We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

KNOWNOTHING-ISM

In a decision that could be seismic for people convicted of being a felon in possession of a firearm, the Supreme Court last Friday ruled that it’s not enough to know that thing stuck in your pants is a gun. You have to know that you are part of a group the law says should not possess a gun. And, for that matter, you have to know you possess a firearm or ammo.

Hamid Rehaif was in the country on a student visa that required him to be enrolled in college. He dropped out of school, but stuck around Florida to soak up the sun and fun. When ICE finally caught up to him, agents found him in possession of a half box of ammunition. Hamid had not really picked up on the “right to remain silent” thing, so he readily admitted going to a gun range. He was prosecuted for being illegally in possession of a firearm and ammo.

Under 18 U.S.C. 922(g), it is unlawful for a convicted felon to possess a firearm or ammunition. But that’s only subsection (g)(1). There are eight other subsections as well, categories that include fugitives, people under indictment, people convicted of a misdemeanor crime of domestic violence, people who have been found by courts to be mentally incompetent, illegal aliens, stalkers… there’s a long list.

The government has always gotten away with proving that a defendant had a gun or ammo, and that he or she was a felon or something else on the list. The defendant had to know that that thing he had stuffed in his waistband was a gun. Beyond that, there was no knowledge requirement. A defendant who claimed not to know that he or she was in a prohibited class was just plain out of luck. What the defendant knew or did not know simply was irrelevant. That’s what happened to Hamid. He was fine busting a few caps at the gun range as long as he was in school (and thus compliant with the terms of his student visa). But as soon as he dropped out, his visa automatically expired, and his antics at the gun range became illegal. The district court, and the 11th Circuit, agreed (as did every circuit court in America) that Hamid’s awareness that he should limit his firearms training to Nerf weapons.

That has now changed. The Supreme Court ruled that in a prosecution under 18 USC 922(g) and 924(a)(2) (they go together), the Government must prove both that the defendant knew he or she possessed a firearm and that the defendant knew he or she knew he belonged to the relevant category of persons barred from possessing a firearm.

Whether a criminal statute requires the government to prove that the defendant acted knowingly, the Court said, is a question of congressional intent. There is a longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” This is normally characterized as a “presumption in favor of scienter.”

In 922(g) and 924(a)(2), Justice Breyer wrote for the 7-2 decision, the statutory text supports the presumption. It specifies that a defendant commits a crime if he or she “knowingly” violates § 922(g), which makes possession of a firearm unlawful when the following elements are satisfied: (1) a status element; (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”). Aside from the jurisdictional element, the Court said, § 922(g)’s text “simply lists the elements that make a defendant’s behavior criminal. The term ‘knowingly’ is normally read ‘as applying to all the subsequently listed elements of the crime.’ And the ‘knowingly’ requirement clearly applies to 922(g)’s possession element, which follows the status element in the statutory text. There is no basis for interpreting ‘knowingly’ as applying to the second 922(g) element but not the first.

What does this mean for the many felons-in-possession now in the system? It could be Bailey v. United States all over again, as people head back to court on 28 U.S.C. § 2241 petitions (where those are allowed) arguing that under the new statutory interpretation, they are actually innocent.

Justice Alito wrote a detailed and blistering dissent. He warned that the decision’s

practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g). It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating § 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies… This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of ‘fixing’.

Watch that space. This could be very interesting.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, June 21, 2019)

– Thomas L. Root