Archive | Rehaif

Tuesday, April 28th, 2020

Some Summary Orders: Bikes, Guns, Fines

On April 27, 2020, the Second Circuit issued three summary orders in criminal matters.

In United States. v. Cuello, No. 19-2053, the Circuit affirmed a district court’s denial of suppression of a gun found during a traffic stop. This “traffic” stop was of a bike that did not have proper “head and tail lights,” in violation of New York Vehicle and Traffic Law § 1236(a). During the stop, police asked the bike rider for identification and his “bicycle registration.”

Did you know that “bicycle registration” is a thing? Apparently, the Syracuse Revised General Ordinances, Section 29-1 requires every person in the city of Syracuse who owns a bicycle operated in the city to register that bicycle “with the chief of police.” Well.

When the bike rider failed to produce his registration, police asked him about a black backpack he was wearing. Because how suspicious is it to be riding …


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Categories: 922(g), fine, reasonable suspicion, Rehaif, traffic stop

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Saturday, March 28th, 2020

A Note on § 922(g) Clients

As the defense community continues to focus on clients at elevated risk during the COVID-19 pandemic, a recent ruling from the Fourth Circuit offers new support for vacating the convictions of clients who pleaded guilty to gun possession in violation of 18 U.S.C. § 922(g).  An element of that offense is that, at the time the defendant possessed a gun, he “knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For most clients, that means knowing of a prior conviction for “a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

In United States v. Gary, ___ F.3d ___, 2020 WL 1443528 (4th Cir. Mar. 25, 2020), the court held the failure to advise a defendant of the Rehaif element at his guilty plea is “a structural error that requires …

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Categories: 922(g), Rehaif

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Categories: 922(g), Rehaif

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Thursday, January 23rd, 2020

Rehaif Claims — Keep ‘Em Comin’!

To convict someone of unlawful gun possession under 18 U.S.C. § 922(g), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For the most commonly charged § 922(g) violation, that means proving the defendant was subjectively aware of the fact — at the moment he possessed the gun — that he had “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

The mere fact of having a felony conviction is not enough.  There must be proof the defendant was subjectively aware of the conviction at the moment he possessed the gun.  Judge Sullivan explained this in a ruling blogged about here.  See also Rehaif, 139 S. …

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Thursday, November 14th, 2019

Second Circuit Vacates A Firearm Possession Plea Under Rehaif

The Court of Appeals issued its first opinion vacating a conviction under Rehaif v. United States, 19 S.Ct. 2191, 2194(2019), which held that a conviction under 18 U.S.C. 922(g) requires proof that the defendant not only knowingly possessed a firearm, but that he knew at the time that he was a prohibited person. In this case, United States v. Balde, No. 17-3337-cr(November 13, 2019), the defendant pled guilty to possessing a firearm while an alien illegally or unlawfully in the United States. The knowledge element established in Rehaif –- that he knew he was an alien unlawfully in the United States — was neither charged in the indictment nor admitted at his guilty plea. The government contended that he waived his right to appeal both in his plea agreement and in his plea. The Second Circuit rejected that argument, holding that Balde could not have waived his Rehaif


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Categories: Rehaif, Rule 11, waiver of appeal

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Thursday, November 7th, 2019

Rehaif Error Prompts New Trial– Despite Stipulation as to Prior Felony and Despite PSR Suggesting Defendant’s Knowledge of Prior Felony

To secure a conviction under 18 U.S.C. § 922(g), “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”  Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).  For the most commonly charged § 922(g) violation, that means proving the defendant knew he had “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.”  § 922(g)(1).

Yet there was neither allegation nor proof of that in Wilfredo Sepulveda’s trial.  On the contrary, “the jury was wrongly instructed that ‘[t]he government need not prove that the defendant knew that his prior conviction was punishable by a term of imprisonment exceeding one year.'”  United States v. Sepulveda, 2019 WL 5704398, at *11 (S.D.N.Y. Nov. 5, 2019).

Ruling on a motion under Fed. …

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Monday, August 5th, 2019

Second Circuit Throws Out § 924(c) Conviction Linked to Conspiracy . . . And Does Other Good Things, Including as to Rehaif

In today’s United States v. Watkins, the Second Circuit (Jacobs, Pooler, Wesley) vacated a conviction for violating 18 U.S.C. § 924(c) in relation to a conspiracy to commit Hobbs Act robbery.  Because § 924(c)’s residual clause is “unconstitutionally vague,” United States v. Davis, 139 S. Ct. 2319, 2336 (2019), a “crime of violence” under § 924(c) is limited to an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”  Because a conspiracy never fits that bill, “Watkins’s section 924(c)(1)(A) conviction” — and all others based on conspiracy — “must be vacated.”

And in United States v. Prado, the court (Leval, Pooler, Hall) threw out more convictions, this time under the Maritime Drug Law Enforcement Act.  The Coast Guard had intercepted a speed boat in international waters, found three men aboard with …


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Categories: Davis, guilty plea, jurisdiction, Rehaif

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