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United States v. Phyfier

United States District Court, M.D. Alabama, Northern Division

August 5, 2019

UNITED STATES OF AMERICA
v.
CYRUS PHYFIER

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE.

         Defendant Cyrus Phyfier is charged with ten drug and gun-related counts, including two counts of being a felon in possession of a firearm and ammunition. This June, the Supreme Court held that to convict a defendant of being a felon in possession under 18 U.S.C. § 922(g) and § 924(a)(2), the government must prove that he knew he was a convicted felon when he possessed the firearm or ammunition. See Rehaif v. United States, 139 S.Ct. 2191, 2200 (2019). Subsequently, this court ordered the parties to brief two issues: whether, in light of Rehaif, (1) the single felon-in-possession charge in the first superseding indictment against Phyfier was defective and should be dismissed, and (2), if the charge is not dismissed, evidence that Phyfier received a concealed-carry permit and state pardon is admissible. Having considered the parties' briefing, the court holds that the two felon-in-possession charges in the later, second superseding indictment are not defective, and that neither the permit nor pardon are admissible as substantive evidence to negate that Phyfier was a felon-in-possession.

         A. Defective Indictment Issue

         A grand jury has returned three indictments against Phyfier in this case: the original indictment, the first superseding indictment, and the second superseding indictment. Only the first and second superseding indictments are relevant here.

         The first superseding indictment contained a single felon-in-possession charge and alleged that Phyfier, having been convicted of a felony, “did knowingly possess a firearm and ammunition.” Superseding Indictment (doc. no. 143) at 4. It did not accuse him of knowing that he was a convicted felon when he possessed the gun and ammunition. This omission raised the possibility that, under Rehaif, the indictment was defective as to the felon-in-possession charge. See United States v. Martinez, 800 F.3d 1293, 1295 (11th Cir. 2015).

         The government concedes that Rehaif applies to Phyfier's case. See Gov't Brief on Rehaif (doc. no. 581) at 2-4. Nevertheless, the government addressed any possible Rehaif defect by obtaining a second superseding indictment. The second superseding indictment asserts a second felon-in-possession charge and alleges that Phyfier knowingly possessed a firearm and ammunition, “knowing that he had been convicted” of a felony. Second Superseding Indictment (doc. no. 582) at 4-5. The second superseding indictment thus properly alleges that “the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Rehaif, 139 S.Ct. at 2194. In fact, Phyfier concedes that the second superseding indictment “did cure the defect in the original indictment.” Def. Brief on Rehaif (doc. no. 585) at 3.

         Accordingly, the two felon-in-possessions counts in the second superseding indictment are not defective and remain in this case.

         B. Permit and Pardon Issue

         The government moved to exclude evidence that the Montgomery County Sheriff's Office issued Phyfier a permit to carry a concealed weapon. See Motion in Limine (doc. no. 498). The government also seeks to exclude a copy of a pardon that Phyfier received for prior state convictions, which expressly states: “THIS PARDON DOES NOT RESTORE THE RIGHT TO SHIP, TRANSPORT, POSSESS OR RECEIVE FIREARMS, AS PROHIBITED BY THE FEDERAL GUN CONTROL ACT (18 USCA SECTION 922).” Pardon (555-1) at 1. According to the government, the evidence of the permit and pardon is irrelevant and thus inadmissible.

         Evidence is relevant if has any tendency to make more or less probable a “fact [that] is of consequence in determining the action.” Fed.R.Evid. 401. Phyfier posits two possible theories under which evidence of the permit and pardon would bear on facts of consequence to his felon-in-possession charges, and thereby be relevant and admissible. The first theory is that the evidence furthers his entrapment-by-estoppel defense to the felon-in-possession counts. The second theory is that the evidence tends to disprove that he had the knowing mental state required by Rehaif. As explained below, both theories of relevance fail.

         1. Entrapment-by-Estoppel Theory

         “Entrapment-by-estoppel is an affirmative defense that provides a narrow exception to the general rule that ignorance of the law is no defense.” United States v. Funches, 135 F.3d 1405, 1407 (11th Cir. 1998). To raise the defense successfully, the defendant must “actually rely on a point of law misrepresented by an official, ” and such reliance must be “objectively reasonable--given the identity of the official, the point of law represented, and the substance of the misrepresentation.” Id. In some circumstances, the defense may apply to counter a felon-in-possession charge. See Id. (citing United States v. Thompson, 25 F.3d 1558, 1563-64 (11th Cir. 1994)).

         Critically, however, the Eleventh Circuit has clarified that the defense “is not applicable where the state incorrectly advises the person and, then, the federal government prosecutes the person.” Id. (citing United States v. Bruscantini, 761 F.2d 640, 642 (11th Cir. 1985)). In other words, “entrapment-by-estoppel, when asserted as a defense to a federal crime, requires reliance on a misstatement by an official or agent of the federal government.” Id. (emphasis added).

         Because the permit was issued by the Montgomery County Sheriff's Office--rather than by a federal agent or official--evidence of the permit does nothing to further a potential estoppel-by-entrapment defense to the federal felon-in-possession charges here. Hypothetically, if Phyfier also proffered evidence of a misstatement by a federal official or agent, the Montgomery permit-related evidence might be relevant to showing the reasonableness of his reliance on the federal misstatement. But that is not the case here: there is no proffered evidence of a misstatement of law by a federal agent or official. ...


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