Courtroom makes it simpler for appellate courts to substantiate convictions of federal criminals after rehabilitation

Opinion analysis

From Evan Lee


at 2:08 pm

Federal criminals in possession who fail to assert their rights in court under the Supreme Court’s 2019 Rehaif v. United States ruling will face a “climb” for retrial or appeal, the court declared on Monday in Greer v. United States and United States v. Gary. Writing for a unanimous court upholding Greer and an 8-1 majority against Gary, Judge Brett Kavanaugh stated that “if a defendant was indeed a felon, it will be difficult for him to take the burden of mere error checking carry ‘with a sufficient probability’ that without the rehab error the outcome of the regional court proceedings would have been different. “

Rehaif broke new ground by finding for the first time that under 18 USC Section 922 (g), the federal law that prohibits anyone with previous convictions from holding firearms, the government must prove that the defendant knew he was at the time when he owned a firearm. Greer and Gary used the standard for appeals courts to order new trials or pleading hearings for those convicted under Section 922 (g) who did not initially invoke rehab. This group of people includes defendants who were convicted before the decision on rehab but still had appeals at the time of the decision.

Kavanaugh’s statement makes it clear that if a defendant has failed to invoke Rehaif at his trial or hearing, it is up to him to demonstrate to the appellate court that there is “a substantial possibility” that he may not be able to produce sufficient evidence to do so while in custody really informed of his felon status so that he would not be convicted again. “The bottom line of these two cases is simple. In cases owned by felons, a rehab failure is not a basis for exoneration unless the defendant first argues adequately on appeal or demonstrates that he presented evidence at trial that he did not actually know he had Serious criminal, ”summed up Kavanaugh.

“Common sense,” he continued, suggests that most people with felony convictions are aware of their legal status as convicted felons. “In a case where the defendant was in possession of firearms, in which the defendant was in fact a felon, the defendant faces a steep rise in trying to meet the essential rights of the simple error test based on an argument He didnt know he was a felon. The reason is simple: when a person is a felon, they usually know they are a felon. ‘The status of a crime is just not something to be forgotten.’ “

Kavanaugh realized that there could be exceptional cases. “Of course there may be cases where a felon defendant can adequately prove on appeal that he presented evidence to the district court that he did not know he was a felon when he owned firearms.” he wrote. However, if the defendant has forfeited the rehab suit in the district court, he must present evidence of the lack of this knowledge on appeal. This even applies to defendants who “forfeited” a rehab claim simply because they were convicted before a decision on rehab was even made. “If a defendant fails to make such an argument or representation on appeal, the appeals court has no reason to believe that the defendant presented such evidence to a jury and therefore has no basis on which to conclude that there is ‘reasonable likelihood’ . that the result would have been different without the rehab error. “

Neither Gregory Greer nor Michael Andrew Gary carried this burden, the court said. Greer stated at the trial that he had been found guilty of a crime in order to avoid the government bringing this fact up before the jury, Kavanaugh pointed out. During his plea hearing, Gary admitted in court that he had been convicted of a crime.

Judge Sonia Sotomayor agreed with the court that Greer had not borne his burden, but she refused to draw the same conclusion as she did about Gary. “Unlike this court, I would not decide in the first instance whether Gary can demonstrate on a case-by-case basis that the mistake affected his essential rights,” she wrote.

Sotomayor also stressed that the language of the majority about defendants who bear a heavy burden to prove that they are ignorant of their status as a felon is only for error analysis if the defendant fails to assert his rehab rights in court has made. If the defendant addresses Rehaif below, then the appeal process will be subject to a harmless error analysis and it will be up to the government to prove that the failure of the trial court to unequivocally apply Rehaif was harmless, Sotomayor said.

The court’s ruling that defendants must demonstrate a reasonable likelihood of a different outcome in asserting their rehab rights has ruled the United States Court of Appeals fail on Gary’s 4th Ward “structural failure” approach. If a court of first instance’s error is treated as structural – such as ineffective attorney support – the appeals court must automatically overturn the conviction and refer it back to the court of first instance because it is believed that the error so thoroughly infected the underlying process That appeals court couldn’t start putting the pieces back together, so to speak. But Kavanaugh made short work of this approach, saying, “As the court’s precedents make clear, leaving out a single element in the jury’s instructions is not structural.” Even Sotomayor rejected the structural failure approach.

Much of the pleadings and oral argument has been devoted to where an appeals court can look for evidence to show that the defendant knew at all times that he was a felon within the meaning of Section 922 (g), thereby eliminating the need for pre-trial detention was avoided. In Greer, outside of the minutes of the hearing, the appeals court went through the full district court minutes to find evidence of such knowledge in the attendance report. Kavanaugh’s statement explicitly confirms this practice but appears to obviate it by saying that Greer’s finding, in accordance with the 1997 Supreme Court ruling in the Old Chief v. United States case, that he had previously been convicted of a crime, constituted competent evidence of this knowledge. (Defendants often refer to Old Chief provisions in Section 922 (g) cases so the government does not have to use prejudice as evidence, which may prejudice the jury.) In Gary, the court’s opinion also seems to make any issue too debatable Whether the appeals The court could use a presentation report if Gary’s admission at the colloquium found evidence of knowledge of the felon status that he had previously been convicted of a crime – an admission that would appear at any Section 922 (g) hearing. occurs.

According to Greer and Gary, the question is likely what kind of evidence will be sufficient to demonstrate a “reasonable likelihood” that had it not been for the rehab error, the district court case would have been different. In other words, what are the paradigm cases where a defendant has a reasonable chance of demonstrating that he was unaware of his felon status at the time of possession of the firearm to be eligible for a retrial or retrial? Sotomayor offered a few possible fact patterns.

“Most obviously, as the court in Rehaif recognizes, a person who has been convicted of a previous offense but has only been given a suspended sentence may not know that the offense ‘can be punished with a prison sentence of more than a year” ” she wrote. “Even if a defendant was imprisoned for over a year, this does not necessarily remove reasonable doubt that he knew of his criminal status. For example, a defendant may not understand that a juvenile conviction or an offense under federal law can be a crime under federal law. Or he might not understand that pre-trial detention was included in his final sentence. “

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