In “a prosecution 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).
The most common § 922(g) offense is gun possession by someone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” § 922(g)(1). Rehaif requires such a person to have known — when he possessed the gun — that he had previously been convicted of such a crime.
In United States v. Balde, 943 F.3d 73 (2d Cir. 2019), the Second Circuit held someone wishing to challenge his pre-Rehaif guilty plea must show a “reasonable probability that . . . [he] would not have entered the plea” if he had been told what Rehaif requires. Id. at 97. In numerous post-Balde rulings, the Circuit has said this is basically impossible in a § 922(g)(1) case if the defendant in fact served over a year in jail on a prior conviction.
That seems the wrong approach, as Rehaif concerns not historical facts but what someone “knew” when he possessed a gun.
Today, a panel of the Circuit including Judge Lynch, who wrote Balde, vacated a pre-Rehaif guilty plea to § 922(g)(1). Though the defendant in United States v. Johnson, No. 18-2033, 2020 WL 3864945 (2d Cir. July 9, 2020), had served less than a year in jail on two prior convictions, the court did not base its ruling on that fact; at least, not solely on that fact.
The court’s principal reason for vacating the conviction was its rejection of the government’s argument that there was a “basis in the record to conclude that [Johnson] would have pleaded guilty anyway.” Id. at *2.
The government cited “a statement [Johnson] made during the pre-sentence interview and quoted in the pre-sentence report (‘PSR’), in which Johnson ‘admits to knowing he was prohibited from the possession of firearms as a result of [two prior felony] convictions.’ But the meaning of such an admission is far from clear. It could mean that Johnson ‘admits to [currently] knowing’ — at the time of the pre-sentence interview — that ‘he was prohibited from the possession of firearms as a result of [two prior felony] convictions.’ Or it could mean that Johnson ‘admits to [previously] knowing’ — at the time of his possession of the firearm — that ‘he was prohibited from the possession of firearms as a result of [two prior felony] convictions.’ Without such clarity of meaning, we cannot rely on this statement.” Id.
Likewise, the government cited “statements Johnson made during the plea hearing, when he agreed with the Court’s characterization of him as someone who had been convicted of two crimes punishable by more than a year, and admitted to those convictions. But such statements merely show that Johnson was aware at the time of his plea hearing of his status as a felon under § 922(g)(1), not that he was aware at the time of his possession of a firearm. Accordingly, they cannot serve as a basis to conclude that Johnson would have pleaded guilty absent error.” Id. at *3 (emphasis in original).
“Moreover,” the court added at the end, “the fact that neither of Johnson’s two felony convictions actually resulted in prison sentences of more than a year weighs against the Government.” Id. Given various post-Balde decisions, one would think that fact would not just “weigh against” the government: it should have decided the case, as whether a defendant served more or less than a year on a prior conviction has heretofore been the determining consideration in challenges to pre-Rehaif pleas to § 922(g)(1).
Perhaps the Circuit is coming around to a better way of adjudicating Rehaif claims, which properly focus not on how much time someone previously served but whether he “knew,” at the time he possessed a gun, that he “belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200.
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