Thursday, November 14th, 2019

Second Circuit Vacates A Firearm Possession Plea Under Rehaif

The Court of Appeals issued its first opinion vacating a conviction under Rehaif v. United States, 19 S.Ct. 2191, 2194(2019), which held that a conviction under 18 U.S.C. 922(g) requires proof that the defendant not only knowingly possessed a firearm, but that he knew at the time that he was a prohibited person. In this case, United States v. Balde, No. 17-3337-cr(November 13, 2019), the defendant pled guilty to possessing a firearm while an alien illegally or unlawfully in the United States. The knowledge element established in Rehaif –- that he knew he was an alien unlawfully in the United States — was neither charged in the indictment nor admitted at his guilty plea. The government contended that he waived his right to appeal both in his plea agreement and in his plea. The Second Circuit rejected that argument, holding that Balde could not have waived his Rehaif argument because he was not fully informed of the charge against him.

The Court of Appeals held that the indictment’s failure to allege the essential elements of the crime was not a jurisdictional defect because the indictment tracked the language of the statute, which does not spell out the knowledge element identified in Rehaif. The Court relied on its precedents holding that an indictment need only track the statutory language to provide jurisdiction. However, it held that neither the plea agreement’s appeal waiver nor the guilty plea itself could waive an appeal of a plea that was  defective because it did not comply with Rule 11. The district court’s failure to explain the mens rea element of the crime violated Rule 11(b)(1)(G)’s requirement that he be informed of the “nature of each charge to which [he was] pleading guilty” and the lack of any facts proffered establishing his knowledge of his status precluded the court from ensuring “a factual basis for the plea required by Rule 11 (b)(3). These failures made the plea defective, and only a valid guilty plea waives the right to appeal.

Because this claim was not raised in district court and was not jurisdictional, the Second Circuit applied plain error review. The plain error standard was satisfied because the district court’s failure to advise Balde that the government would have to prove that he knew he was an unlawfully present alien or to ensure a factual basis for that element is “clear or obvious error” under Rehaif, and the record showed a reasonable probability that Balde would not have entered the plea if he had been informed of this element. Balde’s history with the Immigration Services was complex: he had been ordered removed but was granted a stay and released and had been living here under the supervision of Immigration officials for seven years. In multiple hearings and on appeal, Balde had contested his illegal status, contended that he was here legally, and expressed his understanding that his status was lawful. The Court had “little difficulty” concluding that failure to correct the error would “seriously affect[] the fairness, integrity or public reputation of judicial proceedings” because of the significant possibility that Balde was permitted to plead guilty to a crime of which he was not guilty.*


*This decision was in response to a petition for rehearing based on Rehaif, after an initial opinion rejecting Balde’s argument that he was not “illegally or unlawfully in the United States.” That opinion, which was blogged on June 14, 2019,  was withdrawn and replaced by this one, which includes the substance of first opinion as well.

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