Pondering the aftermath of a landmark ruling in felon-in-possession cases
on Apr 19, 2021 at 11:46 am
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. Gary, the 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.”
In August 2017, Gregory Greer approached police officers conducting a prostitution investigation at a hotel in Jacksonville, Florida. After noticing Greer fidget and move his hands toward the back of his beltline, the officers told Greer they were going to pat him down. Greer fled down the stairwell. Police later found a stolen Colt .45 at the bottom of that stairwell.
Greer was charged under 18 U.S.C. § 922(g), the federal felon-in-possession statute. Given that precedent in the U.S. Court of Appeals for the 11th Circuit clearly refused to recognize knowledge-of-felon status as an essential element of the offense, Greer neither requested nor received a jury instruction to that effect. The jury was told the parties had stipulated that Greer had previously been convicted of a felony. He was convicted and received a sentence of 10 years. Following the decision in Rehaif, the 11th Circuit upheld Greer’s conviction after looking beyond the trial record to the pre-sentence investigation report, which stated that Greer had five felony convictions and had served longer than a year in prison. Thus, the 11th Circuit concluded, Greer suffered no prejudice when he was convicted by a jury that had not been instructed of the government’s obligation to prove that Greer knew of his felony status when possessing the firearm.
Greer argues that, in consulting the pre-sentence investigation report, the 11th Circuit violated Federal Rule of Criminal Procedure 52(b), which governs when “plain error” may form the basis of appellate relief. He asserts that under the Supreme Court’s Rule 52 precedents, “inquiry for instructional or insufficiency errors, like the Rehaif trial errors here, relies solely on review of the trial record.” The pre-sentence investigation report was never admitted into evidence at trial. And even if consideration of the report did not violate Rule 52, Greer claims, it violated his Fifth and Sixth Amendment rights to due process and a trial by jury. By assuming that a jury would likely have found that Greer knew he fell within the status of “felon,” the 11th Circuit deprived him of his right to have a jury actually make a finding of that essential element of the charged offense. Greer further points out that other circuits recently considering Rehaif claims on remand have limited their prejudice inquiries to the trial record.
To counter the argument that any jury would have found Greer to have known of his felon status based on his multiple convictions and time served, Greer points to the example of United States v. Lockhart, a case decided by the U.S. Court of Appeals for the 4th Circuit (the lower court in Gary) in 2020. Despite the fact that Jesmene Lockhart had spent more than six years in prison pursuant to a guilty plea, he argued to a jury on remand that he did not know he had the legal status of a felon, submitting evidence including his own testimony to support this claim. Indeed, it was the only argument in his defense. He was acquitted.
The government responds that Greer’s arguments “favor … a blinkered trial-record-only approach to plain-error review that has no basis in [the Supreme Court’s] precedents, is at odds with common sense, and would lead to unwarranted results in [Greer’s] case and the many others like it.” For one thing, argues the government, felon-in-possession defendants like Greer shouldn’t be allowed to claim that they have been deprived of the chance to litigate the knowledge-of-status issue. As do most other felon-in-possession defendants, Greer stipulated to his prior convictions so that the government could not parade his priors in front of the jury while introducing them into evidence. Indeed, the government is prohibited from offering such priors when the defendant has already stipulated to them.
The government disputes Greer’s claim that the 11th Circuit’s examination of the pre-sentence investigation report deprived him of his right to a jury trial on the knowledge-of-status issue. “[A] defendant has no constitutional entitlement to correction of forfeited errors. And a reviewing court in no way ‘usurp[s] the jury’s role by effectively finding guilt,’ when it determines that a defendant’s case does not satisfy the limitations on the relief that is afforded to unpreserved claims of error,” the government asserts.
Concerns about judicial efficiency and caseloads often lie just beneath the surface of criminal procedure arguments at the Supreme Court, and this one is no exception. Greer’s case “is far from unique,” the government states, citing four other cases that presumably would be affected by a ruling in Greer’s favor. According to the government, common sense militates against new proceedings in each of these cases just to prove the obvious — namely, that convicted felons are well aware of their convicted felon status.
Of the two companion cases, Greer features the more nuanced arguments. In Gary, the parties have made sweeping claims with the potential to overwhelm the narrower issues in Greer.
In 2017, Michael Andrew Gary was charged with two counts of federal felon-in-possession based on two separate traffic stops in South Carolina during which officers found a gun. Gary had been convicted for other felonies on multiple occasions, although the federal indictment at issue here relied on a single 2014 conviction for second-degree burglary. Gary pleaded guilty without a plea agreement. During the plea colloquy, the district court recited the essential elements of the charged offense, which did not include knowledge of Gary’s felon status.
Following the decision in Rehaif, a panel of the 4th Circuit held on remand that Gary was entitled to a new proceeding. The panel’s rationale was sweeping: Rehaif error is “structural,” and therefore Gary was entitled to relief without any consideration of whether the error prejudiced him. (Structural error is often associated with violations of the right to effective counsel at trial, or race discrimination in the selection of a petit jury, to take another example.) A principal theory behind the notion of structural error is that some errors so fundamentally poison the trial that any fine-grained analysis of how differently the trial would have gone absent the error would be too speculative.
The panel’s finding of structural error not only prompted an immediate petition by the government for rehearing by the full 4th Circuit but also prompted five circuit judges to vote against rehearing on the ground that the decision was so incorrect and dangerous that the case should be allowed to advance to the Supreme Court as soon as possible. The government argues that structural analysis has no place in the world of Rehaif error because such error affects only a single discrete element of the offense and does not bleed through to everything else in the proceeding. Defending the 4th Circuit panel’s reasoning, Gary counters that structural analysis is entirely justified because Rehaif error meets all three prongs of the test for structural error: It deprives the defendant of his autonomy in making an informed and intelligent choice about whether to plead; it creates consequences that are “unquantifiable and indeterminate”; and it brings about “fundamental unfairness” by convicting a defendant based on a constitutionally invalid guilty plea.
Complicating matters further, Gary claims that Rehaif error should not even be analyzed under Rule 52(b), which covers plain error and puts the burden of proving prejudice on the defendant. He argues that it should be analyzed under Rule 52(a), which places the burden on the government to prove that any error was harmless.
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.