U.S. Warns Supreme Court Against ‘Windfall’ for Gun Possessors

April 20, 2021, 7:05 PM

Justice Department lawyers told the U.S. Supreme Court not to grant “windfalls” to people challenging their federal gun convictions following a 2019 high court ruling.

In that case, Rehaif v. United States, the court said the government has to prove a defendant both knew that he possessed a firearm and that he wasn’t allowed to possess one.

Tuesday’s back-to-back oral arguments raised the issue of how appellate courts should review cases with Rehaif errors, where the government didn’t prove a defendant’s felon status.

DOJ lawyers downplayed the failure as a technicality that wouldn’t have made a difference, anyway, because people know if they were convicted of felonies, while lawyers for the defendants cast the issue as crucial.

Whether characterized as a windfall or the fulfillment of fundamental rights, the two hours of telephone argument suggested the defendants may have difficulty obtaining relief from the court—though how the justices craft the decisions in both cases, expected by July, remains to be seen.

Alito’s Book

Justice Samuel Alito, who dissented in Rehaif, led the charge against the defense.

“Suppose the defendant had written a book about his prison experience, and in the book describing the 10 years he spent in prison, he says, ‘I was convicted of this felony,’” Alito said to M. Allison Guagliardo, a Florida public defender representing Gregory Greer.

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

Guagliardo said it’s “unfair for an appellate court to look outside of what was introduced against the defendant at his trial to make some appellate determination in the first instance about whether the defendant may or may likely be guilty.”

Alito is the most likely justice to side with the government in criminal cases, so a worse sign for the defense may have been Justice Sonia Sotomayor’s possible agreement with him.

“I don’t see why a judge can’t look at the facts of a particular case from beginning to end to determine whether the public would have seen this as an injustice,” Sotomayor told Guagliardo.

“And given all of the circumstances or potential circumstances,” she said, “some of which are just like this case, that Justice Alito mentioned, your defendant was just released from prison six months before he was arrested for this charge and he had served either 20 months or 36 months, it’s impossible to believe that there’s any reasonable doubt that he could have put his knowledge in contention.”

Searching for where to draw the line, Justice Stephen Breyer, who wrote Rehaif, picked up on Alito’s book hypothetical when questioning assistant to the U.S. solicitor general Benjamin Snyder.

“Justice Alito’s book wasn’t in the record,” Breyer said. “Is there ever a time when you can go beyond the record? Maybe so. What about the weather report? What about—I mean, you know, things that seem absolutely obvious.”

Snyder said Greer’s position “would require nearly automatic reversal for many defendants, like Petitioner himself, who do not and cannot plausibly claim that they would have disputed their knowledge of status at an error-free trial but seek windfall relief based on an artificially constrained view of the evidence.”

Yet Sotomayor told Snyder “there does seem to be an unfairness to a defendant in this situation who doesn’t know knowledge is at issue and who may not have created a record about knowledge.”

Can’t Forget a Felony

The government’s lawyer in the second case, assistant to the U.S. solicitor general Jonathan Ellis, likewise framed a win for the defendant, Michael Andrew Gary, as a windfall.

Gary pleaded guilty without the judge advising him that an element of the crime was knowledge of his felon status. The question is whether he’s automatically entitled to relief for that reason.

Arguing the answer is “no,” Ellis said Rehaif errors “are not automatically or even generally prejudicial. Being convicted of a felony,” he said, “is not the sort of life event that one is ordinarily unaware of or forgets.”

It would be implausible, Ellis said, “that a defendant who pleaded guilty to possessing a gun as a felon would have insisted on going to trial if he’d only known that the government would have to prove that he knew he was—had previously been convicted of such a serious crime.”

Seeking to combat the windfall notion, Gary’s lawyer, Jeffrey Fisher of the Stanford Supreme Court Clinic, asked the court to recognize that the issue is “the molten core of due process, which is understanding what you are charged with before you submit yourself to prison without a trial.”

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

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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