United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE.
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.
Defective Indictment Issue
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.
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).
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.
the two felon-in-possessions counts in the second superseding
indictment are not defective and remain in this case.
Permit and Pardon Issue
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.
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
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)).
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).
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.