Rapper Boosie is first felon to have gun case dropped under new 9th Circuit ruling
The appellate court still is deciding whether to review the decision en banc, but a San Diego federal judge said it warrants the immediate dismissal of Boosie's criminal case.
SAN DIEGO — Rapper Torrence “Boosie Badazz” Hatch had someone other than his lawyers and the judge to thank on Friday after his federal gun case was dismissed in San Diego: Steven “Shorty” Duarte, a Los Angeles felon whose appeal changed the Second Amendment landscape for non-violent felons on the West Coast.
“I’m so grateful for Shorty. I want to take him out to eat. I want to bless Shorty, man. So if Shorty reading this right now, I want to help you out in any way I can,” Boosie said in the hallway outside U.S. District Judge Cathy Ann Bencivengo’s courtroom.
Bencivengo dismissed Boosie’s felon in possession of a firearm case on Friday because of a 9th Circuit U.S. Court of Appeals ruling in Duarte’s case that she said makes Boosie’s prosecution for being a felon in possession of a firearm unconstitutional.
”As far as the court’s concerned, whether it’s a good decision or a bad decision in the United States, the 9th Circuit has determined that this federal law is unconstitutional. I am dismissing the charge against Mr. Hatch,” Bencivengo said.
Boosie wept and hugged his lawyer Meghan Blanco, who represented him with co-counsel Damon Alimouri. He told reporters he wants to take his family on an international vacation to celebrate; he and Blanco went to get his passport back from federal authorities after the hearing.
“I give all the glory to God,” Boosie said. He said he’d been near the courthouse in downtown San Diego since 6 a.m., “eating breakfast around here, just praying, walking the streets.”
He sat in Bencivengo’s courtroom as she handled about a dozen other cases before his, and he said he could tell she’s a good person who will do the right thing.
“I really had a fair judge this time. I’ve never in my career of getting in trouble had a fair judge,” Boosie said.
Boosie was in San Diego for a concert on May 6, 2023, and was filming a music video when San Diego police saw him on Instagram with a handgun in his back waistband while accompanied by Crips gang members. A police helicopter tracked him through the city, and officers stopped the black Mercedes SUV he was in riding in and found a Glock 19 pistol loaded with nine rounds of ammunition and one in the chamber.
The “Set It Off” and “Bank Roll” rapper was initially charged in state court, but federal agents arrested him in a San Diego County Superior Court hallway on June 13, 2023, before he was to plead guilty in a deal his lawyers said involved probation only. His lawyers joined him at the BET Awards in Los Angeles after he was released from federal custody on $100,000 bond and an ankle monitor.
He faced a much more significant sentence if convicted on the federal charge, but federal gun prosecutions are changing because of a 2022 U.S. Supreme Court ruling, New York State Rifle & Pistol Ass’n v. Bruen, that says U.S. citizens have a constitutional right to carry firearms in public for self defense. Boosie’s lawyers tried to get his case dismissed because of Bruen last year, but the 9th Circuit, which includes California and the other West Coast states, had not yet considered a gun possession case under Bruen, and Judge Bencivengo said the court’s precedential ruling from 2010 gave her no legal authority to dismiss Boosie's case.
The legal situation changed in May when the 9th Circuit ruled on Duarte’s appeal.
The majority opinion from Judge Carlos T. Bea, a 2003 George W. Bush nominee, with concurrence from Judge Lawrence VanDyke, a 2020 Donald Trump appointee, said Bruen means Duarte has a constitutional right to carry a firearm in public despite his felony convictions for possession of a controlled substance, vandalism, felon in possession of a firearm and twice evading a peace officer.
Inglewood police arrested Duarte in March 2020 after he threw a .380 caliber pistol out of the backseat of a car during a traffic stop. A federal jury convicted him of being a felon in possession of a firearm and ammunition, and U.S. District Judge Andre Birotte sentenced to 51 months in prison.
On appeal, the Federal Public Defender’s Office cited Bruen when arguing Duarte’s conviction should be overturned. The 9th Circuit “has never concluded that there is a Founding-era historical tradition of dispossessing nonviolent felons of firearms,” according to the opening brief from Deputy Federal Public Defender Sonam Henderson.
“Nor could it—no such tradition exists,” Henderson wrote. “In light of Bruen, Duarte’s conviction cannot stand.”
The 9th Circuit’s ruling in Henderson’s favor considered the fact that Duarte’s felonies aren’t for violent crimes. Boosie’s convictions are non-violent, too — drug possession and smuggling marijuana into prison — and both he and Duarte were found with guns during traffic stops and weren’t accused of other illegal activity.
The ruling isn’t final, however: Federal prosecutors have petitioned for en banc review, which in the 9th Circuit means 11 judges review a case, and they’re supported by an 11-page dissent from Judge Milan D. Smith, who said Bea and VanDyke read Bruen “as an invitation to uproot a longstanding prohibition on the possession of firearms by felons.”
In May, Bencivengo said the unresolved en banc request means Boosie’s charge is “just kind of on hold at this time,” because the Duarte ruling could change. She hoped for a clearer picture when she scheduled the next status conference for Friday, but in the two months since, the 9th Circuit still has not decided whether to review en banc.
Boosie’s lawyers filed a dismissal motion on June 3. They also asked to end his electronic monitoring, and Bencivengo signed an order on June 24 that resulted in Boosie cutting off his ankle monitor and jumping into a swimming pool in a video shared online.
Prosecutors never responded to the dismissal motion. Assistant U.S. Attorney Charlotte Kaiser told Bencivengo on Friday she believed they were going to delay the status conference again while the 9th Circuit considered en banc review. She also said the 9th Circuit “just yesterday” rejected a writ petition filed after U.S. District Judge Thomas Whelan in San Diego declined to dismiss another gun case because of the pending Duarte en banc request.
But Blanco’s dismissal motion quotes prosecutors’ en banc petition that says the Duarte ruling “is precedential even before the mandate issues.”
“Duarte is currently binding on this Court and compels the conclusion that the charge in this case violates the United States Constitution. The indictment should be dismissed forthwith.
Judge Bencivengo agreed.
“And that’s it. We’re done with this case,” she said Friday.
Blanco told Legal Affairs and Trials Boosie is the first defendant within the 9th Circuit to have a gun case dismissed because of the Duarte ruling. (Update: Judge John Holcomb in Santa Ana on Thursday ruled a gun charge against a felon should be dismissed based on Duarte, but the man also has a domestic violence conviction, so the judge declined to dismiss the charge under the U.S. Supreme Court’s recent ruling that domestic violence convicts can be prohibited from possessing firearms.)
The dismissal is a huge reversal from where the rapper was in January, when Assistant U.S.Attorney Michael Wheat said he “vehemently” opposed Boosie being allowed to contact his girlfriend and implied he was the target of a larger investigation.
Since then, Wheat has been in Hawaii prosecuting a major public corruption trial against a former Honolulu city prosecutor that ended in May with a jury acquitting the defendants on all charges. He has not appeared in Boosie’s case in months.
Bencivengo’s dismissal is not the first big judicial win for Boosie: A jury in his home city of Baton Rogue, Louisiana, acquitted him of first-degree murder in 2012.
He told reporters Friday he’d been off probation for “six or seven years” when he was arrested in San Diego.
“I had all kinds of stipulations on me, but Meghan just told me she had it. I had some great attorneys. I know I probably got on their nerves a lot,” Boosie said. Blanco assured him he didn’t.
“I don’t want to go back to prison, man. I’m through with that criminal life. I wanted to be out here with my family,” Boosie said. “My life was all the way on the high and this was, like, a real stoppage in my life.”
“So many business partners betrayed me after I caught this charge. So many business people that I had ties with tried to sever our ties because of me catching this charge,” he continued. “This situation really made me see who was down with me and who wasn’t. Because 90 percent of the world thought I was going to prison, but God had a different plan.”
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