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Courts Start to Limit Rehaif Relief for 922(g) Defendants – Update for October 7, 2019

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

COURTS START FLESHING OUT REHAIF

gunknot181009Two courts last week did their best to limit the damage caused to the government By (and the benefit accruing to defendants from)  the Supreme Court’s June 21 decision in Rehaif v. United States. Rehaif held that in an 18 USC § 922(g) prosecution, the defendant had to know he or she was a member of a class prohibited from possessing a gun – such as an alien in the US unlawfully or, more commonly, someone convicted of a felony), and know that he or she was in possession of a firearm.

In both cases, the defendants raised Rehaif as a supplement to an already-briefed appeal, because Rehaif was decided after briefs in the cases had bee filed. And both courts of appeal ruled that whether Rehaif applied was subject to “plain error” analysis, because the issues had not been raised in the district courts.

Under Federal Rule of Criminal Procedure 52(b), an issue not raised below can be brought up on appeal only if (1) there was an error, (2) that was obvious, (3) affected the defendant’s substantial rights, and (4) “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”

In the 8th Circuit case, before trial, the defendant called his girlfriend from jail, and they agreed she would claim ownership of the gun. The Circuit said that the call, as well as the fact he had previously served a 78-month federal drug sentence, showed he knew that he had been convicted of a crime punishable by a sentence of more than one year.

errorA160425While the trial court erred in not instructing the jury that the defendant had to know he was a felon, the 8th said, the defendant could not show a “reasonable probability that, but for the error, the outcome of the proceeding would have been different.” For that reason, the Court said, “any error in not instructing the jury to make such a finding did not affect the defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.”

In a second decision issued last week, the 1st Circuit ruled that under the “plain error” standard, a defendant who had pled guilty to a felon-in-possession charge could not “show a reasonable probability that, but for the purported error, he would not have pled guilty.” The defendant conceded he had previously pled guilty to a state crime punishable by more than a year in prison, and he did not dispute that state law required a judge to make sure that a defendant knows the maximum possible sentence when entering a guilty plea. Under the circumstances, the 1st said, the defendant could not show that he would have gone to trial if he had been properly instructed.

Both cases are a little puzzling. Knowing you were convicted of a crime carrying more than a year in prison is only the start of the Rehaif analysis. The defendant must know he or she is in a prohibited class. In the definitions that govern § 922(g), set out in 18 USC § 921(a)(20), there are several significant exceptions to what may otherwise seem a straightforward question crime punishable by a sentence of over a year. For example, if the sentence of more than a year pertained “to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,” it is not considered to be an offense disqualifying a defendant from gun possession. If the defendant has had his or her civil rights restored by the state, he or she is not disqualified. These definitions are not affirmative defenses, but rather integral to the meaning of the “crime punishable by imprisonment for a term exceeding one year” language of § 922(g)(1).  

noteasy191007The Rehaif analysis seems to me to be a little more complex than what the 1st and 8th applied in these early decisions, a rather binary approach in which you either were or were not convicted of a crime punishable by imprisonment for a term exceeding one year. I suspect that as the lower-court jurisprudence fleshes out the meaning of Rehaif, the complexities will be developed.

A final note: A number of petitions for writ of certiorari pending several months, the Solicitor General has been advising the Supreme Court that due to Rehaif’s holding that “the mens rea of knowledge for that crime applies both to the defendant’s conduct and to defendant’s status,” the Court should grant pending petitions for a writ of certiorari, vacate the decisions below, and remand the cases for further consideration in light of Rehaif.

United States v. Hollingshed, 2019 U.S. App. LEXIS 29707 (8th Cir. Oct. 3, 2019)

United States v. Burghardt, 2019 U.S. App. LEXIS 29731 (1st Cir. Oct. 3, 2019)

Memorandum for Government, Stacy v. United States, Case No. 19-5383 (filed Aug. 30, 2019)

– Thomas L. Root

Dope Smokers Knew They Were Drug Users (and Dog Bites Man) – Update for September 18, 2019

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

6TH CIRCUIT SAYS KNOWING STATUS IN REHAIF IS ENOUGH

A couple of marijuana aficionados (we’ll call ’em Cheech and Chong), were arrested smoking pot in a car with a couple of guns present. They were convicted of being unlawful drug users in possession of a firearm under 18 USC § 922(g)(3).

cheech190918A little-appreciated portion of § 922(g), the so-call felon-in-possession-of-a-firearm statute, is that it does not just prohibit convicted felons from possessing a gun. It also prohibits a laundry list of other people from possessing one as well: wife-beaters, people who are nuts, people who have been slapped with a civil protection order, illegal aliens, people on the lam, people who were thrown out of the Army, and dope-smokers. Really. Read the statute.

Cheech and Chong appealed, and while that appeal was pending, the Supreme Court handed down Rehaif v. United States, which held that a § 922(g) conviction requires that a defendant knows that he is in a class of people prohibited from possessing firearms, and that he knowingly possesses the gun. Cheech and Chong raised Rehaif in the Court of Appeals, arguing the government had not shown they knew they were unlawful users of a controlled substance, and even if they did, the government had not shown they knew they shouldn’t have the gun.

On plain error review, the 6th Circuit affirmed the conviction. The record was full of Cheech’s and Chong’s Facebook posts bragging about “smoking dope wit da demons” and “getting high and drunk da whole day.” The Court of Appeals said, “The jury heard that the defendants were arrested with marijuana, posted pictures of themselves using marijuana, commented about using marijuana, and posted a video of them smoking marijuana… The defendants dispute this evidence, but not on the ground that they were unaware the substance was marijuana, or unaware they were ‘unlawfully’ using it.”

marijuanahell190918But Cheech and Chong argued that even if they knowingly used marijuana, Rehaif required that the Government prove each defendant ‘knew he was prohibited from possession [of a firearm] because he was an unlawful user of a controlled substance’.” The Court admitted, “it is at least plausible that they were unaware that they were prohibited from possessing firearms under a subsection of 18 U.S.C. § 922(g) due to their regular and repeated drug use,” but held that Rehaif “did not graft onto § 922(g) an ignorance-of-the-law defense by which every defendant could escape conviction if he was unaware of this provision of the United States Code.” The Circuit said Rehaif requires that “the Government must prove . . . that a defendant knew he belonged to the relevant category of persons barred from possessing a firearm.”

United States v. Bowens, 2019 U.S. App. LEXIS 27488 (6th Cir. Sept. 12, 2019)

– Thomas L. Root

He Might Have Known About the Felon-Gun Thing – Update for September 13, 2019

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

SOME THINGS PROVE THEMSELVES

resipsa190913There’s a doctrine we all had to learn in first-year law school torts class known as “res ipsa loquitur.” That’s Latin (which the law uses a lot because when things are obscure, you can charge clients more when you have to explain them), and translates as “the thing speaks for itself.”

In last June’s Rehaif v. United States decision, the Supreme Court explained the elements that the government has to prove for a felon-in-possession conviction under 18 USC § 922(g)(1), elements which everyone had been getting wrong for years. Samir Benamor was on direct appeal of his felon-in-possession conviction when he raised the Rehaif argument, maintaining that the government had not proven that he knew he was a felon prohibited from possessing firearms.

Because Sammy had not raised the issue in the trial court, the 9th Circuit ruled he had to show plain error under Federal Rule of Criminal Procedure 52(b). I seriously doubt the Circuit was right about applying Rule 52(b), but it did, and it concluded that Sam was out of luck.

There was no doubt that the district court plainly erred by not instructing the jury that it had to find that Sammy knew he was a felon ineligible to possess a firearm. But the “plain error” standard also requires proof that but for the error, the outcome of the proceeding would have been different. One of Sammy’s priors was for being a felon in possession of a gun. The Court sort of thought that that conviction spoke for itself.

gunb160201The 9th Circuit said, “At a minimum, the prior conviction for being a felon in possession of a firearm proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.”

Yeah, you’d think that having been convicted of being a felon in possession of a gun once before would have alerted Sammy that he was a convicted felon prohibited from having a gun. As the law might say, that “res” probably “ipsa loquiturs.”

United States v. Benamor, 2019 U.S. App. LEXIS 26793 (9th Cir. Sept. 5, 2019)

– Thomas L. Root

SCOTUS Rules 922(g) Requires “Knowledge” – Update for June 24, 2019

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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.

carriefgun170807Hamid 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.

rangeThat 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.

innocent161024What 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