     Case: 19-60103      Document: 00515273886         Page: 1    Date Filed: 01/15/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 19-60103                       January 15, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

ANKIT PURI,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC 3:18-CR-115-1


Before DAVIS, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Ankit Puri appeals his conviction for being an alien in possession of a
firearm. Applying plain error review, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 19-60103
                                   I.     Background
      A jury convicted Ankit Puri of one count of being an alien in possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(5)(A) 1 and 924(a)(2). Puri is an
Indian national who entered the United States in June 2015 after obtaining a
visa that allowed him to remain legally until December 28, 2015.
      On March 3, 2018, Puri was working as a clerk at a convenience store.
He nonfatally shot a customer with a firearm after a confrontation.
      At Puri’s trial, Anthony Williams, a special agent with Homeland
Security Investigations, testified that he first came in contact with Puri on May
4, 2018, after Puri had been arrested by immigration officials. At the time,
Puri was being processed by Immigration and Customs Enforcement officers
to be removed from the United States and deported back to India. Williams
testified that Puri had been admitted into the United States on a
nonimmigrant B-2 visa, which had a departure date of December 28, 2015. He
confirmed that after December 28, 2015, Puri was unlawfully present in the
United States. Williams also confirmed that Puri was not permitted to possess
a firearm once he overstayed his visa.
      Williams interviewed Puri on June 19, 2018.                An audiotape of the
interview was admitted into evidence, and a portion of it was played for the
jury (although the court reporter failed to transcribe the portion played).
During the interview, Puri admitted that he was in removal proceedings to be
deported back to India because he overstayed his visa, that he was not
supposed to be working, and that he was not allowed to possess a firearm.
Williams specifically asked whether Puri knew that he was “not allowed to




      1 This section makes it “unlawful” for anyone who is “illegally or unlawfully in the
United States” to “possess in or affecting commerce, any firearm.”
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                                    No. 19-60103
have a firearm,” and Puri responded: “But I was not having that firearm, was
not me, it was keeping at store.”
      On cross examination, Williams testified that, at some point, Puri had
been released on an immigration bond. Puri’s receipt for the bond showed that
he paid a $10,000 cash bond to be released from custody pending the outcome
of his removal proceedings. According to Williams, the receipt does not impart
any kind of legal status, and after the receipt was issued, Puri was still illegally
or unlawfully present in the United States.
      Puri represented himself at trial. Regarding his status in the United
States, Puri testified that he was “being paroled.” When asked by the court
what he meant, Puri responded that he “was given an ID card I-94 . . . which
make[s him] legal in United States, not legal as a voter but legal as to verify.”
The court asked him whether he meant that he was legally present in the
United States, and Puri responded, “Yes, sir.” After discussing the form I-94
further, Puri reaffirmed his belief that he was present in the United States
legally.
      On cross examination, Puri confirmed that he had been admitted under
a nonimmigrant visa, that the visa had expired, and that he had overstayed
his visa by more than two years when the shooting occurred. Additionally,
Puri admitted that in 2017, immigration agents had picked him up to process
him for removal. While awaiting his removal hearing, he posted a $10,000
bond. When asked whether the receipt for the bond meant that he was legally
in the United States, Puri responded “[n]ot this particular document. I applied
for asylum, too, which also say[s] that I am lawfully present” in the United
States. Regarding the bond receipt, Puri stated “[i]t’s not saying that I am
legally but it say[s] that I am admitted in [the] United States.”
      Later, the Government asked Puri if he was “in an illegal status on the
day that” the shooting occurred, and Puri denied that he was. When asked
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why he told Williams that he had “illegal status,” Puri responded that at the
time he spoke with law enforcement officials, he did not know “what I-94
stands for,” and he subsequently learned from “law books” that he was
“paroled” in the United States. Nevertheless, Puri responded affirmatively
that in his interview he had admitted to Williams that he had overstayed his
visa and was “illegal.”
      Williams testified again on rebuttal. He stated that Puri’s bond receipt
“in no way gives him any type of immigration status” and that the I-94 form
was “simply an arrival and departure form.” He also testified that Puri’s record
contained no evidence showing that Puri had applied for or received any type
of asylum and, even if he had filed an application for asylum, such an
application would not have changed his legal status.
      In instructing the jury, the district court read count one of the
indictment, which alleged in relevant part that Puri, “being then and there an
alien illegally and unlawfully in the United States, did knowingly possess a
firearm, to wit: a Glock 9mm Pistol, which had been previously transported in
interstate commerce.” The court then summarized a list of the elements for
the offense, including that the Government prove he was an alien unlawfully
and illegally in the United States. Regarding the term “knowingly,” the district
court stated,
      So, first of all, if you study the indictment, you will notice that the
      government has to prove by proof beyond a reasonable doubt that
      the defendant here knowingly possessed a firearm as charged.
      Knowingly possessed. And what do I mean by knowingly
      possessed? The word “knowingly,” as that term has been used in
      the indictment, means that the act was done voluntarily and
      intentionally and not because of mistake or accident. So then, as
      I said, the first part you have to consider [is] whether he knowingly
      possessed a firearm. I just read you the definition of knowingly:
      That he had under his control, in his hands, et cetera, a firearm,
      and that he knew that it was a firearm.

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                                   No. 19-60103
The instruction did not include as an element the requirement that Puri knew
he was “illegally or unlawfully” present in the United States when he possessed
the firearm. Puri did not object to the jury charge.
      During his closing argument, Puri conceded that he knowingly possessed
a firearm and shot a person, but he did not concede that he was present
“illegally or unlawfully” when the incident occurred. Notably, he stated that
on the day of the shooting, “[he] was not illegal in United States because of
[his] pending application, definition of I-94, and the immigration codes.”
      In its closing argument, the Government contended that “[r]egardless of
what the defendant thinks of his own status, what’s important is what the law
says,” and Williams had testified that Puri was not legally present on the date
of the incident, “despite whatever [Puri] may want to believe.”
      After Puri was convicted, the district court sentenced him to 30 months’
imprisonment and three years of supervised release. Puri timely appealed.
                          II.    Standard of Review
      Because Puri did not object to the indictment or the jury instructions in
the district court, we review for plain error. See United States v. Bolton, 908
F.3d 75, 87–88 (5th Cir. 2018) (reviewing for plain error where the defendant
did not preserve his objection to the indictment); United States v. Percel, 553
F.3d 903, 909 (5th Cir. 2008) (same for a jury instruction). Plain error exists
where (1) there is an error; (2) the error is plain; and (3) the error affected the
defendant’s substantial rights. Percel, 553 F.3d at 909. If the first three prongs
are met, we have discretion to correct the error if it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
                                III.   Discussion
      Puri argues that the indictment and jury charge omitted an essential
element of his offense because neither referenced the issue of whether Puri
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knew he was “illegally or unlawfully” present in the United States at the time
that he possessed the firearm. We conclude that the first two prongs of plain
error review are met, but not the third.
       The Supreme Court recently decided Rehaif v. United States, 139 S. Ct.
2191 (2019). 2 The Court held that, to convict a defendant under § 922(g) and
§ 924(a)(2), which is the same offense as Puri’s conviction, the Government
must prove that the defendant knew he belonged to the category of persons
barred from possessing a firearm. Id. at 2200.
       “[T]he defendant’s status is the crucial element separating innocent from
wrongful conduct[,]” so if a defendant does not know that he is unlawfully in
the United States, then he “does not have the guilty state of mind that the
statute’s language and purposes require.” Id. at 2197–98 (internal quotation
marks and citation omitted). Accordingly, the Government must prove that
the defendant knew he belonged to the class of persons prohibited from
possessing a firearm in addition to proving that he knowingly possessed a
firearm. Id. at 2200.
       In this case, neither the indictment nor the jury charge included what
the Supreme Court determined to be a “crucial element” of Puri’s offense: that
he knew of his status when he possessed the firearm. Id. at 2197. Accordingly,
we conclude that the indictment omitted an essential element of the charge
and that the district court erred when it instructed the jury.




       2  At the time of Puri’s trial, Rehaif had not been decided, but plain error review
addresses the law at the time of appeal such that Rehaif applies. See United States v.
Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (“[W]here the law is unsettled at the time
of trial but settled by the time of appeal, the ‘plainness’ of the error should be judged by the
law at the time of appeal.”); see also Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (“When
a decision of [the Supreme] Court results in a new rule, that rule applies to all criminal cases
still pending on direct review.” (internal quotation marks and citation omitted)).
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      Further, the error was plain. “An indictment is legally sufficient if
(1) each count contains the essential elements of the offense charged, (2) the
elements are described with particularity, and (3) the charge is specific enough
to protect the defendant against a subsequent prosecution for the same
offense.” United States v. Cooper, 714 F.3d 873, 877 (5th Cir. 2013) (internal
quotation marks and citation omitted). Here, the indictment was not legally
sufficient because it did not contain an essential element. Similarly, a jury
charge must correctly instruct the jurors on the law. See United States v.
Fairley, 880 F.3d 198, 208 (5th Cir. 2018). The district court’s charge did not,
and its exclusion of an essential element of the crime amounted to plain error.
See United States v. Flitcraft, 803 F.2d 184, 186–87 (5th Cir. 1986).
      Having found the first two prongs of plain error review are met, we turn
to the third: whether the error affected Puri’s substantial rights. “To show that
a clear and obvious error affected his substantial rights, a defendant must
show a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” United States v. Wikkerink, 841 F.3d
327, 337 (5th Cir. 2016) (quoting Molina-Martinez v. United States, 136 S. Ct.
1338, 1343 (2016)) (quotation marks omitted). The district court judge
instructed the jury that it had to find Puri was, at the time of possession, an
alien unlawfully and illegally in the United States. As always, we presume that
the jury followed these instructions in reaching its guilty verdict. The judge did
not, however, instruct the jury that it also had to find Puri knew he was an
alien unlawfully and illegally in the United States at the time he possessed the
firearm.
      Puri argues on appeal that this error affected his substantial rights. He
contends that had the jury received proper instructions, it could have
concluded he did not know he belonged to the category of persons barred from
possessing a firearm. The Government presented evidence supporting the
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conclusion that Puri was aware of his unlawful status on the relevant date,
and Puri presented no evidence at trial that could lead a jury to the opposite
conclusion. Rather, Puri reaffirmed that, at the time he possessed the firearm,
he believed that he was unlawfully present.          The jury heard Puri’s FBI
interview (that occurred after the date of the gun possession in question), in
which he stated he realized he overstayed his visa and was consequently in
removal proceedings. Puri presented no contrary evidence of his state of mind
in this respect on the date the offense was committed. Instead, he presented
an argument in the nature of a legal position: that he actually was lawfully
present due to an I-94 form he submitted. But when asked why he stated
otherwise to the FBI officer, Puri explained, “Because at that time I didn’t
knew that this – this definition of what I-94 stands for, and I didn’t knew that
that time. . . . [A]t that time I didn’t knew that ID is valid for your legalization
or not.” Puri thus affirmed that, at the time he possessed the firearm, he knew
he belonged to the category of persons barred from possessing a firearm; the I-
94 argument came later. Puri’s current legal position that the I-94 form given
to him meant he was legally in the country was both clearly incorrect and
necessarily rejected by the jury when it implicitly found he was unlawfully
present in the United States. Because the evidence supports Puri’s mens rea
at the time of the offense and he made no showing to the contrary, he cannot
now contend the outcome of the proceeding would have been different but for
the district court’s error.
      AFFIRMED.




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