In a prosecution under 18 U.S.C. § 922(g), “the Government must prove  that the defendant . . . knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019). Usually, this means proving the defendant knew he’d previously been convicted of “a crime punishable by imprisonment for a term exceeding one year.” § 922(g)(1). Prior to Rehaif, no such knowledge was believed necessary– and scores of convictions were thus obtained without any allegation, evidence or finding of the Rehaif element.
What happens now in such cases (at least, the ones still on direct appeal)? The Supreme Court will tell us in two cases granted review this past Friday, United States v. Gary, Sup. Ct. 20-444 (guilty pleas) and Greer v. United States, Sup. Ct. 19-8709 (trial convictions).
As for pre-Rehaif guilty pleas, most circuits say they can stand if there’s evidence in the record — most commonly, evidence the defendant previously served over a year in prison — from which a court can deem the Rehaif error harmless on the assumption the defendant would have pleaded guilty even if he’d been told about the Rehaif element. The Fourth Circuit rejected this view in United States v. Gary, 954 F.3d 194 (4th Cir. 2020), holding 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,” and such a denial’s having “consequences that ‘are necessarily unquantifiable and indeterminate.'” Id. at 205-06 (emphasis in original). After all, even a defendant who knows he’s guilty has the right to claim otherwise and go to trial. That’s a choice for him to make, not one for a reviewing court to take away based on a guess of what he’d have done if he’d been properly informed of the charge against him. “Even where evidence in the record might tend to prove a defendant’s guilt, his right to due process when pleading guilty must remain paramount.” Id. at 208.
We’ll know by June if the Supreme Court agrees. In the meantime, keep challenging pre-Rehaif guilty pleas!
Also keep challenging pre-Rehaif trial convictions. One might think such convictions are obviously void: “It is a universally accepted truth in the law that each of the elements of a crime must be proved at trial for there to be a valid conviction.” United States v. Crispo, 306 F.3d 71, 74 (2d Cir. 2002). And in pre-Rehaif trial cases, the defendant was convicted despite there being no allegation, evidence or finding of an essential element of the crime. Seems wrong, no? “The Sixth Amendment provides that those ‘accused’ of a ‘crime’ have the right to a trial ‘by an impartial jury.’ This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013). The Rehaif element is “a basic element of the crime,” but in pre-Rehaif trials the government “presented no evidence whatsoever to prove that basic element. . . . The simple, inevitable conclusion is that [such a] conviction fails to satisfy the Federal Constitution’s demands.” Fiore v. White, 531 U.S. 225, 229 (2001).
Well, a panel of the Second Circuit declined to vacate such a conviction. Citing evidence outside the trial record that the defendant had previously served over a year in prison, the panel said upholding his § 922(g) conviction — for something that, as charged and tried, does not violate § 922(g) — would not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Miller, 954 F.3d 551, 559 (2d Cir. 2020). That was surprising: “‘It is transparently obvious that a verdict cannot be based on “evidence” which the jury does not see or hear.'” United States v. Jean-Baptiste, 166 F.3d 102, 108 (2d Cir. 1999) (citations omitted). And there are “‘certain basic, constitutional guarantees that should define the framework of any criminal trial.'” Shabazz v. United States, 923 F.3d 82, 84 (2d Cir. 2019) (quoting Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017)). Being charged with an actual crime seems pretty “basic.” So does not being convicted (or remaining so) unless “each element of a crime [was] proved.” Alleyne, 570 U.S. at 104. Moreover, in these pre-Rehaif cases a “reviewing court can only engage in pure speculation— its view of what a reasonable jury would have done [if evidence of the Rehaif element had been offered]. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’” Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).
So maybe the Supreme Court will agree and hold in Greer that courts reviewing pre-Rehaif trial convictions can’t look to evidence outside the trial record. If the Court does that, Miller will go out the window along with most or all pre-Rehaif trial convictions.
Keep challenging them!