of the crime that must be proven to the jury.” United States v. Rivera-Rivera, 555 F.3d 277, 291 n.14 (1st Cir. 2009).
The First Circuit openly acknowledged the divergence in their opinion from the courts below, but held that, due to the reasons mentioned above, ruling that 18 U.S.C. § 924(c)(1)(B)(ii) had a mens rea requirement was justified despite other courts reaching different conclusions.
Eighth Circuit
In United States v. Gamboa, the Eighth Circuit held that the facts concerning the kind of firearm used under §924(c)(1) – which covers the use of any firearm in furtherance of a drug trafficking crime – were sentencing factors, not elements of the offense; hence, the prosecution was not required to prove that the defendant had knowledge of the fact that the firearm in their possession was a machinegun. United States v. Gamboa, 439 F.3d 796, 812 (8th Cir. 2006).
Tenth Circuit
The Tenth Circuit has held that possession of a firearm under §924(c) is a strict liability crime on two separate occasions. In the first, United States v. Eads, the court also held that the type of firearm that was carried and used is a sentencing enhancement, similar to the Eighth Circuit’s holding. United States v. Eads, 191 F.3d 1206, 1214 (10th Cir. 1999). The second, United States v. Brown, the court held that knowledge that a gun is a machinegun is not an element of charges for carrying a firearm in relation to drug-trafficking crimes. United States v. Brown, 400 F.3d 1242, 1255 n.9 (10th Cir. 2005).
Eleventh Circuit
The Eleventh Circuit has held that, due to the aforementioned “enhancement statute” status that the other district courts have agreed upon, the statute does not require for there to be any proof of the person’s “particularized knowledge” of the firearm’s characteristics. United States v. Haile, 685 F.3d 1211, 1218 (11th Cir. 2012).
D.C. Circuit
The D.C. Circuit has held that, very similar to the Eighth Circuit, held that the type of firearm used or carried under §924(c) is to be seen as a sentencing enhancer, and even cited the Eighth Circuit in explaining the reasoning for its holding. It also noted that by dispensing with a mens rea requirement for 18 U.S.C. § 924(c)(1)(B)(ii), they would be setting aside decades of D.C. Circuit precedent. United States v. Burwell, 690 F.3d 500, 504 (2012).
Looking Forward
It’s difficult to tell where these rulings will point towards in the future, although one is inclined to believe that due to the amount of courts ruling that 18 U.S.C. § 924(c)(1)(B)(ii) does not have a mens rea requirement, courts will abide by those rulings in the future. As of now, there are no cases for the Supreme Court on this topic or similar ones relating to the illegal possession of firearms and mens rea.
In the event that a case relating to this issue does arrive before the Supreme Court, there is a likelihood that the current Court would rule in favor of 18 U.S.C. § 924(c)(1)(B)(ii) having a mens rea requirement for the reasons discussed by the First Circuit, particularly that the Supreme Court’s past rulings have shown a distaste for serious crimes that lack a mens rea requirement. Seeing as violations of 18 U.S.C. § 924(c)(1)(B)(ii) carry particularly drastic penalties, the odds are high that the Court would hold that violations of the statute should carry a mens rea requirement.
