The United States Law Week

Felons in Possession Jury Verdicts Upheld Under Plain Error Test

June 1, 2020, 7:56 PM

An appellate court is generally limited to the trial record when applying plain error review to convictions for being a felon in possession of a gun that were on appeal when the U.S. Supreme Court handed down controlling precedent, the Seventh Circuit said Monday.

Siding with the U.S. Court of Appeals for the Second Circuit in a circuit split, the opinion by Judge David F. Hamilton made clear the review is limited to the trial record and a narrow category of highly reliable information outside of it, such as the defendants’ prior offenses and sentences served in prison. The court rejected the approach taken by the Sixth, Eighth, Ninth, and Eleventh circuits, which consult criminal histories not before the jury when reviewing the verdict.

The three cases before the court were on appeal when Rehaif v. United States, was handed down, in which the top court said for the first time that the felon in possession statute requires the prosecution to “show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”

The defendants claimed that their indictments and jury instructions were defective under Rehaif, because they didn’t allege they knew their felon status. But the court said the asserted errors don’t require reversing the convictions, because they didn’t seriously undermine the fairness or integrity of the proceedings.

Chief Judge Diane P. Wood and Judge Michael S. Kanne joined the opinion.

The case is United States v. Maez, 2020 BL 202030, 7th Cir., No. 19-1287, 6/1/20.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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