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April 19, 2021

Previewing how SCOTUS will sort through Rehaif reverberations

Writing over at SCOTUSblog here, Evan Lee effectively previews the pair of criminal cases that the SUpreme Cout will hear Tuesday morning. The post is titled "Pondering the aftermath of a landmark ruling in felon-in-possession cases," and here is how it starts and concludes:

On June 21, 2019, the Supreme Court handed down its opinion in Rehaif v. United States, holding that a conviction under the federal statute penalizing felons in possession of a firearm requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon.  The 7-2 decision overruled precedent in every circuit that had considered the issue.  Rehaif applies to every federal felon-in-possession conviction not yet final as of the date of that decision.  Now the question is whether some or all of those cases need to be sent back for new pleas or trials.

On Tuesday, in the companion cases of Greer v. United States and United States v. Garythe court will hear argument on how to sort out the affected cases.  Greer asks whether jury verdicts are valid if there was no consideration at trial of whether the defendant knew of their felon status; Gary presents a similar question in the context of guilty pleas.  Perhaps even more important than the issue of plea versus jury verdict is the question of whether the defendant should have to prove that he likely wouldn’t have been convicted if knowledge of felon status had been an essential element of the offense when he was first charged.  Still another critical question is what materials a court may look to in deciding whether the defendant suffered such “prejudice.”...

At oral argument, if Justices Stephen Breyer (the author of Rehaif), Elena Kagan and Sonia Sotomayor show no interest in the structural error argument, it may be doomed, as the more conservative justices seem unlikely to be more enthusiastic.  Perhaps the most interesting thing that might emerge at argument is questioning about the psychology of felons.  Can counsel for Greer and Gary offer a sufficiently plausible scenario or scenarios in which felons might not actually realize that they fit into the “felon” box for purposes of the statute?  For example, do some felons erroneously believe that a guilty plea or suspended sentence keeps them out of that category?  For that matter, do some felons believe that if they have “paid their debt to society” by serving their prison sentences, their felon status has been legally erased?  Scenarios like these could give rise to some interesting hypotheticals at argument.

April 19, 2021 at 07:10 PM | Permalink


There is an excellent example of a juror who did not realize that he was a convicted felon, when he filled out his juror questionnaire and sat as a juror in a high profile Northern Kentucky murder trial. In October 2012, Shayna Hubers shot and killed her departing boyfriend (he was trying to break up with her), who was a 29-year old Northern Kentucky attorney. She was convicted at her first (2014) trial and sentenced to 40 years in prison. While her appeal was pending, her attorneys discovered that one of the jurors who sat on her jury, a 53-year old man with a 9th grade education, was a conviction felon. The juror tests out at a 3rd or 4th grade reading level. In 2016, the Court granted defendant's Motion to Vacate and Set Aside her conviction because a felon had sat on her jury (which is prohibited by the Kentucky Constitution). She was convicted again at her second trial (in 2018) and sentenced to life in prison with the possibility of parole after serving 25 years. Hubers's jail cellmate testified against her during the second trial. The juror honestly did not realize that his conviction (by guilty plea) at age 19 for "felony non-support" (not paying $8,250 of child support) was a felony. He never spent a day in jail. He was placed on probation and successfully paid all of the child support arrearages during his period of probation. Upon completion of probation, he was discharged. He had always believed that the conviction was a misdemeanor. Subsequently, he had legally bought guns, and had always passed the criminal background check. As difficult as it might be for some lawyers to believe, he made an honest mistake.

Posted by: Jim Gormley | Apr 19, 2021 10:21:01 PM

In my neck of the woods, the federal courts have not been too receptive to the claims when raised as plain error.

If defendant stipulated to his prior conviction (not that uncommon as it avoids the jury hearing what the conviction was for), the courts have excused the lack of additional evidence that defendant knew it was a conviction. And, most of the time, when the defendant does not stipulate, the evidence was pretty clear that it was a felony conviction (i.e. the defendant did time for it) and so, at least in the eyes of the judges, the jury would have found the knowledge element if they had been instructed on it.

Posted by: tmm | Apr 22, 2021 1:44:04 PM

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