Judges grapple with procedural issues arising from their own federal criminal law decision

Argument analysis

Jeffrey Fisher, joined by students from the Supreme Court Litigation Clinic at Stanford, pleads on behalf of Michael Gary (Art Lien)

If there was a dominant theme in Tuesday’s pleadings in Greer v. United States and United States v. Gary, is that judges find it difficult to draw boundaries around the circumstances under which federal defendants are entitled to re-litigation in district court after the appeals court finds a “manifest error” in the trial or the plea hearing. The specific impetus for this line-drawing exercise is the game-changing court ruling in 2019 in Rehaif v. United States, but judges are clearly concerned with the more general application of the lines they end up drawing.

In Rehaif, the court turned national jurisprudence upside down by ruling that 18 USC § 922 (g), the federal law criminalizing possession of a firearm by a convicted felon, only applies to people who know that they are “criminals” within the meaning of this law. Although Rehaif does not apply to anyone whose conviction under section 922 (g) has been fully appealed by June 21, 2019, the date the decision was rendered, it applies to those whose appeal was still pending on that date. None of these convicted persons were aware of the government’s obligation to prove that they knew their criminal status at the time they pleaded guilty; if they were tried, they neither asked for nor received an instruction from the jury to that effect. Oral arguments on Tuesday were about which of these people, if any, should get new trials or plea hearings – or whether, instead, federal courts of appeal can simply find something in the appeal docket. justifying a simple reaffirmation.

Gregory Greer was convicted by a federal jury of being a felon in possession of a firearm. After the decision in Rehaif, the United States Court of Appeals for the 11th Circuit reaffirmed his conviction on the grounds that, according to the pre-trial investigation report, Greer had already been convicted of five crimes and had served more than a year in prison. Therefore, the court ruled, it would have made no difference if his jury had been told they could only convict if they found out that Greer knew he was a criminal. The pre-sentence report was not admitted into evidence at trial and therefore was not part of the trial record, but was part of the more comprehensive district court record on appeal. Greer argues that the appeals court should have confined itself to what was before the jury.

Assistant Solicitor General Benjamin Snyder, defending the 11th Circuit’s use of the pre-sentence report, has been pushed on how far an appeals court can go outside of the trial record. “Is the government’s position that the reviewing court can always look outside the trial record, or does it depend on the particular circumstances?” Asked Chief Justice John Roberts.

“Our view is that the court can always look outside the trial record and consider other evidence in the record that is relevant to the error identified,” replied Snyder.

“So does it depend on the nature of what they’re watching?” Roberts asked. Suppose the reviewing court wanted to consider the evidence of a discussion between two other inmates that the accused “knew it was a crime, that’s what he told me.” Is the government claiming that the court of appeal can examine such a declaration independently of its admissibility? Roberts asked.

“I’m not saying they can consider evidence that is not admissible,” Snyder replied. “I’m saying they can consider what evidence would be admissible. I admit it’s a fine line. The kind of scenario I imagine is one where the court is looking for hearsay evidence, but there is no reason to doubt, for example, that the [government] would be able to present this evidence in a form admissible at trial.

Roberts barged in. “The court should judge the tactics of the trial – whether a particular lawyer would like to present that kind of evidence?”

“I think it depends on the standard applied by the court,” Snyder said. “The standard is whether the defendant has shown a reasonable probability of a different result in a trial without error.”

Judge Samuel Alito continued the investigation with a hypothesis in which the defendant would have a realistic argument that he did not know his status as a criminal. Suppose, Alito asked, that the previous conviction was 20 years ago, and the accused was only granted probation for a felony that was not a felony under state law, but is considered as a felony under the Federal Firearms Possession Act.

“Could the government rely on, say, an affidavit made by someone who spoke to the accused shortly before the accused was arrested and the affidavit indicates that the accused said … “I have been convicted of a felony and I can’t have a gun, but I feel really bad, I have to have a gun to defend myself ‘?” Alito asked.

“I think it is more likely in these circumstances that the defendant will be able to prove the substance that the standard of simple error requires and will be able to show that there is a reasonable probability that the jury would have been agreed with him and disagreed with the government on this evidence, ”replied Snyder, noting that Alito’s hypothesis was very different from Greer’s.

Judge Amy Coney Barrett noted that her former court, the United States Court of Appeals for the 7th Circuit, had taken a clear approach to consider whatever was in the larger district court record. on appeal, but nothing more. “Why does the government want anything other than that, especially in these cases? She asked, presumably referring to Rehaif case.

Snyder replied that the government was in fact not asking for more than that. “Adopting this line would be enough to settle this case. “

Tuesday’s second argument was the case of Michael Andrew Gary, who pleaded guilty in federal court to being a felon in possession of a gun. After Rehaif, a panel of the United States Court of Appeals for the 4th Circuit ruled that the failure to inform Gary of the government’s obligation to prove he knew he was a criminal at the time he possessed the weapon was a “structural” error and therefore his conviction should be quashed, whether or not the error made a difference to the outcome of the proceedings.

Jeffrey Fisher, a Stanford law professor representing Gary, defended the 4th Circuit structural error approach. Judge Stephen Breyer asked him if there was something wrong with a system where an accused loses without a referral to district court if there is no realistic chance that the plea hearing will succeed. be unfolded differently even after Rehaif has been decided.

Fisher said there would be two things wrong with such a system. First, it would violate the fundamental autonomy of the defendant if he were to submit to a conviction without understanding the charge. “It might sound like a formal rule, but remember that guilty pleas are themselves an innovation that the editors weren’t even aware of, and so when you go to introduce something – a conviction without a trial – l ‘the accused should at least have reasonable notice,’ he said. Second, “you just cannot trust any case that may have been put together at the guilty plea seminar where the defendant has no reason to know that the missing item is of the least importance” .

Hearing Fisher’s invocation of “autonomy”, Alito asked how far this justification could extend. “Why should the autonomy argument not apply to an erroneous statement or an omission in [the plea hearing]? The judge explains to the defendant what rights he is waiving and what the government would have to prove if the case went to trial, and the defendant presumably makes the decision to go to trial or plead guilty based on this understanding of what is. involved. And therefore, if the judge describes poorly what is at stake, it seems to me that the same interest in autonomy is involved. No? What’s wrong with that? ”Alito asked.

In some of the court’s precedents, Fisher replied, the trial judge’s description is only technically incorrect. Here, a whole essential element of the alleged offense was missing from the description. The defendant’s autonomous decision-making process is not thwarted by technical errors in the same way as when an entire element is missing, Fisher said.

Judge Sonia Sotomayor asked Fisher why her client should get new proceedings when apparently Rehaif would have made no difference in the outcome. “Here is a man who has been sentenced seven times, several separate prison terms, well over a year, and I believe he was released from his last sentence months before he was arrested on this charge,” Sotomayor said. . And “what about his admission… that he knew he was a criminal and that is why he was hiding? “

“It wasn’t his admission,” Fisher replied. “What he admitted, and I’ll quote him here, was that he knew he wasn’t supposed to have a gun. And he didn’t say anything about his criminal status. And remember, at the start of this case he was indicted under a state law that prohibited carrying weapons without certain job titles like a police officer or firefighter or whatever. … And that alone would have told him that he couldn’t carry a gun for reasons unrelated to criminal status.