Reply Brief — Dan Reed, Petitioner v. United States

No. 19-8679

IN THE

Supreme Court of the United States

____________

DAN REED,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

____________

REPLY TO THE UNITED STATES’ BRIEF IN OPPOSITION

____________

James T. Skuthan

Acting Federal Defender

M. Allison Guagliardo, Counsel of Record

Assistant Federal Defender

Federal Defender’s Office

400 N. Tampa Street, Suite 2700

Tampa, FL 33602

Telephone: (813) 228-2715

Facsimile:

(813) 228-2562

E-mail: allison_guagliardo@fd.org

TABLE OF CONTENTS

Table of Contents ............................................................................................................................. i

Table of Authorities ........................................................................................................................ ii

Reply to the United States’ Brief in Opposition ..............................................................................1

Conclusion .......................................................................................................................................7

i

TABLE OF AUTHORITIES

Cases

Page(s)

Apprendi v. New Jersey, 530 U.S. 466 (2000) .............................................................................3, 4

Johnson v. United States, 520 U.S. 461 (1997) ...............................................................................3

Neder v. United States, 527 U.S. 1 (1999) .......................................................................................3

Old Chief v. United States, 519 U.S. 172 (1997) .............................................................................5

Puckett v. United States, 556 U.S. 129 (2009).................................................................................3

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ....................................................................7

Rehaif v. United States, 139 S. Ct. 2191 (2019) ......................................................................1, 2, 4

United States v. Brown, 752 F.3d 1344 (11th Cir. 2014).................................................................2

United States v. Cotton, 535 U.S. 625 (2002)..............................................................................3, 4

United States v. Dominguez Benitez, 542 U.S. 74 (2004) ...............................................................3

United States v. Gary, 954 F.3d 194, reh’g en banc denied, 963 F.3d 420 (4th Cir. 2020) ............1

United States v. Green, 973 F.3d 208 (2020) reh’g en banc and stay of mandate denied

(4th Cir. Oct. 19 & 23, 2020) (No. 19-4348) ..............................................................................1

United States v. Jackson, 120 F.3d 1226 (11th Cir. 1997) ..............................................................4

United States v. Makkar, 810 F.3d 1139 (10th Cir. 2015) ...............................................................3

United States v. Medley, 972 F.3d 399 (4th Cir. 2020), reh’g en banc granted,

2020 WL 6689728 (4th Cir. Nov. 12, 2020) (No. 18-4789).......................................................1

United States v. Vonn, 535 U.S. 55 (2002) ......................................................................................3

United States v. Young, 470 U.S. 1 (1985) ......................................................................................3

ii

TABLE OF AUTHORITIES – cont’d

Pending Cases

Page(s)

Greer v. United States, No. 19-8709................................................................................................2

United States v. Gary, No. 20-444 ...................................................................................................1

U.S. Constitution

U.S. Const. amend. VI .................................................................................................................2, 7

Statutes

18 U.S.C. § 922 ............................................................................................................................1, 5

Rules

Supreme Court Rule 14.1(a) ............................................................................................................7

Briefs and Petitions

Government Brief in Opposition,

Greer v. United States, No. 19-8709 (Oct. 9, 2020) ....................................................2, 3, 5

Petition for Writ of Certiorari,

Reed v. United States, No. 19-8679 (June 8, 2020) ................................................... passim

Government Brief in Opposition,

Reed v. United States, No. 19-8679 (Oct. 9, 2020) ..................................................1, 2, 5, 6

Brief for the United States,

United States v. Cotton, No. 01-687, 2002 WL 264766 (U.S. Feb. 19, 2002) ....................4

Petition for Writ of Certiorari,

United States v. Gary, No. 20-444 (Oct. 5, 2020) ...........................................................1, 2

iii

REPLY TO THE UNITED STATES’ BRIEF IN OPPOSITION

Before Rehaif v. United States, 139 S. Ct. 2191 (2019), the courts of appeals uniformly

held that, to convict a defendant of firearm possession under 18 U.S.C. § 922(g), the government

had to prove the defendant’s knowledge only as to his possession. Pet. 8. Thus, in cases pending

on direct appeal when the Court decided Rehaif, the government had not been required to prove,

and the defendant had not been provided with notice and an opportunity to defend against, the

mens rea element that the defendant knew his status.

The important question that has arisen is whether appellate courts may affirm defendants’

§ 922(g)(1) convictions under plain-error review, notwithstanding the constitutional errors that

occurred at their guilty pleas or trials, by relying on facts from the pre-Rehaif sentencing

proceedings to find the defendant knew his felon status. 1 The government has petitioned this Court

to resolve part of this question by reviewing a guilty plea case, United States v. Gary, No. 20-444,

either alone or consolidated with another guilty plea case. See Pet. 24-25, United States v. Gary,

No. 20-444 (“Gary Pet.”).

Petitioner Reed was indicted and convicted at a jury trial before the Court decided Rehaif.

The government has suggested that Mr. Reed’s petition “be held pending the Court’s disposition

of Gary and then disposed of as appropriate in light of Gary.” Br. Opp. 7; see id. at 10-12.

This Court’s decision in Gary or another guilty-plea case, while informative, may not

resolve the questions presented in a pre-Rehaif trial case. Indeed, the government is advocating

that the same rule should apply for appellate review in both trial and guilty-plea cases—i.e., that

1

See Pet. 8-11 (addressing pre-Rehaif trial cases); United States v. Medley, 972 F.3d 399

(4th Cir. 2020) (vacating conviction based on a pre-Rehaif trial), reh’g en banc granted, 2020 WL

6689728 (4th Cir. Nov. 12, 2020) (No. 18-4789); United States v. Green, 973 F.3d 208 (2020)

(applying Medley to vacate conviction from pre-Rehaif trial), reh’g en banc and stay of mandate

denied (4th Cir. Oct. 19 & 23, 2020) (No. 19-4348); United States v. Gary, 954 F.3d 194 (vacating

pre-Rehaif guilty plea), reh’g en banc denied, 963 F.3d 420 (4th Cir. 2020).

1

an appellate court, in conducting plain-error review, may rely on facts about a defendant’s prior

convictions from the pre-Rehaif sentencing proceedings to find that the defendant knew his felon

status at the time of the offense. 2 But as the government recognizes, the guilty plea and trial

contexts are “distinct.” Br. Opp. 11. A guilty-plea defendant cannot address the constitutional

errors that occurred in a trial defendant’s case. And in the trial context, this Court has never

sanctioned an appellate court affirming a defendant’s conviction by finding an element of the

offense—which was missing from the indictment, jury instructions, and evidence at trial—based

on information that was not presented at his trial.

Mr. Reed’s case illustrates these points and thus remains a good vehicle to resolve the

questions presented in a pre-Rehaif trial case:

1.

Because he went to trial, Mr. Reed never waived his right to challenge the

indictment as constitutionally defective.

Cf. United States v. Brown, 752 F.3d 1344, 1347-48,

1354 (11th Cir. 2014) (holding that element’s omission from indictment was a non-jurisdictional

defect that the defendant waived by entering an unconditional guilty plea). The Eleventh Circuit

agreed that the indictment in Mr. Reed’s case was plainly erroneous and denied the government’s

rehearing petition requesting that it not reach this issue. See Pet. i, 4-6; Pet. App. 3a, 5a.

Additionally, a trial case such as Mr. Reed’s presents significant Sixth Amendment issues

not present in a guilty plea case. See Pet. 10-16. In Mr. Reed’s case, the entire trial was infected

by the Rehaif error. The indictment misinformed him of the elements of the offense. See Pet. App.

3a (decision below agreeing indictment was plainly erroneous). The government was not required

to prove, and the jury was not required to find, that Mr. Reed knew his felon status at the time of

2

See Gary Pet. 4, 11, 20; Br. Opp. 6-10; Br. Opp. 8-17, Greer v. United States, No. 19-8709

(“Greer Br. Opp.”). In its brief in opposition in Mr. Reed’s case (Br. Opp. 7-9), the government

has incorporated portions of its brief in opposition in Greer.

2

the firearm possession. See id. (decision below agreeing that plain error occurred at trial). And

Mr. Reed did not have the opportunity to present a defense to this missing element. For example,

the district court excluded the defense’s evidence—that Mr. Reed is an intellectually disabled

individual with an IQ of 61 and schizophrenia paranoid type—at trial on the ground, now known

to be erroneous, that Mr. Reed’s subjective state of mind was irrelevant to the offense. See Pet. at

15-16 (citing United States v. Makkar, 810 F.3d 1139, 1147-48 (10th Cir. 2015)).

2.

The Eleventh Circuit affirmed Mr. Reed’s conviction, relying on facts about his

prior convictions that were never admitted at trial. Pet. App. 3a-4a. The Eleventh Circuit cited no

decision of this Court supporting such an approach. See Pet. 11-12.

The government similarly cites no decision of this Court affirming a defendant’s conviction

by finding an element of the offense—which was missing from the indictment, jury instructions,

and evidence at trial—based on information that was not presented at his trial. See Greer Br. Opp.

8-17. 3 The government relies on a footnote in this Court’s opinion in United States v. Cotton, 535

U.S. 625 (2002). See Greer Br. Opp. 9 (citing Cotton, 535 U.S. at 633 n.3). In Cotton, this Court

addressed, on plain-error review, the indictment’s failure to charge the drug quantity resulting in

increased statutory penalties in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). At

3

This Court relied on the trial evidence to affirm in cases where the judge (rather than the

jury) had found the element of materiality. See Johnson v. United States, 520 U.S. 461, 463-64,

469-70 (1997) (affirming on plain-error review where the trial evidence as to materiality had been

“‘overwhelming,’” and the element of materiality—then found by the judge—had been

“essentially uncontroverted at trial” and had “remained so on appeal”); Neder v. United States, 527

U.S. 1, 6-8, 16-17 (1999) (reaching similar conclusion under harmless-error review); see also

United States v. Young, 470 U.S. 1, 16-20 (1985) (reviewing the propriety of the prosecutor’s

closing argument by viewing trial as a whole, including defense attorney’s closing argument). The

other cases the government cites involved guilty pleas, none of which involved the plea colloquy’s

failure to advise the defendant of an element of the offense. See Puckett v. United States, 556 U.S.

129, 142-43 (2009); United States v. Dominguez Benitez, 542 U.S. 74, 76-79 (2004); United States

v. Vonn, 535 U.S. 55, 58-62 (2002).

3

sentencing, the district court found, “based on the trial testimony,” that the defendants were

responsible for over 50 grams of cocaine base, the threshold quantity to increase the statutory

penalties. 535 U.S. at 628. This Court affirmed the defendants’ increased statutory penalties based

on the evidence at trial. Id. at 633 (summarizing trial evidence); see Br. for the U.S., United States

v. Cotton, No. 01-687, 2002 WL 264766, at *2-3, 44-45 (U.S. Feb. 19, 2002) (“Cotton U.S. Br.”)

(same). Cotton therefore does not support an appellate court relying on sentencing facts to find an

element of the criminal offense that was missing from the defendant’s trial.

Moreover, the footnote in Cotton on which the government relies confirmed the defendants

had never contested that a quantity below the statutory threshold (50 grams) had been involved in

the offense. 535 U.S. at 633 n.3. This point mattered, because the defendants had been on notice

at their pre-Apprendi proceedings that the district court would determine their statutory penalties

based on the court’s drug quantity determination at sentencing. Id. at 628 (explaining that the

defendants were sentenced before Apprendi, “[c]onsistent with th[is] practice in federal courts at

the time”); see Cotton U.S. Br. at *3-4, 44-45, 47-48 & nn.1 & 14.

Here, by contrast, binding circuit precedent had affirmatively misinformed pre-Rehaif

defendants that their knowledge of their status was not an element of the offense. See Rehaif, 139

S. Ct. at 2210 & n.6 (Alito, Thomas, JJ., dissenting) (“[A]ll the courts of appeals to address the

question have held that [the mens rea requirement] does not apply to the defendant’s status.”)

(citing, inter alia, United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997)). Such

defendants were therefore never on notice that their knowledge of status would be an element of

the offense. Nor was their knowledge of status a sentencing factor on which the defendants had

notice and an opportunity to be heard at their sentencing.

4

Having cited no decision of this Court to support affirming a defendant’s conviction under

these circumstances, the government turns to an evidentiary basis for its proposed rule. The

government posits that it is appropriate for an appellate court to rely on the facts about a

defendant’s prior convictions from the sentencing proceedings, because the government did not

have the opportunity to present these facts at trial due to the parties’ stipulation under Old Chief v.

United States, 519 U.S. 172 (1997). Greer Br. Opp. 10.

The government, however, never explains whether or how an appellate court should

consider other information on the sentencing record, to which the defense points, supporting that

defendant lacked the requisite state of mind for the offense. See id. at 8-17. The government

sidesteps this question in Mr. Reed’s case by attempting to label it as “factbound” and case specific.

Br. Opp. 9-10. But this critical question arises—in any case—by the government’s request that a

§ 922(g)(1) conviction be affirmed based on some facts on the sentencing record: what about the

defendant’s defense to these facts? See Pet. i, 14-16.

In Mr. Reed’s case, the Eleventh Circuit affirmed by relying on only some information in

the PSR but ignoring other information—to which the defense pointed—that Mr. Reed is an

intellectually disabled individual with an IQ of 61 and schizophrenia paranoid type. Pet. 15. 4 The

government, notably, offers no defense of the Eleventh Circuit’s decision below to rely on some

sentencing facts and not others. See Br. Opp. 6-11. If anything, the government’s request to rely

on information not presented at trial leads to the answer that Mr. Reed has suggested—a new trial,

rather than an affirmance, is warranted. See Pet. 16.

4

Mr. Reed had sought to introduce this same information at trial, but it was excluded. See

id. at 15-16; p.3, supra.

5

3.

Mr. Reed’s case is a good vehicle to consider the important questions presented in

the trial context. The government does not dispute that the trial evidence was insufficient to prove

Mr. Reed knew his felon status at the time of the firearm possession. Compare Pet. 13-14, with

Br. Opp. 3-4, 9. Nor does the government dispute Mr. Reed’s contention that he has a viable

defense to the knowledge-of-status element, which the Eleventh Circuit ignored in affirming his

conviction. Compare Pet. 7, 14-16, with Br. Opp. 9-10.

The government thus does not substantively contest that Mr. Reed’s case is good vehicle.

Instead, the government contends that, because he used the phrase “substantial rights” in the first

of the two questions presented, Mr. Reed “only challenged the court of appeals’ consideration of

the whole record in evaluating the third requirement of the plain-error standard.” Br. Opp. 9 (citing

Pet. i). The government asserts that, because the Eleventh Circuit had “independently denied relief

under the fourth requirement of the plain-error standard,” Mr. Reed “would not benefit from the

Court’s resolution of the question presented.” Id.

The government’s reading of Mr. Reed’s petition is incorrect. The petition explained that

the Eleventh Circuit relied on facts outside the trial evidence for prongs three and four of plainerror review. Pet. 4-5. Mr. Reed further explained that the Eleventh Circuit’s decision aligned

with other circuits that had reviewed information not presented to the jury to address prong three

of plain-error review, but conflicted with other circuits’ decisions reviewing such information only

for prong-four purposes. Id. at 8-11. Following this discussion, Mr. Reed posed the underlying

question presented by the circuits’ different approaches to applying plain-error review: “whether

the appellate courts may consider information the government was not required to prove to a jury

beyond a reasonable doubt, and for which the defendant did not have an opportunity to defend at

trial.” Id. at 11.

6

This question, which is fairly and expressly included in the petition, is not limited to the

third prong of plain-error review. See Supreme Court Rule 14.1(a); R.A.V. v. City of St. Paul,

Minn., 505 U.S. 377, 381 n.3 (1992) (reviewing question presented and other parts of the petition

in determining that claim was “fairly included” in the petition). Mr. Reed’s Sixth Amendment

argument was also not limited to the third prong of plain-error review. See Pet. 7, 11-13.

Considering his petition as a whole, Mr. Reed submitted that the Eleventh Circuit erred in

relying on information not proven to a jury at trial to affirm his conviction (question 1), or in

relying on only some information outside the trial evidence without also considering other

information supporting the defense (question 2). Pet. i, 7, 11-16. Mr. Reed therefore sought review

of the Eleventh Circuit’s decision in its entirety. He respectfully maintains this request for review.

CONCLUSION

For the foregoing reasons, the petition should be granted.

Respectfully submitted,

James T. Skuthan

Acting Federal Defender

/s/ M. Allison Guagliardo

___________________________

M. Allison Guagliardo, Counsel of Record

Assistant Federal Defender

Federal Defender’s Office

400 N. Tampa Street, Suite 2700

Tampa, FL 33602

Telephone:

(813) 228-2715

Facsimile:

(813) 228-2562

E-mail: allison_guagliardo@fd.org

7