Souleymane Balde was indicted for violating 18 U.S.C. §§922(g)(5)(A) and 924(a)(2) because he possessed a firearm notwithstanding that he was an alien “illegally or unlawfully in the United States.” Balde pled guilty, but appealed on the ground that he was not “in” the United States as that term was used in §922(g)(5)(A). The Second Circuit upheld his conviction, but eight days later the Supreme Court decided Rehaif v. United States, 139 S. Ct. 2191 (2019), which held that to obtain a conviction under 18 U.S.C. §§922(g)(5)(A) and 924(a)(2), the government must prove that the defendant knew that he or she was illegally within the United States. Balde petitioned for rehearing in the Second Circuit, arguing that Rehaif required dismissal of the indictment, which did not include the mens rea requirement enunciated in Rehaif, or, in the alternative, vacatur of his conviction because he did not admit to the element in his plea allocution.
The Second Circuit rejected Balde’s argument that the indictment be dismissed, but granted his argument to vacate his conviction. United States v. Balde, 17-3337-cr (Nov. 13, 2019). In doing so, the court distinguished between jurisdictional defects in indictments and non-jurisdictional defects. Its discussion leaves many questions, most importantly whether the distinction is or should be observed.
