Mistake of Fact About Whether You're a Felon = Defense to Felon-in-Possession Statute (with Second Amendment in a Supporting Role):

Federal law bans felons from possessing firearms, but doesn't expressly say whether this applies only to people who know they are felons. Usually this doesn't matter, since it is the rare felon who's confused about whether he's a felon. But U.S. v. Kitsch (E.D. Pa. Aug. 1, 2008) (Dalzell, J.), involves such a case:

[Footnote: The facts are largely undisputed. Because we must decide whether Kitsch's version of the story would, if credited by the jury, justify acquittal, we resolve any factual disputes in his favor for purposes of this motion.] In 1988 and 1989, Kitsch was cooperating with law enforcement officials in Atlantic County, New Jersey in an investigation against a man named Dino Starn who was, among other things, growing marijuana in a barn on his property. As a means of helping the narcotics officer with whom he was working obtain evidence against Starn, Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department. When the fire department arrived, it found the marijuana growing in the barn and Starn was later charged.

As a result of the fire, Kitsch was charged with third-degree arson, a felony under both New Jersey and federal law. He pled guilty to the state offense after meeting with law enforcement officials who told him they would set aside the conviction and Kitsch could live as though the event had never happened. Although he served a thirty-day custodial sentence on Sundays, Kitsch avers that he truly and reasonably believed that his conviction had either been set aside or expunged. [More factual details omitted. -EV]

The district court concludes that under federal law Kitsch would be guilty only if he knowingly possessed a gun knowing that he was a felon, and that Kitsch is entitled to a jury instruction that "in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged."

The district court's reasoning chiefly rested on the general presumption against strict liability, to its reading of this statute, and to its reading of past precedents interpreting similar statutes; based on this, the court was willing to reject an out-of-circuit court of appeals precedent, United States v. Langley, 62 F.3d 602 (4th Cir. 1995), that held the contrary. But the court also suggested that the Second Amendment, as interpreted in D.C. v. Heller, supported its conclusion:

A statute that imposes criminal penalties for the exercise of an enumerated constitutional right despite defendant's reasonable belief in good faith that he has complied with the law must, at the very least, raise constitutional doubts. Post-Heller, the Government's desired construction of Section 922(g)(1) imposes just such a burden on defendants who, for whatever reason, reasonably believe that they are not felons within the statutory definition. Faced with a statute that raises this sort of doubt, it is "incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress."

The trial is yet to come; we'll see whether the court's ruling helped Mr. Kitsch. For a similar opinion concluding that a constitutional right to bear arms -- there, both the Second Amendment and a right to bear arms under the state constitution -- counseled against reading a gun control law as imposing strict liability, see State v. Williams, 148 P.3d 993 (Wash. 2006) (which I blogged about here).

nick99 (mail):
I must have missed something. Let me get this straight. This guy Kitsch is helping law enforcement catch a person farming an illegal crop. In the midst of Kitsch's cooperation, he makes an error in judgment and ends up burning down the alleged perp's barn. So then Kitsch is charged with arson? There must be something more to this story. Did Kitsch start the fire so he could distract fire dept or police while he stole some of the illegal crop? What's going on here?
8.11.2008 3:52pm
Brett Bellmore:
Actually, if the account is correct, it wasn't much more than a smudge pot to provide enough smoke to justify calling the fire department, in order that the pot would be revealed.

I think the real lesson here is, if they police tell you to just let yourself be convicted, they'll arrange for the conviction to be set aside later, laugh cynically and lawyer up as much as you can.
8.11.2008 3:58pm
He set the fire so the fire dept would have to show up. And when they saw the pot, they'd call the cops and get the grower in trouble. What a weasel...
8.11.2008 4:00pm

As a means of helping the narcotics officer with whom he was working obtain evidence against Starn, Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department.

But the narcotics officer wasn't accused of conspiracy to commit arson?

I'd like to support law enforcement and all that, but, really, shouldn't they have to obey the law, and tell the truth, and act like grown-ups?
8.11.2008 4:09pm
I wonder how rare that sort of fact pattern is?
8.11.2008 4:13pm
Brooks Lyman (mail):
I think Brett has the right of it, except that I'm not sure that I would get involved with Law Enforcement at all, in this sort of situation.

Seems to me, that what with problems like Mr. Kitsch's (and I've heard of similar cases) added to the possibility of problems from the drug people, that getting involved to the extent Kitsch did, is not very smart. Anonymous tips to the cops is about as far as I'd want to get involved in that sort of thing.
8.11.2008 4:15pm
Bill Poser (mail) (www):
On the basis of what I know of the New Jersey arson statute, Mr. Kitsch's first mistake was to plead guilty. Indeed, I don't understand why he was charged. In New Jersey the crime of arson requires that one set a fire that recklessly places a person in danger of injury or death or to: (a) deliberately destroy a structure or building or (b) collect insurance or payment; or (c) exempt or avoid building or zoning laws; (d) or destroy or damage forest. If all he did was set a small fire on a window sill and immediately call the fire department, it seems doubtful that he can be regarded as having recklessly placed anyone in danger. On the facts stated he was not trying to collect insurance, avoid the building code, destroy the barn, or damage a forest.

The most plausible basis for the charge was that setting any fire in a barn places the fire department at risk, but that seems pretty shaky in this case, assuming that no one was in the barn, so that the firemen, on arriving, would have no reason to endanger themselves in a collapsing barn, assuming the fire got out of control before they arrived.
8.11.2008 4:49pm
Houston Lawyer:
How many felons get to do 30 days in jail on Sundays only? I don't think that it was unreasonable for him to believe that he wasn't a felon. Also, I can't argue with giving the benefit of the doubt on a strict liability offense.
8.11.2008 4:51pm
FXK (mail):
While it seems unfair for Kitsch's criminal conviction to prevent him from owning a firearm, the guy seems far too stupid to be trusted to own a gun.
8.11.2008 5:08pm
Adam J:
nick99- I guess you did miss something, the part where setting fires is illegal. I don't see how the possibility of catching illegal activity justifies setting the fire either. Not to mention that any drugs that were seized were probably excluded from evidence due to Kitsch's boneheaded move, since he was basically acting as an agent for law enforcement.

Bill Poser- Actually, arson in the third degree only requires recklessly placing a building or structore of another in danger of damage or destruction. See the text below;

Arson. A person is guilty of arson, a crime of the third degree, if he purposely starts a fire or causes an explosion, whether on his own property or another's: ...(2) Thereby recklessly placing a building or structure of another in danger of damage or destruction...

That said, the court's reasoning seems sound... except I'm not sure it was reasonable for Kitsch to think his record was expunged.
8.11.2008 5:32pm
As a means of helping the narcotics officer with whom he was working obtain evidence against Starn, Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department. When the fire department arrived, it found the marijuana growing in the barn and Starn was later charged.
Kitsch did this at the cop's request? Wow, what a clever way of evading the Fourth Amendment... sorry, but I just lost all sympathy for this defendant.

Back on point: This case is a curiosity, but isn't going anywhere in the long run. It's hornbook law that general intent crimes require that the defendant knowingly do the act, but not that he also know the act is illegal. The classic formulation of Morissette v. United States, 342 U.S. 246, 270 (1952) is that defendant have "knowledge of the facts, though not necessarily the law." Here, the relevant factual elements of ยง922(g)(1) include (1) status as a felon, and (2) possession of a firearm. In theory it's correct that you should be able to argue that you didn't know you're a felon just like you didn't know there was a gun in the car you were driving when the cops pulled you over. But this defendant has no chance with this argument at trial.

When Kitsch pleaded guilty, there had to have been a plea colloquy in which the court adduced that the plea was voluntary, knowing and intelligent, which will either be obvious from the hearing transcript (if one exists) or at minimum will at least be recorded in the docketed conviction findings. For that matter, he surely signed the necessary post-conviction paperwork memorializing the fact and nature of his conviction. The fact that he only had to serve intermittent confinement isn't relevant to whether a conviction is a felony -- lots of felons escape doing jail time. Heck, even under the "strict" Federal Sentencing Guidelines, for an offender with no prior criminal history the first 10 offense levels allow for either straight probation or probation with intermittent confinement.

In most 922(g)(1) cases, the "felon" element is simply proven by entry of a certified record of conviction, and sometimes is even stipulated (by wise defendants who wish to not highlight for the jury the ugly details of their prior criminal records). In this case, the USAO will have to put on some additional evidence that the plea was actually voluntary, knowing and intelligent, and that it was never expunged. If so, that ought to be enough?

There more interesting case might be where there was a partial expungement of a defendant's record, or a partial civil rights restoration that didn't explicitly include firearms rights. Then the 922(g) defendant would have something objective to point to in support of his mistake of fact. Here, he has nothing like that (and I think the odds of him getting a cop to testify that he basically gave him transactional immunity is less than zero).
8.11.2008 5:34pm
Ex-Fed (mail) (www):
In my experience it is routine for defendants to have no clear concept of the nature of their previous convictions. This is especially true of traffic-related stuff (driving without a license, driving without insurance, etc.) which defendants tend to regard as "tickets" but which often are misdemeanors (and which often have grave consequences at later sentences -- like making drug defendants ineligible for the safety valve getting them below federal mandatory minimum sentences). But it's also sometimes true of felonies, particularly when defendants get charged with a raft of counts and plead to one or two of them.

These are not people with good listening skills. Plus, many of them have no jobs and tend to get held pending trial even on misdemeanor cases, so the consequence of a felony vs. a misdemeanor hit may not occur to them.

So I don't find the scenario unbelievable. I've sat too many times with clients after the Presentence Report comes back and heard them say "whoah -- that was a felony back then? I thought it was a misdemeanor."
8.11.2008 5:35pm
PatHMV (mail) (www):
Certainly the concept of mens rea is exceedingly important in the law. However, when the question before the jury becomes one solely of the defendant's subjective knowledge, are we not then in essence criminalizing thoughts rather than actions?

Also, whatever happened to the old adage, ignorance of the law is no excuse? This seems like it comes awfully close to allowing a subjective belief that conduct is lawful to justify acquittal. Very dangerous.
8.11.2008 6:09pm
Adam J:
zippypinhead- "Kitsch did this at the cop's request?" I suspect that this wasn't the type of cooperation that the police were seeking from Kitsch. If they did, I would think he'd have a valid entrapment defense.
8.11.2008 6:11pm
Adam J:
PatHMV- "However, when the question before the jury becomes one solely of the defendant's subjective knowledge, are we not then in essence criminalizing thoughts rather than actions?" Not when the thoughts have direct bearing on the culpability of the actions. Its the difference between someone accidently shooting someone (manslaughter if they were negligent or reckless) and intentionally shooting them (murder).
8.11.2008 6:14pm
Ak Mike (mail):
I once had the same case in reverse - I represented on appeal a fellow who was not a felon, but who was convicted of felon in possession because he and the government both mistakenly believed that he was a felon.

He had been convicted years earlier in another state that had a constitutional provision automatically pardoning any first time felon after five years. Long after he left that state he was pardoned, and his conviction legally expunged for federal and state purposes. But he didn't know that.

He was then arrested in our state on a state felon in possession charge, and pled no contest. His computerized information from the first state failed to show the pardon, and he thought he was guilty.

Then, he was arrested on a federal felon in possession charge, and as a two-time felon (he thought) pled guilty. Somehow he found out about the pardon, and his state lawyer managed to get the state felon in possession charge set aside. He then moved for the same relief in federal court, which was denied. I represented him in his appeal to the Ninth Circuit, which reversed. Pretty odd case.
8.11.2008 6:18pm
J. Aldridge:
I think statutes like California Penal Code Section 17 (b) makes it confusing. From the reading of it it appears you can be found guilty to a felony but if the judge doesn't send you to prison it is recorded as an automatic misdemeanor?
8.11.2008 6:47pm
Dave N (mail):
Ak Mike,

I had something similar--though I was a prosecutor. My state has an enhanced DUI statute and after a certain number, whiat is otherwise a misdemeanor is aggravated into a felony.

In any event, the defendant was duly convicted of felony DUI and was sent to prison to serve his sentence. The appellate court reversed his felony conviction and ordered him to be re-sentenced to a misdemeanor. However, by the time the decision came out, the defendant had completed his sentence and was on the streets.

Because he was not local, his attorney had no idea how to contact him--and all attempts to do so met with negative results. So somewhere in America, there is a defendant who thinks he is a felon because of a conviction in my state but who really isn't.
8.11.2008 7:04pm
Bill Poser (mail) (www):
Adam J,

If he only built a little smudge fire on the windowsill, it seems to me that he may well not have put the barn in any danger. The description doesn't make it entirely clear.
8.11.2008 8:30pm
David M. Nieporent (www):
By the way, nobody has commented on the other half of Kitsch's stupidity:
In 2003, the Secret Service began investigating a posting Kitsch made in an Internet chat room where he suggested that if the National Security Agency could take out Osama Bin Laden, it could perhaps do the same to Bill Clinton. In following up on the posting, Secret Service agents came to meet with Kitsch. During a meeting at his home in May of 2003, Kitsch voluntarily surrendered a handgun he was carrying, which was given back to him after the meeting. Kitsch also informed the agents about his gun collection. During the subsequent investigation, federal agents determined that Kitsch was a convicted felon. In August of 2003, agents returned to Kitsch's house with a search warrant and seized many firearms, a great deal of ammunition, and body armor.
That suggests he may really not have known he was a felon, btw. But in any case, why exactly did he have a "meeting at his home" with the Secret Service? When are people going to learn that "talk to my lawyer" is the only right response when one is the target of an investigation?
8.11.2008 11:09pm (mail) (www):
"Federal law bans felons from possessing firearms...."

How were the feds even allowed to make a "law" which they are Constitutionally FORBIDDEN from enacting in the first place? To Wit:

"The Right of the People to Keep and Bear Arms shall NOT be infringed".

"No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."

- Alexander Hamilton, Federalist #78

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is PARAMOUNT to ALL positive forms of government . . . The citizens must rush tumultuously to arms..."

- Alexander Hamilton, Federalist #28.

"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed..."

- Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821).

"Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers."

- Chief Justice John Marshall, U.S. Supreme Court. [As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]
8.12.2008 1:41am
Mack (mail):
"How were the feds even allowed to make a "law" which they are Constitutionally FORBIDDEN from enacting in the first place?"
Obviously you are not a constitutional scholar nor a lawyer so you wouldn't understand.
Or, maybe, they are just ignoring that little "shall not be infringed" thingy. Kinda like they ignore all those other pesky little constitutional thingys when it suits their purpose.
Rule of law my a**.
8.12.2008 7:45am
Adam J:
Bill Poser - I dunno, I think putting a smudge fire on the windowsill is "a substantial and unjustifiable risk" that the house would be damaged- substantial doesn't mean more likely then not, just that there's a decent chance of damage.
That said, it's pretty clear this guy didn't know it was a felony- he told his gun dealer he had legal trouble and the dealer ran a federal background check which came up clean (kinda makes you wonder about the effectiveness of those checks) before he bought the weapons. And note Nieporent's comment above, he told the freaking Secret Service about his gun collection. I can't imagine how the prosecution will continue the case in light of this ruling.

David M. Nieporent- "nobody has commented on the other half of Kitsch's stupidity" Well duh, that would require reading the case before commenting on it, which would break one of the cardinal rules of blogging- only comment when you're completely uninformed about the subject.
8.12.2008 10:26am
hey (mail):
Poser: obviously he is FAR too stupid to be allowed to possess a gun, drive a car, or convert oxygen into carbon dioxide.

"Plead guilty and we'll expunge it" hahahahaha. That cop sure had some chutzpah. Obviously that kind of offer works, but really how low an IQ do you have to have to do something like that? Never mind agreeing to light a fire for the cops.
8.12.2008 7:36pm
I don't think the Kitsch case needed to have gone any further than the ruke of lenity. A presumption of a scienter requirement unless criminal statute unless the terms say otherwise isn't much of a stretch. And when the statute actually contains the word "knowingly" with nothing whatsoever to qualify or limit it, applying that term to all of a crime's elements rather than judicially reading in a limitation to those the government favors would seem less of a stretch still.

I see no reason to get involved in any constitutional analysis here. Simple rules of statutory interpretation should suffice.
8.13.2008 1:58am
Note: the rule of lenity is itself constitutionally grounded, but in traditional procedural Due Process concepts such as notice. Nothing fancy.
8.13.2008 1:59am