UNITED STATES OF AMERICA v. JEFFREY BOYD,
No. 19-2989
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 28, 2021
AMBRO, PORTER, and ROTH, Circuit Judges
PRECEDENTIAL; Argued on September 23, 2020
Heidi R. Freese
Frederick W. Ulrich (Argued)
Tammy L. Taylor
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
David J. Freed
Michelle L. Olshefski (Argued)
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
AMBRO, Circuit Judge
A state court in Oklahoma ordered Jeffrey Boyd to stay away from his ex-wife and his son, surrender his firearms, and undergo a mental health evaluation. After his arrest in Pennsylvania with a loaded handgun, a jury convicted Boyd of possessing a firearm while subject to a domestic violence protective order, in violation of
Just months after Boyd’s trial, the Supreme Court issued Rehaif v. United States, 139 S. Ct. 2191 (2019), a decision on the proof required for a conviction under
Next, Boyd argues the District Court erred by admitting into evidence statements that he made about harming then-President Trump’s family. Given the limited scope of facts needed to prove a violation of
Third, Boyd points to repeated statements in the prosecution’s closing argument that accused the defense of “misleading” the jury, hence alleging they amount to prosecutorial misconduct worthy of a mistrial. Without
Finally, Boyd contends
I. Background
In October 2017, Connor Manley first began noticing symptoms of mental health issues in his father, Jeffrey Boyd. Boyd’s appetite became nearly nonexistent, and he lost considerable weight. He experienced seizures, panic attacks, and bouts of paranoia, believing that people were carrying out experiments on him. In February 2018, Connor fled from his father’s home.
The Tulsa County Sheriff’s Office personally served Boyd with the protective order. Two weeks later, an Oklahoma state judge held a hearing on whether the order should continue. According to the docket, the hearing took place, Boyd appeared, and the court took testimony. Both Jennifer and Connor recounted that Boyd had the opportunity to make his case to the judge. Jennifer recalled that Boyd unequivocally objected to everything in the order, and Connor recalled that his father characterized Connor’s letter to the court as “the craziest thing he had ever read.” App. at 296.
injuring, abusing, sexually assaulting, molesting, harassing, stalking, threatening, or otherwise interfering with [Jennifer,] and from use, attempted use or threatened use of physical force against [her] that would reasonably be expected to cause bodily injury [; and]
engaging in other conduct that would place [her] in reasonable fear of bodily injury to [her or her] household members or relatives.
App. at 550. The judge also applied a fourth prewritten term to Boyd—that he “shall immediately surrender all firearms and other dangerous weapons within [his] possession or control and any concealed carry license,” with the written-in modification that this surrender was to be to law enforcement. Id. at 551. Finally, in an open box, the judge applied two customized terms to Boyd. First, he was to stay 100 yards away from Jennifer. Second, in addition to these terms, which were also present in the earlier order served on him prior to the hearing, the judge ordered that Boyd undergo a mental health assessment and follow all recommendations. Finally, the order repeated a warning present in the earlier order: “Possession of a firearm or ammunition by a defendant while an order is in effect may subject the defendant to prosecution for a violation of federal law . . . .” Id. at 547, 552.
Kelchner recorded some of Boyd’s statements and reported her encounter to the Pennsylvania State Police. Troopers searched for Boyd and found him sleeping in his parked truck. On waking him, they asked whether he had any weapons in the vehicle, and he replied that he had a gun. After speaking with Boyd further, the troopers took him into custody and searched the car, finding a loaded handgun and two additional magazines. Due to Boyd’s threats against the then-President, the subsequent investigation was conducted jointly with the Secret Service.
Charges of terroristic threats under Pennsylvania law followed. Though those charges were dropped, a federal grand jury indicted Boyd on one count of possession of a firearm in violation of
any person . . . who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . .
to . . . possess in or affecting commerce, any firearm or ammunition . . . .
While in jail pending trial in federal court, Boyd wrote a letter to the Oklahoma state court judge to alert her that he would be missing his court date for the protective order. This letter was entered into evidence at the federal trial.
At trial, his counsel conceded that it was “essentially undisputed” that Boyd possessed a firearm in interstate commerce and that he was subject to a restraining order containing the provisions required by
In line with this strategy, Boyd’s proposed jury instructions included a requirement that he “knew that he was subject to a court order that . . . [w]as issued after a hearing of which [he] received actual notice, and at which [he] had an opportunity to participate.” App. at 103. The District Court declined to include this instruction, and the jury found Boyd guilty of the one count charged. His sentence was time served, which amounted to just over one year of imprisonment, and three years of supervised release.
A. The Failure to Include a Rehaif Jury Instruction
It is a felony for a person “knowingly” to violate
1. The standard and scope of our review
If a party timely objects to a missing jury instruction, we ask whether the omission was harmless, which here means we may not reverse if the Government shows “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder v. United States, 527
To his credit, counsel for Boyd objected to the exclusion of the knowledge element. Was that missing element, though an error, harmless? The Supreme Court has upheld convictions on harmless error review, for example, where “the omitted element was uncontested and supported by overwhelming evidence.” Neder, 527 U.S. at 17. We do not read “uncontested” literally to restrict harmless error to cases where the defendant made no attempt whatsoever to dispute the element, but rather more generally to mean the missing piece “is supported by uncontroverted evidence.” Id. at 18.
The search for “overwhelming evidence” is not unlimited but confined to the trial record. United States v. Nasir, 982 F.3d 144, 170 (3d Cir. 2020) (en banc) (holding the same in the context of plain error review), petition for cert. filed, No. 20-1522 (Apr. 30, 2021); id. at 197 (Porter, J., concurring in part and dissenting in part) (noting that the substantial-rights portion of plain error review “is essentially harmless-error analysis, and as the majority itself acknowledges, all agree that it is based on the trial record”).4 Boyd further cites the Fourth Circuit’s recent decision in United States v. Medley, 972 F.3d 399, 413 (4th Cir. 2020),
Medley, however, does Boyd no favors. For in that case there “was not ‘overwhelming evidence’ of [the defendant’s] knowledge of his prohibited status presented at trial and [he] did not contest this knowledge.” Id. We are far afield here. Boyd claims that, “in [his] case, his knowledge of his status was hotly contested,” and “[a]t his trial, [his] defense hinged on the argument that he did not ‘know’ that he was in the class of prohibited persons.” Rule 28(j) letter, ECF No. 56; Boyd’s Op. Br. at 16. And further, he proposed a Rehaif-style jury instruction. We need not speculate how Boyd would defend against a knowledge element, because by his own admission he actually mounted such a defense. Cf. United States v. Kaspereit, 994 F.3d 1202, 1208–09 (10th Cir. 2021) (rejecting an argument that failure to include a Rehaif instruction required a new trial where the omitted element was clearly at issue in the trial, stressing that “the government offered ample evidence that Defendant knew the order remained in place” and that the jury had necessarily made a finding on the defendant’s knowledge by finding him guilty of making a false statement related to the protective order).
Accordingly, we can probe for “overwhelming evidence” in the trial record.
In general, the Government must show that a defendant knew he belonged to a category of persons described by
In the context of
At the outset, we “doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome” as some may suggest, even under the most restrictive possible formulations of the knowledge requirement. Rehaif, 139 S. Ct. at 2198. We agree with the Government that the same evidence that shows a defendant is objectively subject to a qualifying order will often also provide sufficient circumstantial evidence
place of the hearing. App. at 244–49, 544, 548. And any doubt is resolved by evidence that Boyd was actually aware of the order and its terms. A Secret Service agent testified that Boyd, during the agency’s investigation, told him that Boyd’s family had an order of protection against him. App. at 234. And further, Boyd’s actions demonstrate knowledge of two terms in the order: (1) he apparently attempted to sidestep the “no contact” term by asking his sister to convey secret messages to Connor because he could not communicate with him directly, App. at 315, 571, 579, and (2) he acknowledged the protective order’s mental health assessment term in a letter to the state court judge. App. at 491. It is illogical to believe Boyd lacked knowledge of terms #2 and #3 in the order (the
The order that was served on Boyd prior to the Oklahoma hearing stated explicitly that he would be provided with an “opportunity to be heard.” App. at 544. And the same evidence showing the court actually provided Boyd with an opportunity to participate also convinces us he knew he had that opportunity. Section
Both Jennifer and Connor testified that Boyd was present at the hearing, and they were able to hear him interact with the judge. App. at 282, 295–96. Jennifer recounted that Boyd unequivocally objected to everything in the orders and had follow-up conversations with the judge. App. at 282. Connor reported that his father disputed the allegations in Connor’s letter to the court. App. at 296. Boyd presented no evidence to rebut their accounts of the hearing other than questioning their purported biases, and their accounts comport with the docket’s notation that he was sworn in and testimony was taken. Indeed, in his letter to the state court judge Boyd acknowledged that he “appeared in [her] court for a hearing related to three emergency protective orders.” App. at 524.7
In fact, the evidence in this case—including that Boyd’s order required him to surrender his firearms and alerted him that keeping them may violate federal law—is so strong it could conceivably support a finding that Boyd knew he could not legally possess a firearm, a bar far higher than the Government’s actual burden. See Rehaif, 139 S. Ct. at 2198
To us “the jury verdict would have been the same” even if the jurors were instructed to consider Boyd’s knowledge that he was subject to a qualifying protective order, including that he had an opportunity to participate in the hearing. Neder, 527 U.S. at 17.
B. Evidentiary Errors
The District Court rejected Boyd’s attempt to exclude, under
Admitting this evidence, which is clearly prejudicial to Boyd and provides little-to-no value in proving the limited elements of
As we explained in Section II.A, supra, this was not a difficult case to prove guilt. The elements that the Government
C. Prosecutorial Misconduct
In its closing the Government argued that Boyd had attempted to “mislead” the jury by suggesting that the protective order hearing was ex parte (meaning with only one side present). App. at 358. And it did not do so in passing; counsel for the Government used the term “mislead” or “misleading” five times in her closing, as well as twice urging the jury not to be “misled.” App. at 358-61, 369. Counsel for Boyd stated three times that he objected “as to misconduct,” and once he simply objected without explanation. Id. The District Court overruled each objection. Id. On appeal, Boyd argues the prosecution‘s statements in closing amounted to misconduct and warrant a mistrial.
At the outset, we digress to a slight disagreement over our standard of review. The Government states the standard is abuse-of-discretion review over “a district court‘s decision to deny a motion for mistrial.” Gov‘t‘s Br. at 4-5 (quoting United States v. Wood, 486 F.3d 781, 786 (3d Cir. 2007)). By contrast,
Yet we would reach the same result no matter which standard of review applied, as either formulation of the standard incorporates a harmless-error component and, once again, no error affected the outcome. See, e.g., Wood, 486 F.3d at 789 (“[W]e still will not reverse[,] for [a] mistrial is not required where improper remarks were harmless“) (internal quotation marks omitted) (third alteration in original); United States v. Lore, 430 F.3d 190, 210 (3d Cir. 2005) (holding that “we review the district court‘s ruling on any contemporaneous objections for an abuse of discretion[,] . . . . [and if] an appellate court finds that there has been prosecutorial misconduct, it should reverse unless the error is harmless“) (citations omitted).
Under harmless-error review we affirm if “it is highly probable that the error did not contribute to the judgment,” which our en banc Court has held requires we have a “sure conviction that the error did not prejudice the defendant.” United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc) (emphasis omitted).9 To determine whether there
Here, the prosecution‘s comments about the defense “misleading” the jury were related to the defense‘s argument that Boyd lacked knowledge he had a full and fair hearing in Oklahoma state court and his focus on an unrelated hearing before that same court. While we need not opine whether this defense theory was “misleading,” it was certainly weak for the reasons we stated in Section II.A, supra. Even if the prosecution unfairly tainted the jury‘s perception of that
On the other hand, the District Court overruled each of Boyd‘s objections and did not immediately issue any curative instructions to the jury. But, in its final instructions to the jury, the Court did make clear that several things “are not evidence,” including “statements and arguments of the lawyers for the parties in this case,” thus providing at least some saving effect for any errors. App. at 370. And the clincher, as we have stated repeatedly, is that the strength of the evidence supporting Boyd‘s conviction was overwhelming. Hence we are assured any error was harmless.
D. The As-Applied Constitutional Challenge to § 922(g)(8) 10
Over the past decade we have faced numerous as-applied challenges to
At Step One, Boyd bears the burden of showing that
We note that both of our sister circuits to face as-applied challenges to
We touch on both steps and hold that Boyd cannot distinguish himself from a class of presumptively dangerous persons who have been historically excluded from the
1. Boyd cannot distinguish himself from a class of presumptively dangerous persons historically excluded from the Second Amendment‘s protections.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held that the
For felony convictions we have held that the
We have not previously considered whether those who are subject to domestic violence protective orders covered by
That said, the Eighth Circuit‘s reasoning does not apply squarely to this case. Bena dealt with a facial challenge to
In attempting to distinguish himself from the historically barred class, Boyd emphasizes that in Oklahoma protective orders do not require a finding that a person poses a credible threat to another‘s safety, but rather a court “may
Here, for example, a state judge, after a hearing at which Boyd participated, chose to continue the protective order against him and found it necessary to order him to surrender his firearms and undergo a mental health evaluation,12 plus she
Given this context, we conclude that Boyd cannot distinguish himself from the class of presumptively dangerous persons who historically lack
2. In any event, § 922(g)(8) survives a heightened scrutiny analysis.
Even if Boyd could distinguish himself from the historically barred class, we hold that
Here, we conclude that intermediate scrutiny applies, because those subject to a protective order of the type described by
The Government argues the relevant important interest is “reducing domestic violence,” Gov‘t‘s Br. at 63, a claim not seriously in dispute (indeed, Boyd does not waste even a single word in his briefs contesting this point). See, e.g., United States v. Castleman, 572 U.S. 157, 159-60 (2014) (observing that the “country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year“); Antonia C. Novello et al., From the Surgeon General, U.S. Public Health Service: A Medical Response to Domestic Violence, 267 JAMA 3132 (1992) (concluding that “[d]omestic violence may touch as many as one fourth of all American families“), cited in H.R. Rep. No. 103-395, at 25 (1993).
Boyd does dispute, however, the application of intermediate scrutiny on the ground that there is no substantial fit between the protective order prohibition and the objective of reducing domestic violence. But Congress‘s careful tailoring, which carefully removes from the ambit of the statute those who are least likely to pose a danger of domestic violence, undermines this contention. The law protects against sweeping in persons captured by meritless orders based on false accusations that can easily be rebutted at a hearing. It applies only to orders issued to protect intimate partners or children, and only after a court has found it appropriate to enter
As further reinforcement, we note extensive evidence supporting links between firearms and domestic violence on the one hand, and protective orders and domestic violence on the other. See Skoein, 614 F.3d at 643-44; Reese, 627 F.3d at 802-03; see also Matthew R. Durose et al., Family Violence Statistics, U.S. Dep‘t of Just. Bureau of Just. Stat. 64 (2005) (finding that nearly half of inmates convicted of family violence and over two-thirds of those convicted of a violent crime against their spouse were subject to a restraining order at some time in their lives); Oklahoma Domestic Violence Fatality Review Board, Domestic Violence Homicide in Oklahoma 8 (2012) (finding, in the state that issued Boyd‘s protective order, that there was a protective order used in nearly one quarter of all intimate partner homicides in 2011). For an important state interest that may touch one in four American families, it is hard to argue that a restriction temporarily limiting the gun rights of only one in hundreds of adults is impermissibly overbroad.15
* * * * *
Congress has chosen to address the searing issue of domestic violence by disarming persons when a court has found it necessary to issue a protective order that requires them not to harm their intimate partners or their children. And Congress has chosen to do so only after that person has had notice and a hearing before a court. That limitation on gun rights is clearly within the bounds of restrictions that the
Boyd nonetheless contends that his prosecution in particular was tainted by multiple errors. Based on the strength of the evidence presented at trial, however, we are convinced that any reasonable jury would have convicted him even absent all purported errors. Overwhelming evidence shows that Boyd knew he was subject to a qualifying protective order when he