Ninth Circuit: Rehaif Error Requires Automatic Dismissal of Indictment
The case came before the Court after Omar Qazi was charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g). Prior to trial, Qazi filed a pro se motion to dismiss the indictment, arguing it failed to allege all the elements of the offense. After this motion was rejected by the U.S. District Court for the District of Nevada, Qazi proceeded to trial and was found guilty of the charge.
While his direct appeal was pending, the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), holding that a defendant’s knowledge of his felony status is a required element under § 922(g). Rehaif in effect added a “knowing” element to § 922(g).
This new rule applied to Qazi because his case was on appeal, and new rules apply to cases on direct review since the case is not yet final. Applying Rehaif to Qazi, the Court overturned his conviction, ruling that his pre-trial motion to dismiss the indictment should have been granted. This was despite the fact that the motion was filed before the Supreme Court’s decision in Rehaif.
Unlike several other Circuits that apply a “harmless error” review, the rule in the Ninth Circuit is that a pre-trial challenge to an indictment that lacks an element of the offense must be dismissed “regardless of whether the omission prejudiced the defendant,” the Court explained. United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999). But post-trial motions to dismiss an indictment are reviewed for plain error, the Court explained. United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007).
The Government responded to Qazi’s claim that the indictment lacked a necessary element of the charged offense by arguing the indictment tracked the language of the statute and set forth all the necessary elements.
The Court rejected the Government’s argument. While not a “model of clarity,” the Court said that even though Qazi never identified which element was lacking, the motion was enough to allege what was needed to succeed, at least when liberally construed as required when dealing with pro se motions. Haines v. Kerner, 404 U.S. 519 (1972) (pro se filings are held “to less stringent standards than formal pleadings drafted by lawyers”). “Even if he did not specifically identify the element he believed was missing,” the Court said, Qazi’s motion was sufficient to trigger Du Bo.
That being the case, the Court stated “applying that rule here is straightforward. On de novo review, Qazi’s indictment fails to recite an essential element of the charged offense.” (internal quotation marks and cite omitted). Thus, the Court ruled the indictment must be dismissed.
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Related legal case
United States v. Qazi
|Cite||975 F.3d 989 (9th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|