Will a new 9th Circuit ruling liberate rapper Boosie in his federal gun case?
A federal judge said Friday that she believes she'll have to dismiss Boosie's gun charge if a new Second Amendment appellate decision survives en banc review.
SAN DIEGO — A new appellate opinion that says non-violent felons can constitutionally possess firearms for self defense could force the dismissal of a gun case against rapper Boosie, a federal judge said Friday.
The 2-1 opinion on Thursday from the 9th Circuit U.S. Court of Appeals reversed California resident Steven “Shorty” Duarte’s conviction for felon in possession of a firearm because his underlying crimes were non-violent.
Boosie’s felony convictions are for non-violent crimes, too, and the circumstances of his newest arrest are similar to Duarte’s arrest: Both men were found with guns during traffic stops and aren’t accused of other illegal activity.
U.S. District Judge Cathy Ann Bencivengo in San Diego is waiting to see if a broader 9th Circuit panel will review Duarte’s case, but she told Boosie’s lawyer during a status conference on Friday, “I just see, factually, a total parallel here.”
“If that decision sticks, then I think charges will have to be dismissed,” Bencivengo said during the six-minute conference.
A dismissal would be a significant reversal of fortune for the 41-year-old “Set It Off” and “Bank Roll” rapper — legal name Torence Ivy Hatch — after a prosecutor indicated in January that he was the subject of a broader investigation that could lead to more charges.
At the time, Assistant U.S. Attorney Michael Wheat persuaded Judge Bencivengo to bar Boosie from contacting his girlfriend for another 60 days after Wheat said he “vehemently” opposed a no-contact order being lifted then spoke with the judge privately at the bench. But 60 days passed with nothing new from prosecutors, and Bencivengo on April 15 granted a defense motion to end the no-contact order.
Meanwhile, Blanco and her co-counsel filed a motion to suppress statements Boosie made during his May 6, 2023, arrest, which occurred after San Diego police saw an Instagram story and live video that officers said showed him with a handgun in his back waistband while accompanied by Crips gang members.
Boosie was in San Diego for a concert that night, but he never performed: 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.
A jury in Boosie’s home city of Baton Rogue, Louisiana, acquitted him of first-degree murder in 2012, but he has three felony convictions from 2011 for trying to smuggle drugs into a prison, conspiring to incite a felony and possessing a controlled substance with intent to distribute.
Boosie’s San Diego case was initially filed 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 that his lawyers said “would offer a non-custodial, probationary disposition.”
The federal charge carries a much more significant sentence if convicted, including potentially years in prison.
Blanco and her co-counsel, Damon Alimouri, joined Boosie at the BET Awards in Los Angeles on June 25, 2023, after he was released from federal custody on $100,000 bond and an ankle monitor.
The attorneys sasy Boosie was shooting a music video during the Instagram live that led to his arrest, and police stopped him when he was on his way to get food.
“Mr. Hatch suffers from type one diabetes and was experiencing hypoglycemia,” according to the Feb. 15 motion. He asked police to test his blood sugar, and “they appear to have done so, but instead of providing Mr. Hatch with medical treatment” they used his blood sample to obtain his DNA.
A detective then violated Boosie’s constitutional rights by interrogating him without first advising him of his rights, which “compelled Mr. Hatch to explain why the gun was in his pocket,” according to the motion.
In response, Assistant U.S. Attorney Ashley Kaino-Allen filed a transcript of Boosie’s police interview in which he said an officer found “my sugar stuff in my bag and squirted the stuff in my — the sugar in my mouth.”
Prosecutors also said detectives “attempted numerous times to provide Defendant with his Miranda rights, but Defendant repeatedly interrupted them.” They quoted 10 passages from the transcript, including Detective Sabakhan Sharrieff telling Boosie, “I’m going to have to read you your rights,” “Let me read you your rights. You can decide if you want to keep talking. You have the right to remain silent,” and “Torrance, let me read you your rights.”
Detective Rich Williams interjected, “Hey, bud, let Detective Sharrieff get through this.”
Williams also put a screenshot from an Instagram live video on the interrogation table and told Boosie, “This is why you’re down here.”
“The gun in your waistband,” Williams said.
“I know. I had to put that on for the viddy,” Boosie replied, according to the transcript.
The transcript shows Boosie also told detectives, “This is a bad charge, man.”
“My guy flew from Atlanta, checked in, told the people, ‘I have two guns. I have two guns,’” Boosie said.
Boosie also told police the gun was in his bodyguard’s bag.
In their opposition, prosecutors said Boosie’s “motion to suppress evidence should be denied because Defendant was not interrogated or subjected to a functional equivalent of an interrogation.”
However, Judge Bencivengo said Friday the suppression argument “is going to be moot if I get a motion for reconsideration to dismiss this case as a constitutional violation in light of the Duarte decision yesterday.”
Duarte, 31, challenged his federal firearms conviction and 51-month prison sentence in light of the 2022 U.S. Supreme Court ruling in New York State Rifle & Pistol Ass’n v. Bruen, which says U.S. citizens have a constitutional right to carry firearms in public for self defense.
Boosie’s lawyers previously tried to get his case dismissed because of the Bruen decision, and Judge Bencivengo rejected them because of the 2010 9th Circuit decision United States v. Vongxay, which upheld the constitutionality of banning felons from possessing firearms.
Other federal judges have ruled that the 2010 decision still stands in light of the SCOTUS’ Bruen decision, Bencivengo wrote in an Aug. 7 order and, “Nothing in Mr. Hatch’s motion persuades this Court that these holdings are incorrect or that the Court otherwise has the right to disregard binding 9th Circuit precedent here.”
That changed on Thursday with the 9th Circuit’s 2-1 decision that Bruen means Duarte has a constitutional right to carry a firearm in public despite his five felony convictions for possession of a controlled substance, vandalism, felon in possession of a firearm and twice evading a peace officer.
“Duarte is an American citizen, and thus one of ‘the people’ whom the Second Amendment protects. The Second Amendment’s plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense,” according to the 63-page majority opinion, written by Judge Carlos T. Bea, a 2003 George W. Bush nominee, with concurrence from Judge Lawrence VanDyke, a 2020 Donald Trump appointee.
The opinion also states that the Bruen decision means the 9th’s 2010 Vongxay decision is “no longer controlling in this Circuit.”
However, in an 11-page dissent, Judge Milan D. Smith said his colleagues read Bruen “as an invitation to uproot a longstanding prohibition on the possession of firearms by felons.”
“Bruen extends no such invitation,” wrote Smith, a 2006 Bush appointee. “As Justice [Samuel] Alito cautioned, Bruen decides ‘nothing about who may lawfully possess a firearm.’”
Smith said he hopes “that our court will rehear this case en banc to correct the majority’s misapplication of Bruen.”
In the 9th Circuit, en banc review involves 11 randomly assigned circuit judges considering a case instead of the standard three-judge panel.
Cory Webster, a partner at Dykema Gosset PLLC in Los Angeles, said further review by the 9th Circuit is assured, writing on LinkedIn, “This hot-button case is sure to get en banc interest.”
Judge Bencivengo also said Friday she expects the 9th Circuit will review Duarte en banc “in light of the fact that it’s potentially overruling previous 9th Circuit law.”
At the same time, SCOTUS is considering anther case, United States v. Rahimi, regarding gun restrictions for domestic violence convicts that should be decided by the end of June.
“A potential different conflict” with the new Duarte ruling could emerge if SCOTUS rules in Rahimi “that there are a subset of people who don't qualify under the Second Amendment,” Bencivengo said.
Given that, the judge said she doesn’t believe she should do anything with Boosie’s case “until there’s a determination as to whether this underlying charge can even be brought by the government.”
“The charges against Mr. Hatch are just kind of on hold at this time,” Bencivengo said.
Meanwhile, “if the government wants to reach a resolution with Mr. Hatch as to something else, or let it go, you’re certainly welcome to do that,” the judge said.
Blanco said earlier that negotiations with prosecutors ended without a resolution . When she said she plans to file a dismissal motion by Sunday, Bencivengo told her, “It doesn’t need to be long.”
Blanco said she’s confident Duarte will ultimately end Boosie’s prosecution.
“I expect the Courts to affirm the holding in Bruen, which will end the prosecution of people, like Boosie, who are charged with possessing firearms for lawful purposes,” Blanco told Legal Affairs and Trials.
Boosie appeared at the hearing via telephone. Bencivengo told Blanco she may require him to attend the next hearing in person, and she asked her to in the future request permission for a telephone appearance earlier than one day before the appearance.
“Because if I’m going to deny it, I don’t know how he’s going to get here and I don’t want to have a failure to appear on his part,” the judge said.
The next status conference is scheduled July 12.
Previous article:
Thank you for supporting my independent legal affairs journalism. Your paid subscriptions make my work possible. If you’re not already a paid subscriber, please consider purchasing a subscription through Substack. You also can support me through my merchandise store. Thank you!