FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MELVYN GEAR,

Defendant-Appellant.

No. 19-10353

D.C. No.

1:17-cr-00742-

SOM-1

OPINION

Appeal from the United States District Court

for the District of Hawaii

Susan O. Mollway, District Judge, Presiding

Argued and Submitted July 16, 2020

San Francisco, California

Filed January 19, 2021

Before: Kenneth K. Lee and Patrick J. Bumatay, Circuit 

Judges, and Roslyn O. Silver,* District Judge.

Per Curiam Opinion;

Concurrence by Judge Silver;

Partial Concurrence and Partial Dissent by Judge Bumatay

* The Honorable Roslyn O. Silver, United States District Judge for 

the District of Arizona, sitting by designation.
2 UNITED STATES V. GEAR

SUMMARY**

Criminal Law

The panel affirmed a conviction for violating 18 U.S.C. 

§ 922(g)(5)(B) by possessing a firearm while being an alien 

who had been admitted to the United States under a 

nonimmigrant visa.

The panel held that after Rehaif v. United States, 139 

S. Ct. 2191 (2019), the government must—in order to gain a 

conviction under § 922(g)(5)(B)—prove a defendant knew 

he was admitted into the country under a nonimmigrant visa. 

The panel wrote that establishing that the defendant knew he 

had an H-1B visa is not enough. 

Reviewing the district court’s erroneous jury 

instructions—to which the defendant did not properly 

object—for plain error, the panel held that the error did not 

affect the defendant’s substantial rights because the record 

overwhelmingly indicates that the defendant knew it was 

illegal for him to possess a firearm.

Concurring, Judge Silver agreed that the conviction 

should be affirmed but wrote separately to write that to the 

extent the per curiam opinion suggests the government could 

alternatively prove that the defendant knew his visa was 

statutorily classified as a “nonimmigrant visa,” she does not 

agree. 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GEAR 3

Concurring in part and dissenting in part, Judge Bumatay 

wrote that the defendant showed a reasonable probability 

that the jury would have reached a different outcome if the 

jury had been properly instructed, and that the panel should 

therefore return the determination of the defendant’s guilt to 

the jury.

COUNSEL

Ted Sampsell-Jones (argued), Dennis P. Riordan, and 

Donald M. Horgan, Riordan & Horgan, Oakland, California, 

for Defendant-Appellant.

Marshall Silverberg (argued), Assistant United States 

Attorney; Marion Percell, Chief of Appeals; Kenji M. Price, 

United States Attorney; United States Attorney’s Office, 

Honolulu, Hawaii; for Plaintiff-Appellee.

OPINION

PER CURIAM:

Along with felons, illegal aliens, and other specified 

groups, Congress proscribed nonimmigrant-visa holders 

from lawfully possessing a firearm. 18 U.S.C. 

§ 922(g)(5)(B). But to be penalized for violating this law 

under 18 U.S.C. § 924(a)(2), Congress also required the 

nonimmigrant-visa holder’s knowledge of his “relevant 

status” as a prohibited possessor. Rehaif v. United States, 

139 S. Ct. 2191, 2194 (2019).

In this case, it is uncontested that Melvyn Gear owned a 

gun. It is also uncontested that he entered the United States 
4 UNITED STATES V. GEAR

under an “H-1B” visa, and that such a visa is a nonimmigrant 

visa. The parties’ dispute centers on whether the 

government had to prove that Gear knew his H-1B visa was 

a nonimmigrant visa. We hold that after Rehaif, the 

government must prove a defendant knew he had a 

nonimmigrant visa to satisfy the statute’s mens rea 

requirement. But because Gear cannot show that he was 

prejudiced by the erroneous jury instructions, we 

nevertheless affirm his conviction.

I.

This case comes to us from down under. Melvyn Gear 

is a native of Australia who moved to Hawaii in January 

2013 to work for a solar power company. Gear entered the 

United States under an “E-3 visa.” That visa is an Australian 

“specialty occupation” visa. 8 U.S.C. § 1101(a)(15)(E)(iii). 

Gear’s initial E-3 visa was renewed for another two years. 

At some point, Gear’s employer applied for, and Gear 

received, an “H-1B visa.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). 

During trial, Gear’s employer testified that an H-1B visa is 

“nonimmigrant,” but he also stated that he filed the 

immigration paperwork “on behalf of Mr. Gear.” The 

employer was not asked whether Gear was personally 

involved in the process.

While in Hawaii, Gear told his wife Trudy, who was still 

in Australia, that he wanted a divorce. In April 2016, Gear 

returned to Australia to divide up the marital property and 

bring property back with him to Hawaii. One of Gear’s 

possessions was a Lithgow .22 caliber bolt action rifle. Gear 

disassembled the gun and brought some of its component 

parts back to Hawaii with him. Trudy later shipped him the 

gun safe and the remaining parts of the rifle.
UNITED STATES V. GEAR 5

In October 2016, Gear was fired from his job, which 

meant that he would need a new visa. At trial, Gear’s new 

wife, Rhonda Kavanagh, explained that because H-1B visas 

are tied to employment, Gear lost his visa when he was fired 

in 2016. She also testified that she and Gear had created a 

new company before Gear was fired and “we established . . .

a new visa for Mel under [that] company. And we worked 

on that in October and November and into December and 

January.” The visa application form stated it was a “Petition 

for a Nonimmigrant Worker.” But that form was prepared 

by an immigration attorney and signed by Gear’s wife, not 

by Gear.

In January 2017, Gear returned to Hawaii from a trip 

abroad and was admitted under his new H-1B visa. On the 

visa itself, the “Visa Type/Class” is indicated as “H1B” with 

an issue date of January 5, 2017 and an expiration date of 

November 14, 2019.1

Sometime later in 2017, DHS was advised that Gear 

might have shipped a rifle from Australia to Hawaii. A DHS 

agent in Hawaii began an investigation and learned Gear was 

present in Hawaii on an H-1B visa. The agent then 

interviewed Gear’s former coworkers, who reported Gear 

would “brag about owning firearms.” The agent obtained a 

search warrant and, in July 2017, went with other agents to 

Gear’s home to execute that warrant.

Upon arriving, the agents told Gear they were there to 

ask him about his visa. After a few questions related to his 

1 Gear was admitted until November 24, 2019 because individuals 

with H-1B visas may be “admitted to the United States” for the length of 

the visa “plus a period of up to . . . 10 days.” 8 C.F.R. 

§ 214.2(h)(13)(i)(A).
6 UNITED STATES V. GEAR

visa and his work, the agents began questioning Gear about 

whether he owned a firearm. Gear told them “he couldn’t 

possess a firearm in the State of Hawaii because he was not 

a U.S. citizen.” Gear also denied having a gun safe. The 

agents informed him they had received information from 

Australian officials that he owned a rifle. Gear admitted his 

ex-wife had shipped a rifle and gun safe to Hawaii but he 

claimed they had been thrown away “[b]ecause he didn’t 

want [the rifle], he couldn’t have it.” The agents then told 

Gear they had a search warrant which prompted Gear to say 

“You know, guys, I want to be honest with you. The gun 

and gun safe is in the garage.” The agents then went to the 

garage, found the gun safe, and obtained the rifle.

In December 2017, the government returned a single 

count indictment against Gear. The indictment alleged Gear 

had violated 18 U.S.C. § 922(g)(5)(B) by possessing a 

firearm while “being an alien who had been admitted to the 

United States under a nonimmigrant visa.” The case 

proceeded to a four-day trial in May 2019. During the trial, 

the government and Gear stipulated that he had been 

admitted under a nonimmigrant visa. That stipulation did 

not, however, address Gear’s knowledge of that fact.

At the close of evidence, the jury was instructed the 

government had to prove Gear “knowingly possessed” the 

rifle, that “had been shipped and/or transported in foreign 

commerce,” and that Gear “was in the United States as an 

alien who had been admitted into the United States under a 

‘nonimmigrant visa.’” These elements were all that Ninth 

Circuit law required at the time. That is, the jury was merely 

required to find Gear had been admitted under a 

nonimmigrant visa but not that Gear was aware of anything 

about his visa status. The jury found Gear guilty on May 10, 

2019, and sentencing was set for four months later.
UNITED STATES V. GEAR 7

Before Gear was sentenced, the United States Supreme 

Court decided Rehaif v. United States, 139 S. Ct. 2191 

(2019). That case addressed a different provision within the 

same statute at issue here, 18 U.S.C. § 922(g), which renders 

it unlawful for “nine categories of individuals” to possess 

firearms. Id. at 2194. The Supreme Court held that in a 

prosecution under § 922(g), the government must prove the 

defendant “knew he belonged to the relevant category of 

persons barred from possessing a firearm.” Rehaif, 139 S. 

Ct. at 2200. Based on Rehaif, Gear filed a motion for new 

trial. Gear’s central argument was that Rehaif required the 

jury be instructed it had to find Gear knew he had been 

“admitted to the United States under a nonimmigrant visa.” 

18 U.S.C. § 922(g)(5)(B).

The trial court denied the motion for a new trial. The 

court concluded Gear was not entitled to relief given the 

evidence presented at trial. In the court’s view,

the Government needed to establish that Gear 

knew that he possessed an H-1B visa (a 

question of fact), not that Gear knew that an 

H-1B visa was a nonimmigrant visa (a 

question of law). The distinction between 

proving knowledge of what kind of visa Gear 

had and knowledge that the visa is in the 

category of “nonimmigrant visas” is a 

distinction this court makes here.

Because the evidence was, in the district court’s view, 

overwhelming that Gear knew he had been admitted under 

an H-1B visa, the court concluded any failure to instruct the 
8 UNITED STATES V. GEAR

jury regarding Gear’s knowledge was harmless.2 In 

September 2019, Gear was sentenced to fifteen months’ 

imprisonment.

II.

In all cases of statutory interpretation, we start with the 

text. Limtiaco v. Camacho, 549 U.S. 483, 488 (2007). 

Gear’s statute of conviction says that “[w]hoever knowingly 

violates” 18 U.S.C. § 922(g) shall be subject to up to ten 

years’ imprisonment. 18 U.S.C. § 924(a)(2). In turn, 

§ 922(g) provides that, subject to some exceptions, it “shall 

be unlawful for any person . . . being an alien . . . admitted 

to the United States under a nonimmigrant visa” to “possess 

in or affecting commerce, any firearm or ammunition.” 

18 U.S.C. § 922(g)(5)(B). Read together then, federal law 

forbids a person from “knowingly” violating the prohibition 

on “being an alien . . . admitted . . . under a nonimmigrant 

visa” in possession of a firearm. 18 U.S.C. §§ 922(g)(5)(B), 

924(a)(2).

The question here is: What does it mean to “knowingly” 

violate this statute? Conveniently, the Supreme Court has 

essentially supplied us the answer already. In Rehaif, the 

Court analyzed an adjacent provision, § 922(g)(5)(A)—the 

illegal-alien-in-possession prohibition—and told us how to 

interpret it. 139 S. Ct. 2191. The Court was clear: “As a 

matter of ordinary English grammar, we normally read the 

statutory term ‘knowingly’ as applying to all the 

subsequently listed elements of the crime.” Id. at 2196 

2 The court chose to apply the “harmless error” standard instead of 

the “plain error” standard because “harmless error” was more favorable 

to Gear and, even under the favorable standard, Gear was not entitled to 

relief.
UNITED STATES V. GEAR 9

(simplified). This means the government had to establish the 

defendant knew he belonged to the “relevant category of 

persons barred from possessing a firearm.” Id. at 2200. 

Under § 922(g)(5)(A), the “relevant category” was being “an 

alien . . . illegally or unlawfully in the United States,” so the 

defendant had to know that he was such an alien. Id. at 

2195–96. The Court reversed the judgment affirming

Rehaif’s conviction because the government failed to prove 

he knew he was an illegal alien. Id. at 2200.

Under a straightforward application of Rehaif’s textual 

command, the knowledge requirement must apply to the 

“relevant category of persons” here—aliens who were 

“admitted to the United States under a nonimmigrant visa.” 

18 U.S.C. § 922(g)(5)(B). Thus, to gain a conviction here, 

the government must prove Gear knew he was admitted into 

the country “under a nonimmigrant visa.” It’s really that 

simple. As a matter of text and precedent, we need not go 

any further.

Requiring knowledge of “nonimmigrant visa” status also 

flows from the principles that animated Rehaif. There, the 

Court recognized that it can be “entirely innocent” to possess 

a firearm “[a]ssuming compliance with ordinary licensing 

requirements.” Id. at 2197. What made such conduct 

wrongful was not just that the defendant possessed a firearm, 

but that he belonged to a group of prohibited possessors. The 

Court applied the “longstanding presumption” that Congress 

intends a defendant to have knowledge of each “element[] 

that criminalize[s] otherwise innocent conduct.” Id. at 2195 

(simplified). In Rehaif, it was the defendant’s status as an 

illegal alien that was the “crucial element separating 

innocent from wrongful conduct.” Id. at 2197 (simplified). 

Without knowing this status, “the defendant may well lack 

the intent needed to make his behavior wrongful.” Id.
10 UNITED STATES V. GEAR

As in Rehaif, the crucial element that makes possession 

of firearms wrongful here is that the possessor has the status 

Congress sought to disfavor: “nonimmigrant visa” holders. 

Like the other categories of prohibited possessors in 

§ 922(g), Congress has made the legislative determination 

that such visa holders should not possess firearms. But to 

violate the statute a defendant must know he falls within the 

category of prohibited possessors; otherwise, he “does not 

have the guilty state of mind that the statute’s language and 

purposes require.” Rehaif, 139 S. Ct. at 2198.

A defendant must therefore know that he was admitted 

into the country under a nonimmigrant visa. Gear’s statute 

of conviction incorporates the definition of “nonimmigrant 

visa” from another statute, which defines the term as “a visa 

properly issued to an alien as an eligible nonimmigrant by a 

competent officer as provided in this chapter.” 8 U.S.C. 

§ 1101(a)(26); 18 U.S.C. § 922(g)(5)(B). Another provision 

in the Immigration and Nationality Act identifies the 

“classes of nonimmigrant aliens.” 8 U.S.C. § 1101(a)(15). 

One class of nonimmigrant aliens includes “an alien . . . who 

is coming temporarily to the United States to perform 

services . . . in a specialty occupation . . . who meets the 

requirements for the occupation specified in section 

1184(i)(2) of this title.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). 

The visa for this class of nonimmigrants is what’s known in 

agency jargon as the “H-1B visa,” presumably so named 

after the class’s subsection in the INA. See 8 U.S.C. 

§ 1101(a)(15)(H)(i)(b).3

3 See U.S. Citizenship and Immigration Services, H-1B Specialty 

Occupations, DOD Cooperative Research and Development Project 

Workers, and Fashion Models, https://www.uscis.gov/working-in-the-
UNITED STATES V. GEAR 11

So, under this statutory scheme, the government must 

show that the defendant knew his particular visa was 

“nonimmigrant.” Such knowledge can be established by 

demonstrating Gear knew that his visa was classified as a 

“nonimmigrant visa,” or by showing he knew the “offending 

characteristics” of his visa—i.e., the facts that make his visa 

a nonimmigrant one. See Staples v. United States, 511 U.S. 

600, 620 (1994) (holding that defendant must know the 

“offending characteristics” of his gun that brings it within 

the statutory definition of a “firearm”); see also McFadden 

v. United States, 576 U.S. 186, 196 (2015) (holding that 

defendant must know a substance’s “physical characteristics 

that give rise to [its] treatment” as a listed controlled 

substance).

Establishing that Gear simply knew he had an H-1B visa 

is not enough. A visa’s label—that it is referred to as an “H1B visa”—is not a fact that makes it a “nonimmigrant visa.” 

Instead, what Congress proscribed was knowingly 

possessing a firearm with a “nonimmigrant visa,” or, looking 

to what “nonimmigrant visa” actually means: a visa issued 

to an alien coming temporarily to the United States to 

perform services in a specialty occupation. See 8 U.S.C. 

§ 1101(a)(26), (a)(15)(H)(i)(b), § 1184(i)(1); see also 

Defensor v. Meissner, 201 F.3d 384, 386 (5th Cir. 2000) 

(outlining requirements for an H-1B visa). Thus, the 

government must prove Gear’s knowledge of these facts—

not merely that Gear knew his visa was called an “H-1B 

visa.”

The Supreme Court in Rehaif offered a hypothetical that 

confirms our analysis. The Court addressed a hypothetical 

united-states/temporary-workers/h-1b-specialty-occupations-dodcooperative-research-and-development-project-workers-and-fashion.
12 UNITED STATES V. GEAR

firearm owner convicted of a crime “punishable by 

imprisonment for a term exceeding one year,” which makes 

him a felon under the felon-in-possession law. § 922(g)(1). 

But what if this person received only probation, and not a 

prison term, and didn’t know the crime’s maximum 

penalties? Would he have the required mens rea to know 

that he is in fact a felon? The Court suggested that such a 

person “does not have the guilty state of mind that the 

statute’s language and purposes require.” Rehaif, 139 S. Ct. 

at 2198.

That hypothetical probationer may be analogous to 

someone who enters the United States on an H-1B visa. 

Employers thus sometimes lure foreign employees with 

promises of permanent residency, and employees may think 

the H-1B visa confers immigrant status. Such a person may 

know that he or she has an H-1B visa, without any 

knowledge that it is a “nonimmigrant visa.” If true, then he 

or she lacks the requisite guilty mind for violating § 922(g), 

like the hypothetical probationer in Rehaif. This underscores 

why a defendant must know that he or she has a 

nonimmigrant visa, not just an H-1B visa, under the statute.

III.

Because Gear failed to properly object to the erroneous 

instructions, our review is for “plain error.” Fed. R. Crim. 

P. 30(d), 52(b). That means we may reverse where “(1) there 

was error, (2) the error was plain, (3) the error affected 

substantial rights, and (4) the error seriously affected the 

fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Becerra, 939 F.3d 995, 999 

(9th Cir. 2019). Gear undisputedly satisfies the first two 

plain error prongs. See United States v. Benamor, 937 F.3d 

1182, 1186 (9th Cir. 2019) (holding the failure to instruct on 

the knowledge requirement of a § 922(g) offense is plainly 
UNITED STATES V. GEAR 13

erroneous). Thus, the key inquiry is whether Gear showed 

that the error affected his substantial rights. To do so, he 

must “show a reasonable probability that, but for the error, 

the outcome of the proceeding would have been different.” 

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 

(2016) (cleaned up).

Gear cannot make this showing because the record 

overwhelmingly indicates that he knew it was illegal for him 

to possess a firearm, and thus, had the mens rea sufficient to 

violate § 922(g). For example, Gear admitted to Department 

of Homeland Security agents that he was barred from 

firearm possession because he was not a U.S. citizen. He 

tries to sidestep this admission by claiming that it constitutes 

hearsay and was untested during trial. But Gear fails to 

articulate how he would have proceeded differently at trial. 

Accordingly, Gear’s conviction is AFFIRMED.

SILVER, District Judge, concurring:

I agree Melvyn Gear’s conviction should be affirmed but 

write separately to explain one type of knowledge the per 

curiam opinion identifies that goes beyond what is required 

by 18 U.S.C. § 922(g)(5)(B) and Rehaif v. United States, 

139 S. Ct. 2191 (2019). The per curiam opinion states the 

necessary “knowledge can be established” in two ways. 

First, “by demonstrating Gear knew that his visa was 

classified as a ‘nonimmigrant visa.’” Second, by showing 

Gear “knew the ‘offending characteristics’ of his visa—i.e., 

the facts that make his visa a nonimmigrant one.” The 

“offending characteristics” are identified as “a visa issued to 

an alien coming temporarily to the United States to perform 

services in a specialty occupation.” To the extent the per 

curiam opinion suggests the government could alternatively 
14 UNITED STATES V. GEAR

prove the first type of knowledge, i.e. Gear knew his visa 

was statutorily classified as a “nonimmigrant visa,” I do not 

agree.

After Rehaif, and pursuant to the statute, an alien cannot 

possess a firearm if he knew he was admitted “under a 

nonimmigrant visa (as that term is defined in section 

101(a)(26) of the Immigration and Nationality Act).” 

18 U.S.C. § 922(g)(5)(B). However, the referenced 

definition is unclear in that it states “[t]he term 

‘nonimmigrant visa’ means a visa properly issued to an alien 

as an eligible nonimmigrant by a competent officer as 

provided in this chapter.” 8 U.S.C. § 1101(a)(26). 

Unfortunately, there is not a clear and straightforward 

definition of “nonimmigrant.” Instead, the statutory scheme 

dictates that every alien is an “immigrant . . . except an alien 

who is within one of the following classes of nonimmigrant 

aliens.” 8 U.S.C. § 1101(a)(15). See Korab v. Fink, 797 

F.3d 572, 576 n.5 (9th Cir. 2014) (“The Immigration and 

Nationality Act defines ‘nonimmigrant’ as any alien who has 

been admitted pursuant to one of the various visas set out in 

8 U.S.C. § 1101(a)(15).”). The listed “classes of 

nonimmigrant aliens” includes the class relevant here, 

defined as aliens “coming temporarily to the United States 

to perform services . . . in a specialty occupation. 8 U.S.C. 

§ 1101(a)(15)(H)(i)(b).

By tracing the statutory language and definitions 

regarding “nonimmigrant visas” from beginning to end it is 

possible to make sense of the statutory prohibition regarding 

firearms. Combining the statutory definition of 

“nonimmigrant visa” with the firearms statute means it is 

unlawful for an alien to possess a firearm if he knew he was 

admitted under a visa granted to an alien coming temporarily 

to the United States to perform services in a specialty 
UNITED STATES V. GEAR 15

occupation. 18 U.S.C. § 922(g)(5)(B), 8 U.S.C. 

§ 1101(a)(15)(H)(i)(b). Thus, as relevant here, the postRehaif knowledge requirement is that the individual knew he 

1) was an alien; 2) who was admitted temporarily to the 

United States; 3) to perform services in a specialty 

occupation. The government must prove these facts, not that 

the alien knew his visa was “classified” a “nonimmigrant 

visa.”1

Reviewing Gear’s knowledge of the characteristics of his 

visa makes the “plain error” analysis straightforward. To 

meet the third prong of the plain error analysis, Gear had to 

show the error was “prejudicial” in the sense that it “affected 

the outcome of the trial.” United States v. Marcus, 560 U.S. 

258, 262 (2010) (quoting United States v. Olano, 507 U.S. 

725, 734 (1993)). Here, the jury was presented with 

overwhelming evidence Gear knew the characteristics of his 

visa.

First, Gear stipulated he was an alien. Second, Gear’s 

passport, which was in his possession, noted he was admitted 

to the United States only “until November 24, 2019.” Gear’s 

visa, also in his possession, stated it expired in November 

2019. Accordingly, Gear knew he was an alien coming to 

1 This reasoning prevents a conflict with the recent opinion United 

States v. Singh, 979 F.3d 697 (9th Cir. 2020). There, the panel affirmed 

a conviction for violating the same firearms statute. In Singh, the 

defendant had been admitted under B1/B2 visas which are nonimmigrant 

visas granted to an alien with “a residence in a foreign country which he 

has no intention of abandoning and who is visiting the United States 

temporarily for business [or] pleasure.” 8 U.S.C. § 1101(15)(B). The 

conviction was affirmed because there was overwhelming evidence the 

defendant had a foreign residence he did not intend to abandon and he 

was visiting the United States only temporarily for business or pleasure. 

There is no discussion in Singh of evidence the defendant knew his visas 

statutorily qualified as “nonimmigrant visas.”
16 UNITED STATES V. GEAR

the United States temporarily. As for the third requirement 

that Gear knew he would be performing a “specialty 

occupation,” there was more than enough evidence.

The jury heard from Gear’s wife that she and Gear had 

recently established a limited liability company. Gear’s wife 

testified she and Gear “established” the “new visa for Mel 

under our company.” She also testified “we,” meaning she 

and Gear, “worked on [obtaining the new visa] in October 

and November and into December and January.” Thus, Gear 

was heavily involved in applying for the visa. The 

application form completed by Gear’s wife on behalf of their 

joint company identified Gear’s then-current status as “H1B 

- Specialty Occupation” with Gear seeking to continue the 

classification of “H-1B Specialty Occupation” under the 

new company. In addition, the application identified Gear 

as “Chief Technical Engineer” for a company devoted to 

“[i]nstallation of solar and other renewable energy systems” 

with an annual salary of $100,000. Given these facts, Gear 

knew he was involved in a “specialty occupation.”

The government was not required to prove Gear knew 

his visa was classified as a “nonimmigrant visa.” Instead, 

the government had to prove Gear knew the relevant 

characteristics of his visa. Because there was overwhelming 

evidence he knew those characteristics, I concur in the 

judgment affirming his conviction.

BUMATAY, Circuit Judge, concurring in part and 

dissenting in part:

No student of law or history can deny the paramount 

importance of the right to a jury trial. This essential right is 

the only guarantee found in both the articles of the 
UNITED STATES V. GEAR 17

Constitution and the Bill of Rights. U.S. Const. Art. III, § 2, 

cl. 3 (“The Trial of all Crimes, except in Cases of 

Impeachment, shall be by Jury[.]”); U.S. Const. amend. VI, 

§ 2 (“In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury of the 

State and district wherein the crime shall have been 

committed[.]”). The denial of this right was specifically 

cited in the Declaration of Independence, which indicted 

King George III “for depriving [the People] in many cases, 

of the benefits of Trial by Jury.” And as Alexander Hamilton 

explained, “[t]he friends and adversaries of the plan of the 

convention, if they agree in nothing else, concur at least in 

the value they set upon the trial by jury: Or if there is any 

difference between them, it consists in this, the former 

regard it as a valuable safeguard to liberty, the latter 

represent it as the very palladium of free government.” See 

Federalist No. 83.

The constitutional right to a jury trial includes the right 

“to have a jury determine, beyond a reasonable doubt, [a 

defendant’s] guilt of every element of the crime with which 

he is charged.” United States v. Gaudin, 515 U.S. 506, 522–

23 (1995) (emphasis added). This right requires that “the 

truth of every accusation . . . be confirmed by the unanimous 

suffrage of twelve of [the defendant’s] equals and 

neighbors.” 4 W. Blackstone, Commentaries on the Laws of 

England 343 (1769). So while harmless and plain error 

might be necessary doctrines, see Neder v. United States, 

527 U.S. 1, 8 (1999), we must tread carefully before 

overtaking the jury’s role to determine guilt on every 

element.

Here, Gear has established that there is a reasonable 

probability that the outcome of his trial would be different if 

the jury were properly instructed. Rather than conjecture 
18 UNITED STATES V. GEAR

about his guilt from the bench, we should return the question 

to where it is constitutionally reserved: the jury box. 

Because we fail to do so, I respectfully dissent from Part III 

of the court’s decision and the judgment affirming the 

conviction.

I.

The court applies plain-error analysis to this claim. 

Under that review, the defendant is entitled to reversal when 

“(1) there was error, (2) the error was plain, (3) the error 

affected substantial rights, and (4) the error seriously 

affected the fairness, integrity, or public reputation of 

judicial proceedings.” United States v. Becerra, 939 F.3d 

995, 999 (9th Cir. 2019).

A.

Since the first two prongs of plain-error review are 

clearly satisfied here, the key inquiry is whether Gear 

showed that the error affected his substantial rights. See

United States v. Benamor, 937 F.3d 1182, 1188 (9th Cir. 

2019). This means he must “show a reasonable probability 

that, but for the error, the outcome of the proceeding would 

have been different.” Molina-Martinez v. United States, 

136 S. Ct. 1338, 1343 (2016) (simplified).

And since a three-judge panel is no substitute for twelve 

of Gear’s peers, our review is not simply whether we think 

the result would’ve been different. Instead, we review the 

case through makeshift juror glasses. We “‘conduct a 

thorough examination’ of the evidence in the record and ask 

whether ‘it is clear beyond a reasonable doubt that a rational 

jury would have found the defendant guilty absent the 

error.’” United States v. Conti, 804 F.3d 977, 981 (9th Cir. 

2015) (quoting Neder, 527 U.S. at 17) (emphasis added). 
UNITED STATES V. GEAR 19

Before upholding a conviction rendered on erroneous jury 

instructions, we demand “strong and convincing evidence” 

that the jury would’ve reached the same result even if it had 

been properly instructed. United States v. Alferahin, 

433 F.3d 1148, 1158 (9th Cir. 2006).

Far from meeting this standard, the record here reveals 

only weak and debatable evidence that Gear knew he was 

“admitted . . . under a nonimmigrant visa.” See 18 U.S.C. 

§§ 922(g)(5)(B), 924(a)(2). As the court articulates, 

§ 922(g)(5)(B)’s knowledge requirement can be established 

in two ways: (1) “[b]y demonstrating Gear knew that his visa 

was classified as a ‘nonimmigrant visa;’” or (2) “by showing 

he knew the ‘offending characteristics’ of his visa—i.e., the 

facts that make his visa a nonimmigrant one.” Opinion at 11.

Regarding the first method, little evidence supports the 

conclusion that Gear knew his “H-1B” visa was classified as 

“nonimmigrant.” Crucially, Gear’s visa itself doesn’t say 

“nonimmigrant” anywhere—it only says “H-1B.” But as we 

explained, Gear’s knowledge that he has an H-1B visa 

doesn’t satisfy the knowledge requirement. Opinion at 11. 

The government states its strongest evidence showing this 

knowledge is a visa-application form entitled “Petition for 

Nonimmigrant Worker.” Sprinkled throughout the form, 

including in its title, is the word “nonimmigrant.” There’s 

just one problem: the record doesn’t show whether Gear 

filled out this form himself, signed it, or even read it. On the 

contrary, the form was prepared by a third party and signed 

by Gear’s wife.

The evidence relied on by the court doesn’t change this 

analysis. It points to Gear’s admission that he “couldn’t 

possess a firearm in the State of Hawaii because he was not 

a U.S. citizen.” But this is hardly ironclad evidence that 

Gear knew he held a “nonimmigrant” visa. In fact, this 
20 UNITED STATES V. GEAR

statement suggests that Gear thought only citizens could 

possess a gun—which isn’t the law—and demonstrates only 

that he knew was not a citizen.

The same deficiencies exist with the evidence regarding 

Gear’s knowledge of the nonimmigrant visa’s 

characteristics—the second way to satisfy this element. 

Here, the only relevant nonimmigrant visa is an H-1B visa, 

which goes to someone who is (1) an alien, (2) coming 

temporarily to the United States, (3) to perform services in a 

specialty occupation. See 8 U.S.C. § 1101(a)(15)(H)(i)(b). 

I agree with the concurrence that the evidence readily proves 

Gear’s knowledge of the first two H-1B characteristics. See

Silver Concurrence at 15–16. But I disagree that the 

evidence sufficiently shows Gear knew the last fact—that he 

was in the country to perform a “specialty occupation.”1 The 

only evidence in the record remotely establishing Gear’s 

“specialty occupation” was the visa-application form, which 

includes the words “Specialty Occupation” and identifies 

Gear’s role as “Chief Technical Engineer.” But the 

government never adduced evidence regarding Gear’s part 

in filling out the visa-application form or corroborating the 

information contained within it. The concurrence suggests 

that “Gear was heavily involved in applying for the visa,” id. 

at 16; yet, the only evidence for that is his wife’s use of the 

word “we” while testifying about the application process in 

general. This is not enough in my opinion.

Significantly, Gear’s wife’s testimony might have never 

reached the jurors’ ears if the parties had been properly 

1 The term “specialty occupation” means an occupation that requires 

“(A) theoretical and practical application of a body of highly specialized 

knowledge, and (B) attainment of a bachelor’s or higher degree in the 

specific specialty (or its equivalent).” 8 U.S.C. § 1184(i)(1).
UNITED STATES V. GEAR 21

instructed on § 922(g)(5)(B)’s knowledge requirement. Had 

this element been included in the jury instructions, Gear 

could have altered his trial strategy. For example, Gear 

would have refrained from putting his wife on as a witness 

or encouraged her to invoke a spousal privilege if called by 

the government. See United States v. Griffin, 440 F.3d 1138, 

1143–44 (9th Cir. 2006) (explaining spousal privilege). Or 

he could have challenged the introduction of the visaapplication form or his verbal admissions to law 

enforcement. But none of this happened because the only

contested issue at trial (in light of the erroneous jury 

instructions) was whether Gear knowingly possessed the 

gun. This is the usual problem with our plain-error review 

of omitted-element jury instructions. See United States v. 

Jordan, 291 F.3d 1091, 1096 (9th Cir. 2002) (explaining that 

in such cases courts “do not have the ability . . . simply to 

determine whether a proper jury instruction would have 

made any difference” because the element hasn’t been 

litigated).

While skillful prosecutors may be able to convince a jury 

based on the evidence introduced at trial that Gear knew he 

had a nonimmigrant visa, reaching this conclusion on the 

jury’s behalf requires us to build a “veritable fairyland 

castle” of government-friendly inferences. Minnick v. 

Mississippi, 498 U.S. 146, 166 (1990) (Scalia, J., dissenting). 

But a jury could reject these inferences and reach the 

opposite conclusion. Because the evidence on this question 

is thin, I cannot confidently say that no reasonable juror 

would have found sufficient doubt about Gear’s knowledge 

to vote for acquittal.

B.

The fourth prong of plain-error review has also been met: 

the missing element from the jury instructions “‘seriously 
22 UNITED STATES V. GEAR

affect[s] the fairness, integrity or public reputation of 

judicial proceedings.’” United States v. Olano, 507 U.S. 

725, 736 (1993) (quoting United States v. Atkinson, 297 U.S. 

157, 160 (1936)). We’ve previously recognized that the 

denial of a defendant’s “constitutional right to have all 

elements of the crime submitted to the jury” is a “serious 

concern[], going to the very heart of the criminal 

proceeding.” United States v. Murphy, 824 F.3d 1197, 1205 

(9th Cir. 2016).

I see no reason to depart from that conclusion here. Gear 

was deprived of his basic right to have the jury decide every 

element of the offense charged. The error also led him to 

forego possibly winning defenses and trial tactics. And the 

evidence that the jury would have convicted him anyway is 

too thin for us to say that close is close enough. See id.

(“[T]he strength of the evidence is a factor.”). Accordingly, 

allowing Gear’s conviction to stand poses a “greater threat 

to the integrity and fairness of judicial proceedings” than 

reversal would. Alferahin, 433 F.3d at 1159.

II.

“[T]he Constitution does not trust judges to make 

determinations of criminal guilt.” Neder, 527 U.S. at 32 

(Scalia, J., concurring in part and dissenting in part) 

(emphasis omitted). Judges—and federal judges in 

particular—are “proper objects of that healthy suspicion of 

the power of government,” which prompted the people to 

“reserve[] the function of determining guilt to themselves, 

sitting as jurors.” Id. When a defendant can show a 

reasonable probability that the jury would have reached a 

different outcome, our role is to send the case back to the 

jury rather than “reviewing the facts ourselves and 

pronouncing the defendant without-a-doubt guilty.” Id. 
UNITED STATES V. GEAR 23

Because Gear has made this showing, we should leave the 

determination of Gear’s guilt to the jury.

I respectfully dissent from the judgment of the court.