United States v. Blair Cook

In the

United States Court of Appeals

For the Seventh Circuit

No. 18-1343

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BLAIR COOK,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:17-cr-00048 — James D. Peterson, Chief Judge.

ON REMAND FROM THE UNITED STATES SUPREME COURT

DECIDED AUGUST 17, 2020

Before FLAUM, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. A jury convicted Blair Cook of being

an unlawful user of a controlled substance (marijuana) in

possession of a firearm and ammunition. See 18 U.S.C.

§§ 922(g)(3) (proscribing possession of firearm by unlawful

user of controlled substance), 924(a)(2) (specifying penalties for

2 No. 18-1343

one who “knowingly” violates section 922(g)). Cook appealed

his conviction, contending that the statute underlying his

conviction is facially vague, that it improperly limits his Second

Amendment right to possess a firearm, and that the district

court did not properly instruct the jury as to who constitutes an

unlawful user of a controlled substance. We affirmed Cook’s

conviction. United States v. Cook, 914 F.3d 545 (7th Cir. 2019).

The Supreme Court subsequently held in Rehaif v. United States,

139 S. Ct. 2191, 2194, 2200 (2019), that the knowledge element

of section 924(a)(2) requires the government to show that the

defendant knew not only that he possessed a firearm, but that

he belonged to the relevant category of persons barred from

possessing a firearm. Consistent with the prior case law of this

court, the superseding indictment in this case did not allege,

nor the jury instructions advise the jury that it must find, that

Cook knew he was an unlawful user of a controlled substance.

Cook’s petition for a writ of certiorari was pending at the time

that Court was considering Rehaif, and Cook had suggested

that if the Court in Rehaif expanded the knowledge requirement

of section 924(a)(2) to include knowledge of one’s status, the

Court ought to remand his case for further proceedings.

Petition for Writ of Certiorari at 25–26, Cook v. United States,

No. 18-9707 (U.S. June 12, 2019).1 The Court subsequently

granted Cook’s petition, vacated our decision sustaining his

conviction, and remanded for reconsideration in light of Rehaif,

as Cook had asked it to do. Cook v. United States, 140 S. Ct. 41

(Oct. 7, 2019). Upon reconsideration, we now reincorporate our

1

Available at https://www.supremecourt.gov/search.aspx?filename=/

docket/docketfiles/html/public/18-9707.html (visited July 28, 2020)

No. 18-1343 3

previous decision, with minor modifications, rejecting Cook’s

vagueness and Second Amendment challenges to section

922(g)(3) along with his objection to the jury instruction on

who constitutes an unlawful user of a controlled substance. But

in light of Rehaif, we conclude that Cook is entitled to a new

trial.

I.

On May 25, 2017, officers of the Madison, Wisconsin police

department conducted a traffic stop of the car that Cook was

driving. When officers approached the car and spoke with

Cook, they noticed a strong odor of marijuana emanating from

the car. Apart from the possibility that Cook was driving under

the influence of marijuana, Cook was also driving on a sus-

pended license and with a license plate missing from his

vehicle, so the officers decided to detain him and ordered him

to step out of the vehicle. Officer Matthew Wentzel removed a

loaded, .40-caliber Glock Model 23 pistol from a holster under

Cook’s shoulder. The gun had an extended capacity magazine

with a total of 19 bullets within it when Cook was stopped.

Cook was transported to the police station for further question-

ing. During a recorded interview at the station, Cook acknowl-

edged to Wentzel that “I’ve been smoking weed since I was

like 14" (a period of nearly ten years), that he did so because “it

really mellows me out,” and that he had smoked two “blunts”

earlier that day. R. 22-1 at 2–3.2 As Judge Peterson would later

note in denying Cook’s motion for a new trial, “The way Cook

2

“Blunt” is a street term for a cigar from which the tobacco has been

removed and replaced with marijuana. R. 56 at 22.

4 No. 18-1343

phrased his statement suggests not merely that he smoked

weed the first time when he was 14, but that it was a regular

activity since then.” R. 73 at 2. On prodding from the police,

Cook ultimately produced a packet from his groin area

containing a half ounce of marijuana.

Cook had purchased the firearm from Max Creek Outdoors

in Oregon, Wisconsin on April 2, 2017. At the time of the

purchase, he was required to complete a Firearms Transaction

Record (Form 4473) promulgated by the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“ATF”). On that form,

Cook answered “No” to the question, “Are you an unlawful

user of, or addicted to, marijuana or any depressant, stimulant,

narcotic drug, or any other controlled substance?” Directly

under that question the reader of the form was admonished,

“Warning: The use or possession of marijuana remains unlaw-

ful under Federal law regardless of whether it has been

legalized or decriminalized for medical or recreational pur-

poses in the state where you reside.” Gov. Trial Ex. No. 1.

A grand jury subsequently charged Cook with two offenses:

knowingly possessing in or affecting commerce a firearm and

ammunition as an “unlawful user” of marijuana, in violation of

sections 922(g)(3) and 924(a)(2), and knowingly making a false

statement (that he was not an unlawful user of marijuana) on

the ATF form in connection with his purchase of a firearm and

ammunition, in violation of section 924(a)(1)(A). R. 7.

Cook moved to dismiss both counts of the indictment on

the ground that the term “unlawful user” of a controlled

substance found in section 922(g)(3) is unconstitutionally

vague. The district court denied the motion. R. 21 at 2–3.

No. 18-1343 5

The district court subsequently gave the following instruc-

tion to the jury as to who constitutes an “unlawful user” of

marijuana:

The defendant was an unlawful user of marijuana

if he used marijuana on a regular and ongoing basis

for a period of time that began before and continued

through the date of the charged offense. The govern-

ment is not required to prove that the defendant was

under the influence of marijuana when he filled out

the Firearms Transaction Record or when he pos-

sessed the firearm. The government is not required

to prove that the defendant used marijuana on any

particular day, or within a certain number of days of

when he committed the charged offenses.

R. 44 at 8; R. 56 at 70–71 (emphasis in original). The defense

rejected the government’s offer to include an additional

sentence in this instruction advising the jury that a one-time use

of marijuana is insufficient to render the defendant an “unlaw-

ful user” within the meaning of section 922(g)(3). R. 87 at 17.

Following a one-day trial, a jury convicted Cook on the

possession charge but was unable to reach a verdict on the false

statement charge, which the district court dismissed without

prejudice. R. 46, 53. The district court denied Cook’s Rule 33

motions for a new trial (R. 73) and ordered Cook to serve a

four-year term of probation in lieu of any term of imprison-

ment (R. 76).

6 No. 18-1343

II.

We begin our reconsideration with the charges Cook raised

prior to the Supreme Court’s decision in Rehaif. Although we

conclude in section III below that Rehaif entitles Cook to a new

trial, these issues are not moot and our analysis remains

relevant to the proceedings on remand.

Section 922(g)(3) of the Criminal Code provides in relevant

part that “[i]t shall be unlawful for any person … who is an

unlawful user of or addicted to any controlled substance (as

defined in section 102 of the Controlled Substances Act (21

U.S.C. § 802)) … to … possess in or affecting commerce, any

firearm or ammunition … .” Marijuana is a Schedule I con-

trolled substance, see 21 U.S.C. § 812(c)(10), and because the

Glock pistol Cook purchased from Max Creek Outdoors had

previously traveled in interstate commerce (it was manufac-

tured in Smyrna, Georgia), section 922(g)(3) forbade Cook’s

possession of the gun at the time of the May 2017 traffic stop

provided that he qualified as an “unlawful user” of marijuana,

which the jury necessarily found that he did. Section 924(a)(2)

in turn provides that anyone who “knowingly” violates section

922(g) shall be imprisoned for up to 10 years.3

Cook challenges his conviction pursuant to section 922(g)(3)

on three grounds: (1) the statute is facially vague as to who

constitutes an “unlawful user” of a controlled substance; (2) the

statute violates his Second Amendment right to possess a

3

Cook possessed (and was charged with possessing) ammunition as well

as a firearm, but for the sake of simplicity, we shall refer only to the

firearm.

No. 18-1343 7

firearm; and (3) the jury instruction defining “unlawful user”

was inadequate. For the reasons that follow, we find none of

these arguments to be persuasive.

A. Facial vagueness challenge to section 922(g)(3)

Cook contends that section 922(g)(3) is vague on its face,

such that his conviction violates the Fifth Amendment’s due

process clause. The void-for-vagueness doctrine requires that

a criminal statute define an offense with sufficient clarity that

an ordinary person has fair notice of what conduct is prohib-

ited and so as to avoid arbitrary and discriminatory enforce-

ment. See, e.g., Skilling v. United States, 561 U.S. 358, 402–03, 130

S. Ct. 2896, 2927–28 (2010); United States v. Sylla, 790 F.3d 772,

774–75 (7th Cir. 2015). “What renders a statute vague is not the

possibility that it will sometimes be difficult to determine

whether the incriminating fact it establishes has been proved;

but rather the indeterminacy of precisely what that fact is.”

United States v. Williams, 553 U.S. 285, 306, 128 S. Ct. 1830, 1846

(2008).

The general practice, outside of the First Amendment

context,4 has been to consider the purported vagueness of a

statute in light of the facts of the particular case—i.e., as

applied—rather than in the abstract. See, e.g., Maynard v.

Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857–58 (1988);

United States v. Johnson, 875 F.3d 360, 370 (7th Cir. 2017). This

4

When a statute implicates activities protected by the First Amendment,

there is a special concern that free speech and expression not be chilled.

See Broadrick v. Oklahoma, 413 U.S. 601, 611–12, 93 S. Ct. 2908, 2915–16

(1973).

8 No. 18-1343

means, of course, that a litigant challenging the statute ordi-

narily must show that it is vague as applied to him; and if the

statute undoubtedly applies to his conduct, he will not be heard

to argue that the statute is vague as to one or more hypotheti-

cal scenarios. See Holder v. Humanitarian Law Project, 561 U.S. 1,

18–19, 130 S. Ct. 2705, 2718–19 (2010) (quoting Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,

495, 102 S. Ct. 1186, 1191 (1982)); Broadrick v. Oklahoma, supra

n.4., 413 U.S. at 610–11, 93 S. Ct. at 2915 (collecting cases).

Nonetheless, the Supreme Court has on a number of

occasions entertained facial challenges to criminal statutes that

do not implicate First Amendment concerns. See, e.g., Skilling,

561 U.S. at 402–14, 130 S. Ct. at 2927–34 (honest services fraud);

City of Chicago v. Morales, 527 U.S. 41, 52–64, 119 S. Ct. 1849,

1857–63 (1999) (loitering by gang members in public places);

Lanzetta v. New Jersey, 306 U.S. 451, 453–58, 59 S. Ct. 618,

619–21 (1939) (gang participation); United States v. L. Cohen

Grocery Co., 255 U.S. 81, 89–93, 41 S. Ct. 298, 300–01 (1921)

(price gouging). As we noted in United States v. Jones, 689 F.3d

696 (7th Cir. 2012), abrogated on other grounds, Johnson v. United

States, 135 S. Ct. 2551 (2015), the common thread uniting these

cases with facial challenges in the First Amendment context

appears to be a concern (or at least a colorable contention) that

the challenged statute “simply has no core” and lacks “any

ascertainable standard for inclusion and exclusion, ”id. at 703

(quoting Smith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 1249

(1974)). Such a standardless statute poses a trap for the person

acting in good faith, who is given no guidepost by which he

can divine what sort of conduct is prohibited. See Colautti v.

Franklin, 439 U.S. 379, 395–96, 99 S. Ct. 675, 685–86 (1979),

No. 18-1343 9

overruled in part on other grounds, Webster v. Reproductive Health

Servs., 492 U.S. 490, 109 S. Ct. 3040 (1989). The concern is

heightened when the statute contains no mens rea requirement,

Colautti, 439 U.S. at 395, 99 S. Ct. at 685–86, and the uncertainty

as to exactly what is proscribed “threatens to inhibit the

exercise of constitutionally protected rights,” id. at 391, 99 S. Ct.

at 683. See also Morales, 527 U.S. at 55, 119 S. Ct. at 1858.

The statutory prohibition at issue here does not present

such concerns. True enough, section 922(g)(3) does implicate

Cook’s Second Amendment right to possess a gun. But the

prohibition is not a strict liability offense requiring no mens rea,

as in Colautti. By virtue of the separate penalties provision

found in section 924(a)(2), a violation of section 922(g)(3) must

be knowing – that is, the defendant must have knowledge of

the facts that constitute the offense. E.g., Dixon v. United States,

548 U.S. 1, 5, 126 S. Ct. 2437, 2441 (2006) (“unless the text of the

statute dictates a different result, the term ‘knowingly’ merely

requires proof of knowledge of the facts that constitute the

offense”) (quoting Bryan v. United States, 524 U.S. 184, 193, 118

S. Ct. 1939, 1946 (1998)); see Humanitarian Law Project, 561 U.S.

at 21, 130 S. Ct. at 2720 (“the knowledge requirement of the

statute further reduces any potential for vagueness, as we have

held with respect to other statutes containing a similar require-

ment”) (collecting cases); United States v. Johnson, 911 F.3d 849,

853 (7th Cir. 2018) (word “knowingly” cures any potential

vagueness in challenged condition of supervised release) (citing

Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031, 1036

(1945)). And as Rehaif has now clarified, that knowledge

requirement extends to the particular status that renders a

defendant’s possession of a firearm unlawful. 139 S. Ct. at 2194,

10 No. 18-1343

2200. Moreover, there is, as our decision in United States v.

Yancey, 621 F.3d 681 (7th Cir. 2010) (per curiam) makes clear,

a readily appreciable core of conduct prohibited by the

particular subsection of 922(g) at issue here.

Yancey construes the term “unlawful user,” as used in

section 922(g)(3), to mean one who regularly or habitually

ingests a controlled substance in a manner other than as

prescribed by a physician. Id. at 682. Our opinion adds that

such use must be contemporaneous with the defendant’s

possession of a gun. Id. at 687 (collecting cases); see also United

States v. Grap, 403 F.3d 439, 446 (7th Cir. 2005) (adopting same

contemporaneity requirement for purposes of U.S.S.G.

§ 2K2.1(a)(6), which specifies the base offense level for

“prohibited person” convicted of firearms offense) (collecting

cases). Yancey set forth this interpretation of section 922(g)(3)

in the course of rejecting a Second Amendment challenge to the

statute. Noting the well-established link between chronic drug

use and violence, we concluded that section 922(g)(3)’s ban on

gun possession by those who regularly engage in illegal drug

use was substantially related to the important government

interest in preventing violent crime. 621 F.3d at 685–86. We

must take into account Yancey’s gloss on the statute in evaluat-

ing Cook’s vagueness claim. See Skilling, 561 U.S. at 405, 130 S.

Ct. at 2929 (“It has long been our practice, … before striking a

federal statute as vague, to consider whether the prescription

is amenable to a limiting construction.”); Pleasureland Museum,

Inc. v. Beutter, 288 F.3d 988, 995–96 (7th Cir. 2002); Waldron v.

McAtee, 723 F.2d 1348, 1354 (7th Cir. 1983).

No. 18-1343 11

Cook is thus not in a position to claim that the statute is so

indefinite as to inhibit the legitimate exercise of Second

Amendment rights. Whatever doubt there might be at the

margins as to conduct potentially reached by section 922(g)(3),

there can be no doubt as to the core of conduct that the statute

(as construed by Yancey) proscribes: the possession of a firearm

by an individual engaged in the regular, non-prescribed use of

a controlled substance. Indeed, it would appear that Cook’s

conduct—possession of a firearm in the midst of a nearly ten-

year period of marijuana use—epitomizes that core, which may

explain why Cook is so keen to challenge the statute on its face

rather than as applied.

Cook nonetheless suggests that the Supreme Court’s recent

decision in Johnson authorizes his facial vagueness challenge,

regardless of whether the statute is vague as applied to his

particular conduct. Johnson declared the (now defunct) residual

clause of the Armed Career Criminal Act (“ACCA”) to be

impermissibly vague without requiring the defendant to first

show that the clause was vague as applied to him. 135 S. Ct. at

2563. The ACCA specifies an enhanced sentence of 15 years to

life for one convicted of a firearms offense if the defendant has

three or more prior convictions for either a “serious drug

offense” or a “violent felony.” 18 U.S.C. § 924(e)(1). As relevant

here, the statute defines “violent felony” to mean a crime

punishable by a year or more in prison which “is burglary,

arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical

injury to another[.]” § 924(e)(2)(B)(ii) (emphasis ours). The Court

previously had construed section 924(e)(2)(B)(ii) to require a

sentencing court to employ a categorical approach focusing on

12 No. 18-1343

the generic version of an offense (that is, what the elements of

the offense minimally require in the abstract), rather than the

defendant’s actual conduct, in deciding whether his prior

conviction qualified as a violent felony. See Taylor v. United

States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160 (1990). In view of

the categorical inquiry mandated by Taylor, two aspects of the

residual clause we have italicized led the Supreme Court in

Johnson to conclude that this clause was impermissibly vague:

(1) after postulating the archetypal version of the crime, one

had to decide how much risk of physical injury was posed by

that idealized version of the offense; and (2) one also had to

consider how much risk of injury was required to render an

offense violent as compared with the offenses expressly

identified in the statute (burglary, arson, extortion, and

offenses involving the use of explosives). 135 S. Ct. at 2557–58.

Both inquiries were plagued by uncertainty, as evidenced by

both the Court’s own demonstrated inability in a series of prior

residual clause cases to articulate a “principled and objective

standard” for identifying crimes that present a serious risk of

physical injury, id. at 2558, as well as the “numerous splits

among the lower federal courts,” where the clause had proved

“nearly impossible to apply consistently,” id. at 2560 (quoting

Chambers v. United States, 555 U.S. 122, 133, 129 S. Ct. 687, 694

(2009) (Alito, J., concurring in judgment)). “Nine years’

experience trying to derive meaning from the residual clause

convinces us that we have embarked upon a failed enterprise,”

the Court concluded. “Each of the uncertainties in the residual

clause may be tolerable in isolation, but ‘their sum makes a task

for us which at best could be only guesswork.’” Id. (quoting

No. 18-1343 13

United States v. Evans, 333 U.S. 483, 495, 68 S. Ct. 634, 641

(1948)).

In declaring the residual clause to violate the due process

clause, the Court expressly rejected the government’s conten-

tion that an otherwise vague statute is constitutional so long as

“there is some conduct that clearly falls within the provision’s

grasp.” Id. at 2561. While acknowledging that statements in

some of its opinions could be read to support such a rule, the

Court emphasized that its prior holdings squarely contradicted

such a practice. Id. at 2560–61. Simply because it is possible to

envision some factual scenarios that would violate an

ambiguously-worded statute is not enough to rescue that

statute from a vagueness challenge, the Court made clear. Id. at

2561.

The Court was also at pains to emphasize, however, that

simply because a criminal statute uses qualitative language to

articulate a liability standard does not mean that the statute is

impermissibly vague, especially when the statute under

scrutiny calls upon the court to apply that standard to a

concrete set of facts. Id. at 2561; see also id. at 2558.

As a general matter, we do not doubt the constitu-

tionality of laws that call for the application of a

qualitative standard such as “substantial risk” to

real-world conduct; “the law is full of instances

where a man’s fate depends on his estimating rightly

… some matter of degree,” Nash v. United States, 229

U.S. 373, 377, 33 S. Ct. 780 (1913). The residual

clause, however, requires application of the “serious

potential risk” standard to an idealized ordinary

14 No. 18-1343

case of the crime. Because “the elements necessary to

determine the imaginary ideal are uncertain both in

nature and degree of effect,” this abstract inquiry

offers significantly less predictability than one

“[t]hat deals with the actual, not with an imaginary

condition other than the facts.” International Har-

vester Co. of America v. Kentucky, 234 U.S. 216, 223, 34

S. Ct. 853 (1914).

135 S. Ct. at 2561.

It is not clear how much Johnson—and the Court’s follow-on

decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which

invalidated similar language in the Immigration and National-

ity Act—actually expand the universe of litigants who may

mount a facial challenge to a statute they believe is vague. Not

surprisingly, Cook contends that Johnson permits any defen-

dant who can postulate doubts as to what particular conduct a

criminal statute does or does not reach to pursue a facial

challenge to that statute, without having to show that there is

any real question as to whether his own conduct is proscribed.

It is true that Johnson puts to rest the notion—found in any

number of pre-Johnson cases—that a litigant must show that the

statute in question is vague in all of its applications in order to

successfully mount a facial challenge.5 135 S. Ct. at 2561. And,

5

See, e.g., United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100

(1987) (“A facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the challenger must

establish that no set of circumstances exists under which the Act would

be valid.”); Johnson, 135 S. Ct. at 2574, 2581 (Alito, J., dissenting); Hegwood

(continued...)

No. 18-1343 15

as we have mentioned, Johnson likewise rejects the notion that

simply because one can point to some conduct that the statute

undoubtedly would reach is alone sufficient to save it from a

vagueness challenge. Id. So Cook has those aspects of Johnson

going for him. But so much of the Court’s analysis in Johnson

deals with a statute that is in key respects sui generis. In

particular, it was the categorical approach called for by the

ACCA’s residual clause—requiring courts to look not at the

actual conduct underlying the defendant’s prior conviction but

rather at the archetypal version of the offense, and then to

consider whether the risk of injury posed by that version was

sufficient to render the crime violent—which the court found to

be particularly vexing. Id. at 2557–58. Assessing the degree of

risk posed by an idealized “typical” version of an offense was

significantly different, as the Court emphasized, from looking

at the risks posed by a set of actual, concrete facts. Id. at 2558;

see also Dimaya, 138 S. Ct. at 1214–16; Copeland v. Vance, 893

F.3d 101, 110–11 n.2 (2d Cir. 2018) (noting unique context of

Johnson).

Cook’s appeal, by contrast, presents a much more routine

vagueness challenge that highlights some imprecision in the

statutory language and posits uncertainty as to whether the

statute might apply to certain hypothetical facts. But section

922(g)(3) does not call for the court to engage in any abstract

analysis; it calls on the court to apply the statutory prohibition

5

(...continued)

v. City of Eu Claire, 676 F.3d 600, 604 (7th Cir. 2012); Sherman ex rel. Sherman

v. Koch, 623 F.3d 501, 520 (7th Cir. 2010); Schor v. City of Chicago, 576 F.3d

775, 781 (7th Cir. 2009).

16 No. 18-1343

to a defendant’s real-world conduct. See United States v. Davis,

139 S. Ct. 2319, 2327 (2019) (“a case-specific approach would

avoid the vagueness problems that doomed the statutes in

Johnson and Dimaya”). Moreover, there is, as we have dis-

cussed, a readily appreciable core of conduct that the statute

reaches: If one regularly uses marijuana or another controlled

substance other than as directed by a physician, he may not

possess a firearm so long as the use persists. Consequently,

citizens who wish to exercise their Second Amendment rights

and law enforcement officials alike have reasonable notice of

what is prohibited. This is not a “hopelessly indeterminate”

statute (Cook Br. 13) that leaves everyone to guess what

conduct is legal and what conduct is proscribed.6 The statute,

as construed by Yancey, does incorporate a qualitative liability

standard, and one can posit, as Cook does, hypothetical

scenarios which present close questions as to whether an

6

We recognize that a liability standard turning on the regularity of a

particular activity can in some instances present a vagueness problem. See

Whatley v. Zatecky, 833 F.3d 762 (7th Cir. 2016) (finding statute

impermissibly vague where it specified enhanced sentence for individual

possessing controlled substance within 1000 feet of “youth program

center,” defined as any building that provides youth-oriented programs

or services “on a regular basis”). In contrast to Whatley, the statute at issue

here is not a strict-liability provision, and one’s liability under section

922(g)(3) turns on the regularity of one’s own conduct rather than the

activity occurring in a building that may exhibit no indicia of what

programs and services are provided therein and how often. One who uses

a controlled substance necessarily knows how often he does so. See United

States v. Purdy, 264 F.3d 809, 812 (9th Cir. 2001) (“Purdy’s [regular, years-

long] drug use … was sufficient to put him on notice that he fell within the

statutory definition of ‘unlawful [drug] user.’”).

No. 18-1343 17

individual’s use of a controlled substance is generally unlawful,

whether it qualifies as regular and ongoing under Yancey,

and/or whether that use is sufficiently contemporaneous with

his or her possession of a firearm. But in contrast with the

ACCA’s residual clause, there is no judicial history of courts

struggling to appreciate what particular conduct Congress

meant to reach with section 922(g)(3) or to apply the statutory

terms to varying sets of facts. The uniform rejection of as-

applied vagueness challenges to section 922(g)(3) by itself

suggests that it is not anything like the sort of problematic

statute the Court confronted in Johnson. See United States v.

Bramer, 832 F.3d 908, 909–10 (8th Cir. 2016) (per curiam); United

States v. Edwards, 540 F.3d 1156, 1162 (10th Cir. 2008); United

States v. Patterson, 431 F.3d 832, 836 (5th Cir. 2005); United

States v. Purdy, supra n.6, 264 F.3d at 812–13. And simply

because it may sometimes be difficult to determine if an

individual’s drug use meets section 922(g)(3)’s standard for

liability does not signify that the statute is impermissibly

vague, given that there is no doubt as to the essence of what

the statute forbids: the possession of a firearm by one who is

engaged in the regular and ongoing use of a controlled sub-

stance other than as prescribed by a doctor. See Williams, supra,

553 U.S. at 306, 128 S. Ct. at 1846.

For these reasons, we are not convinced that Cook is

entitled to mount a facial vagueness challenge to section

922(g)(3). Johnson did not alter the general rule that a defendant

whose conduct is clearly prohibited by a statute cannot be the

one to make a facial vagueness challenge. United States v.

Westbrooks, 858 F.3d 317, 325–26 (5th Cir. 2017) (collecting

cases), cert. granted & judgment vacated on other grounds, 138 S.

18 No. 18-1343

Ct. 1323 (2018). Cook’s conduct, if anything, undoubtedly falls

within the obvious core of conduct proscribed by the statute.

Per his statement at the police station, he had been using

marijuana for almost ten years and he had smoked two blunts

on the day of his arrest; and the police officers who stopped his

vehicle and took him into custody noted a strong odor of

marijuana emanating from the interior and that Cook himself

reeked of the substance. These facts no doubt explain why

Cook has declined to pursue an as-applied vagueness challenge

to section 922(g)(3): it would surely fail. See United States v.

Jackson, 280 F.3d 403, 406 (4th Cir. 2002) (addressing facts

similar to those presented here) (“While we do not doubt that

the exact reach of the statute is not easy to define, we agree

with the government that this is not a borderline case. … Given

the evidence, Jackson violated the plain meaning of the

statute.”).

Cook’s attempt to challenge section 922(g)(3) as facially

vague fails for all of the reasons we have discussed, and

because he asserts no as-applied challenge to the statute, we

reject his contention that the statute is inconsistent with his due

process rights.

B. Second Amendment

Cook agrees that Yancey forecloses this challenge to section

922(g)(3). Yancey, as noted, held that there was a substantial

relationship between the government’s legitimate interest in

preventing violent crime and the statute’s ban on gun posses-

sion by unlawful drug users. 621 F.3d at 683–87. Although

Cook asserts that Yancey was wrongly decided, he offers us no

real reason to reconsider our precedent on this point. As the

No. 18-1343 19

law is settled in this circuit, we reject his Second Amendment

objection to the statute.

C. Jury Instruction

Cook argues finally that the district court did not properly

instruct the jury as to the elements of his offense. As we noted

in our summary of the proceedings below, the court advised

the jury that “[t]he defendant was an unlawful user of mari-

juana if he used marijuana on a regular and ongoing basis for

a period of time that began before and continued through the

date of the offense.” R. 44 at 8; R. 56 at 70–71 (emphasis

omitted). The court added that Cook need not have been under

the influence of marijuana when he possessed a firearm, nor

was the government required to prove that he used marijuana

on any particular date or within a specified number of days of

the offense. (Recall that Cook had rejected the government’s

offer to add language that use of marijuana on a single occasion

was insufficient to establish unlawful drug use.) Cook contends

that the instruction as given was erroneous because (a) it was

not grounded in the language of section 922(g)(3); (b) it was

not consistent with Yancey’s holding as to who constitutes an

unlawful drug user; (c) the instruction was internally inconsis-

tent; and (d) it foreclosed the defense from urging the jurors to

use their own understanding of “unlawful user” in assessing

Cook’s conduct. None of these arguments is persuasive.

The instruction was grounded in the language of the statute

in that it endeavored, consistent with the case law regarding

section 922(g)(3), to define for the jury who constitutes an

unlawful drug user. The statute itself does not define “unlawful

user.” As discussed, this court in Yancey concluded that an

20 No. 18-1343

unlawful drug user is one who regularly uses a controlled

substance, other than as prescribed by a physician, contempo-

raneously with possessing a firearm. 621 F.3d at 682, 687. In

doing so, we acted in accord with other circuits which have

concluded that the statute’s reach is limited by two key

requirements: (1) regularity of drug use (2) that is sufficiently

contemporaneous with the possession of a firearm. See id.

(collecting cases). That these are limits imposed on the offense

by the judiciary rather than the face of the statute does not

render them invalid. See United States v. Lanier, 520 U.S. 259,

266, 117 S. Ct. 1219, 1225 (1997) (“clarity at the requisite level

may be supplied by judicial gloss on an otherwise uncertain

statute”) (collecting cases); Skilling, supra, 561 U.S. at 405–06,

130 S. Ct. at 2929–30 (before striking down a federal statute as

vague courts will first consider if it is subject to a limiting

construction that avoids vagueness); id. at 409 n.43, 130 S. Ct.

at 2931 n.43 (“cases ‘paring down’ federal statutes to avoid

constitutional shoals are legion”). The district court appropri-

ately looked to Yancey’s gloss on the statute in defining

“unlawful user” for the jury.

Nor was the instruction inconsistent with Yancey. Cook

suggests that Yancey defined “unlawful user” of drugs to mean

either one who is addicted to controlled substances or one who

has simply used them within the past year, and that the

reference to “regular and ongoing” drug use in the district

court’s instruction is both broader than addiction and narrower

than use within the past year. But Cook’s reading of Yancey is

not a faithful account of the court’s opinion. The opinion makes

clear that section 922(g)(3) requires regular or habitual drug use,

621 F.3d at 682, that is contemporaneous with the possession

No. 18-1343 21

of a firearm, id. at 687. Nowhere in our decision did we suggest

that a single or occasional, irregular use of a controlled sub-

stance within a year of the gun possession was sufficient to

meet these criteria. Nor did we indicate that regular or habitual

use necessarily equates with addiction. The instruction given

here was fully consistent with Yancey’s requirements: the term

“regular” connotes a pattern of repeated drug use (be it

volitional or as the result of an addiction), and “ongoing”

connotes the requisite temporal nexus with possession of the

gun.

The instruction was also internally consistent. Cook’s

contention to the contrary focuses on the fact that the instruc-

tion advised the jury, on the one hand, that his marijuana use

must have “beg[u]n before and continued through the date of

the charged offense” but, on the other hand, that he need not

have “used marijuana on any particular day, or within a certain

number of days of when he committed the charged offense.” R.

44 at 8; R. 56 at 71. These portions of the instruction were not

at odds with one another. Consistent with Yancey’s require-

ment that the defendant’s drug use be contemporaneous with

his possession of a firearm, the court appropriately advised the

jury that Cook’s marijuana use must have been “ongoing” at

the time he was discovered in possession of a gun. But the

requirement that the drug use and firearm possession be

contemporaneous does not literally mean that the defendant

must have been ingesting (or under the influence of) a con-

trolled substance at the same time as he possessed the gun. The

statute, after all, prohibits firearm possession by a drug user,

not simply possession during drug use. So long as the defen-

dant was still engaged in the regular use of a drug at the time

22 No. 18-1343

of his firearm possession, it is not necessary to show that he

used the drug on the day of his firearm possession, the day

before, or within any particular number of days of the posses-

sion. Thus, a person who routinely uses marijuana on week-

ends may violate section 922(g)(3) by possessing a firearm on

a Tuesday or Wednesday, because his possession of the gun is

contemporaneous with his ongoing pattern of drug use. The

instruction appropriately and coherently advised the jury on

these points.

Finally, we are no more persuaded than the district judge

was that the instruction should have left it to the jurors to

consult their own collective sense of who constitutes an

“unlawful user” of marijuana. Yancey establishes the relevant

parameters on this point, and the district court was required to

convey those parameters to the jury to guide its decision-

making, which Judge Peterson did admirably.

That said, our holding should not be construed to foreclose

alternate versions of the “unlawful user” instruction. The Sixth

and Eighth Circuits, for example, have promulgated instruc-

tions with slightly different language. See MANUAL OF MODEL

CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE

EIGHTH CIRCUIT § 6.18.922B, at 291–94 (2017 ed.); United States

v. Burchard, 580 F.3d 341, 352 (6th Cir. 2009). Although the

arguments in this court and in the court below reflect some

anticipation that we might settle upon our own preferred

version of the instruction in this appeal, we respectfully decline

to do so. As the foregoing discussion makes clear, we find no

fault with the particular instruction that Judge Peterson gave to

the jury, and we need not go farther than that to resolve Cook’s

appeal. The task of drafting a model instruction, we believe, is

No. 18-1343 23

better left to our Circuit’s Pattern Criminal Jury Instruction

Committee, which has a membership that includes practitio-

ners and academics as well as judges and which can solicit and

incorporate comments on any proposed instruction from the

bar at large. We have invited the Committee to consider a

pattern instruction for a section 922(g)(3) charge, including but

not limited to the issue of who constitutes an “unlawful user”

of a controlled substance for purposes of this statute.

III.

In compliance with the Supreme Court’s mandate, we must

now consider whether the Court’s decision in Rehaif entitles

Cook to a new trial. At our request, the parties have filed

supplemental briefs on this question, which we have found to

be quite helpful.

As we noted, Rehaif held that a charge under sections 922(g)

and 924(a)(2) requires proof that a defendant knew that he

possessed the status which rendered it unlawful for him to

possess a firearm. 139 S. Ct. at 2194, 2200. “This decision upset

not only the law of this circuit but the unanimous conclusion of

all the courts of appeals.” United States v. Payne, 964 F.3d 652,

655 (7th Cir. 2020) (citing United States v. Williams, 946 F.3d 968,

970 (7th Cir. 2020)). Post-Rehaif, we have clarified that the

government need not show that the defendant knew his status

prohibited him from possessing a firearm, but simply that he

held the status. United States v. Maez, 960 F.3d 949, 954–55 (7th

Cir. 2020); see also United States v. Triggs, 963 F.3d 710, 714–15

(7th Cir. 2020). So in this case, Cook’s knowledge that he was

an unlawful user of a controlled substance was an element of

the offense.

24 No. 18-1343

The issue resolved in Rehaif was not one that Cook had

pursued in the district court or in his appeal to this court, but

rather was raised for the first time in Cook’s certiorari petition;

the parties therefore agree it is subject to plain error review.

Fed. R. Crim. P. 52(b); see, e.g., Triggs, 963 F.3d at 712. In order

to establish plain error rendering him eligible for relief, Cook

bears the burden of showing: (1) an error that was not affirma-

tively waived (2) that, in retrospect, is clear or obvious, and (3)

which affected his substantial rights. Molina-Martinez v. United

States, 136 S. Ct. 1338, 1343 (2016); United States v. Marcus, 560

U.S. 258, 262, 130 S. Ct. 2159, 2164 (2010); United States v. Olano,

507 U.S. 725, 732–35, 113 S. Ct. 1770, 1776–78 (1993). Further-

more, relief under Rule 52(b) is discretionary, and should be

granted only when the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Olano,

507 U.S. at 732, 735–37, 113 S. Ct. at 1776, 1778–79; see also

Molina-Martinez, 136 S. Ct. at 1343; Rosales-Mireles v. United

States, 138 S. Ct. 1897, 1906–07 (2018); Marcus, 560 U.S. at 262,

130 S. Ct. at 2164.

Consistent with this circuit’s pre-Rehaif cases, the supersed-

ing indictment omitted any allegation that Cook knew he was

an unlawful user of marijuana, and the jury that convicted

Cook was not instructed that the government was required to

prove Cook’s knowledge in this regard. See, e.g., United States

v. Lane, 267 F.3d 715, 720 (7th Cir. 2001) (sole scienter require-

ment imposed by section 924(a)(1) is that defendant’s posses-

sion of firearm was knowing). As a consequence of these

omissions, the government was relieved of the burden to

establish what Rehaif makes clear is an essential element of the

offense.

No. 18-1343 25

The parties agree that, in view of Rehaif, it was error for the

jury not to be advised that in order to convict Cook it must find

that he knew he was an unlawful user of marijuana.7 The

parties also agree that, in retrospect, the error is obvious.

Where they part ways is on whether the error implicated

Cook’s substantial rights. An error affects a defendant’s

substantial rights when there is a reasonable probability that,

had the error not occurred, the outcome of the proceeding

would have been different. Molina-Martinez, 136 S. Ct. at 1343;

United States v. Dominguez Benitez, 542 U.S. 74, 76, 81–82, 124 S.

Ct. 2333, 2336, 2339 (2004); Olano, 507 U.S. at 734–35, 113 S. Ct.

at 1777–78; see also United States v. Carson, 870 F.3d 584, 602 (7th

Cir. 2017) (even instructional errors of constitutional dimension

are subject to review for prejudice) (citing United States v.

Cardena, 842 F.3d 959, 998 (7th Cir. 2016)). This is the essentially

same standard that courts employ to assess whether the

ineffective assistance of counsel has prejudiced a defendant, see

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068

(1984), and to determine whether favorable evidence that the

government has withheld from the defense in violation of

Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1184 (1963), was

material to the defendant’s guilt or punishment, see Cone v. Bell,

556 U.S. 449, 469–70, 129 S. Ct. 1769, 1783 (2009) (quoting Kyles

v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566 (1995)).

Dominguez Benitez, 542 U.S. at 81–82, 124 S. Ct. at 2339.

7

We shall hereafter treat the omissions in the indictment and the jury

instructions as a single error comprising a failure to inform the jury of an

essential element of the offense.

26 No. 18-1343

In order to meet this standard, Cook does not have to show

that it is more likely than not that he would have been acquit-

ted but for the error. Dominguez Benitez, 542 U.S. at 83 n.9, 124

S. Ct. at 2340 n.9; Triggs, 963 F.3d at 717 (citing Williams, 946

F.3d at 973). He need only convince the court that there is a

reasonable probability that the result of the trial might have

been different—that is, one sufficient to undermine confidence

in the actual outcome of the trial, see Strickland, 466 U.S. at 694,

104 S. Ct. at 2068; Cone, 556 U.S. at 470, 129 S. Ct. at 1783, or

put another way, a plausible, non-negligible chance of a more

favorable result, see Sanchez v. Sessions, 894 F.3d 858, 863 (7th

Cir. 2018). See also Myers v. Neal, — F.3d —, 2020 WL 4462619,

at *9 (7th Cir. Aug. 4, 2020) (likelihood of a different result

“must be substantial”) (quoting Harrington v. Richter, 562 U.S.

86, 111-12, 131 S. Ct. 770, 792 (2011)). As the government

agrees, a more favorable outcome includes a deadlocked jury

as well as an acquittal, as neither is a conviction. Gov. Remand

Br. 13–14; see United States v. Nicolaou, 180 F.3d 565, 570 (4th

Cir. 1999) (citing United States v. Hastings, 134 F.3d 235, 240 (4th

Cir. 1998)).

The error in this case relieved the government of the burden

of proving an essential element of offense beyond a reasonable

doubt. The error was not so fundamental that it qualifies as

structural. Maez, 960 F.3d at 957–58. Nonetheless, it was a

serious error, in the sense that it both omitted a key element of

the government’s case and deprived Cook of the right to have

the jury assess the sufficiency of that evidence as to that

element. See United States v. Holmes, 93 F.3d 289, 294 (7th Cir.

1996); United States v. Perez, 43 F.3d 1131, 1139 (7th Cir. 1994);

United States v. Kerley, 838 F.2d 932, 937–39 (7th Cir. 1988).

No. 18-1343 27

We have previously said that although the “failure to

instruct clearly on the elements of the offense is not always

plain error … the gravity of such an error makes reversal the

usual outcome in such circumstances.” Perez, 43 F.3d at 1139

(citing Kerley, 838 F.2d at 938–39); see also United States v.

Wheeler, 540 F.3d 683, 690 (7th Cir. 2008); Holmes, 93 F.3d at

294; United States v. Shetterly, 971 F.2d 67, 73 (7th Cir. 1992).

Only in the exceptional case will prejudice not be found. Perez,

43 F.3d at 1139 (citing Kerley, 838 F.2d at 939). The exceptional

case includes one in which the jury necessarily found facts that

were the functional equivalent of the omitted element of the

offense, see United States v. Parmelee, 42 F.3d 387, 393–95 (7th

Cir. 1994), or where the evidence was so strong or the defense

so implausible as to leave no doubt that the jury would have

convicted the defendant if properly advised as to the essential

element, see Kerley, 838 F.3d at 939 (although jury instruction

failed to make clear that knowledge of duty to register for draft

was essential element of failure-to-register offense, error was

not so egregious as to require retrial “where the issue of guilty

knowledge was not contestable and was barely if at all con-

tested”); Williams, 946 F.3d at 974 (collecting section 922(g)(1)

felon-in-possession decisions finding no reasonable probability

of a different result post-Rehaif, where defendants had served

substantial prison terms for prior felony convictions and thus

could not plausibly contend they did not know they held status

of felons at time they possessed firearms).

Given the nature of the element omitted from the indict-

ment and the jury instructions, we do not think this qualifies as

an exceptional case. The government was required to prove

that Cook had knowledge of a status that has both legal and

28 No. 18-1343

factual elements and is not binary in the way that one’s status

as a convicted felon is, for example. See Triggs, 963 F.3d at

715–16 (distinguishing “the straightforward definition” of felon

who is barred from possessing firearm by section 922(g)(1)

from the “comparative complexity” of the definition of

“misdemeanor crime of domestic violence” found in section

922(g)(9)). One can have used marijuana without necessarily

being an “unlawful user” who is prohibited from possessing a

firearm. This makes the probability stronger that the jury might

not have convicted Cook. Indeed, the fact that the jury was

unable to reach a verdict on the false statement count, which

likewise required proof that Cook knew he was an unlawful

user, makes plain that Cook’s conviction on the section

922(g)(3) charge was not inevitable.

Knowledge of one’s status under section 922(g)(3) encom-

passes questions of law: Cook had to know both that he was

using a controlled substance and that his use was “unlawful”.

United States v. Bowens, 938 F.3d 790, 797–98 (6th Cir. 2019),

cert. denied, 140 S. Ct. 814, 2572 (2020); see Rehaif, 139 S. Ct. at

2198 (“The defendant’s status as an alien ‘illegally or unlaw-

fully present in the United States’ [see § 922(g)(5)(A)] refers to

a legal matter, but this legal matter is what the commentators

refer to as a ‘collateral’ question of law.”). Knowledge that a

substance is controlled is the more straightforward of these

two propositions, but even that may be tricky in a State like

Illinois, where use of marijuana is now legal as a matter of state

but not federal law. Compare 410 Ill. Comp. Stat. Ann. 705/1-7

with 21 U.S.C. §§ 812 (c)(10) (designating marijuana a Schedule

I controlled substance) and 844 (generally proscribing simple

possession of controlled substances). But Cook was arrested in

No. 18-1343 29

Wisconsin, where state law prohibits marijuana possession and

use, see Wis. Stat. §§ 961.14(4)(t), 961.41(3g)(e); United States v.

Paige, 870 F.3d 693, 700 & n.19 (7th Cir. 2017); and the parties

appear to assume for present purposes that so long as Cook

had knowledge that marijuana use was proscribed in a general

sense, this would be enough to show that he knew he was

using a controlled substance. See Cook Remand Br. 24 (“Cook

is not claiming that in order to meet its Rehaif burden, the

government would have to present affirmative evidence that

Cook understood the statutory phrase ‘unlawful user’ or was

familiar with the Controlled Substances Act.”) (emphasis in

original).

Knowledge that one is an unlawful user turns on his

awareness of somewhat nuanced factual aspects of his drug

use. As our analysis with respect to the “unlawful user” jury

instruction demonstrates, unlawful use of a drug entails (1) use

other than as lawfully prescribed by a physician, but also

(2) use that was both regular and ongoing at the time that the

defendant possessed a gun. So Cook would have to realize that

he was using marijuana other than as prescribed by a physician,

and that his use was sufficiently regular and ongoing at the

time he possessed the firearm as to make it “unlawful” in the

sense that this and other cases explain (as there is no statutory

standard).

As we consider what the record tells us about Cook’s

knowledge in these respects, our focus at the third step of the

plain error inquiry—whether the error affected Cook’s substan-

tial rights (i.e., prejudice)—must be confined to the jury record

alone. Maez, 960 F.3d at 959–63. Evidence that lies outside of

30 No. 18-1343

that record (e.g., evidence in the defendant’s pre-sentence

report) comes into play only at the fourth prong of the inquiry,

wherein the court exercises its discretion to correct plain errors

that seriously affect the fairness, integrity, or public reputation

of judicial proceedings. Id. at 962 (quoting Olano, 507 U.S. at

736, 113 S. Ct. at 1779).

There certainly is evidence in the trial record that would

have supported a jury finding that Cook knew he was an

unlawful user of a controlled substance. He obviously knew

what the scope of his own marijuana use was: he told an

investigator he had been using marijuana for nearly ten years

to “mellow[ ] [himself] out” (R. 22-1 at 3), and he acknowl-

edged that he had smoked two blunts on the day of his arrest.

And the officers who pulled him over could smell marijuana,

confirming that his use was recent. So a properly instructed

jury certainly could have found that his use was both regular

and ongoing as of the date of his arrest. Given the evidence

presented at trial, the jury also might fairly have inferred that

Cook knew marijuana was a controlled substance that was

illegal for him to possess and use. As we have noted, marijuana

possession and use was (and is) prohibited under Wisconsin as

well as federal law. There was no indication that Cook had ever

been prescribed marijuana for medicinal purposes—and,

indeed, Wisconsin does not permit medical marijuana use, see

Paige, 870 F.3d at 700 n.19.8 Moreover, as the government

8

Cook had also signed an ATF Form 4473 in connection with his

purchase of the gun which reminded him that regardless of any contrary

provision of state law, marijuana use was proscribed by federal law (Gov.

(continued...)

No. 18-1343 31

points out, Cook had stashed a half-ounce quantity of mari-

juana in his groin area, a fact which could be construed to

suggest that he was hiding the marijuana from authorities

because he knew his possession to be illegal.

But the evidence was by no means overwhelming on these

points, and Cook’s briefs on remand have convinced us that he

did have a plausible defense to make as to his knowledge. Even

if we take it as a given that Cook understood marijuana was a

controlled substance that was illegal for him to possess and

use, we do not regard it as inevitable that the jury would have

found that Cook knew he was an unlawful user as the case law

defines that term. Particularly in view of the regularity and

contemporaneity components of unlawful use, it is possible for

any given user to think that his use falls outside the range of

regular, ongoing use. Past, regular use would not qualify as

ongoing use if it has come to a definitive end before one

possesses a gun, for example, and likewise current but isolated

use (perhaps only when offered at the occasional social

gathering) likewise would not count as regular use. Cook, of

course, had confessed to a long-term pattern of use that

included the day of his arrest, and he has not suggested that his

use was sporadic. But his counsel points out that Cook detailed

that history of use after the interviewing police officer noted

that “shake” (loose marijuana), packaging, and scales had been

found in Cook’s car during prior traffic stops—all of which

8

(...continued)

Trial Ex. No. 1), although the government does not place much weight on

this piece of evidence in its plain error analysis. See Government Remand

Br. 10.

32 No. 18-1343

were consistent with distribution of marijuana—and asked him

in a leading manner, “[S]o it’s clear you use, right? You just use.

Is that what you’re saying?” R. 22-1 at 2. Cook might have

surmised that confessing to substantial use of marijuana was

the prudent thing for him to do, as distribution might well have

exposed him to more severe criminal penalties. But even if we

assume that Cook did not exaggerate the extent of his own use,

his perception of whether that use qualified as unlawful was

necessarily subjective. That Cook ought to have known his use

was unlawful would not suffice to convict him; he had to

actually know his use was unlawful. See Rehaif, 139 S. Ct. at 2208

(Alito, J., dissenting); United States v. Balde, 943 F.3d 73, 90 (2d

Cir. 2019).

Interestingly, the jury was asked to evaluate Cook’s

knowledge in relation to the false statement charge stemming

from the ATF Form 4473 he completed in connection with the

purchase of his gun. As to that charge, the government was

required to show that Cook had falsely certified that he was

not an unlawful user of marijuana and that he knew his

certification was false when he made it, see United States v.

Petitjean, 883 F.2d 1341, 1346 (7th Cir. 1989); and the jury was

instructed accordingly. R. 44 at 5; R. 56 at 67. Cook’s counsel

argued to the jury that the ATF form was unclear and that his

client could only have guessed at whether he qualified as an

unlawful user for purposes of the certification. R. 56 at 82–83.

Although we have no window into the jury’s deliberations, it

is possible that some number of the jurors may have agreed

with that argument, given the deadlock on this count. Given

that the jury would be presented with a quite similar question,

post-Rehaif, on the possession charge, it is not implausible to

No. 18-1343 33

think that a jury properly instructed as to the requirement that

Cook must have known he was an unlawful user of marijuana,

might have also deadlocked on the possession count.

On balance, we are convinced that the omission in the

indictment and the instructions did affect Cook’s substantial

rights. The question is not whether we find Cook’s potential

defense to the knowledge element persuasive, see Maez, 960

F.3d at 961, but whether there is a reasonable probability that

one or more jurors might have done so. We conclude that the

answer to that question is yes.

Which brings us to the fourth step of the plain-error inquiry:

whether we should exercise our discretion to grant Cook a new

trial. Additional evidence found in the pre-sentence report

bears on that inquiry; as with the trial record, that evidence

points in different directions. First, prior to his arrest in this

case, Cook had been cited and adjudged liable on three

occasions for marijuana possession in violation of local ordi-

nances (R. 70 ¶¶ 47, 53, 59), and he had also been convicted of

disorderly conduct in 2014 that involved hiding marijuana in

his groin area just as he did in this case (R. 70 ¶ 57), all of which

tends to confirm his awareness that marijuana is a controlled

substance and could be understood as confirmation of his

ongoing use of marijuana at the time of those incidents. But,

second, Cook suffers from learning disabilities and cognitive

deficits (R. 70 ¶¶ 94–96) and has, by his own account, received

Social Security disability benefits since he was a child, (R. 70 ¶

93). A mental status evaluation conducted in 2012, when Cook

was 18, suggested that his cognitive functioning was in the

borderline to sub-average range. A measure of his IQ using the

Wechlser Adult Intelligence Scale-Fourth Edition produced a

34 No. 18-1343

Full Scale IQ of 63, which would put him in the “extremely

low” classification (although previous testing had put him in a

borderline classification, and the 2012 evaluation itself indi-

cated that the result should be viewed with caution given

Cook’s difficulties with attention, focus, and pace during

testing). R. 70 ¶¶ 94, 96. He never completed high school nor

did he earn a G.E.D. R. 70 ¶¶ 104, 106. Arguably, Cook’s

limited education and cognitive deficits might have made it

more difficult for him to appreciate whether his pattern of

marijuana usage rendered him an “unlawful user.” Cf. Triggs,

963 F.3d at 715–16 (noting that relative complexity of section

922(g)(9)’s ban on possession of a firearm by one previously

convicted of a misdemeanor crime of domestic violence made

defendant’s contention that he did not know he held prohibited

status more plausible)

The government’s case against Cook was certainly solid,

and, again, we view it as quite possible that a properly in-

structed jury would have convicted him. But taking into

account the totality of the evidence, including evidence beyond

the trial record, we are not convinced that Cook’s conviction

was inevitable. Especially in view of the fact that the jury

deadlocked on the false statement count which, like the

possession count (in view of Rehaif) requires that Cook knew he

was an unlawful user of marijuana, the possibility that the jury

might have either deadlocked or acquitted on the possession

count still strikes us as a reasonable one. We can only conclude

that the Rehaif error is one that does affect the fairness, integ-

rity, and public reputation of the proceeding; and we therefore

exercise our discretion in favor of granting Cook relief in the

form of a new trial.

No. 18-1343 35

IV.

We once again reject Cook’s contentions that the term

“unlawful user” found in section 922(g)(3) is unconstitutionally

vague, that the statute’s ban on the possession of a firearm by

an unlawful user of a controlled substance impermissibly

burdens his Second Amendment rights, and that the trial court

did not properly instruct the jury on who constitutes an

“unlawful user” of a controlled substance.

However, in view of the Supreme Court’s intervening

decision in Rehaif, and what we find to be a reasonable proba-

bility that the outcome of the trial might have been different

had the government been required to prove, and had the jury

been required to find, that Cook knew he was an unlawful user

of marijuana, we reverse the conviction and remand for a new

trial. Circuit Rule 36 shall not apply on remand.

We once again commend everyone involved in the briefing

and arguing of this case, along with Judge Peterson and

Magistrate Judge Crocker for their thorough and careful

handling of the case below. Their dedication and hard work

have greatly aided this court’s deliberation and resolution of

the appeal. The new trial we have ordered is due solely to the

Supreme Court’s intervening decision in Rehaif and certainly

not owing to any omission on their part.

REVERSED AND REMANDED FOR NEW TRIAL