     Case: 19-40465      Document: 00515440633         Page: 1    Date Filed: 06/04/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 19-40465
                                                                                 FILED
                                                                              June 4, 2020
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

              Plaintiff - Appellee

v.

HEON JONG YOO, also known as Hank Yoo,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:18-CR-16-1


Before DAVIS, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Heon Jong Yoo was convicted on eight counts under the Gun Control Act:
seven counts of making a false statement to a federally licensed gun dealer, in
violation of 18 U.S.C. § 924(a)(1)(A), and one count of possession of a firearm
by a prohibited person, in violation of § 922(g)(4). Because the evidence was
sufficient to establish each element of § 924(a)(1)(A), we AFFIRM Yoo’s
conviction as to Counts 1-7. But because Yoo was not “committed to a mental


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-40465
institution” within the meaning of § 922(g)(4), we REVERSE the judgment of
conviction as to Count 8.
                             I.   BACKGROUND
      Heon Jong Yoo was involuntarily committed to treatment under New
Jersey’s temporary, ex parte procedure twice. First, in April 2013, Yoo agreed
to be transported by the Rutgers University Police Department (RUPD) to a
hospital for evaluation. There, a screener, a physician, and a psychiatrist
determined that Yoo met the criteria for mental illness, was a danger to
himself or others, and should be involuntarily committed to a mental
institution. Based on their certifications, a New Jersey superior court judge
found probable cause to believe that Yoo was in need of involuntary
commitment. The judge issued a “Temporary Order for the Involuntary
Commitment of an Adult,” ordering that Yoo be committed to a hospital
“pending a court hearing” in about two weeks. Yoo was discharged from the
hospital four days before the scheduled hearing.
      RUPD took Yoo to a hospital for another evaluation in September 2015.
Once again, a screener, physician, and psychiatrist determined that Yoo met
the criteria for mental illness and that he should be committed. And, once
again, a New Jersey superior court judge ordered that Yoo be temporarily
committed “pending a court hearing” 12 days later. Yoo was discharged six
days before the scheduled hearing.
      A few months later, in January 2016, Yoo tried to buy a gun. But because
the National Instant Criminal Background Check System (NICS) revealed
that Yoo had been “adjudicated as mental defective/committed to a mental
institution,” his purchase was denied. The FBI explained, upon Yoo’s inquiry,
that he was a “prohibited person” under one of the 10 possible categories listed
in §§ 921 and 922, but did not specify which one applied.


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                                        No. 19-40465
        Yoo kept trying (often successfully) to buy firearms from 2016-2017.
Each time, he had to fill out the Form 4473 issued by the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF). In response to a question on that
form, Yoo stated that he was a citizen of the United States seven different
times. He correctly identified his country of citizenship as South Korea—not
the United States—twice.
        Ultimately, Yoo was convicted of eight crimes under the Gun Control Act:
seven counts of making a false statement to a federally licensed firearms
dealer, in violation of § 924(a)(1)(A) (Counts 1-7), and one count of possession
of a firearm by a prohibited person, in violation of § 922(g)(4) (Count 8). Yoo
timely appeals his conviction.
                                  II.     § 924(a)(1)(A)
        To establish a violation of § 924(a)(1)(A), the Government must prove
that: “(1) the dealer was a federally licensed firearms dealer at the time the
events occurred; (2) the defendant made a false statement or representation in
a record that the licensed firearms dealer was required by federal law to
maintain; and (3) the defendant made the false statement with knowledge of
its falsity.” 1
   A.
        First, Yoo argues the Government failed to establish that the gun dealers
named in Counts 1-7 were federally licensed. Because this element is
jurisdictional, 2 we must determine whether the evidence was sufficient to
establish it. 3




        1United States v. Pena, 541 F. App’x 453, 455 (5th Cir. 2013) (quoting United States
v. Abramski, 706 F.3d 307, 316-17 (4th Cir. 2013), aff’d 573 U.S. 169 (2014)).
       2 United States v. Reid, 595 F. App’x 280, 283 (5th Cir. 2014).
       3 United States v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994).

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                                      No. 19-40465
        The Government need not produce each dealer’s federal license. 4 For
example, we have held that an ATF agent’s testimony that he “knew that the
[dealer] was a licensed firearms dealer,” 5 and an employee’s testimony that the
dealer “had a valid license during the relevant period” 6 was enough.
        Here, there was sufficient evidence that Superior Firearms, First Cash
Pawn, Academy Sports, and Cash America Pawn were federal firearms
licensees (FFLs) at the time of Yoo’s offenses. The Form 4473 used by the
dealers implicated in Counts 1-5 states on its face that “This form should only
be used for sales of a firearm where the seller is licensed under 18 U.S.C. §
923.” Moreover, the jury heard testimony from employees of each dealer about
its status as an FFL. 7
   B.
        Next, Yoo argues the evidence was insufficient to prove that he made a
false statement by selecting “USA” in response to the Form 4473’s “country of
citizenship” question. An October 2016 revised version of the Form 4473 states
that “Nationals of the United States” may select “USA.” Yoo argues that the
Government failed to prove he wasn’t a U.S. national.
        This argument only applies to Counts 6 and 7. The dealers associated
with Counts 1-5 used the Form 4473 version revised in April 2012—and that
version did not allow U.S. nationals to identify as U.S. citizens.


        4 United States v. Frazier, 547 F.2d 272, 273 (5th Cir. 1977).
        5 Id.
        6 United States v. Ballard, 18 F.3d 935 (5th Cir. 1994).
        7 The owner of Superior Firearms testified that “[w]e are a federal firearms licensed

gun dealer,” that he has “own[ed] the FFL” for nine years, and that, “as an FFL,” Superior
Firearms is required to keep each Form 4473. The jury heard testimony that only federally
licensed dealers can submit the Form 4473 to the ATF for a background check, and the owner
of Superior Firearms testified that he “got an immediate denial from the ATF.” Employees
testified that First Cash Pawn (involved in Counts 2, 3, and 4) is an FFL. Academy Sports
employees (Count 5) also testified that it is in FFL. Likewise, employees of Cash America
Pawn (Counts 6 and 7) testified that it is an FFL and that it is required to keep each Form
4473.
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                                       No. 19-40465
        The Government produced evidence that a U.S. national is a person “who
[was] born in the territories of the United States, specifically, American Samoa
and the Commonwealth of Northern Mariana Islands.” 8 Yoo argues now, as he
did at trial, that a definition of “national” from the Immigration and
Nationality Act should apply. Under that definition, a national is “(A) a citizen
of the United States, or (B) a person who, though not a citizen of the United
States, owes permanent allegiance to the United States.” 9
        Yoo’s argument fails under either definition. In Omolo v. Gonzales, we
considered both definitions and held that “a person may become a national only
by birth or by completing the naturalization process.” 10 Yoo’s administrative
file, which was introduced into evidence, showed that he had not completed the
naturalization process. Accordingly, the evidence was sufficient for the jury to
find that Yoo was not a national of the United States.
   C.
        Recall that under § 924(a)(1)(A), it is a crime to make a false statement
“with respect to the information required by this chapter to be kept in the
records” of a federally licensed gun dealer. Yoo argues that an applicant’s
country of citizenship is not “information required by this chapter.” Yoo is
incorrect.
        “This chapter” means chapter 44 of title 18 of the United States Code. A
statute within chapter 44 directs gun dealers to “maintain such records . . . as
the Attorney General may by regulations prescribe.” 11 “Because of that
statutory section, the information that the Attorney General’s regulations
compel a dealer to keep is information ‘required by this chapter.’” 12 One of


        8 This definition derives from 8 U.S.C. § 1408.
        9 8 U.S.C. § 1101(a)(22).
        10 452 F.3d 404, 409 (5th Cir. 2006).
        11 18 U.S.C. § 923(g)(1)(A).
        12 Abramski v. United States, 573 U.S. 169, 192 (2014).

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those regulations instructs dealers to “obtain a 4473 from the transferee
showing,” among other things, “the transferee’s country of citizenship[.]” 13
Moreover, since the regulations require that licensed dealers retain each Form
4473, “a false answer on that form . . . pertains to information a dealer is
statutorily required to maintain.” 14
      For these reasons, Yoo’s convictions on Counts 1-7 of the superseding
indictment are AFFIRMED.
                                  III.   § 922(g)(4)
      Under § 922(g)(4), it is a crime for any person “who has been adjudicated
as a mental defective or who has been committed to a mental institution” to
“possess[,] in or affecting commerce, any firearm or ammunition.” 15 Yoo argues
he was not “committed” to a mental institution as a matter of law. 16
      Whether Yoo has been “committed” within the meaning of § 922(g)(4) is
a question of federal law, but courts look to state commitment law for
guidance. 17 In New Jersey, an action for commitment to treatment can be
commenced by a screening service. 18 First, a mental health screener must
determine whether the person meets the criteria for “mental illness” and
whether they pose a threat to themselves, others, or property. If the screener
finds that the person meets that standard and that there are no less restrictive
alternatives, a “screening document” is prepared. Next, a physician evaluates
the person and issues a “screening certificate” if it finds the same criteria


      13  27 C.F.R. § 478.124(c)(1).
      14  Abramski, 573 U.S. at 192.
       15 18 U.S.C. § 922(g)(4).
       16 Section 922(g)(4) does not define “committed,” but ATF regulations provide the

following guidance: “A formal commitment of a person to a mental institution by a court,
board, commission, or other lawful authority . . . The term does not include a person in a
mental institution for observation or a voluntary admission to a mental institution.” 27
C.F.R. § 478.11.
       17 United States v. Giardina, 861 F.2d 1334, 1335 (5th Cir. 1988).
       18 N.J. Ct. R. § 4:74-7.

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satisfied. 19 Finally, a psychiatrist evaluates the person under the same
standard, and if she agrees, issues a “clinical certificate.”
       The county adjuster presents the screening document, screening
certificate, and clinical certificate to a New Jersey superior court judge, who
“shall immediately review them in order to determine whether there is
probable cause to believe that the person is in need of involuntary commitment
to treatment.” 20 If the court finds probable cause based on those documents, “it
shall issue a temporary order authorizing the assignment of the person to an
outpatient treatment provider or the admission or retention of the person in
the custody of the facility . . . pending a final hearing.” 21
       The final commitment hearing must take place within 20 days of the
order of temporary commitment. At the final hearing, each patient has the
right to be present, to be represented by counsel, to present evidence, and to
cross-examine witnesses. 22 After that hearing, the court shall enter a final
order of commitment if it finds “by clear and convincing evidence presented at
the hearing that the patient is in need of continued involuntary commitment
to treatment.” 23
       Yoo went through the screening process twice. Both times, a New Jersey
superior court judge found probable cause, based on the certificates completed
by a screener, physician, and psychiatrist, to issue an order of temporary



       19 At this point, the person may be involuntarily admitted to a psychiatric unit, where
they must be evaluated by a psychiatrist within 72 hours.
       20 N.J.S.A. § 30:4-27.10(f).
       21 N.J.S.A. § 30:4-27.10(g); see also N.J. Ct. R. 4:74-7(c) (“The court may enter an order

of temporary commitment to treatment . . . pending final hearing if it finds probable cause,
based on the documents filed . . . to believe that the person is in need of involuntary
commitment to treatment”).
       22 N.J.S.A. § 30:4-27.14.
       23 N.J. Ct. R. § 4:74-7(f)(1); see also § 4:74-7(e) (“No final order of commitment to

treatment shall be entered except upon hearing conducted in accordance with the provisions
of these rules”).
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commitment. But both times, Yoo was discharged before the final commitment
hearing.
       So, the question narrows to whether New Jersey’s ex parte procedure for
temporary orders of involuntary commitment constitutes “commitment to a
mental institution” under § 922(g)(4). The only federal court to consider the
issue (the District of Maine) said yes. 24 At the time, the First Circuit (where
the district court was located) had held that temporary involuntary
commitment without an adversarial hearing is “commitment” under the
statute. 25
       The First Circuit overturned that line of cases in United States v.
Rehlander. 26 There, both defendants had been hospitalized under Maine’s ex
parte, emergency procedure, 27 but were never committed under Maine’s full-
scale, adversarial procedure. 28 The court reasoned that, after District of
Columbia v. Heller, 29 the right to possess a firearm “is no longer something
that can be withdrawn by government on a permanent and irrevocable basis
without due process.” 30 And, in enacting § 922, “nothing suggests that
Congress had in mind temporary hospitalizations supported only by ex parte
procedures.” 31 Accordingly, the court concluded that “section 922 should not be


       24  United States v. Miller, 366 F. Supp. 2d 128 (D. Me. 2005).
       25  See United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998); United States
v. Holt, 464 F.3d 101, 105-6 (1st Cir. 2006).
        26 666 F.3d 45 (1st Cir. 2012).
        27 This procedure required (1) an application by a health officer or law enforcement

officer, (2) a medical practitioner’s certificate, and (3) endorsement by a judge that the
application and certificate are “regular and in accordance with the law.” Me. Rev. Stat. tit.
34-B, § 3863.
        28 The formal commitment procedure requires an adversary hearing, counsel for the

patient and an opportunity to testify and to call and cross-examine witnesses. The court must
determine whether there is clear and convincing evidence that the patient is mentally ill and
poses a likelihood of serious harm, and whether better alternative arrangements exist.
        29 554 U.S. 570 (2008) (announcing an individual constitutional right to possess a

firearm).
        30 Rehlander, 666 F.3d at 48.
        31 Id. at 50.

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read to encompass a temporary hospitalization attended only by [Maine’s] ex
parte procedures[.]” 32
       Similarly, we held that Louisiana’s (slightly different) ex parte procedure
for temporary involuntary hospitalization did not constitute “commitment” in
United States v. Giardina. 33 At the time, Louisiana law allowed a “mentally ill
person” to be involuntarily admitted for “observation, diagnosis, and
treatment” for up to 15 days under an emergency certificate issued by a
physician. 34 A court order was required to detain the person any longer. Like
Yoo, Giardina was discharged before those 15 days were up. We concluded that
“[t]emporary, emergency detentions for treatment of mental disorders or
difficulties, which do not lead to formal commitments under state law, do not
constitute the commitment envisioned by 18 U.S.C. § 922.” 35
       We conclude that Yoo’s temporary hospitalization based on an ex parte
order, signed by a judge without a hearing, does not constitute “commitment
to a mental institution” within the meaning of § 922(g)(4). 36 Accordingly, the
judgment of conviction as to Count 8 is REVERSED.
                                IV.     CONCLUSION
       For these reasons, Yoo’s conviction as to Counts 1-7 are AFFIRMED, and
his conviction as to Count 8 is REVERSED.




       32  Id. at 49.
       33  861 F.2d 1334 (5th Cir. 1988).
        34 Id. at 1336.
        35 Id. at 1337.
        36 See also United States v. McIlwain, 772 F.3d 688, 697 (11th Cir. 2014) (finding

“commitment” where defendant “received a formal hearing, was represented by an attorney,
and the state probate court heard sworn testimony and made substantive findings of fact that
it included in its formal order of commitment”); United States v. Hansel, 474 F.2d 1120, 1123
(8th Cir. 1973) (“There is nothing in [§ 922(g)(4)] which indicates an intent to prohibit the
possession of firearms by persons who had been hospitalized for observation and
examination, where they were found not to be mentally ill”).
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