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SCOTUS addresses plain error challenges to federal felon-in-possession cases after Rehaif

Greer v. United States, USSC No. 19-8709, together with United States v. Gary, USSC No. 20-444, June 14. 2021; Scotusblog pages for Greer and Gary (including links to briefs and commentary)

These two federal felon-in-possession defendants were convicted before Rehaif v. United States, 588 U.S. ___ (2019), which held that, under 18 U.S.C. § 922(g), the government must prove that the defendant knew he was a felon at the time he possessed a firearm. Thus, they seek relief from their convictions under the onerous plain-error standard. The Court holds they have met their burden.

The parties agree there was a Rehaif error in each case. In Greer’s case, the jury wasn’t instructed as Rehaif requires. In Gary’s case, the district court didn’t advise the defendant of the Rehaif requirement when Gary pleaded guilty. The parties also agree the error was plain. So that leaves the defendants to prove that there’s a reasonable probability that, but for the Rehaif error, the outcome of the district court proceedings would have been different. (Slip op. at 2-4). Applied to cases like Greer’s and Gary’s, the “bottom line” is “straightforward”:

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. (Slip op. 10).

This will almost always be an “uphill climb” because “[i]f a person is a felon, he ordinarily knows he is a felon. ‘Felony status is simply not the kind of thing that one forgets.’” (Slip op. at 4 (quoted source omitted)).

Neither Greer nor Gary carried their burden. Greer stipulated at trial that he had been convicted of a felony, in order to avoid the government conspicuously putting that fact before the jury, and during his plea hearing, Gary admitted to the court that he had been convicted of a felony. (Slip op. at 5-6).

Sotomayor dissented only with regard to the disposition of Gary’s case, saying the Curt should not decide in the first instance whether Gary can make a case-specific showing that the error affected his plea, as that was not litigated below, where the issue was whether the Rehaif error entitled him to automatic relief. (Concur/dissent at 6-7). Sotomayor also offered some examples of what sort of evidence will be sufficient to demonstrate a sufficient possibility that the defendant did not know of his felon status at the time he possessed the firearm (e.g., a person who was convicted of a prior crime but sentenced only to probation may not know that the crime was ‘punishable by imprisonment for a term exceeding one year). (Concur/dissent at 5-6).

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