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. Ct. at 2208 (There must be proof the defendant “actually knew—not should have known or even strongly suspected but actually knew—” of his felony prior.) (Alito, J., dissenting) (emphasis in original); id. at 2213 (There must be proof of the defendant’s “subjective mental state at the time of the crime.”).
As Judge Sullivan ruled, the failure to charge the Rehaif knowledge element to the jury is plain error warranting a new trial.
And as Judge Caproni has ruled, the failure to charge the Rehaif knowledge element to the jury also constitutes “cause” and “prejudice” and thus allows the defendant to raise a Rehaif claim in a proceeding under 28 U.S.C. § 2255 despite not raising it at trial or on appeal.
Finally, as blogged about here, the failure to describe the Rehaif knowledge element to a defendant pleading guilty is also plain error warranting vacatur of the plea on appeal if there are facts in the case inconsistent with the required knowledge. In a § 922(g)(1) prosecution, for example, any number of things may interfere with the knowledge Rehaif requires: intoxication, acting out of fear for self/others, fleeting possession of the gun, many years between the felony and the gun possession, etc.
In sum, there are now bases to challenge § 922(g)(1) convictions after trial, on appeal, and per § 2255– let’s use ’em!