High Court Sides with Government on Gun-Possession Knowledge (2)

June 14, 2021, 2:20 PM; Updated: June 14, 2021, 6:51 PM

The U.S. Supreme Court declined to hand what the government called a “windfall” to gun possessors, rejecting criminal defendants’ due process arguments in a dispute over appellate review in felon-possession cases.

In a near-unanimous ruling Monday, the court rejected defendants’ attempts to automatically upend their gun convictions just because their felon status wasn’t proved.

The dispute stemmed from 2019’s Rehaif v. United States, which now requires federal prosecutors, in felon-possession cases, to prove both that defendants knew they possessed firearms and knew they were felons.

The question in Monday’s case was what standard to apply on appeal when Rehaif errors are made but defendants don’t object.

The Justice Department cautioned the high court against granting “windfalls” to defendants, casting the issue as a technicality that wouldn’t make a difference, because people likely know they’re felons. Defense lawyers cast the issue as critical to protecting due process.

The Supreme Court sided with the government.

“In felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon,” Justice Brett Kavanaugh wrote for the court.

“Here, Greer and Gary have not carried the burden of showing that the Rehaif errors in their respective cases affected their substantial rights,” he wrote, referring to defendants Gregory Greer and Michael Andrew Gary, whose cases the court heard argued back-to-back in April.

“As many courts have recognized and as common sense suggests, individuals who are convicted felons ordinarily know that they are convicted felons,” Kavanaugh observed in the combined opinion against both defendants.

Greer challenged a U.S. Court of Appeals for the Eleventh Circuit ruling that looked outside of the evidence presented in his trial to note that he had been convicted of several felonies before his latest gun possession.

Gary pleaded guilty without the judge advising him that an element of the crime was knowledge of his felon status. The Justice Department appealed the U.S. Court of Appeals for the Fourth Circuit’s ruling siding with Gary.

Kavanaugh’s opinion affirming the Eleventh Circuit and reversing the Fourth Circuit was joined fully by the rest of the court, except for Justice Sonia Sotomayor, who partially dissented.

Sotomayor agreed that the Fourth Circuit was wrong to automatically grant Gary relief. But she said it would have been better to send his case back to the appeals court, to give him a chance to argue there, in the first instance, that the Rehaif error affected his substantial rights.

She added that the decision “should not be read to create a legal presumption that every individual convicted of a felony understands he is a felon. The Government must prove the knowledge-of-status element beyond a reasonable doubt, just like any other element.”

The cases are Greer v. United States, U.S., No. 19-8709, United States v. Gary, U.S., No. 20-444.

(Adds more opinion detail. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at jcrawley@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at sstern@bloomberglaw.com

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