Justices wrestle with procedural issues stemming from their own federal criminal-law decision

Attorney in suit and tie at conference table with speaker phone surrounded by three students wearing masks

Argument analysis

From Evan Lee

at 8:01 pm

Jeffrey Fisher, along with Stanford Supreme Court Litigation Clinic students, argues on behalf of Michael Gary (Art Lien)

If there was one dominant topic in Tuesday’s oral presentations in Greer v. The United States and in the United States v. Gary, it was that the judges had difficulty defining the circumstances in which federal defendants could claim Have a retrial in the district after the appellate court finds an “apparent error” in the trial or hearing. The specific impetus for this line drawing exercise is the court’s ruling on the 2019 trailblazer in rehab vs the United States, but the judges are clearly concerned about the more general application of the lines they end up drawing.

In Rehaif, the court upset the national precedent by ruling that 18 USC § 922 (g), the federal law that makes it a crime for a convicted criminal to possess a firearm, applies only to those who know they ” Criminals ”in the sense of are this law. Although Rehaif does not apply to persons whose conviction under Section 922 (g) on ​​June 21, 2019, when the decision was made, had gone through the entire course of the appeal, this applies to those whose appeal was still pending at that time. None of these convicts were aware of the government’s obligation to demonstrate knowledge of their criminal status at the time of their confession. When they went to court, they did not petition or receive any instruction from the jury to do so. Tuesday’s oral remarks were about which of these people, if any, should receive new legal proceedings or hearings – or whether instead federal appeals courts can simply find something in the appeal file that warrants simple confirmation.

Gregory Greer was convicted by a federal jury as a felon in possession of a firearm. After the decision in Rehaif, the US Court of Appeals for the 11th Circuit upheld his conviction on the grounds that, according to the investigation report, Greer had previously been convicted of five crimes and had spent more than a year in prison. Therefore, according to the court, it would not have made any difference if his jury had been instructed that they could only convict if they found that Greer knew he was a criminal. The prejudice report had not been admitted as evidence during the trial and was therefore not part of the trial record, but was part of the wider district court record on appeal. Greer argues that the appeals court should limit itself to what was in front of the jury.

Attorney General Benjamin Snyder’s assistant, who defended the 11th Circle’s use of the prejudice report, was pressed for how far an appeals court could go outside of the trial record. “Is the government’s position that the review court can always look outside of the trial record, or does it depend on the particular circumstances?” asked Chief Justice John Roberts.

“We believe the court can look outside of the trial record at any time and consider other evidence in the record that is relevant to the error found,” replied Snyder.

“So it depends on the way you see?” asked Roberts. Suppose the reviewing court wants to examine evidence of a discussion between two other prisoners stating that the defendant “knew it was a crime, he told me”. Is the government arguing that the appeals court can examine such a statement regardless of its admissibility? Asked Roberts.

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

Roberts interfered. “The court would have to assess the trial tactics – whether a particular attorney would want to produce this type of evidence?”

“I think this is a function of the standard the court is using,” said Snyder. “The standard is whether, given an error-free trial, the accused has shown a reasonable likelihood of a different outcome.”

Judge Samuel Alito continued the investigation with a hypothesis that the defendant would have a realistic argument for lacking knowledge of his criminal status. For example, suppose Alito asked that the previous conviction was 20 years ago and that the defendant was only given parole for a crime that was not a crime under state law but qualifies as a crime under the Federal Gun Possession Act.

“For example, could the government rely on an affidavit from someone who spoke to the defendant shortly before the defendant was arrested and the affidavit states that the defendant said, ‘I have been convicted of a crime and cannot Have a gun but I feel really bad, I need to have a gun for self defense ‘? “Asked Alito.

“I think it is more likely, in the circumstances, that the defendant will be able to produce the substantive evidence required by the Standard for Simple Errors and show that there is a reasonable likelihood that the jury will agree with him would have and did not agree with the government in this proof, ”replied Snyder, further emphasizing that Alito’s hypothesis was very different from Greer’s case.

Judge Amy Coney Barrett noted that her old court, the U.S. 7th Circuit Court of Appeals, had taken a straightforward approach that allowed everything in the larger district court’s file to be included in the appeal process, but nothing beyond that. “Why does the government want more than that, especially in these cases?” she asked, probably referring to rehab cases.

Snyder replied that the government was actually not asking for more. “Acceptance of this line would be enough to settle this case.”

The second argument on Tuesday was the case of Michael Andrew Gary, who pleaded guilty in federal court to a criminal in possession of a firearm. After rehab, a panel of the U.S. 4th Circuit Court of Appeals ruled that failure to notify Gary of the government’s obligation to prove he knew he was a criminal at the time of possession of the gun, a “structural one.” “Was a mistake and therefore his conviction had to be broken as to whether or not the mistake made any difference in the outcome of the procedure.

Jeffrey Fisher, a Stanford law professor who represents Gary, defended the 4th Circuit’s structural failure approach. Judge Stephen Breyer asked him if there was something wrong with a system where a defendant loses out of custody in the district court if there was no realistic chance that the hearing would have been different even after Rehaif’s decision.

Fisher said two things would be wrong with such a system. First, it would violate the defendant’s basic autonomy if he had to submit to a conviction without understanding the charge. “That may sound like a formalistic rule, but remember, confession of guilt is itself a novelty that the writers were not even aware of. So if you want to institute something – a conviction without trial – the defendant should at least have fair denunciation, ”he said. Second, “You simply cannot trust the recordings made at the confession of guilt colloquium where the defendant has no reason to know that the missing element has any meaning.”

When Alito heard Fisher’s demand for “autonomy,” he asked how far that rationale could extend. “Why shouldn’t the argument of autonomy be applied to false statements or omissions in? [the plea hearing]? The judge explains to the defendant the rights the defendant is giving up and what the government would need to prove if the case were brought to trial, and the defendant is likely to make a decision on whether to go to court or plead guilty based on this understanding of what is at stake. So if the judge misrepresents what it is about, it seems to me that the same interest in autonomy is implied. No? What’s wrong with that? “Asked Alito.

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

Justice Sonia Sotomayor asked Fisher why his client should start a new trial, even though Rehaif apparently made no difference in outcome. “Here is a man who has been convicted seven times, with multiple separate sentences well in excess of a year, and I believe he was released from his last conviction months before he was arrested on those charges,” Sotomayor said. And “how about his admission … that he knew he was a felon and that’s why he went into hiding?”

“That wasn’t his admission,” replied Fisher. “What he admitted, and I’ll quote here, was that he was aware that he shouldn’t have a gun. And he said nothing about his criminal status. And remember, at the beginning of this case, he was charged under a state law that prohibited the carrying of weapons without specific job titles, such as a police officer or a firefighter or the like. … And that alone would have told him that for reasons unrelated to criminal status he could not carry a gun. “