Thursday, March 25, 2004
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Ninth Circuit Throws Out Saudi Man’s Gun Conviction
By a MetNews Staff Writer
A Saudi Arabian national’s conviction of being an alien in unlawful possession of a firearm was thrown out yesterday by the Ninth U.S. Circuit Court of Appeals, which said the temporary Arizona resident was misled into believing that he could legally own the gun.
Senior Judge Arthur L. Alarcon, writing for the court, said Abdulraouf Shahir Batterjee was entitled to acquittal because there was uncontroverted evidence establishing the affirmative defense of “entrapment by estoppel.”
Batterjee, who came to this country in 1992 on a student visa and later received a non-immigrant H-1 visa for temporary employment, was arrested after a search of his residence pursuant to a warrant.
The search took place less than three months after the events of Sept. 11, 2001, and the underlying affidavit, signed by an agent of the Bureau of Alcohol, Tobacco, and Firearms, erroneously asserted that Batterjee was in the country illegally.
Agents seized the defendant’s gun and ammunition. After confirming that he was legally present in the United States, prosecutors charged him with being a nonimmigrant alien in possession of a firearm.
Congress, in 1998, amended federal law to prohibit nonimmigrant aliens from possessing guns or ammunition. Before that, being an alien did not disqualify a person from possessing a gun as long as he or she was in the country legally.
Batterjee’s defense counsel established that he had acquired the gun from a Tempe gun shop in early 2001 and filled out an ATF form. It was undisputed that he answered every question on the form truthfully, including answering “no” to the question whether he was a U.S. citizen and indicating that he had lived in Arizona for more than 90 days.
The gun store clerk and owner both testified that it was their belief at the time that an alien could buy a gun if he or she had lived in the state for at least 90 days and provided proper identification. They said they were unaware that the form they were using was outdated and that the ATF had updated the form to include recently enacted prohibitions on gun ownership, including the ban on possession by nonimmigrant aliens, and that it never occurred to them to ask the defendant what kind of visa he had.
U.S. District Judge Paul Rosenblatt, who heard the case without a jury, rejected the entrapment-by-estoppel defense. He found the defendant to be “an honest fellow,” but concluded that he was not entrapped because the gun store owner and clerk were unaware that he was in the country on a work visa.
The judge sentenced the defendant to 14 days in jail, with credit for time served, plus three years supervised release and fines and assessments totaling $1,200.
But Alarcon, citing the testimony of the witnesses, including the defendant’s testimony that he would not have purchased the gun if they had not told him it was legal, said Batterjee was entitled to rely on the representations of a federally licensed gun dealer using an official government form.
“While it is true that Form 4473 did not expressly state that an alien legally in the country on a non-immigrant visa could purchase a firearm, the only immigration-related basis for not being eligible to possess a firearm Form 4473 set forth was illegal presence in the United States,” the judge explained, saying it was reasonable for the defendant to conclude from that, as well as the dealer’s advice, that he could own the gun.
The case is United States v. Batterjee, 03-10152.
Copyright 2004, Metropolitan News Company