Anyone appealing a criminal conviction is used to uphill battles. Now there is one more. In a near-unanimous decision issued today, the Supreme Court held that the strict plain-error test applies to unpreserved Rehaif claims, explicitly stating that anyone raising this type of claim faces an “uphill climb.” Why? According to Kavanaugh, J., writing for the 8 justice majority: “If a person is a felon, he ordinarily knows he is a felon.”
Just a little refresher: In Rehaif, decided just two years ago, the Supreme Court held that “the Government must prove that a defendant knows of his status as a person barred from possessing a firearm,” for example because of a prior felony conviction. The Rehaif court explained that this element was “crucial” in “separating innocent from wrongful conduct.” Following Rehaif, the Fourth Circuit held in United States v. Gary that pre-Rehaif guilty pleas must be vacated on direct appeal given the denial of the defendant’s “right to make an informed choice on whether to plead guilty.” (In contrast, the Eleventh Circuit upheld a pre-Rehaif trial conviction in United States v. Greer, despite the faulty jury instruction.)
Now, the Supreme Court has overturned Gary, while affirming Greer, asserting that “absent a reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.” By the same token, a “defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.” Given this view, the Court is surely right that the climb will be uphill to successfully challenging a pre-Rehaif conviction on appeal.
The more technical aspect of this new Supreme Court decision is that unpreserved Rehaif errors are subject to plain error review and the person raising the issue must make “a sufficient …representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon,” and that there was a “reasonable probability” the outcome would have been different if he had. This applies both to people who pleaded guilty pre-Rehaif (like Mr. Gary) and those who went to trial (like Mr. Greer). And the appeals court can look to information not in the trial record.
Practice tip: Here, both of the defendants, Mr. Greer and Mr. Gary, had been convicted of “multiple felonies.” In Justice Sotomayor’s opinion (partially concurring and partially dissenting), she noted some possible distinguishing factors that others might use to show that they did not know about their felony conviction:
- people who were not sentenced to a year or more in prison,
- people who were sentenced in juvenile courts, or
- people who may not have realized that pretrial detention was part of their sentence.
Justice Sotomayor also noted that presentence reports can be “materially wrong or incomplete” in ways that matter to Rehaif claims, for example, by failing to reflect the person’s mental illness, the actual time spent incarcerated, or how a prior court may have “erroneously described the consequences of conviction.” Defendants may “rely on new evidence” on appeal to show that there was a “reasonable probability of a different outcome” had the jury been correctly instructed.
Justice Sotomayor also cautioned that the majority’s opinion “should not be read to create a legal presumption that every individual convicted of a felony understands he is a felon.” Here’s to hoping she’s right!