United States v. Gear

Brief Amici Curiae of the National Association of Criminal Defense Lawyers and Aoki Center for Critical Race and Nation Studies in Support of Defendant-Appellant’s Petition for Rehearing En Banc. 

Brief filed: 03/15/2021


United States v. Gear

9th Circuit Court of Appeals; Case No. 19-10353

Prior Decision

Panel decision 985 F.3d 759 (9th Cir. Jan. 19, 2021)


In violation of his constitutional rights guaranteeing notice, due process, and trial by jury, Melvyn Gear was convicted of possessing a firearm while holding a non-immigrant visa because the jury was not instructed on that most subjective of the crime’s elements:  knowing possession.  Contrary to four circuits around the country, the Ninth Circuit panel applied a cramped and compressed plain error standard that failed to properly protect the surpassing constitutional rights at stake. The brief amici was filed to bring those decisions and their reasoning to the Ninth Circuit’s attention.


John Ormonde, UC Davis King Hall School of Law, Davis, CA; David M. Porter, NACDL, Sacramento, CA.

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