                                                                            RECOMMENDED FOR FULL-TEXT PUBLICATION
8    United States v. Beavers                   No. 99-1829                      Pursuant to Sixth Circuit Rule 206
                                                                         ELECTRONIC CITATION: 2000 FED App. 0058P (6th Cir.)
                                                                                     File Name: 00a0058p.06
law until September 30, 1996. Second, the state of Michigan
is under no obligation to update state-law violators on recent
additions to federal law. Finally, the pistol returned by the
state was only one of three firearms found in Beavers’s          UNITED STATES COURT OF APPEALS
possession on November 20, 1997. We therefore find                                 FOR THE SIXTH CIRCUIT
Beavers’s argument that § 922(g)(9) should not be applied to                         _________________
him because of the state of Michigan’s lack of notice to be
without merit.
                                                                                               ;
                                                                                                
                   III. CONCLUSION                                UNITED STATES OF AMERICA,
                                                                                                
                                                                            Plaintiff-Appellee,
                                                                                                
  For all of the reasons set forth above, we AFFIRM the

                                                                                                
judgment of the district court.                                                                               No. 99-1829
                                                                            v.
                                                                                                
                                                                                                 >
                                                                  JEFFREY BEAVERS,              
                                                                          Defendant-Appellant. 
                                                                                               1

                                                                           Appeal from the United States District Court
                                                                          for the Eastern District of Michigan at Detroit.
                                                                         No. 97-81410—Paul D. Borman, District Judge.
                                                                                   Argued: December 7, 1999
                                                                              Decided and Filed: February 16, 2000
                                                                    Before: COLE and GILMAN, Circuit Judges; CARR,
                                                                                    District Judge.*




                                                                     *
                                                                      The Honorable James G. Carr, United States District Judge for the
                                                                 Northern District of Ohio, sitting by designation.

                                                                                                   1
2     United States v. Beavers                     No. 99-1829      No. 99-1829                    United States v. Beavers      7

                    _________________                               prohibitum, and requiring the government to prove that the
                                                                    defendant knew that his conduct was a crime would unduly
                         COUNSEL                                    reward those who plead ignorance of the law as a defense.
ARGUED: R. Steven Whalen, Detroit, Michigan, for                       Based on the reasoning in Baker and Meade, and the
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED                     majority opinion in Wilson, we conclude that Beavers’s
STATES ATTORNEY, Detroit, Michigan, for Appellee.                   conviction on a domestic violence offense sufficiently placed
ON BRIEF: R. Steven Whalen, Detroit, Michigan, for                  him on notice that the government might regulate his ability
Appellant. Kathleen Moro Nesi, ASSISTANT UNITED                     to own or possess a firearm. As noted in Baker and Meade,
STATES ATTORNEY, Detroit, Michigan, for Appellee.                   domestic abuse is a well-known problem, and it should not
                                                                    surprise anyone that the government has enacted legislation
                    _________________                               in an attempt to limit the means by which persons who have
                                                                    a history of domestic violence might cause harm in the future.
                        OPINION                                     Compare Lambert, 355 U.S. at 229 (noting that the Los
                    _________________                               Angeles ordinance requiring felons to register was primarily
                                                                    a bookkeeping aid for law enforcement). When Beavers
  RONALD LEE GILMAN, Circuit Judge. This is an appeal               committed the domestic violence offense, he “removed
from the district court’s order denying Jeffrey Beavers’s           himself from the class of ordinary and innocent citizens” who
motion to withdraw his guilty plea and to dismiss his               would expect no special restrictions on the possession of a
indictment for the possession of firearms in violation of 18        firearm. See Bostic, 168 F.3d at 722. We therefore conclude
U.S.C. § 922(g)(9). Section 922(g)(9) prohibits a person            that § 922(g)(9) is constitutional, even though it does not
previously convicted of “a misdemeanor crime of domestic            require the government to prove that the defendant had actual
violence” from possessing a firearm. Beavers argues that this       knowledge that his possession of a firearm was illegal.
section violates his due process rights under the Fifth
Amendment because it does not require the government to             C. Section 922(g)(9) is constitutional as applied to
prove, as an element of the offense, that he knew that his             Beavers
possession of a firearm was illegal. The district court rejected
Beavers’s ignorance-of-the-law defense. For the reasons set           Beavers also argues that § 922(g)(9) is unconstitutional as
forth below, we AFFIRM the judgment of the district court.          applied to the facts in the present case because the state of
                                                                    Michigan misled him by returning one of his pistols in July of
                     I. BACKGROUND                                  1996 without telling him about the future applicability of
                                                                    § 922(g)(9). The government initially argues that Beavers
  On December 23, 1998, Beavers pled guilty to the charge           failed to preserve the issue for appeal. This is incorrect,
of possessing a firearm in violation of § 922(g)(9). As part        however, because the district court stated “that the plea is
of the factual basis underlying his plea, Beavers admitted that     made under 11(a)(2), which will allow him to appeal the
he had pled guilty in 1995 to a misdemeanor domestic assault        constitutionality of the statute and the application to him.”
charge. He further admitted that on November 20, 1997 he            (Emphasis added.)
had possession of two pistols and a shotgun at his home in
Lambertville, Michigan. At his change-of-plea hearing,                On the other hand, we agree with the government’s position
Beavers made the following statement: “And I did have the           that Beavers’s “as applied” argument lacks merit. First of all,
three firearms at the time that--of the original Indictment, and-   § 922(g)(9) did not exist in July of 1996. It did not become
6      United States v. Beavers                    No. 99-1829     No. 99-1829                     United States v. Beavers        3

    his conduct was subject to increased government                -[h]owever, I would like to add I didn’t know that the law
    scrutiny. Because it is not reasonable for someone in his      existed. Nevertheless, I am guilty of having the firearms.”
    position to expect to possess dangerous weapons free
    from extensive regulation, Baker cannot successfully             On July 6, 1999, Beavers moved to withdraw his guilty plea
    claim a lack of fair warning with respect to the               and to dismiss the indictment on the ground that § 922(g)(9)
    requirements of § 922(g)(8).                                   violated his due process rights under the Fifth Amendment.
                                                                   At the hearing on Beavers’s motion, the parties agreed that (1)
Baker’s rejection of the ignorance of the law defense is well-     in 1995, Beavers was placed on state probation for the
reasoned and highly persuasive on the similar issue before us.     misdemeanor offense of domestic assault, (2) a condition of
                                                                   the probation was that he was not allowed to possess a firearm
  The First Circuit has also addressed a challenge to              while on probation, (3) Beavers was discharged from
§ 922(g)(8), setting forth its analysis as follows:                probation in 1996, (4) the state order prohibiting him from
                                                                   possessing firearms was no longer effective once he was
    [Defendant] nevertheless tries to bring his case within the    discharged, (5) after Beavers was discharged, the state
    Lambert exception by arguing that firearms possession is       returned one of his pistols to him, (6) the pistol was returned
    an act sufficiently innocent that no one could be expected     in July of 1996, approximately three months before the
    to know that he would violate the law merely by                effective date of § 922(g)(9), and (7) Beavers continued to
    possessing a gun. . . . But possession of firearms by          have possession of the guns after September 30, 1996, the
    persons laboring under the yoke of anti-harassment or          effective date of the federal statute. After considering the
    anti-stalking restraining orders is a horse of a different     parties’ arguments, the district court denied Beavers’s motion.
    hue. The dangerous propensities of persons with a
    history of domestic abuse are no secret, and the                 Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal
    possibility of tragic encounters has been too often            Procedure, the parties, with the approval of the district court,
    realized. We think it follows that a person who is subject     agreed that Beavers would enter a conditional guilty plea,
    to such an order would not be sanguine about the legal         reserving his constitutional issue for appeal. Beavers was
    consequences of possessing a firearm, let alone of being       then sentenced to a term of two months of incarceration,
    apprehended with a handgun in the immediate vicinity of        followed by two months of home confinement and two years
    his spouse. . . . We therefore reject the appellant’s          of supervised release, and fined $2,000.
    contention that the statute, on its face, violates due
    process rights of notice.                                                              II. ANALYSIS
United States v. Meade, 175 F.3d 215, 226 (1st Cir. 1999);         A. Standard of review
see Baker, 197 F.3d at 220 (adopting the reasoning in Meade).
                                                                     The main issue before the court is whether § 922(g)(9) is
  Although Chief Judge Posner’s dissent in Wilson has a            unconstitutional in light of the fact that it does not require the
certain surface appeal, in the end it proves too much. He          government to prove, as an element of the offense, that
argues that the statute is malum prohibitum, “that is, it is not   Beavers knew that his possession of a firearm was illegal.
the kind of law that a lay person would intuit existed because     We review de novo a challenge to the constitutionality of a
the conduct it forbade was contrary to the moral code of his       federal statute. See, e.g., United States v. Brown, 25 F.3d
society.” Wilson, 159 F.3d at 294. But the lack of intuitive       307, 308 (6th Cir. 1994).
wrongfulness is the hallmark of all laws that are malum
4     United States v. Beavers                      No. 99-1829       No. 99-1829                    United States v. Beavers       5

B. Section § 922(g)(9) is constitutional despite the fact             rights under the Fifth Amendment because he had no notice
   that it does not require the government to prove that              that his possession of a firearm was a federal offense.
   Beavers knew that his conduct was illegal                          Beavers points out that prior to the effective date of the
                                                                      statute, a person convicted of a misdemeanor domestic
   Section § 922(g)(9) provides, in pertinent part, as follows:       violence offense was not prohibited from possessing firearms
“It shall be unlawful for any person . . . who has been               under § 922.
convicted in any court of a misdemeanor crime of domestic
violence . . . to . . . possess . . . any firearm . . . .” The mens     In Wilson, the Seventh Circuit held that § 922(g)(8) does
rea requirement for § 922(g)(9) is contained in § 924(a)(2),          not violate the Fifth Amendment. That subsection prohibits
which states that “[w]hoever knowingly violates . . .                 the possession of a firearm by anyone subject to a domestic
[§ 922(g)(9)] shall be fined as provided in this title,               restraining order, which is a companion provision to
imprisoned not more than 10 years, or both.” In an analogous          § 922(g)(9) in question here. The majority held that a person
context, other circuits have held that the term “knowingly”           could “knowingly” violate § 922(g)(8) even if he did not
only requires that the accused know that he possessed a               know that his conduct was illegal. See Wilson, 159 F.3d at
firearm, not that he knew that such possession was illegal.           293. In dissent, Chief Judge Posner wrote that the
See United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir.           government should be required to show that the defendant
1999) (holding that, although the term “willfully” as used in         knew that his act of possessing the firearms after the issuance
parts of § 922 does have such a requirement, “knowingly”              of the restraining order was illegal. See id. at 296.
under § 924(a)(2) does not require the defendant to be aware
that his conduct is illegal); United States v. Capps, 77 F.3d           Chief Judge Posner, however, did not find that § 922(g)(8)
350, 352 (10th Cir. 1996) (“No circuit has extended the               violated the Fifth Amendment. Instead, he reasoned that it
knowledge component of § 922 beyond the act of possession             was a “linguistically permissible interpretation of the statute”
itself.”).                                                            to conclude that the government had to prove that the
                                                                      defendant knew that his conduct was a crime. See id. Based
   Beavers acknowledges that ignorance of the law does not            upon Chief Judge Posner’s dissent, a district court in Texas
generally excuse criminal conduct. See Cheek v. United                held that § 922(g)(8) “is an obscure, highly technical statute
States, 498 U.S. 192, 199 (1991). He argues, however, that            with no mens rea requirement” that violates the Fifth
§ 922(g)(9) is an exception because it is a highly technical          Amendment. See United States v. Emerson, 46 F.Supp.2d
statute that could ensnare individuals engaged in apparently          598, 613 (N.D. Tex. 1999); but see United States v. Spruill,
innocent conduct. See generally Lambert v. California, 355            61 F. Supp.2d 587, 589 (W.D. Tex. 1999) (rejecting
U.S. 225 (1957) (declaring unconstitutional a city ordinance          Emerson’s analysis and noting that three other circuit courts
that punished felons who failed to register with the police           have found that § 922(g)(8) is constitutional despite not
department, even if they had no knowledge of the                      requiring actual knowledge of illegality).
requirement).
                                                                        In the recent case of United States v. Baker, 197 F.3d 211,
  Relying upon the dissenting opinion in United States v.             220 (6th Cir. 1999), this court addressed whether § 922(g)(8)
Wilson, 159 F.3d 280, 293 (7th Cir. 1998), and the case of            violates a defendant’s due process rights, concluding as
United States v. Emerson, 46 F. Supp.2d 598 (N.D. Tex.                follows:
1999), Beavers argues that his indictment under § 922(g)(9)
should have been dismissed as a violation of his due process            The fact that Baker had been made subject to a domestic
                                                                        violence protection order provided him with notice that
