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. R. Crim. P. 33, Judge Sullivan concluded that Sepulveda’s “conviction . . . should be vacated due to plain instructional error, and that [he] is entitled to a new trial.” Id. The jury instruction “constituted error that was ‘clear or obvious’ in light of Rehaif,” thus meeting the first two requirements of the plain-error test. Id. Ditto the final two, as “the error affected Defendant’s ‘substantial rights’ and the ‘fairness, integrity or public reputation of judicial proceedings'” would be tarnished by denying relief. Id.
Significantly, the judge granted relief even though “at trial the government relied on a stipulation establishing that Defendant had previously been convicted of a felony.” Id. at *9. What matters is that “the government did not present any evidence that Defendant knew he had previously been convicted of a felony when he possessed a firearm. Thus, the government appropriately does not dispute that the jury instructions were erroneous, or that the evidence introduced at trial was insufficient under Rehaif.” Id.
Also significantly, the judge ordered a new trial even though there was evidence in the PSR that Sepulveda must have known he had previously been convicted of a crime punishable by more than a year in prison: he had been “convicted of three felonies and sentenced to a term of imprisonment longer than a year each time, including, most recently, a nine-year term of imprisonment in 2006.” Id. at *11. The judge noted the Eleventh Circuit has refused to find plain error in such a context. But that court invoked cases addressing guilty pleas, and in such cases “a court conducting a plain error analysis must evaluate a claimed error ‘against the entire record.'” Id. at *12. By contrast, when it comes to trials, there is no “Supreme Court case holding that a court conducting a plain error analysis may uphold a jury verdict based on the strength of ‘evidence’ that was never presented to the jury.” Id. Such a rule “would be in stark tension with the Second Circuit’s holding in United States v. Jean-Baptiste, 166 F.3d 102 (2d Cir. 1999),” which rejected “the ‘contention that harmless error can be premised on the hypothesis that the jury could have found’ the defendant guilty based on evidence in the appellate record that was not introduced at trial.” Id. (quoting Jean-Baptiste, 166 F.3d at 108). In short, “a court is not free to imagine a different trial.” Id.
Takeaways for the Defense Bar
1. Section 922(g)(1) trial convictions are void if there is no trial evidence the defendant knew he had previously been convicted of a crime punishable by more than a year in prison. It does not matter if evidence outside the trial record shows that. Nor does it matter if there was a stipulation as to the defendant having a felony conviction.
2. There are other bases to challenge § 922(g) convictions in light of Rehaif, be it post-trial/plea, on appeal, or in a collateral attack. Please contact the undersigned or Federal Defenders of New York if you have questions.