From Evan Lee
on April 19, 2021
at 11:46 a.m.
On June 21, 2019, the Supreme Court issued its opinion in the Rehaif v. United States case, stating that a conviction under federal law punishing criminals in possession of a firearm requires not only the knowledge of the defendant, that he had a gun, but also that he knew he had the legal status of a convicted criminal. The 7-2 decision overruled precedents in all circles that had considered the issue. Rehabilitation applies to every conviction of a federal criminal that is not final at the time of this decision. The question now arises whether some or all of these cases will need to be returned for new cause of action or trial.
On Tuesday, the court will hear arguments in the accompanying cases Greer vs. USA and USA vs. Gary about how the affected cases should be resolved. Greer asks whether the jury’s judgments are valid if the trial did not verify that the accused knew of their criminal status. Gary asks a similar question about confession of guilt. Perhaps more important than the question of the cause of action against the jury’s verdict is whether the defendant is required to show that he or she would likely not have been convicted had knowledge of the criminal status been an integral part of the offense when he was first indicted has been . Another important question is what materials a court can look for in order to determine whether the accused has suffered from such “prejudice”.
In August 2017, Gregory Greer reached out to police officers who were conducting a prostitution investigation at a hotel in Jacksonville, Florida. After noticing Greer fidgeting and moving his hands to the back of his waistline, officers told Greer that they would pat him. Greer fled down the stairwell. Police later found a stolen Colt .45 at the bottom of the stairwell.
Greer has been charged under 18 USC Section 922 (g), the federal law governing the possession of felons. Given that the U.S. Court of Appeals precedent for the 11th Circuit clearly refused to recognize knowledge of criminal status as an essential element of the offense, Greer has neither sought nor received an instruction from the jury to do so. The jury was told that the parties had determined that Greer had previously been convicted of a crime. He was convicted and sentenced to 10 years in prison. Following the decision at Rehaif, the 11th Circle upheld Greer’s conviction after looking beyond the trial file at the pre-trial investigation report which found that Greer had five criminal convictions and had been in prison for more than a year . Thus Greer concluded that Greer was not prejudiced when convicted by a jury who had not been informed of the government’s obligation to prove that Greer knew of his criminal status if he owned the gun.
Greer asserts that when consulting the investigation report before the sentence, the 11th circuit violated the Federal Criminal Code 52 (b), which regulates when “simple error” can form the basis for the discharge of the appeal. He claims that, under Rule 52 of the Supreme Court precedent, “the investigation for doctrinal or inadequate errors, such as the rehab process errors here, is solely based on a review of the trial record.” The pre-judgment investigation report was never admitted as evidence in the trial. And even if examining the report did not violate rule 52, Greer said, it violated his fifth and sixth amendments to due process and jury trial. Assuming that a jury would have likely found that Greer knew he fell into “criminal” status, the 11th Circuit deprived him of his right for a jury to actually determine the essence of the criminal offense. Greer also points out that other circles that have recently examined rehab pre-trial detention have limited their prejudice investigations to the trial file.
To counter the argument that a jury found that Greer knew of his criminal status based on his multiple convictions and time served, Greer referred to the example of the United States versus Lockhart, a case decided by the U.S. Court of Appeals for the United States became 4th Circuit (the lower court in Gary) in 2020. Despite the fact that Jesmene Lockhart had spent more than six years in prison on a guilty plea, he argued before an investigative jury that he did not know he was the legal status of got a criminal presenting evidence including his own testimony to support this claim. In fact, it was the only argument in his defense. He was acquitted.
The government replies that Greer’s arguments “advocate a blinking approach to checking simple errors that has no basis [the Supreme Court’s] Setting precedents, contrary to common sense and would produce unjustified results [Greer’s] Fall and the many others like it. “For one thing, the government argues, defendants in the possession of offenders like Greer should not be allowed to claim that they have been denied the opportunity to sue the question of status. Like most other defendants who do are in the possession of a criminal, Greer set his previous beliefs so that the government would not bring his superiors to the jury and use them as evidence. In fact, the government is prohibited from offering such priors if the accused has already agreed to do so .
The government denies Greer’s allegation that the 11th Circle’s pre-judgment review of the investigation report deprived him of his right to trial on the matter of status-knowledge. “[A] The defendant has no constitutional right to correction of lapsed errors. And a review court does not usurp in any way[s] the role of the jury in effectively finding guilt “when it determines that a defendant’s case does not meet the limits of relief afforded to unsaved error claims,” the government claims.
Concerns about the efficiency of the judiciary and the number of cases are often just below the surface of the Supreme Court’s criminal case arguments, and this is no exception. Greer’s case “is far from unique,” the government said, citing four other cases that would likely be affected by a decision in Greer’s favor. According to the government, in each of these cases, common sense speaks against new trials to prove the obvious – namely, that convicted criminals are aware of their convicted criminal status.
Of the two accompanying cases, Greer has the more differentiated arguments. In Gary, the parties made sweeping claims with the potential to overwhelm the narrower issues in Greer.
In 2017, Michael Andrew Gary was charged with two pending federal criminals based on two separate South Carolina traffic stops where officers found a gun. Gary had been convicted of other crimes on multiple occasions, although the federal charge at issue here was based on a single second-degree burglary conviction from 2014. Gary pleaded guilty without consent. During the pleading, the district court listed the essential elements of the criminal offense, which did not include knowledge of Gary’s criminal status.
Following the decision in Rehaif, a 4th Circle panel in custody found that Gary was entitled to a new trial. The panel’s rationale was broad: the rehab bug is “structural,” so Gary was entitled to relief without considering whether the bug was affecting him. (Structural flaws are often associated with violating the right to effective legal counsel in court or with racial discrimination in selecting a small jury, to take another example.) A main theory behind the concept of structural flaw is that some flaws are so fundamental Poison The attempt that a detailed analysis of how different the experiment would have been without the error would be too speculative.
The panel’s finding of a structural flaw not only prompted an immediate government petition to repeat it through the entire 4th Circuit, but also prompted five judges to vote against the repeat on the grounds that the decision was so wrong and dangerous that the case should be admitted to the Supreme Court as soon as possible. The government argues that structural analysis has no place in the world of rehab failure because such failure affects only a single discreet element of the crime and does not spill over to anything else in the process. Defending the 4th Circuit Panel’s reasoning, Gary counters that the structural analysis is fully justified since the rehab failure meets all three points of the structural failure test: it deprives the accused of their autonomy to make an informed and intelligent decision about whether or not to campaigns for a lawsuit; it creates consequences that are “non-quantifiable and indeterminate”; and it leads to “fundamental injustice” by convicting a defendant on an unconstitutional guilty plea.
Gary complicates matters by submitting that the rehab failure should not even be analyzed under rule 52 (b), which covers a simple failure and places the onus on the defendant of prejudice to prove. He argues that it should be analyzed under Rule 52 (a), which charges the government, to prove that a mistake was harmless.
If Judges Stephen Breyer (the author of Rehaif), Elena Kagan, and Sonia Sotomayor show no interest in the structural error argument at a hearing, it may be doomed as the more conservative judges are unlikely to be more enthusiastic. Perhaps the most interesting thing that might come up in disputes is the question of the psychology of offenders. Can Greer and Gary’s attorney offer a reasonably plausible scenario or scenarios where criminals may fail to see they fit into the “criminal box” for the purposes of the law? For example, do some offenders mistakenly believe that a confession of guilt or suspended sentence keeps them out of this category? Do some criminals believe that once they have “paid their debts to society” by serving their prison sentences, their criminal status has been legally cleared? Scenarios like this could lead to interesting hypotheses.