Opposition Brief — Bruce Zachary Pugh, Petitioner v. United States

No. 20-5037

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

BRUCE ZACHARY PUGH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

BRIAN C. RABBITT

Acting Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the court of appeals erred in denying plain-error

relief on petitioner’s challenge to his conviction for possessing

a firearm as a felon, in violation of 18 U.S.C. 922(g)(1), where

it found that the record as a whole demonstrated that he was not

prejudiced by the application of now-abrogated precedent under

which the government was not required to charge or prove knowledgeof-felon status.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Iowa):

United States v. Pugh, No. 17-cr-114 (Sept. 12, 2018)

United States Court of Appeals (8th Cir.):

United States v. Pugh, No. 18-3019 (Mar. 5, 2020)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-5037

BRUCE ZACHARY PUGH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 17-24) is

reported at 951 F.3d 946.

JURISDICTION

The judgment of the court of appeals was entered on March 5,

2020.

The petition for a writ of certiorari was filed on July 15,

2020.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Iowa, petitioner was convicted on one

2

count of conspiring to distribute cocaine base, in violation of 21

U.S.C. 841(a)(1), (b)(1)(C), and 846; one count of carrying a

firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. 924(c)(1)(A); and one count of possessing

a

firearm

as

a

felon,

in

violation

Judgment 1-2; see Pet. App. 9-10.

of

18

U.S.C.

922(g)(1).

The district court sentenced

petitioner to 110 months of imprisonment, to be followed by three

years of supervised release.

court of appeals affirmed.

1.

Judgment 3-4; Pet. App. 11-12.

The

Pet. App. 17-24.

On August 29, 2017, a confidential informant conducted

a controlled drug purchase at a gas station in Davenport, Iowa.

Pet. App. 18; Presentence Investigation Report (PSR) ¶¶ 7-8.

As

he completed the transaction, the informant noticed suspicious

activity in a passing Jeep occupied by a driver and two passengers.

Pet. App. 18.

As the vehicle drove by, the informant thought the

passenger in the back seat flashed a gun at him.

Ibid.

After

finalizing the purchase and driving away, the informant noticed

the same vehicle following him.

Ibid.

The informant notified a

police detective, who alerted officers in the area.

The officers stopped the Jeep.

Pet. App. 19.

Ibid.

Two of the

occupants -- Darren Lamont Warren and Desharrlequez Malike Vesey

--

fled

Ibid.

the

vehicle,

though

they

were

later

apprehended.

Petitioner, the third occupant, was arrested at the scene

of the stop, where the officers also seized from the Jeep a black

3

pistol, cocaine base, two digital scales, and a box of clear

sandwich bags.

2.

Ibid.

A federal grand jury in the Southern District of Iowa

charged petitioner with one count of conspiring to distribute

cocaine base, in violation of 21 U.S.C. 841(a)(1), (b)(1)(C), and

846; one count of carrying a firearm during and in relation to a

drug trafficking crime, in violation of 18 U.S.C. 924(c)(1)(A);

and one count of possessing a firearm as a felon, in violation of

18 U.S.C. 922(g)(1).

Indictment 1-4.

At trial, the district court admitted evidence documenting

petitioner’s

Illinois.

* * *

2010

conviction

Pet. App. 19.

for

attempted

armed

robbery

in

In addition, “[petitioner] stipulated

that he had been previously convicted of a crime punishable

[by] a term exceeding one year.”

petitioner guilty on all counts.

3.

Id. at 23.

Id. at 19.

The court of appeals affirmed.

During

the

pendency

of

The jury found

Pet. App. 17-24.

petitioner’s

appeal,

this

Court

decided Rehaif v. United States, 139 S. Ct. 2191 (2019).

In

Rehaif,

for

this

Court

held

that,

to

support

a

conviction

possession of a firearm by a prohibited person under 18 U.S.C.

922(g), the government “must show that the defendant knew he

possessed a firearm and also that he knew he had the relevant

status when he possessed it.”

139 S. Ct. at 2194.

4

As relevant here, petitioner argued on appeal that Rehaif

required vacatur of his Section 922(g)(1) conviction.

He asserted

that the evidence at trial failed to establish the knowledge-ofstatus element.

Pet. App. 22.

He further observed that, in

accordance with pre-Rehaif circuit precedent, the jury at his trial

had not been instructed to find that petitioner knew he was a felon

at the time he possessed the firearm, as Rehaif later required.

Ibid.; see United States v. Kind, 194 F.3d 900, 907 (8th Cir.

1999), cert. denied, 528 U.S. 1180 (2000), abrogated by Rehaif,

supra.

The

court

of

appeals

rejected

petitioner’s

sufficiency

argument, finding that “sufficient evidence existed such that a

reasonable jury could find that [petitioner] knew of his prohibited

status” when he possessed the firearm in this case.

Pet. App. 22.

Because petitioner had failed to raise his claim of instructional

error at trial, the court of appeals reviewed it for plain error.

Pet. App. 23; see Fed. R. Crim. P. 52(b).

Although the court

agreed that “the district court plainly erred in instructing the

jury”

on

the

elements

of

Section

922(g)(1),

it

found

that

petitioner “ha[d] failed to show that the error affected his

substantial rights” under the third element of the plain-error

standard.

Pet. App. 23.

The court of appeals cataloged specific

facts in the record showing that petitioner knew he was a felon at

the time he possessed the firearm: (1) petitioner’s stipulation at

5

trial that he had been previously convicted of a crime punishable

of a term exceeding one year; (2) petitioner’s attempt to flee the

scene when law enforcement stopped the Jeep; and (3) information

in the presentence investigation report showing that petitioner

had been sentenced to ten years of imprisonment for the Illinois

robbery offense, and had actually served more than two years of

that sentence, before he committed the federal offenses here.

Ibid.; see PSR ¶ 63.

ARGUMENT

Petitioner contends (Pet. 12-16) that the court of appeals

erred in examining the record as a whole, including sentencing

materials,

in

determining

whether

he

had

established

an

entitlement to relief on plain-error review based on Rehaif v.

United States, 139 S. Ct. 2191 (2019). 1

For the reasons explained

on pages 8 through 12 of the government’s brief in response to the

petition for a writ of certiorari in Greer v. United States, No.

19-8709 (Gov’t Greer Br.), that contention lacks merit and does

Other pending petitions for writs of certiorari raise

similar questions. See Greer v. United States, No. 19-8709 (filed

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

2020); Kachina v. United States, No. 20-5400 (filed June 11, 2020);

Mack v. United States, No. 20-5407 (filed Aug. 14, 2020); Smith v.

United States, No. 20-5558 (filed Aug. 24, 2020); Nickens v. United

States, No. 20-5645 (filed Sept. 4, 2020); Owens v. United States,

No. 20-5646 (filed Sept. 4, 2020); Heard v. United States, No. 205742 (filed Sept. 8, 2020); Haynes v. United States, No. 20-5747

(filed Sept. 15, 2020); McGee v. United States, No. 20-5773 (filed

Sept. 17, 2020).

1

6

not warrant this Court’s review at this time.

Although courts

have not adopted identical approaches to reviewing plain error in

the

context

of

Rehaif

claims

following

trials,

no

conflict

currently exists on that question that requires this Court’s

immediate

intervention.

However,

because

a

decision

on

the

distinct question presented in the government’s petition for a

writ of certiorari in United States v. Gary, No. 20-444 (filed

Oct. 5, 2020), could affect the proper disposition in this case,

the petition in this case should be held pending the Court’s

disposition of Gary and then disposed of as appropriate in light

of Gary.

1.

To establish reversible plain error, a defendant must

show “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]

substantial rights.’”

Johnson v. United States, 520 U.S. 461, 467

(1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993))

(brackets in original).

If those first three prerequisites are

satisfied, the court of appeals has discretion to correct the error

based

on

its

assessment

of

affect[s]

the

fairness,

integrity,

judicial proceedings.”

whether

“(4)

or

the

public

error

seriously

reputation

of

Ibid. (citation and internal quotation

marks omitted; brackets in original).

In assessing whether petitioner had satisfied the plain-error

standard, the court of appeals appropriately considered the entire

record, and not just the evidence adduced during his trial.

Pet.

7

App. 7; see Gov’t Greer Br. at 8-12.

Every court of appeals to

directly address the issue has recognized that record materials

not presented to the jury -- such as records of the defendant’s

prior criminal convictions –- may properly be considered when

determining whether knowledge-of-status errors identified in light

of Rehaif satisfy the plain-error standard.

See United States v.

Lara, 970 F.3d 68, 88-90 (1st Cir. 2020); United States v. Miller,

954 F.3d 551, 559-560 (2d Cir. 2020), petition for cert. pending,

No. 20-5407 (filed Aug. 14, 2020); United States v. Huntsberry,

956 F.3d 270, 284-285 (5th Cir. 2020); United States v. Ward, 957

F.3d 691, 695 & n.1 (6th Cir. 2020); United States v. Maez, 960

F.3d 949, 963 (7th Cir. 2020), petition for cert. pending, No. 206226 (filed Oct. 28, 2020); United States v. Hollingshed, 940 F.3d

410, 415-416 (8th Cir. 2019), cert. denied, 140 S. Ct. 2545 (2020);

United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019),

cert. denied, 140 S. Ct. 818 (2020).

While courts have considered

such materials at different stages of the plain-error inquiry, the

particular stage at which such consideration occurs will rarely,

if ever, result in different outcomes.

See Gov’t Greer at Br. 13-

15.

The Fourth Circuit’s decision in United States v. Medley, 972

F.3d 399 (2020), appears to be at odds with the decision below on

the substantive question of whether to recognize forfeited Rehaif

errors even when the defendant’s criminal record and period of

8

incarceration

demonstrate

his

awareness

of

his

status

as

a

convicted felon at the time he possessed the firearm.

But it does

not,

of

at

least

explicitly,

foreclose

consideration

matters

outside the trial record when addressing forfeited Rehaif claims

under the plain-error standard.

Id. at 417.

Moreover, the Fourth

Circuit recently granted the government’s petition for rehearing

en banc in Medley.

12, 2020).

See Order, Medley, supra (No. 18-4789) (Nov.

Accordingly, Medley does not provide a basis for

granting the petition for a writ of certiorari here.

In any event, this case presents a poor vehicle for further

review because a decision in petitioner’s favor would be unlikely

to afford him practical relief.

petitioner

to

110

months

of

The district court sentenced

imprisonment,

with

his

50-month

sentence on his Section 922(g)(1) conviction running concurrently

to a 50-month sentence on his drug-conspiracy conviction, followed

by a mandatory 60-month consecutive sentence on his Section 924(c)

conviction. See Pet. App. 11. Petitioner’s overall sentence would

thus

likely

remain

the

same

even

if

his

Section

922(g)(1)

conviction were vacated.

2.

Petitioner also errs in suggesting (Pet. 14-16) that

further review is warranted because the court of appeals was

required to grant him relief unless it found that the trial

evidence “‘overwhelming[ly]’” established petitioner’s knowledge

that he was a felon.

Pet. 14 (citation omitted).

“It is the

9

defendant

rather

than

the

persuasion

with

respect

Government

to

who

prejudice”

bears

the burden of

on plain-error review.

Olano, 507 U.S. at 734; see United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004) (defendant must “satisfy the judgment of

the reviewing court * * * that the probability of a different

result is ‘sufficient to undermine confidence in the outcome’ of

the proceeding”) (citation omitted).

And “a defendant has the

further burden to persuade the court that the error seriously

affect[ed]

the

fairness,

judicial proceedings.”

integrity

or

public

reputation

of

United States v. Vonn, 535 U.S. 55, 63

(2002) (citation and internal quotation marks omitted; brackets in

original).

The plain-error standard, as articulated in Rule 52(b)

and by this Court in Olano, contains no “overwhelming” evidence

element.

In any event, the evidence in the entire record here --

including uncontested descriptions of petitioner’s prior felony

conviction,

actual

ten-year

incarceration

prison

on

sentence,

that

and

two-year

period

of

see

PSR

63

--

was

not

warranted

on

the

charge,

¶

“overwhelming.”

3.

Although

further

review

is

questions presented in the petition for a writ of certiorari, the

petition

should

nevertheless

be

held

pending

the

Court’s

consideration of the government’s petition for a writ of certiorari

in Gary, supra (No. 20-444).

10

The government’s petition for a writ of certiorari in Gary

presents the question whether a defendant who pleaded guilty after

a plea colloquy during which he was not informed of the knowledgeof-status element discussed in Rehaif is automatically entitled to

relief on plain-error review, without regard to whether the error

affected the outcome of the proceedings.

Although the guilty plea

and trial contexts are not identical, resolution of the question

presented in Gary could potentially affect the resolution of the

petition here.

The petition in this case should accordingly be

held pending the Court’s disposition in Gary and then disposed of

as appropriate in light of Gary.

supra (No. 19-8709).

See Gov’t Greer Br. at 17-18,

11

CONCLUSION

The petition for a writ of certiorari should be held pending

the Court’s disposition of the petition for a writ of certiorari

in United States v. Gary, No. 20-444 (filed Oct. 5, 2020), and

then disposed of as appropriate in light of the Court’s disposition

in that case.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

BRIAN C. RABBITT

Acting Assistant Attorney General

DAVID M. LIEBERMAN

Attorney

NOVEMBER 2020