IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40465

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

HEON JONG YOO, also known as Hank Yoo, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:18-CR-16-1

Before DAVIS, GRAVES, and DUNCAN, Circuit Judges.

PER CURIAM:*

Heon Jong Yoo was convicted on eight counts under the Gun Control Act:

seven counts of making a false statement to a federally licensed gun dealer, in 

violation of 18 U.S.C. § 924(a)(1)(A), and one count of possession of a firearm 

by a prohibited person, in violation of § 922(g)(4). Because the evidence was 

sufficient to establish each element of § 924(a)(1)(A), we AFFIRM Yoo’s 

conviction as to Counts 1-7. But because Yoo was not “committed to a mental 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 4, 2020

Lyle W. Cayce

Clerk

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institution” within the meaning of § 922(g)(4), we REVERSE the judgment of 

conviction as to Count 8. 

I. BACKGROUND

Heon Jong Yoo was involuntarily committed to treatment under New 

Jersey’s temporary, ex parte procedure twice. First, in April 2013, Yoo agreed 

to be transported by the Rutgers University Police Department (RUPD) to a 

hospital for evaluation. There, a screener, a physician, and a psychiatrist 

determined that Yoo met the criteria for mental illness, was a danger to 

himself or others, and should be involuntarily committed to a mental 

institution. Based on their certifications, a New Jersey superior court judge 

found probable cause to believe that Yoo was in need of involuntary 

commitment. The judge issued a “Temporary Order for the Involuntary 

Commitment of an Adult,” ordering that Yoo be committed to a hospital 

“pending a court hearing” in about two weeks. Yoo was discharged from the 

hospital four days before the scheduled hearing.

RUPD took Yoo to a hospital for another evaluation in September 2015.

Once again, a screener, physician, and psychiatrist determined that Yoo met 

the criteria for mental illness and that he should be committed. And, once 

again, a New Jersey superior court judge ordered that Yoo be temporarily 

committed “pending a court hearing” 12 days later. Yoo was discharged six 

days before the scheduled hearing.

A few months later, in January 2016, Yoo tried to buy a gun. But because 

the National Instant Criminal Background Check System (NICS) revealed 

that Yoo had been “adjudicated as mental defective/committed to a mental 

institution,” his purchase was denied. The FBI explained, upon Yoo’s inquiry,

that he was a “prohibited person” under one of the 10 possible categories listed 

in §§ 921 and 922, but did not specify which one applied.

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Yoo kept trying (often successfully) to buy firearms from 2016-2017. 

Each time, he had to fill out the Form 4473 issued by the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives (ATF). In response to a question on that 

form, Yoo stated that he was a citizen of the United States seven different 

times. He correctly identified his country of citizenship as South Korea—not

the United States—twice.

Ultimately, Yoo was convicted of eight crimes under the Gun Control Act: 

seven counts of making a false statement to a federally licensed firearms 

dealer, in violation of § 924(a)(1)(A) (Counts 1-7), and one count of possession 

of a firearm by a prohibited person, in violation of § 922(g)(4) (Count 8). Yoo 

timely appeals his conviction. 

II. § 924(a)(1)(A) 

To establish a violation of § 924(a)(1)(A), the Government must prove 

that: “(1) the dealer was a federally licensed firearms dealer at the time the 

events occurred; (2) the defendant made a false statement or representation in 

a record that the licensed firearms dealer was required by federal law to 

maintain; and (3) the defendant made the false statement with knowledge of 

its falsity.”1

A.

First, Yoo argues the Government failed to establish that the gun dealers 

named in Counts 1-7 were federally licensed. Because this element is 

jurisdictional,2 we must determine whether the evidence was sufficient to 

establish it.3

1 United States v. Pena, 541 F. App’x 453, 455 (5th Cir. 2013) (quoting United States 

v. Abramski, 706 F.3d 307, 316-17 (4th Cir. 2013), aff’d 573 U.S. 169 (2014)). 

2 United States v. Reid, 595 F. App’x 280, 283 (5th Cir. 2014).

3 United States v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994). 

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The Government need not produce each dealer’s federal license.4 For 

example, we have held that an ATF agent’s testimony that he “knew that the 

[dealer] was a licensed firearms dealer,”5 and an employee’s testimony that the 

dealer “had a valid license during the relevant period”6 was enough. 

Here, there was sufficient evidence that Superior Firearms, First Cash 

Pawn, Academy Sports, and Cash America Pawn were federal firearms 

licensees (FFLs) at the time of Yoo’s offenses. The Form 4473 used by the 

dealers implicated in Counts 1-5 states on its face that “This form should only 

be used for sales of a firearm where the seller is licensed under 18 U.S.C. § 

923.” Moreover, the jury heard testimony from employees of each dealer about 

its status as an FFL.7

B.

Next, Yoo argues the evidence was insufficient to prove that he made a 

false statement by selecting “USA” in response to the Form 4473’s “country of 

citizenship” question. An October 2016 revised version of the Form 4473 states 

that “Nationals of the United States” may select “USA.” Yoo argues that the 

Government failed to prove he wasn’t a U.S. national.

This argument only applies to Counts 6 and 7. The dealers associated 

with Counts 1-5 used the Form 4473 version revised in April 2012—and that 

version did not allow U.S. nationals to identify as U.S. citizens. 

4 United States v. Frazier, 547 F.2d 272, 273 (5th Cir. 1977). 

5 Id.

6 United States v. Ballard, 18 F.3d 935 (5th Cir. 1994).

7 The owner of Superior Firearms testified that “[w]e are a federal firearms licensed 

gun dealer,” that he has “own[ed] the FFL” for nine years, and that, “as an FFL,” Superior 

Firearms is required to keep each Form 4473. The jury heard testimony that only federally 

licensed dealers can submit the Form 4473 to the ATF for a background check, and the owner 

of Superior Firearms testified that he “got an immediate denial from the ATF.” Employees 

testified that First Cash Pawn (involved in Counts 2, 3, and 4) is an FFL. Academy Sports 

employees (Count 5) also testified that it is in FFL. Likewise, employees of Cash America 

Pawn (Counts 6 and 7) testified that it is an FFL and that it is required to keep each Form 

4473. 

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The Government produced evidence that a U.S. national is a person “who 

[was] born in the territories of the United States, specifically, American Samoa 

and the Commonwealth of Northern Mariana Islands.”8 Yoo argues now, as he 

did at trial, that a definition of “national” from the Immigration and 

Nationality Act should apply. Under that definition, a national is “(A) a citizen 

of the United States, or (B) a person who, though not a citizen of the United 

States, owes permanent allegiance to the United States.”9

Yoo’s argument fails under either definition. In Omolo v. Gonzales, we 

considered both definitions and held that “a person may become a national only 

by birth or by completing the naturalization process.”10 Yoo’s administrative 

file, which was introduced into evidence, showed that he had not completed the 

naturalization process. Accordingly, the evidence was sufficient for the jury to 

find that Yoo was not a national of the United States. 

C.

Recall that under § 924(a)(1)(A), it is a crime to make a false statement 

“with respect to the information required by this chapter to be kept in the 

records” of a federally licensed gun dealer. Yoo argues that an applicant’s 

country of citizenship is not “information required by this chapter.” Yoo is 

incorrect.

“This chapter” means chapter 44 of title 18 of the United States Code. A 

statute within chapter 44 directs gun dealers to “maintain such records . . . as 

the Attorney General may by regulations prescribe.”11 “Because of that 

statutory section, the information that the Attorney General’s regulations 

compel a dealer to keep is information ‘required by this chapter.’”12 One of 

8 This definition derives from 8 U.S.C. § 1408.

9 8 U.S.C. § 1101(a)(22).

10 452 F.3d 404, 409 (5th Cir. 2006).

11 18 U.S.C. § 923(g)(1)(A).

12 Abramski v. United States, 573 U.S. 169, 192 (2014).

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those regulations instructs dealers to “obtain a 4473 from the transferee 

showing,” among other things, “the transferee’s country of citizenship[.]”13

Moreover, since the regulations require that licensed dealers retain each Form 

4473, “a false answer on that form . . . pertains to information a dealer is 

statutorily required to maintain.”14

For these reasons, Yoo’s convictions on Counts 1-7 of the superseding 

indictment are AFFIRMED. 

III. § 922(g)(4)

Under § 922(g)(4), it is a crime for any person “who has been adjudicated 

as a mental defective or who has been committed to a mental institution” to 

“possess[,] in or affecting commerce, any firearm or ammunition.”15 Yoo argues 

he was not “committed” to a mental institution as a matter of law.16

Whether Yoo has been “committed” within the meaning of § 922(g)(4) is 

a question of federal law, but courts look to state commitment law for 

guidance.17 In New Jersey, an action for commitment to treatment can be 

commenced by a screening service.18 First, a mental health screener must 

determine whether the person meets the criteria for “mental illness” and 

whether they pose a threat to themselves, others, or property. If the screener 

finds that the person meets that standard and that there are no less restrictive 

alternatives, a “screening document” is prepared. Next, a physician evaluates 

the person and issues a “screening certificate” if it finds the same criteria 

13 27 C.F.R. § 478.124(c)(1). 14 Abramski, 573 U.S. at 192.

15 18 U.S.C. § 922(g)(4).

16 Section 922(g)(4) does not define “committed,” but ATF regulations provide the 

following guidance: “A formal commitment of a person to a mental institution by a court, 

board, commission, or other lawful authority . . . The term does not include a person in a 

mental institution for observation or a voluntary admission to a mental institution.” 27 

C.F.R. § 478.11. 17 United States v. Giardina, 861 F.2d 1334, 1335 (5th Cir. 1988). 

18 N.J. Ct. R. § 4:74-7.

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satisfied.19 Finally, a psychiatrist evaluates the person under the same 

standard, and if she agrees, issues a “clinical certificate.” 

The county adjuster presents the screening document, screening 

certificate, and clinical certificate to a New Jersey superior court judge, who 

“shall immediately review them in order to determine whether there is 

probable cause to believe that the person is in need of involuntary commitment 

to treatment.”20 If the court finds probable cause based on those documents, “it 

shall issue a temporary order authorizing the assignment of the person to an 

outpatient treatment provider or the admission or retention of the person in 

the custody of the facility . . . pending a final hearing.”21

The final commitment hearing must take place within 20 days of the 

order of temporary commitment. At the final hearing, each patient has the 

right to be present, to be represented by counsel, to present evidence, and to 

cross-examine witnesses.22 After that hearing, the court shall enter a final 

order of commitment if it finds “by clear and convincing evidence presented at 

the hearing that the patient is in need of continued involuntary commitment 

to treatment.”23

Yoo went through the screening process twice. Both times, a New Jersey 

superior court judge found probable cause, based on the certificates completed 

by a screener, physician, and psychiatrist, to issue an order of temporary 

19 At this point, the person may be involuntarily admitted to a psychiatric unit, where 

they must be evaluated by a psychiatrist within 72 hours. 

20 N.J.S.A. § 30:4-27.10(f). 

21 N.J.S.A. § 30:4-27.10(g); see also N.J. Ct. R. 4:74-7(c) (“The court may enter an order 

of temporary commitment to treatment . . . pending final hearing if it finds probable cause, 

based on the documents filed . . . to believe that the person is in need of involuntary 

commitment to treatment”). 

22 N.J.S.A. § 30:4-27.14.

23 N.J. Ct. R. § 4:74-7(f)(1); see also § 4:74-7(e) (“No final order of commitment to 

treatment shall be entered except upon hearing conducted in accordance with the provisions 

of these rules”). 

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commitment. But both times, Yoo was discharged before the final commitment 

hearing. 

So, the question narrows to whether New Jersey’s ex parte procedure for 

temporary orders of involuntary commitment constitutes “commitment to a 

mental institution” under § 922(g)(4). The only federal court to consider the 

issue (the District of Maine) said yes.24 At the time, the First Circuit (where 

the district court was located) had held that temporary involuntary 

commitment without an adversarial hearing is “commitment” under the 

statute.25

The First Circuit overturned that line of cases in United States v. 

Rehlander.26 There, both defendants had been hospitalized under Maine’s ex 

parte, emergency procedure,27 but were never committed under Maine’s fullscale, adversarial procedure.28 The court reasoned that, after District of 

Columbia v. Heller,29 the right to possess a firearm “is no longer something 

that can be withdrawn by government on a permanent and irrevocable basis 

without due process.”30 And, in enacting § 922, “nothing suggests that 

Congress had in mind temporary hospitalizations supported only by ex parte 

procedures.”31 Accordingly, the court concluded that “section 922 should not be 

24 United States v. Miller, 366 F. Supp. 2d 128 (D. Me. 2005). 

25 See United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998); United States 

v. Holt, 464 F.3d 101, 105-6 (1st Cir. 2006). 

26 666 F.3d 45 (1st Cir. 2012). 

27 This procedure required (1) an application by a health officer or law enforcement 

officer, (2) a medical practitioner’s certificate, and (3) endorsement by a judge that the 

application and certificate are “regular and in accordance with the law.” Me. Rev. Stat. tit. 

34-B, § 3863.

28 The formal commitment procedure requires an adversary hearing, counsel for the 

patient and an opportunity to testify and to call and cross-examine witnesses. The court must 

determine whether there is clear and convincing evidence that the patient is mentally ill and 

poses a likelihood of serious harm, and whether better alternative arrangements exist. 

29 554 U.S. 570 (2008) (announcing an individual constitutional right to possess a 

firearm). 

30 Rehlander, 666 F.3d at 48. 

31 Id. at 50.

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read to encompass a temporary hospitalization attended only by [Maine’s] ex 

parte procedures[.]”32

Similarly, we held that Louisiana’s (slightly different) ex parte procedure 

for temporary involuntary hospitalization did not constitute “commitment” in 

United States v. Giardina.33 At the time, Louisiana law allowed a “mentally ill 

person” to be involuntarily admitted for “observation, diagnosis, and 

treatment” for up to 15 days under an emergency certificate issued by a 

physician.34 A court order was required to detain the person any longer. Like 

Yoo, Giardina was discharged before those 15 days were up. We concluded that 

“[t]emporary, emergency detentions for treatment of mental disorders or 

difficulties, which do not lead to formal commitments under state law, do not 

constitute the commitment envisioned by 18 U.S.C. § 922.”35

We conclude that Yoo’s temporary hospitalization based on an ex parte 

order, signed by a judge without a hearing, does not constitute “commitment 

to a mental institution” within the meaning of § 922(g)(4).36 Accordingly, the 

judgment of conviction as to Count 8 is REVERSED. 

IV. CONCLUSION 

For these reasons, Yoo’s conviction as to Counts 1-7 are AFFIRMED, and 

his conviction as to Count 8 is REVERSED. 

32 Id. at 49.

33 861 F.2d 1334 (5th Cir. 1988). 

34 Id. at 1336. 

35 Id. at 1337.

36 See also United States v. McIlwain, 772 F.3d 688, 697 (11th Cir. 2014) (finding 

“commitment” where defendant “received a formal hearing, was represented by an attorney, 

and the state probate court heard sworn testimony and made substantive findings of fact that 

it included in its formal order of commitment”); United States v. Hansel, 474 F.2d 1120, 1123 

(8th Cir. 1973) (“There is nothing in [§ 922(g)(4)] which indicates an intent to prohibit the 

possession of firearms by persons who had been hospitalized for observation and 

examination, where they were found not to be mentally ill”).

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