United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE
the Court is the Motion for Judgment of Acquittal or, in the
Alternative, for New Trial (Doc. No. 96) filed by Defendant
Chad Kaspereit pursuant to Federal Rules of Criminal
Procedure 29 and 33. Plaintiff the United States of America
responded in opposition to the motion (Doc. No. 102) and
Defendant replied (Doc. No. 104). Having considered the
parties' submissions, the Court finds as follows.
17, 2019, a jury returned a verdict of guilty charging Mr.
Kaspereit with making a false statement on an ATF form in
connection with the purchase of a firearm, in violation of 18
U.S.C. § 922(a)(6) (Count One), and for being a
prohibited person in possession of a firearm, in violation of
18 U.S.C. § 922(g)(8) (Count Two). (Doc. No. 78). After
the jury trial, the Supreme Court issued its decision in
Rehaif v. United States, 139 S.Ct. 2191 (2019),
clarifying the requirements for conviction under §
922(g). As relevant here, the Court held that in a
prosecution under § 922(g), the Government must prove
the defendant “knew he belonged to the relevant
category of persons barred from possessing a firearm.”
Id. at 2200. Based upon this post-trial change in
the law, Defendant Mr. Kaspereit seeks a judgment of
acquittal arguing that the evidence at trial was not
sufficient to charge him on Count One or Count Two. In the
alternative, Mr. Kaspereit argues that a new trial must be
granted as to both counts because the Court failed to include
Rehaif's knowledge requirement in the jury
instructions. Plaintiff objects to Defendant's arguments.
Upon review, the Court DENIES Defendant's motion.
the Court denies Defendant's motion as to Count One. The
Supreme Court in Rehaif expressed no view about
provisions-like 922(a)(6)-which were not at issue in the
case. See Rehaif v. United States, 139 S.Ct. 2191,
2200 (2019). What's more, § 922(a)(6) already
contains a knowledge requirement, on which the jury was
instructed, and evidence was presented.
Count Two, the Court addresses in turn Defendant's motion
for judgment of acquittal and his motion for new trial. In
considering a Rule 29 motion for judgment of acquittal based
upon the insufficiency of the evidence at trial, the Court
may deem the evidence “sufficient to support a
conviction if, viewing the evidence and the reasonable
inferences therefrom in the light most favorable to the
government, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt.” United States v.
Benford, 875 F.3d 1007, 1014 (10th Cir. 2017). The
Defendant argues that under the standard announced in
Rehaif, the evidence presented at trial was
insufficient to convict. But, in reviewing Defendant's
claim, the Court must analyze the sufficiency of the evidence
“under the law in effect at the time of the
trial.” See Benford, 875 F.3d at 1014-15
(citing United States v. Wacker, 72 F.3d 1453, 1465
(10th Cir. 1995) and United States v. Houston, 792
F.3d 663, 669-70 (6th Cir. 2015)).
evidence presented was sufficient under the law governing at
the time of trial. As set forth in the instructions presented
to the jury at trial, the Government was required to prove
three elements beyond a reasonable doubt:
FIRST: the Defendant knowingly possessed a
SECOND: the Defendant was subject to a
protective order at the time of possession; and
THIRD: before the Defendant possessed the
firearm, the firearm had moved at some time from some state
to another or from a foreign country to the United States.
74, at 23). First, Mr. Kaspereit testified that he knowingly
possessed a firearm. (Doc. No. 99, p. 302:19-303:1,
316:15-317:2, 328:22-329:12). Second, he concedes that he was
subject to a protective order at the time of possession.
(Doc. No. 96, p. 5). Third, he stipulated to the interstate
nexus of the firearms. (Gov't. Ex. 54). Finally, Mr.
Kaspereit makes no argument that the evidence was
insufficient to support a conviction on the elements of Count
Two as instructed by the Court. Mr. Kaspereit's motion
for acquittal based upon the insufficiency of the evidence at
trial is therefore subject to dismissal.
the Court were to evaluate the Defendant's challenge
under the law as clarified in Rehaif, the Defendant
would not be entitled to acquittal. Rehaif did not
affect the first or third element of Count Two. But to
satisfy the second element of Count Two under
Rehaif, the Government would have had to prove that
Mr. Kaspereit knew he was subject to a protective order at
the time he possessed a firearm. See Rehaif, 139
S.Ct. at 2194. Accordingly, Defendant argues that acquittal
is required because there was no evidence establishing that
Mr. Kaspereit knew of his protective order at the time of
possession. He is incorrect. Mr. Kaspereit was charged with
possession of a firearm between December 7, 2017 and February
26, 2018. At trial, the jury was presented with witness
testimony describing Mr. Kaspereit's knowledge of the
protective order filed against him during the relevant
period. (Doc. No. 98, p. 45:2-47:3, 115:7-117:22). Moreover,
Mr. Kaspereit testified that he had knowledge of the
protective order in January of 2018 (Doc. No. 99, p.
304:2-305:3) and that he filed a motion to dismiss the
protective order that same month (Doc. No. 99, p. 323:5-9).
Viewing this evidence in the light most favorable to the
Government, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt. The Defendant is not
entitled to acquittal, even under
the Defendant entitled to a new trial. Under Rule 33, courts
are authorized to grant new trials “if the interest of
justice so requires.” Fed. R. Crim. P. 33(a). This
standard has been interpreted to include any error that would
require reversal on appeal. United States v.
Walters, 89 F.Supp.2d 1206, 1213 (D. Kan. 2000),
aff'd, 28 Fed.Appx. 902 (10th Cir. 2001). The
Court is proscribed from granting a new trial except
“in exceptional cases in which the evidence
preponderates heavily against the verdict.” United
States v. Evans, 42 F.3d 586, 593 (10th Cir.1994)
(internal quotation marks omitted). Therefore, a motion for
new trial “is not regarded with favor and is only
issued with great caution.” United States v.
Herrera, 481 F.3d 1266, 1269-70 (10th Cir.
2007). As Mr. Kaspereit did not object to the jury
instructions at trial, the Court reviews the jury
instructions for plain error. See Benford, 875 F.3d
at 1020. “Plain error occurs where there is
(1) error, (2) that is plain, which (3) affects the
defendant's substantial rights, and which (4) seriously
affects the fairness, integrity or public reputation of
judicial proceedings.” United States v.
Durham, 902 F.3d 1180, 1226 (10th Cir. 2018)
(quotations marks and citations omitted).
Court determines that the failure to include the
Rehaif knowledge requirement in the jury instruction
meets the first two prongs; it was error that was plain.
See Henderson v. United States, 568 U.S. 266 (2013)
(holding an error is plain even if the trial judge's
decision was correct at the time when it was made but
subsequently becomes incorrect based on a change in the law).
Kaspereit does not, however, satisfy the third prong. To
establish that a plain error affects the defendant's
substantial rights, the defendant has the burden to show
“a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.”
Benford, 875 F.3d at 1017. In Count One, the
Defendant was charged with violating 18 U.S.C. §
922(a)(6) for knowingly making a false statement on an ATF
form in connection with the purchase of a firearm. The jury
was instructed that, to convict on Count One, it must find
that the Defendant knew he had been subject to a protective
order at the time he filled out the ATF form falsely stating
that he was not. Thus, in convicting Mr. Kaspereit as to
Count One, the jury necessarily found the knowledge element
newly applicable to Count Two after Rehaif-that the
Defendant knew of his status as a person subject to a
protective order at the time of possession. The jury's
conviction on Count One, in addition to the testimony
described above, demonstrates that there is not a reasonable
probability that, but for the error, the outcome of the
proceeding would have been different. See United States
v. Collins, No. 5:18-cr-00068, 2019 WL 3432591, at *3
(S.D. W.Va. July 30, 2019) (unpublished) (denying