Whether the government must offer direct evidence of a defendant's vicious or evil intent to prove guilt beyond a reasonable doubt in 18 U.S.C. § 922(g)(5) prosecutions when the defendant offers evidence of a mistaken belief about their immigration status

QUESTION PRESENTED Whether, in prosecutions under 18 U.S.C. § 922(g)(5), the Government must-in order to separate wrongful acts from innocent acts—offer direct evidence to establish a defendant, such as Evaristo Contreras Silva, acted with a vicious or evil intent (e.g., evidence establishing a defendant, such as Mr. Contreras, actually knew he was not legally present in the United States) in order to prove guilt beyond a reasonable doubt when a defendant, such as Mr. Contreras, offered direct evidence, including his testimony, bond paperwork, and a Form I-94 “permit,” to support his mistaken belief the Form I-94 permit had an effect on his immigration status, a mistaken impression falling squarely within Rehaif v. United States, 139 S. Ct. 2191, 2198 (2019) (“a mistaken impression concerning the legal effect of some collateral matter... that... results in his misunderstanding the full significance of his conduct, .. . negat[es] an element of the offense[]” (internal citation and quotation marks omitted)). The majority of a 3-judge panel at the United States Fifth Circuit Court of Appeals found “[t]he Government provided sufficient evidence under Rehaif for a reasonable jury to find, beyond a reasonable doubt, that Contreras Silva knew he was in the United States unlawfully when he possessed a firearm. That there was evidence pointing in the other direction does not in itself justify a judgment of acquittal. The jury weighed the evidence, including Contreras Silva’s testimony, and concluded that he knew he was in the United States unlawfully. The jury’s verdict was not unreasonable or based on insufficient evidence.” United States v. Silva, 92 F.4th at 553. Judge James E. Graves, in dissent, noted “[t]he government had the burden of proof to provide sufficient evidence that Contreras knew he was in the category barred from possessing a firearm. Even if the jury implicitly deemed Contreras’ testimony that he did not know he was in that category as not credible, it in no way makes up for the government’s failure to offer evidence that he knew otherwise. Instead, the government conceded that Contreras ‘thought’ the Form I-94 ‘permit’ had an effect on his immigration status. That ‘mistaken impression’ falls squarely within Rehaif. Id. at 2198.” Silva, 92 F.4th at 555. For the reason set forth herein and in Judge Graves’ dissent, the Fifth Circuit panel erred and construed the provision of § 922(g) in a manner that would “require no knowledge of status. .. and might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status[,]” a result this Court warned about in Rehaif. 139 S. Ct. 2197-98. Because the Fifth Circuit’s decision implicates this Court’s above-referenced concerns noted in Rehaif, this Court should grant a writ of certiorari, correct this error, and provide guidance for this situation that is likely to recur given the confusion created by the Government’s issuance of Form I-94 permits and similarlyworded documents to aliens released on immigration bonds. -ii