Jury Instructions

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7^th Circuit Court of Appeals

Case Name: United States of America v. Blair Cook

Case No.: 18-1343

Officials: FLAUM, MANION, and ROVNER, Circuit Judges.

Focus: Jury Instructions

A jury convicted Blair Cook of being an unlawful user of a controlled substance (marijuana) in possession of a firearm and ammunition. See 18 U.S.C. §§ 922(g)(3) (proscribing possession of firearm by unlawful user of controlled substance), 924(a)(2)(specifying penalties for one who “knowingly” violates section 922(g)). Cook appealed his conviction, contending that the statute underlying his conviction is facially vague, that it improperly limits his Second Amendment right to possess a firearm, and that the district court did not properly instruct the jury as to who constitutes an unlawful user of a controlled substance. We affirmed Cook’s conviction. United States v. Cook, 914 F.3d 545 (7th Cir. 2019). The Supreme Court subsequently held in Rehaif v. United States, 139 S. Ct. 2191, 2194, 2200 (2019), that the knowledge element of section 924(a)(2) requires the government to show that the defendant knew not only that he possessed a firearm, but that he belonged to the relevant category of persons barred from possessing a firearm. Consistent with the prior case law of this court, the superseding indictment in this case did not allege, nor the jury instructions advise the jury that it must find, that Cook knew he was an unlawful user of a controlled substance. Cook’s petition for a writ of certiorari was pending at the time that Court was considering Rehaif, and Cook had suggested that if the Court in Rehaif expanded the knowledge requirement of section 924(a)(2) to include knowledge of one’s status, the Court ought to remand his case for further proceedings. Petition for Writ of Certiorari at 25–26, Cook v. United States, No. 18-9707 (U.S. June 12, 2019).  The Court subsequently granted Cook’s petition, vacated our decision sustaining his conviction, and remanded for reconsideration in light of Rehaif, as Cook had asked it to do. Cook v. United States, 140 S. Ct. 41 (Oct. 7, 2019).Upon reconsideration, we now reincorporate our previous decision, with minor modifications, rejecting Cook’s vagueness and Second Amendment challenges to section 922(g)(3) along with his objection to the jury instruction on who constitutes an unlawful user of a controlled substance. But in light of Rehaif, we conclude that Cook is entitled to a new trial.

Reversed and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.