United States of America v. Mark Perkins

United States Court of Appeals
For the Eighth Circuit
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No. 22-2562
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United States of America
Plaintiff - Appellee
v.
Mark Perkins
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 12, 2023
Filed: March 31, 2023
[Unpublished]
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Before GRASZ, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.

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Mark Perkins was convicted of being a felon in possession of a firearm, 18
U.S.C. §§ 922(g)(1), 924(a)(2). The district court1 denied his motion to dismiss his
indictment. After he was convicted, Perkins moved for acquittal, which the district
court2 also denied. We affirm.
I.
For prosecutions under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the
Government must “prove both that the defendant knew he possessed a firearm and
that he knew he belonged to the relevant category of persons barred from possessing
a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Perkins argues
that his indictment failed to allege—and the Government failed to prove—that he
knew he belonged to the category of people barred from possessing a firearm as
required by Rehaif.
We review both the sufficiency of an indictment and the denial of a motion
for acquittal de novo. United States v. Prelogar, 996 F.3d 526, 530 (8th Cir. 2021)
(sufficiency of indictment); United States v. Sholley-Gonzalez, 996 F.3d 887, 895
(8th Cir. 2021) (denial of a motion for acquittal). For the latter, “[w]e review the
facts in the light most favorable to the verdict and will affirm if [the fact finder]
could have found the defendant guilty of the charged conduct beyond a reasonable
doubt.” Sholley-Gonzalez, 996 F.3d at 895 (citation omitted).
A.
Perkins first argues that his indictment was insufficient because it did not
charge, as an element of the offense, that Perkins knew of his prohibited status. But
1 The Honorable Greg Kays, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable W.
Brian Gaddy, United States Magistrate Judge for the Western District of Missouri.
2 The Honorable Beth Phillips, Chief Judge, United States District Court for
Western District of Missouri.

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“[a]n indictment is normally sufficient if its language tracks the statutory language,”
United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008), even if it does not charge
the defendant with knowledge of his prohibited status. See United States v. Jawher,
950 F.3d 576, 579 n.2 (8th Cir. 2020) (indictment that did not allege that defendant
knew of his prohibited status was sufficient because it tracked the statutory
language); United States v. Caudle, 968 F.3d 916, 921 n.2 (8th Cir. 2020) (same);
United States v. Gurley, 803 F. App’x 988, 989 (8th Cir. 2020) (same). Perkins’s
indictment closely tracks the language of §§ 922(g)(1) and 924(a)(2).
Perkins argues that Jawher and its progeny don’t apply here because
(1) Jawher addressed this issue in dicta since the case was remanded on other
grounds, and (2) we reviewed for plain error in Jawher and Caudle, instead of de
novo. But in Jawher, we necessarily decided whether the defendant’s indictment
was sufficient before deciding whether his guilty plea to that indictment was proper.
Had his indictment been insufficient, we would have dismissed the case instead of
remanding. And while we reviewed for plain error in Jawher and Caudle, in both
cases we held there was no error at all, much less plain error. See Jawher, 950 F.3d
at 579 n.2; Caudle, 968 F.3d at 921 n.2.
Based on the foregoing, we conclude Perkins’s indictment was sufficient.
B.
Perkins next argues that the government did not present sufficient evidence
that Perkins knew of his prohibited status under §§ 922(g)(1) and 924(a)(2). Under
Rehaif, the Government only needed to prove that Perkins knew he had been
convicted of a crime punishable by imprisonment for a term exceeding one year at
the time he possessed the firearms. United States v. Davies, 942 F.3d 871, 874 (8th
Cir. 2019). And, “[o]rdinarily, the Government will be able to point to evidence in
the record demonstrating that a defendant knew he was convicted, preventing the
defendant from showing a reasonable probability of a different outcome absent the
error.” Id.

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Perkins stipulated that he pleaded guilty to three felonies punishable by more
than one year in custody and served more than one year for each. One of those prior
convictions was for being a felon in possession of a firearm. This is sufficient for a
fact finder to find that Perkins knew he had been convicted of a crime punishable by
imprisonment for a term of more than one year when he possessed the firearm in this
case. See United States v. Owens, 966 F.3d 700, 709 (8th Cir. 2020) (“Rational
jurors . . . could infer beyond a reasonable doubt that a felony conviction would be
a significant life event that a person would know about when it happened and
remember at a later date.”).
Perkins also argues that the Government’s evidence at trial created a fatal
variance from his indictment because the indictment failed to allege that Perkins
knew of his prohibited status. “A fatal variance occurs when the essential elements
of the offense set forth in the indictment are left unaltered but the evidence offered
at trial proves facts materially different from those alleged in the indictment.”
United States v. Emery, 186 F.3d 921, 928 (8th Cir. 1999) (citation omitted). But,
“[r]eversal is not required if the variance is harmless, that is, if the indictment fully
and fairly apprised the defendant of the charges he or she must meet at trial.” Id.
(citation omitted). Even if this discrepancy was a variance, it would have been
harmless because Perkins was fully aware that he was charged for being a felon in
possession of a firearm for knowingly possessing a Bersa nine-millimeter handgun
on February 25, 2015. See United States v. Thomas, 791 F.3d 889, 897 (8th Cir.
2015) (“[N]o fatal variance occurred because, even with the introduction of evidence
not specifically mentioned in the indictment . . . [the defendant] was fully and fairly
apprised of the charges she had to defend against at trial.”).
II.
Perkins’s conviction is affirmed.
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