United States v. Contreras Silva

In United States v. Contreras Silva, —- F.4th —-, No. 22-30821 (5th Cir. Feb. 12, 2024), a panel of the Fifth Circuit affirmed the defendant’s trial conviction for possession of a firearm by an illegal alien. Judge James E. Graves, Jr., dissented from the decision.

At trial, the parties stipulated to nearly everything. The only disputed element was “whether Contreras knew he was in the United States unlawfully when he possessed [a] firearm.” Contreras admitted that he had illegally entered the country multiple times, most recently in 2008, and that in 2018, he was detained by immigration authorities. After three months, he was released on an immigration bond and given an I-94 Form that informed him that he was “required to retain this permit in [his] possession.” In 2018 and 2020, Contreras filed applications to adjust his immigration status, and those applications were pending when he was arrested for this case. But in 2022, he was found in possession of a firearm after police were called to respond to a domestic dispute between he and his wife.

At trial, Contreras testified that he believed he was lawfully inside the United States when he possessed a firearm in 2022. He explained that he understood the I-94 Form to be a “permit” allowing him to remain legally inside the country while his immigration case was pending. He emphasized the I-94 Form’s direction that he was “required to retain this permit in [his] possession” as corroboration of his understanding. Ultimately, the jury found him guilty, implying a finding that he knew he was illegally present in the United States.

Ruling: In the light most favorable to the verdict, the Government presented sufficient evidence to allow a reasonable jury to conclude beyond a reasonable doubt that Contreras knew he was in the country illegally when he possessed the firearm. Although some evidence pointed the other direction, that alone does not justify an acquittal. “Put differently, the evidence in Contreras Silva’s favor was sufficient to create a triable issue; it was not so definitive to allow that issue to be taken from the jury via a judgment of acquittal.”

Dissent: In dissent, Judge Graves indicated that he believed the evidence was insufficient, and he would reverse and remand. He emphasized the Supreme Court’s direction in Rehaif v. United States, 139 S.Ct. 2191 (2019), including what it called “a basic principle that underlies the criminal law, namely, the importance of showing what Blackstone called ‘a vicious will.’” In this case, Judge Graves found no showing of a vicious or evil will. He noted that one immigration officer testified that the I-94 Form is the same form given to foreign nationals who legally enter the United States. Judge Graves also summarized the facts in favor of acquittal: Contreras knew that after he entered unlawfully, “he had since been in the United States several years, was married to a U.S. citizen, had a family, worked, paid taxes, and had an immigration bond and a ‘permit’ allowing him to stay pending resolution of his immigration case.” His “mistaken impression” should have been sufficient to grant a judgment of acquittal.