The Supreme Court holds that, to convict a defendant of violating § 922(g) and § 924(a)(2), the government must show not only that the defendant knew he possessed a firearm, but “also that he knew he had the relevant status when he possessed it.” Opinion (“Op.”) at 1. The Court states: “We conclude that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), 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.” See Opinion (“Op.”) at 11 (emphases added).
This holding was reached in a 7-2 decision in Rehaif v. United States, Sup. Ct. No. 17-9560, 2019, __S.Ct.__, WL 2552487 (June 21, 2019), authored by Justice Breyer. Justice Alito filed a dissenting opinion joined by Justice Thomas.
Petitioner Ali Rehaif came to the United States “on a nonimmigrant student visa to attend university.” Op. at 2. But “[a]fter he received poor grades,” the university dismissed him and “told him that his ‘immigration status’ would be terminated unless he transferred to a different university or left the country.” Id. Rehaif did neither, but subsequently “visited a firing range, where he shot two firearms.” Id. “The Government learned about his target practice” and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of § 922(g) and § 924(a)(2). At Rehaif’s trial, “the judge instructed the jury (over Rehaif’s objection) that the ‘United States is not required to prove’ that Rehaif ‘knew that he was illegally or unlawfully in the United States.’” Op. at 2. The jury convicted, and the Eleventh Circuit affirmed. The Supreme Court reversed, ruling for Petitioner Rehaif.
Section 922(g) makes it a federal offense for nine categories of people to possess firearms, “including felons [§ 922(g)(1)] and aliens who are ‘illegally or unlawfully in the United States.’” Op. at 1 (quoting 18 U.S.C. § 922(g) (5)(A)). “A separate provision, § 924(a)(2), adds that anyone who ‘knowingly violates’ the first provision shall be fined or imprisoned for up to 10 years.” Op. at 1 (emphasis in opinion).
The Supreme Court reasoned that determining “whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent[,]” which starts “from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct.’” Op. at 3 (citation omitted); see id. at 4, 6-7, 11 (discussing “presumption” in favor of scienter).
The Court concluded that the term “knowingly” in § 924(a) provides the mens rea for a violation of § 922(g). “The term ‘knowingly’ in § 924(a)(2) modifies the verb ‘violates’ and its direct object, which in this case is § 922(g).” Op. at 4. And “§ 922(g) makes possession of a firearm or ammunition unlawful when the following elements are satisfied: (1) a status element (in this case, ‘being an alien … illegally or unlawfully in the United States’); (2) a possession element (to ‘possess’); (3) a jurisdictional element (‘in or affecting commerce’); and (4) a firearm element (a ‘firearm or ammunition’).” Op. at 4. So, the jurisdictional element aside, “the text of § 922(g) simply lists the elements that make a defendant’s behavior criminal.” Op at 4. And those material, non-jurisdictional, elements (of a § 922(g) offense) are: prohibited status, possession, and the element that the thing possessed qualifies as a firearm or ammunition.
The Court concluded that, “by specifying that a defendant may be convicted only if he ‘knowingly violates’ § 922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of § 922(g).“ Op. at 5. Thus, “[a] defendant who does not know that he is an alien ‘illegally or unlawfully in the United States’ does not have the guilty state of mind that the statute’s language and purposes require.” Op. at 9.
The Court said it expressed “no view, however, about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other § 922(g) provisions not at issue here.” Op. at 11-12.
But the Opinion provides two hypotheticals where a reasonable doubt could arise about the defendant’s knowledge of his or her status as a prohibited person. For example, if § 922(g) and § 924(a)(2) were construed to require no knowledge of status — the Court explained — the statutes could “apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status.” Op. at 7-8. “Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’” Op. at 8 (emphasis in opinion) (quoting § 922(g)(1)).
Justice Alito filed a dissent that was joined by Justice Thomas.
Justice Alito disagreed with how the majority construed§ 922(g) and § 924(a)(2). Dissent, Alito, J., at 4-23. He states that the majority opinion requires the government to establish the defendant “actually knew” about his or her prohibited status, id. at 15, and hence, according to the dissent, defendants could “escape liability under [§ 922(g)] by deliberately failing to verify their status.” Dissent, Alito, J., at 15-16. However, a conscious-avoidance instruction would appear to address the act of “deliberately failing to verify” one’s status.
Justice Alito makes one point of interest to defense counsel because prosecutors may try to act on it. He asserts that the majority opinion “may work to a § 922(g) defendant’s detriment” because “if the prosecution must prove such knowledge [of a prior felony conviction] to the satisfaction of a jury, then under our decision in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense.” Op. at 16. According to Justice Alito, “if a defendant’s knowledge is now necessary, the logic of Old Chief is undermined.” Op. at 17.
However, if the defendant also stipulates to having knowledge that the prior conviction was a felony (i.e., punishable by more than a year in prison), there doesn’t seem to be a basis for an argument that Old Chief doesn’t apply. Also, as the dissent states: “A felony conviction is almost always followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants.” Op. at 16. So it wouldn’t seem necessary to tell jurors about the nature of the prior conviction. However, this issue could arise at trial and should be anticipated.
Justice Alito appears to provide the principal take-away for this case. He states that the majority’s opinion offers a number of litigation options for people “currently serving sentences for violating 18 U.S.C. § 922(g).” Dissent, Alito, J., at 23. “Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating § 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. Bousley v. United States, 523 U.S. 614, 618–619, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).” See Dissent, Alito, J., at 23. And “[i]f a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court from a distant place of confinement, and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past.” Id.