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June 14, 2021

SCOTUS rules defendants must show plain error (and likely won't) when pressing Rehaif claims on appeal in felon-in-possession cases

The Supreme Court is busy clearing the criminal cases off its docket as the Term winds to a close; today first opinion is unanimously ruling in Greer v. US, No. 19–8709 (S. Ct. June 14, 2021) (available here), holding that "in felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon."  Here is a bit more explanatory context from Justice Kavanaugh's opinion for the Court:

Federal law prohibits the possession of firearms by certain categories of individuals, including by those who have been convicted of a crime punishable by more than one year in prison.  See 18 U.S.C. §§922(g), 924(a)(2).  In Rehaif v. United States, 588 U.S. ___ (2019), this Court clarified the mens rea requirement for firearms-possession offenses, including the felon-in-possession offense.  In felon-in-possession cases after Rehaif, the Government must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm.  See id., at ___ (slip op., at 11)....

In the two cases before us, all agree that Rehaif errors occurred during both defendants’ district court proceedings and that the errors were plain, thus satisfying the first two prongs of the plain-error test.  We address the third prong: whether the Rehaif errors affected the defendants’ “substantial rights.”  Greer has the burden of showing that, if the District Court had correctly instructed the jury on the mens rea element of a felon-in-possession offense, there is a “reasonable probability” that he would have been acquitted. Dominguez Benitez, 542 U.S., at 83.  And Gary has the burden of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a “reasonable probability” that he would not have pled guilty.

In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-error test based on an argument that he did not know he was a felon.  The reason is simple: If a person is a felon, he ordinarily knows he is a felon.  “Felony status is simply not the kind of thing that one forgets.”  963 F. 3d 420, 423 (CA4 2020) (Wilkinson, J., concurring in denial of reh’g en banc).  That simple truth is not lost upon juries.  Thus, absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.  A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.  In short, if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a “reasonable probability” that, but for the Rehaif error, the outcome of the district court proceedings would have been different.

Of course, there may be cases in which a defendant who is a felon can make an adequate showing on appeal that he would have presented evidence in the district court that he did not in fact know he was a felon when he possessed firearms.  See Fed. Rule App. Proc. 10(e).  Indeed, at oral argument, the Government conceded that there are circumstances in which a defendant might make such a showing.  But if a defendant does not make such an argument or representation on appeal, the appellate court will have no reason to believe that the defendant would have presented such evidence to a jury, and thus no basis to conclude that there is a “reasonable probability” that the outcome would have been different absent the Rehaif error.

Justice Sotomayor authors the only separate opinion which largely concurs with the majority though calls for one of the cases to be sent back to the lower court.  She also explains that she wants to "highlight two limits on today’s decision":

First, the Court’s analysis in Greer’s case does not extend to the distinct context of harmless-error review, which applies when defendants contemporaneously object at trial. Second, the knowledge-of-status element is an element just like any other.  The Government must prove it beyond a reasonable doubt, and defendants seeking relief based on Rehaif errors bear only the usual burden on plain-error review. 

June 14, 2021 at 10:17 AM | Permalink


A few years ago, convicted murderer Shayna Hubers received a new trial for shooting (6 times, including in the face) and killing her former (recent breakup) boyfriend, Ryan Posten (a young Northern Kentucky attorney) because a juror who had sat on her case was a felon, but had failed to disclose his status. Under the Kentucky Constitution, felons who have not have their civil rights (including the right to vote) restored cannot legally sit on juries. This case addresses the issue of how one could possibly forget that he is a felon! The juror, Dave Craig (then 53 years old), had pled guilty to felony non-support for not paying $8,250 of child support when he was 19 years old. He is not a high school grad and he never served 1 day in jail for his conviction. He received probation and paid off the $8,250 of child support as part of his probation. Upon completion, without any violations, he was discharged and has no subsequent criminal convictions. He says that he always assumed that his conviction was a misdemeanor, because he was never sent to jail or prison. He made an honest mistake -- really. The same thing might easily happen to someone later accused of being a felon in possession of a firearm and had long ago been convicted of non-support for not paying child support at 19 years old, particularly if he never spent 1 day in jail or prison over the conviction. As for Shayna Hubers, she had been sentenced to 40 years by her first jury and Judge. She was convicted of murder again at her second trial, and the jury recommended a life sentence, which the Judge imposed. Be caseful what you ask for -- you may get it.

Posted by: Jim Gormley | Jun 15, 2021 9:59:10 AM

I can certainly see how people convicted of "nontraditional" offenses who got probation may not know that they had a felony conviction. Most of what I have seen in the published opinions in my circuit, however, are people that actually did time in prison. It is not surprising that the appellate courts have not been particularly sympathetic to post-Rehaif claims of instructional error or insufficient evidence that these defendants knew about their prior conviction when those issues were not raised at trial.

Posted by: tmm | Jun 15, 2021 11:39:22 AM

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