In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2182

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREGG S. STEIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin. 

No. 11-CR-184—William C. Griesbach, Chief Judge.

ARGUED DECEMBER 12, 2012—DECIDED MARCH 19, 2013

Before POSNER, ROVNER and WOOD, Circuit Judges.

PER CURIAM. Gregg Stein appeals his conviction for

possessing a firearm following a misdemeanor conviction for a crime of domestic violence. See 18 U.S.C.

§ 922(g)(9). He argues that he should have been allowed

to introduce evidence at trial supporting a proposed

defense that his lawyer in the domestic-violence prosecution had led him to believe that the misdemeanor

conviction would not disqualify him from possessing
2 No. 12-2182

firearms. Because the district court correctly relied on

two decisions from this court in rejecting such evidence

as irrelevant, we affirm the judgment.

Stein pleaded guilty to misdemeanor battery in Wisconsin, see WIS. STAT. § 940.19(1), after he struck his livein girlfriend in 2008, breaking two of her teeth and

bruising her face. As part of Stein’s plea bargain, the state

prosecutor dismissed a domestic-abuse surcharge that

normally would apply. See WIS. STAT. § 973.055. Stein’s

attorney stated at the plea hearing that he believed the

guilty plea without the surcharge would protect Stein

from the federal ban on gun possession for persons convicted of a misdemeanor domestic-violence crime. See 18

U.S.C. § 922(g)(9). Stein, an avid hunter, wanted to preserve the ability to possess and use guns. His attorney

advised in open court that “he may have some difficulty purchasing a weapon” after his battery conviction, but that he would not violate federal law by possessing and using the guns that he already owned. That

advice prompted the state judge to warn Stein, however, that “there’s no guarantees” he could possess

guns after his conviction.

Stein was sentenced to two years’ probation, and one

condition of his sentence was that he not possess guns

while on supervision. At a hearing in 2009 on his request

for early termination of his probation, Stein received

new information making it clear that his attorney had

given him bad advice. Stein had wanted the firearm ban

lifted in time for the upcoming hunting season, but the

prosecutor asserted that federal law still would prevent
No. 12-2182 3

him from possessing guns after his probation ended. The

state judge agreed. In an apparent reference to United

States v. Hayes, 555 U.S. 415 (2009), the judge explained

that a decision released after Stein’s sentencing clarifies

that the predicate state offense need not denominate a

domestic relationship as a statutory element in order

to meet the requirements of § 922(g)(9). See Hayes, 555

U.S. at 425-26.

After his probation ended, Stein alerted federal authorities to his prohibited status when he completed an

ATF Form 4473 in anticipation of taking possession of a

rifle he won at a sports banquet. One question on the

form asks whether the applicant has been convicted of

a misdemeanor crime of domestic violence, explaining

that such persons are prohibited by federal law from

possessing guns. Stein answered yes to this question.

He was denied permission to obtain the rifle, and a

special agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives visited his house to deliver a

letter confirming his prohibited status. Stein admitted to

the agent that he possessed other guns, and although

he was reluctant to relinquish possession, he agreed

to transfer the guns to his mother’s house. He later was

charged under § 922(g)(9) with unlawful possession of

firearms.

In preparing for trial Stein’s new attorney sought a

ruling that would allow him to introduce evidence and

have the jury instructed concerning Stein’s purported

ignorance of his prohibited status. Stein contended that

he could not be found guilty of “knowingly” violating the
4 No. 12-2182

federal ban on gun possession, see 18 U.S.C. § 924(a)(2),

if he was unaware of his prohibited status under

§ 922(g)(9). He thought he could show that his lawyer

in the state case had misadvised him that he would

still be able to possess a gun without violating federal law, and thus he did not have the required mens

rea for unlawful possession. The district judge ruled,

however, that evidence concerning Stein’s knowledge

of his legal status was irrelevant and also rejected his

proposed jury instruction. Stein then proceeded to a

bench trial in order to preserve these issues for appeal. He stipulated that his Wisconsin battery offense

meets the federal definition of a misdemeanor domesticviolence crime and that the guns he possessed had

traveled in interstate commerce before they came into

his possession. The district court found Stein guilty and

sentenced him to 2 years’ probation.

On appeal Stein maintains that he should have been

allowed to present evidence concerning his lack of knowledge about his prohibited status. He acknowledges

that two opinions from this court, United States v. Lee

Wilson, 437 F.3d 616, 620 (7th Cir. 2006) (interpreting

18 U.S.C. § 922(g)(1)), and United States v. Carlton

Wilson, 159 F.3d 280, 288-89 (7th Cir. 1998) (interpreting

§ 922(g)(8)), suggest that the mens rea element of § 922(g)

is satisfied by knowing possession of the gun and

does not require proof that the defendant was aware

of his status as a prohibited person. Stein nevertheless argues, citing the dissenting opinion in Carlton

Wilson, that § 922(g)(9) should be construed to require

knowledge that one’s gun possession violates the law.
No. 12-2182 5

See 159 F.3d at 293 (Posner, C.J., dissenting) (“It is wrong

to convict a person of a crime if he had no reason to

believe that the act for which he was convicted was a

crime, or even that it was wrongful.”).

Stein seeks to distinguish both Wilson decisions by

differentiating persons convicted of a misdemeanor

crime of domestic violence, 18 U.S.C. § 922(g)(9), from

those who violate other subsections of § 922(g), including

felons, id. § 922(g)(1), fugitives, id. § 922(g)(2), unlawful

users of controlled substances, id. § 922(g)(3), and persons

committed to a mental institution, id. § 922(g)(4). He

argues that these other classes of prohibited persons

know about their status, either because the factual circumstances are obvious or because the judge is required

to engage in an extensive colloquy with the defendant.

Thus, he continues, persons convicted under other subsections of § 922(g) are less likely to be unaware of the

collateral consequences and loss of certain rights. In

contrast, Stein asserts, he was affirmatively told during

his plea hearing in state court that his conviction would

not trigger the federal firearm ban. What is telling, however, is that Stein does not distinguish persons convicted of misdemeanor crimes of domestic violence from

those subject to a domestic-relations restraining order,

see 18 U.S.C. § 922(g)(8). The bases for disqualification

under subsections (g)(9) and (g)(8) are similar, and yet in

Carlton Wilson we rejected the same theory that Stein

presents here and concluded that for subsection (g)(8)

“knowingly” means knowledge of the facts constituting

the offense, not knowledge that those facts make gun

possession illegal. 159 F.3d at 288-89; see also United States
6 No. 12-2182

v. Shelton, 325 F.3d 553, 563 (5th Cir. 2003) (“We perceive

no principled reason for drawing an analytical distinction between § 922(g)(8) and § 922(g)(9).”).

The Supreme Court has explained, in interpreting the

knowledge element of § 924(a), that “unless the text of the

statute dictates a different result, the term ‘knowingly’

merely requires proof of knowledge of the facts that

constitute the offense.” See Bryan v. United States, 524

U.S. 184, 192-93 (1998). We relied on Bryan when

analyzing § 922(g)(8), see Carlton Wilson, 159 F.3d at 288-89,

and Bryan equally supports the district court’s conclusion in this case. Additionally, several other circuits have

held that § 922(g)(9) requires only knowledge of facts.

See Shelton, 325 F.3d at 563; United States v. Hancock, 231

F.3d 557, 562-63 (9th Cir. 2000); United States v. Hutzell,

217 F.3d 966, 967-68 (8th Cir. 2000); United States v.

Mitchell, 209 F.3d 319, 322 (4th Cir. 2000); United States

v. Beavers, 206 F.3d 706, 708-10 (6th Cir. 2000).

Ultimately, as a matter of statutory construction, there

is no reason to think Congress intended “knowingly” to

mean different things for different subsections of

§ 922(g). See Ratzlaf v. United States, 510 U.S. 135, 143

(1994) (“A term appearing in several places in a statutory

text is generally read the same way each time it appears. . . . We have even stronger cause to construe a

single formulation . . . the same way each time it is called

into play.”); United States v. Butler, 637 F.3d 519, 524 (5th

Cir. 2011) (concluding that “it would be illogical” to

impose a different mens rea requirement on different

subsections of § 922(g)). We have held repeatedly that
No. 12-2182 7

the word “knowingly” made applicable to § 922(g) by

§ 924(a)(2) requires knowledge of the factual elements

of the offense and nothing more. See Lee Wilson, 437 F.3d

at 620 (felons); Carlton Wilson, 159 F.3d at 289 (persons

subject to a protective order); United States v. Ballentine,

4 F.3d 504, 506 (7th Cir. 1993) (fugitives); see also United

States v. Obiechie, 38 F.3d 309, 315 (7th Cir. 1994) (holding

that “ ‘knowingly’ in § 924(a)(1) refers only to the intent

to do the act that is proscribed by law, as opposed to

the intentional violation of a known legal duty”).

Accordingly, we AFFIRM the district court’s judgment.

3-19-13