Friday, December 5, 2014

Mistakes of Fact Are for the Jury to Consider

Compliments of Assistant Federal Defender Carl Folsom III (Topeka, KS):
In United States v. Boling, the Seventh Circuit recently reversed two convictions for making false statements in connection with the purchase of a firearm, under 18 U.S.C. § 922(a)(6), because the district court had prohibited Boling from making a mistake-of-fact defense. This case is a good example of the type of defenses that exist, even if they are not explicitly codified by statute.
In 2012, Boling was facing Indiana state charges, which included a felony count of strangulation. At some point in July of 2012, the prosecutor offered a plea agreement to misdemeanor offenses, which would result in dismissal of the felony. This is important because on July 14, 2012, Boling attempted to purchase a firearm from a federally licensed firearms dealer, and had to fill out ATF From 4473, which asked him if he was “under indictment or information in any court for a felony[?]” Boling answered “no.” He also provided a former address, where he no longer resided, but where he maintained an office. These answers led to the charges for making false statements in connection with the purchase of a firearm under 18 U.S.C. § 922(a)(6).
Prior to trial, Boling offered an Old Chief stipulation that he was under indictment for a felony. The trial court rejected the stipulation because Boling claimed that he did not know he was still under felony indictment when he attempted to purchase a firearm. At trial, the government established that Boling was facing the felony strangulation charge at the time he attempted to purchase the firearm. It did so via the testimony of the state prosecutor. Boling wanted to cross-examine the prosecutor about the misdemeanor plea offer that was extended to Boling in July of 2012, but the district court would not allow this testimony.
Boling wanted to claim at trial that he did not know that the felony charge was still pending at the time he attempted to purchase a firearm (a.k.a. a mistake-of-fact defense). And he wanted the jury to know that he was only convicted of disorderly conduct, because the strangulation charge was prejudicial and needed to be rebutted.  But the trial court prevented Boling from both of these options. The trial court allowed evidence of the felony strangulation charge, but would not allow Boling to counter with the timing of the misdemeanor plea offer or the fact that the charges all resulted in a disorderly conduct conviction.
On appeal, the Seventh Circuit explained that “[a] mistake-of-fact defense relieves a person of criminal liability where a reasonable mistake of certain facts means that the person did not have the culpable mental state required for the commission of the offense.” The court pointed out that § 922(a)(6) required the government to prove that “Boling knew that his statement was false.” The court also explained that “§ 922(a)(6) requires the government to prove either that the defendant made the statement with the intent to deceive the firearms dealer, or that the statement was of such nature that it was likely to deceive the dealer.”
The Seventh Circuit held that Boling should have been able to present evidence of the misdemeanor plea offer and should have been able to cross examine the state prosecutor about the same. The court reversed Boling’s convictions, noting that it was a denial of his due process right to present a defense for the district court to limit cross-examination of the fact of the misdemeanor plea offer and that the error was not harmless. The court also explained that the denial of the Old Chief stipulation was not an abuse of discretion, but that “we see no reason why evidence that Bowling strangled or gave alcohol to a minor should have been presented to the jury.” The court stated that, “[a]t a minimum, having allowed the jury to hear such evidence, the court should have permitted the defense to lessen the sting by presenting evidence that Bowling eventually pleaded to a misdemeanor crime for disturbing the peace.”

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